Allahabad High Court: In a suit seeking a permanent prohibitory injunction against the State to prevent demolition and new construction on the disputed property, a Single Judge Bench of Rohit Ranjan Agarwal, J. expressed surprise that the petitioner had constructed structures on national highway land, rented them out, and collected rent under the guise of it being waqf madarsa property. The Court held that this did not constitute a valid “waqf by user”, as the land was owned by the National Highways Authority of India (‘NHAI’), under the Central Government.
Given these findings, the Court upheld the decisions of both the Trial Court and the Revisional Court, which had allowed the amendment to the State’s written statement. The Court dismissed the writ petition, noting that the property appeared to be an encroachment, and the claim of waqf status lacked evidence. It further held that the demolition notices issued by the NHAI were based on proper administrative grounds and required compliance.
Background
The case involved a suit filed by the petitioner asserting ownership and landlordship over a property allegedly comprising a Madarsa and Masjid, part of which was let out to the State and respondent no. 2 at a monthly rent of Rs. 34. The petitioner claimed the presence of a disused police chauki on the premises and alleged that the State was unlawfully attempting to demolish the structure.
In its written statement, the State admitted to the tenancy but denied the other claims, including the waqf status of the property, arguing that it was not registered with the Waqf Board. Later, on 12-11-2014, the State filed an application to amend its written statement in light of letters issued by the National Highway Division (PWD Saharanpur) in September—October 2014. These letters called for the removal of unauthorized constructions, including the police chauki, on land identified as part of National Highway No. 73, which was being widened under NHDP Phase-IV B. The highway’s width was recorded as 135 ft, and the Division claimed the constructions were encroachments.
The Trial Court allowed the amendment on 22-05-2015. The petitioner’s revision was dismissed by the revisional court on 18-03-2016. Challenging this, the petitioner approached the High Court via writ petition, contending that the amendment constituted a retraction of earlier admissions and introduced a new defence, altering the nature of the original proceedings.
Analysis and Decision
The Court remarked that “It is a classic case where the land of NHAI has been encroached upon by the petitioner and Madarsa along with Masjid and certain other constructions have been raised and the property is being claimed to be a ‘waqf’.”
The Court examined the provisions of the Waqf Act, 1995, particularly Sections 3(a), 3(r), 3(s), and the relevant rules regarding waqf registration and survey, and observed that a waqf is the permanent dedication of property for purposes recognized by Muslim law as pious, religious, or charitable, as defined under the Waqf Act, 1995, including waqf by user and waqf-alal-aulad. A waqf deed refers to the instrument creating or modifying such dedication. The Court emphasised that waqf property is deemed to be owned by God, with its benefits intended for public welfare, blending spiritual purpose with social responsibility. Therefore, it held that the petitioner had failed to demonstrate how the property qualified as a waqf or whether it had ever been registered. No waqf deed or valid documentation was presented.
From a reading of the plaint, the Court noted that it appeared a masjid had been constructed over a waqf madarsa, along with certain other structures, one of which had been let out to the State. However, there was no disclosure in the plaint regarding how the property was constituted as a waqf or when it had been registered. The State, in their written statement, had clearly asserted in their additional pleas that the waqf had not been registered, nor was there any such disclosure made in the plaint to support its waqf status.
The matter further involved a subsequent event that occurred in 2014, when NHAI undertook road-widening work under the National Highways Development Programme, Phase-IV B. As part of this initiative, the NHAI required the State to cease construction on land falling within National Highway No. 73 and to remove existing unauthorized structures. These included illegal constructions, such as a Police Chauki and various shops, which were situated on the land earmarked for the widening project. This action was documented through letters issued by the National Highway Division to the Station House Officer seeking enforcement of the removal of these encroachments.
The Court further held that the letters from the National Highway Division constituted material new facts justifying the amendment under Order VI Rule 17 CPC. It was not a case of retracting admissions but responding to a governmental assertion of ownership over the land as part of a public infrastructure project.
The Court concluded that the entire construction raised by the petitioner stood on the land belonging to National Highway No. 73, and that the petitioner was attempting to claim rights over it under the guise of waqf property. It was observed that the State had rightly filed an application to amend their written statement, asserting that the land in question was owned by the NHAI. Since the constructions were located on the national highway, which did not belong to the petitioner, the court found the amendment application justified and relevant to the ownership dispute.
The Court noted that the State was, in fact, unaware that the Police Chauki, which had been functioning on the premises, was constructed on land belonging to National Highway No. 73. It was only in 2014, following official correspondence from the National Highway Division addressed to the Station House Officer, Gagalheri, that the actual position regarding the land came to light. Recognizing this, the Trial Court rightly allowed the State’s amendment application, as it did not amount to setting up a new case but was based on subsequent factual developments.
The State had been paying a nominal rent of Rs. 34/- per month for a considerable period, unknowingly believing that the structure was the lawful property of the petitioner It was only after it became clear that the constructions were unauthorized and stood on land belonging to the NHAI that the State sought to amend their pleadings.
The Court expressed surprise that the petitioner had constructed structures on national highway land, let them out to various tenants, and was collecting rent under the pretense that the property belonged to a waqf madarsa. The Court held that this could not be considered a valid case of “waqf by user”, since the land in dispute was owned by the NHAI, which falls under the jurisdiction of the Central Government, Ministry of Road Transport and Highways.
In light of these findings, both the Trial and Revisional Courts were found to have rightly permitted the amendment. The High Court dismissed the writ petition, observing that the property appeared to be encroached land and that the assertion of waqf status was unsubstantiated. The demolition notices from the NHAI stood on solid administrative grounds and warranted compliance.
[Waqf Madarsa Qasimul Uloom v. State of UP, 2025 SCC OnLine All 2902, decided on 12-05-2025]
Advocates who appeared in this case:
Counsel for Petitioner:– Ajay Kumar Singh, Ashish Kumar Singh, Janardan Mishra, Rajni Kant Chaube
Counsel for Respondent:– C.S.C.
