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Mohammad Ali Khan Vs. the Special Land Acquisition Officer, Lucknow Nagar Mahapalika, Lucknow and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 275 of 1972
Judge
Reported inAIR1978All280
ActsLand Acquisition Act, 1894 - Sections 3 and 6; Constitution of India - Aritcles 25, 26, 31 and 31(2); Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959 - Sections 1; Uttar Pradesh Muslim Wakfs Act, 1960 - Sections 67
AppellantMohammad Ali Khan
RespondentThe Special Land Acquisition Officer, Lucknow Nagar Mahapalika, Lucknow and ors.
DispositionPetition dismissed
Excerpt:
(i) constitution - land acquisition - sections 3 and 6 of land acquisition act, 1894, section 67 of u.p. muslim wakfs act, 1960, articles 25, 26 (a), 31 and 31 (2) of constitution of india and para 411 (2) of chapter 14 of u.p. revenue manual vol. 1 ( free practice of religion does not mean practicing in any particular area - law of acquisition relates to land and not individual right to profess practice or propagate religion ( acquisition does not by itself destroys right to maintain or establish religious institutions given under article 26 ( no conflict between article 26 (a) providing right to maintain institution for religious purpose and article 31 (2) providing law of acquisition of land ( acquisition of land being used as mosque or grave does not infringe fundamental right -..........by ss. 357/358 of the u. p. nagar mahapalika, adhiniyam which are equivalent to section 5-a of the land acquisition act. the second ground urged is that certain portions of the land could not be the subject-matter of acquisition as they comprised of waqf property on which a mosque and certain graves stood. the petitioner has filed an affidavit to the effect that he goes to the mosque for offering prayers and some of the graves hold the dead bodies of his ancestors. we will tyke the second point first. 3. the learned counsel has urged that the acquisition of land on which the mosque is situate or where the graves exist cannot be the subject-matter of acquisition in view of articles 25 and 26 of the constitution. the contention is that the provisions of the land acquisition act and the u......
Judgment:

Hari Swarup, J.

1. This petition has been filed to challenge the validity of the AliganJ Street and CityExpansion Scheme, an Improvement Scheme framed under the Nagar Mahapalika Adhiniyam by the Nagar Mahapalika, Lucknow and subsequently adopted by the Lucknow Development Authority constituted under U. P. Urban Planning and Development Act, 1973. The petitioner has challenged the validity of acquisition on various grounds. Some of the grounds raised by the learned counsel were the same which were considered by us in Writ Petn. No. 137 of 1974 (Mahabir Singh Kotwal v. Lucknow Nagar Mahapalika) and Writ Petn, No. 973 of 1973 (Jhau Lal v. Nagar Mahapalika Lucknow) reported in AIR 1977 All 504. The learned counsel has adopted the arguments which had been raised in those two petitions and in view of our judgments has not taken us over again through those grounds. Our judgment in respect of those grounds is the same as given in earlier judgments.

2. The petitioner has raised two adtional grounds in this case. The first ground is that the petitioner was not given an opportunity of hearing as contemplated by Ss. 357/358 of the U. P. Nagar Mahapalika, Adhiniyam which are equivalent to Section 5-A of the Land Acquisition Act. The second ground urged is that certain portions of the land could not be the subject-matter of acquisition as they comprised of Waqf property on which a mosque and certain graves stood. The petitioner has filed an affidavit to the effect that he goes to the mosque for offering prayers and some of the graves hold the dead bodies of his ancestors. We will tyke the second point first.

3. The learned counsel has urged that the acquisition of land on which the mosque is situate or where the graves exist cannot be the subject-matter of acquisition in view of Articles 25 and 26 of the Constitution. The contention is that the provisions of the Land Acquisition Act and the U. P. Nagar Mahapalika Adhiniyam which empower the acquisition of all land without making a distinction between the land covered by a mosque or a grave is unconstitutional as offending Articles 25 and 26 of the Constitution and is, accordingly, void under Article 13 of the Constitution. He has also urgedthat a harmonious interpretation be placed on the Land Acquisition Act and it should be held that the Land Acquisition Act does not deal with the acquisition of such land on which a mosque or a grave may stand.

4. We are unable to give to the provisions of the Land Acquisition Act the interpretation the learned counsel has sought. The expression 'land' has been defined in Section 3(a) of the Land Acquisition Act as follows:

'The expression 'land' includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth.'

Sec. 6 permits the acquisition of any land as defined in Section 3 of the Act. It is thus not possible for us to interpret the Land Acquisition Act in a manner so as to exclude land covered by a mosque or a grave. We are examining the provisions of the Land Acquisition Act as acquisition under the U. P. Nagar Mahapalika Adhiniyam is made in accordance with the provisions of the Land Acquisition Act itself.

5. The learned counsel for the petitioner relied on certain instruction contained in para. 411 (2) of Chapter 14 in Revenue Manual, Volume I. The instructions contained therein are only recommendatory in nature and require that as far as possible such constructions be left out of acquisition as may offend religious feelings. These directions cannot be sufficient to nullify or invalidate an acquisition made under the Land Acquisition Act or under the Nagar Mahapalika Adhiniyam.

6. The wider question that arises in the case is about the constitutional validity of the Land Acquisition Act or the provisions of the U. P. Nagar Mahapalika Adhiniyam dealing with the acquisition, in so far as they permit the acquisition of land for a public purpose without excluding the lands which may be subject-matter of Waqfs and which may be constituting a mosque or be having graves.

7. Article 25 of the Constitution deal s with the freedom of conscience and the free profession, practice and propagation of religion. Clause (1) of Article 25 runs as under:

'Subject to public order, morality and health and to the other provisionsof this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.'

The contention of the learned counselis that the petitioner has a right to practice religion in the mosque and hence the same cannot be the subject-matter of acquisition. We are unable to accept the contention as the guarantee under Clause (1) of Article 25 itself makes the freedom subject to other provisions of part three. Article 31 which provides for acquisition of land itself exists in part three. Article 25 will, therefore, be subject to Article 31 and the freedom guaranteed in Article 25 will not be sufficient to take away the right of the State to acquire property if the acquisition is lawfully made.

8. Further, the profession, practice and propagation of religion guaranteed in Article 25 is a personal right which has to be exercised by the individual. It has no nexus with the place or territory where it has to be exercised. A person may go to a particular mosque to offer prayers if it exists, he may go to another mosque if the one in which he offered prayer earlier ceased to exist or he may offer prayers even in his house or elsewhere. Hence, the acquisition of land on which a mosque may exist cannot be held to deprive him of his right to freely practise the religion. A free practice of religion has the idea of practising it anywhere and not its practice in any particular place. After the acquisition of the property the right to use that propery for the purpose of offering prayers may be lost, but that does not militate against the guarantee contained in Article 25 of the Constitution.

9. To test the argument about Article 25, we may consider the right of the person to practise his religion in his house or elsewhere As the prayers can be offered anywhere on earth and a man may be offering prayers in his own house or at some remote place, the right cannot be deemed reasonably to mean that no such place can be acquired. The only reasonable interpretation of Article 25 can be that no law can prohibit the profession, practice or propagation of religion. The law of acquisition cannot be held to be invalid as that relates to land and. not the individual's right to profess,practise or propagate religion. As the right to practise religion has no nexus with any particular place that right cannot be deemed infringed by acquisition of any particular piece of land which is used as a mosque,

10. As regards the graveyard, even though the land is deemed sacred and Waqf, its acquisition cannot be held to take away the right of any living person to profess, practise or propagate religion. The freedom enunciated in Article 25 is a personal freedom. It is a freedom which a person can claim for his personal exercise at will; it is not a freedom guaranteeing the preservation of the graves where bodies of some others lie.

11. Concerning the claim of right under Article 26, the learned counsel had placed reliance on Clause (a) and has urged that the mosque as well as the graveyard are such 'institutions' as are contemplated by Article 26 of the Constitution and the petitioner being a member of the religious denomination to which the mosque and the graveyard belong, has a right to see that they are maintained as such 'institutions'. The submission of the learned counsel is that if the land is permitted to be acquired it will bring those institutions to an end, and as according to him, they are for religious purposes, the acquisition will be violative of the guarantee under Article 26.

12. On the other hand, it has been urged by the learned counsel for the respondents that the petitioner should not be permitted to raise any argument on the basis of Article 26 of the Constitution; firstly, as no such ground has been taken in the petition and secondly, because the right contemplated by Article 26 is a right of a religious denomination and not of any particular individual. For the purposes of this case, we, however, think that the objections are of a technical nature and should not be allowed to obstruct the petitioner's pleas if they have any merit because the petitioner has alleged that he has a special interest in these properties. According to the petitioner he offers prayers in the mosque and his ancestors are buried in the graveyard. We, accordingly proceed to decide the matter on merits.

13. Article 26 of the Constitution ideals with four types of rights. Clause (a)contains the right about the establishment and maintenance of institutions for religious and charitable purposes, Clause (b) deals with the management of the affairs in matters of religion, Clause(c) deals with the ownership and acquisition of movable and immovable property and Clause (d) with the administration of such property. Clauses (c) and(d) contain rights which are specifically about the property while Clause (a) deals with the establishment and maintenance of 'institutions'.

14. In Khajamian Wakf Estates v. State of Madras (AIR 1971 SC 161) it was held that Clauses (c) and (d) of Article 26 provide that religious denominations have the right to own and acquire movable and immovable property and administer such property in accordance with law but that does not mean that the property owned by them cannot be acquired. It was held by the Supreme Court while considering Article 26 of the Constitution: (at p. 164):

'These provisions do not take away the right of the State to acquire property belonging to religious denominations. Those denominations can own, acquire properties and administer them in accordance with law. That does not mean that the property owned by them cannot be acquired. As a result of acquisition they cease to own that property. Thereafter their right to administer that property ceases because it is no longer their property. Article 26 does not interfere with the right of the State to acquire property.'

15. Again in Acharya Maharajshri Narendra Prasadji Anandprasadji Mahraj v. State of Gujarat (AIR 1974 SC 2098) it was held (at p. 2103):

'One thing is, however, clear that Article 26 guarantees inter alia the right to own and acquire movable and immovable property for managing religious affairs. This right, however, cannot take away the right of the State to compulsorily acquire property in accordance with the provisions of Article 31(2).'

It is thus clear that the guarantee of the freedom under Article 26 does not make the property immune from acquisition. The learned counsel for the petitioner, however, relies on the following observation in the judgment in Acharya Maharajshri's case (supra) in support of his contention that acquisition of the land which forms the mosque or the graveyard cannot be done:

'If, on the other hand, acquisition of property of a religious denomination by the State can be proved to be such as to destroy or completely negative its right to own and acquire movable and immovable property for even the survival of a religious institution the question may have to be examined in a different light.'

We do not find this observation assists the petitioner because the acquisition of land does not by itself destroy or completely negative the right of any denomination to establish or maintain any institution for religious purpose. On the acquisition of land compensation is payable and with that compensation the religious denomination can acquire any other property for the same purpose for which the acquired land was being utilized. The above observation of the Supreme Court is obviously in respect only of such laws which take away the right of religious denomination to own or acquire property necessary for the very existence of a religious institution and acquisition of any particular land which may for the time being be utilized by such religious denomination. This is also clear from the sentences that follow the above observation (at pp. 2103, 2104 of AIR):

'When, however, property is acquired by the State in accordance with law and with the provisions of Article 31(2) and the acquisition cannot be assailed on any valid ground open to the person concerned, be it a religious institution, the right to own that property vanishes as that right is transferred to the State. Thereafter there is no question of any right to own the particular property subject to public order, morality and health and Article 26 will in the circumstances be of no relevance. This being the legal position, there is no conflict between Article 26 and Article 31.'

The observations in Khajamian Wakfacase (AIR 1971 SC 161) quoted earlier,also take the same view.

16. To obviate the difficulty in his way, the learned counsel for the petitioner contended that his argument may be taken as confined to Clause (a) of Article 26 and that even if it may be possible for the State to acquire all land which may belong to the religious institutions it could not be possible for it to acquire the 'institutions: themselves. The contention of the learned counsel is that the mosque and the graveyard are such institutions as are contemplated by Clause (a) of Article 26 of the Constitution. But, the term 'institution' in our opinion has been used in Clause (a) of Article 26 in a sense other than that of property contained in Clauses (c) and (d) of the same Article. The term 'institution' has been defined variously and has to be understood in accordance with the context in which it is used. The most appropriate definition of the term 'institution' in accordance with the context in which it appears to be used in Article 26 is the one which is given in Murray's New English Dictionary:

'An establishment, organization, or association instituted for the promotion of some object, esp. one of public or general utility, religious, charitable, educational, etc., e. g. a church, school, college, hospital, asylum, reformatory, mission, or the like; as a literary and philosophical institution, a deaf and dumb instition, the Royal National Life-boat Institution, the Royal Masonic Benevolent Institution (instituted 1798), the Railway Benevolent Institution, etc. The name is often popularly applied to the building appropriated to the work of a benevolent or educational institution.'

In the Webster's English Dictionary the term 'institution' has also been described as 'an establishment or foundation'.

17. The term 'institution' had been considered by House of Lords in Mayor and C., of Manchester v. Mc-Adam (Surveyour of Taxes) (1896 AC 500). A distinction was sought to be drawn up between the 'institution' and the 'property of the institution.' It was observed by Lord Herschell:

'It may be well to consider, first, what is the meaning of the word 'institution' as used in the section. It is a word employed to express several different ideas. It is sometimes used in a sense in which the 'institution' cannot be said to consist of any persons,or body of persons, who could, strictly speaking, own property. The essential idea conveyed by it in connection with such adjectives as 'literary' and 'scientific' is often no more than a system, scheme or arrangement, by which literature or science is promoted without reference to the persons with whom the management may rest, or in whom the property appropriated for these purposes may be vested, save in so far as these may be regarded as a part of such system, scheme, or arrangement. That is certainly a well-recognised meaning of the word. One of the definitions contained in the Imperial Dictionary is as follows: A system, plan, or society, established either by law, or by the authority of individuals, for promoting any object, public or social. An illustration of this use is to be found in the Libraries Act itself. When the libraries which the authorities referred to in that Act may provide are termed 'institution' the term conveys the idea of buildings stored with books, with access to them by the public for the purpose of reading, together with the arrangements made for their use. Another illustration is seen in the Act of the 17 and 18 Vict. c. 112, the object of which is to give greater facilities for procuring sites and building 'for institutions established for the promotion of literature, science, or the fine arts. 'And it is, I think in the, sense I have indicated that the word is used in the enactment under consideration.'

Considering the meaning of 'institution' in Kamaraju Venkta Krishna Rao v. Sub-Collector, Ongole (AIR 1969 SC 563), the Supreme Court observed (at p. 564):

'According to the dictionary meaning, the term 'institution' means 'a body or organization of an association brought into being for the purpose of achieving some object.' Oxford Dictionary defines an 'institution' as 'an establishment, organisation or association, instituted for the promotion of some object especially one of public or general utility, religious, charitable educational etc.' Other dictionaries define the same word as 'organised society established either by law or the authority of individuals, for promoting any object, public or social.'

18. The various clauses contained in Article 26 of the Constitution make it apparent that the term 'institution' used in Clause (a) is something different from the movable or immovable properties owned by the institution or the religious denomination. When the Constitution speaks about the establishment or maintenance of the institutions, it certainly refers to something other than the properties which are mentioned in Clauses (c) and (d). The term 'institution' is normally used for nonliving persons the concept of which is made in our Jurisprudence in the form of juridical or juristic personalities. Besides living human beings, the law contemplates the existence of such institutions as corporations, corporations sole, corporations aggregate, public corporations and unincorporated associations. In the case in hand, the juristic person is the God Almighty to whom the properties are dedicated and which are known as Waqf. The institution which can be created by a religious denomination is the institution of waqfs. As soon as the property is dedicated for religious or charitable purposes, may it be for a mosque or a graveyard, an institution comes into existence. The custody of the property and the management thereof vests in the Waqf, which in this State is governed by the provisions of the U. P. Muslim Waqfs Act, 1960. The property is to be managed on behalf of God Almighty by the Mutawalli or by any person authorized in law to manage the Waqf. The Waqf may utilize the land for mosque and prayer grounds, Imambaras, Rauzahs, Khankahs, Caravanserais and Musaffir Khanahs, Colleges and schools, Hospitals and dispensaries, Reservoirs, cisterns, aqueducts, roads, bridges, Rubate or hostels and rest houses, and Cemeteries. For utilizing the waqf, it may be necessary to make constructions over the land and the constructions made thereon will become the property of the Waqf. They will be the properties of the institution as contemplated by Clauses (c) and (d) of Article 26.

19. In this connection it may be seen as to what is the nature of the purpose to which the Waqf property is put when it is used as a mosque or as a greveyard. So far as graveyardis concerned, there does not appear much difficulty for holding that it is not, an 'institution' as understood in law. So far as mosque is concerned also it does not appear that a mosque is an 'institution'. As stated in Ammer Ali's 'Mahommedan Law', a mosque can be even on open land, a construction is not necessary. A mosque is only a place where persons offer prayers. A useful passage appears in the book 'A search in Secret Egypt' by Paul Brunton. Chapter 9 of the book contains the record of an interview of the author with spiritual head of the Muhammedans Sheikh Moustapha el Maraghi, Grand Rector of E1 Azhar Mosque-University. The question and the answer relevant for the purpose are as under:--

'May I ask, Your Eminence, whether mosques are essential to your religion? No, people use them as places in which to pray, and they go there to hear a sermon on Fridays, but as there are no priests or ceremonies, the mosques are not essential to the practice of Islam. Muslims may pray anywhere, not necessarily in a mosque--any piece of clean ground will do. Our object in building mosques is to bring unity by social fellowship in worship. Nevertheless, although not essential, worship in a mosque is naturally preferable.'

What appears from the character and nature of a mosque is that it is a place earmarked for the purpose of offering of prayers and it cannot be regarded as an establishment, organization or association for the promotion of any object. A church may be an institution and also a building. Similarly, a mosque can be an institution and also a building. It appears to be so from the definition of church and mosque given in the compact Edition of Oxford English Dictionary. According to this Dictionary mosque consists of a building and also ''those who worship in mosques; the body of Mohammedans'. A similar concept can be found when the church is described as the Church of England and the building of the Church. In the context in which the Waqfs are created in our country under Mohammedan law, the distinction will be between Waqf and the mosque. The Waqf will be an institution while the mosque will be a property or building where the object of the Waqf is to be carried out.

20. What can be acquired and what is being acquired in the present scheme is only the immovable property, which is land within the meaning of the Land Acquisition Act. This is the property which is contemplated by Clause (c) of Article 26 of the Constitution. Institutions contemplated by Clause (a) can neither be acquired nor are being acquired in the present scheme. There may be a law which may make the functioning of the institution impossible. But the law of land acquisition is not such a law. A University is an institution. It may have buildings. The acquisition of the building will not mean that the University cannot function. Similarly, the building of a school may be acquired and the institution may still function. The law of acquisition of land does not either directly or indirectly affect the rights about the maintenance of institutions for religious and charitable purposes. It only takes away a certain property for public purpose, but does not either deprive the institution of its existence or ] make impossible its functioning. There is thus no conflict between Article 31(2) and Clause (a) of Article 26 of the Constitution. The Land Acquisition Act or the provisions in the U. P. Nagar Mahapalika Adhiniyam cannot, therefore, be held to be unconstitutional.

21. The learned counsel for the petitioner contended that as the land on which a mosque has been constructed or on which a graveyard has been made cannot be alienated and cannot be sold in execution of a decree, the same can also not form the subject-matter of acquisition. In support of the first part of his contention he has relied upon the case of Mukundji Mahraj v. Persotam Lalji Mahraj (AIR 1957 All 77). The basis of this case was that it is open to the person making the Waqf to place restriction on the right of the Manager or Mutawalli from alienating the property and if there is such a restriction on the right of the Mutawalli to transfer voluntarily, the Waqf property could also not be sold in execution of the decree. It was, however, not a case about the placing of restriction on the right of a State to acquire a land under a valid law. No restriction can be placed by an owner of the land on the right of the State to acquire land which he proposes to dedicate by creating a Waqf.

22. Although the provisions of the U. P, Muslim Waqfs Act cannot be of much utility for interpreting Article 26 of the Constitution, reference can be made to Section 67 of the Act which provides:

'(1) If, in the course of proceedings under the Land Acquisition Act, 1894, it appears to the Collector before an award is made that any property under acquisition is waqf property, a notice of such acquisition shall be served by the Collector on the Board and further proceeding shall be stayed to enable the Board to appear and plead as a party to the proceeding at any time within three months from the date of the receipt of such notice ....,.'

Sub-section (3) of Section 67 provides:

' (3) When the Board has appeared under the provisions of Sub-section (1) or Sub-section (2), no order shall be passed under Section 31 or Section 32 of the Land Acquisition Act, 1894, without giving an opportunity to the Board of being heard.'

The provision shows that even the wakf property can be the subject-matter of the Land Acquisition proceedings and the land can be acquired on payment of compensation.

23. There is also no merit in the argument that the petitioner was not afforded opportunity of hearing as contemplated by Ss. 357 and 358 of the U. P. Nagar Mahapalika Adhiniyam. The only allegation of the petitioner is 'that the petitioner was not given a proper hearing or requisite time and attention to show that the scheme was invalid in law.....' The other allegation is 'that the objections were hurriedly heard by the sub-committee.' In the counter-affidavit it has been stated that full opportunity was given to the petitioner. In view of the allegations in the petition and the counter-affidavit, it is not possible to hold that the petitioner was not afforded opportunity of hearing as contemplated by law.

24. Another objection was raised by the learned counsel on the basis of the allegation contained in para. 14 of thewrit petition. It was alleged there that one Krishna Colonizers had purchased certain land and had entered into contract of sale with the petitioner regarding some other pieces of land. It was further alleged that Krishna Colonizers had entered into an agreement with the Nagar Mahapalika to the effect that those plots will be kept in reserve and not acquired. There is no allegation by the petitioner himself that such an agreement was in existence, or that any agreement had come in existence between Krishna Colonizers and the Nagar Mahapalika. Even if it be assumed that there was such an agreement, the averments in the counter-affidavit make it clear that the agreement had fallen because of the default of M/s. Krishna Colonizers. It has been averred in the counter-affidavit that the concession was being granted on certain conditions, One of the conditions was that Krishna Colonizers will deposit the Developmental charges, but the charges were not deposited and hence the agreement never came into existence as a concluded contract. In view of this there is no merit in this contention of the Petitioner that the petitioner's land in reject of which he had entered into contract of sale with the Krishna Colonisers could not be the subject-matter of acquisition.

25. In the result, the petition fails and is dismissed. In the circumstances of the case, the parties will bear their own costs.


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