Church Of North India Trust Association V UOI and 3 Ors
HIGH COURT OF ALLAHABAD
Church Of North India Trust Association
VERSUS
Union Of India And 3 Others
Writ – C No. – 56316 of 2016
Date: 19/12/2016
Acts: Article 31(2) and Clause (a) of Article 26 of the Constitution. The Land Acquisition Act or the provisions
Judgment
1- Church of North India Trust Association through its registered Power of Attorney Holder Rt. Rev. P.P Habil, Bishop of Diocese of Agra, Bishop House, St. Paul’s Church Compound, 4/116-B Church Road, Civil Lines, Agra is before this Court, assailing the validity of the Gazette Notification (Extraordinary) dated 17.08.2012 in relation to acquisition of Plot No. 399 area .0085 hect., Plot No. 400 area .0913 hect., Plot No. 396 area .0060 hect. and Plot No. 397 area .0216 hect. published in Hindi Daily ‘Amar Ujala’ dated 15.09.2012, wherein land belonging to Church and Graveyard has been sought to be acquired for the purpose of construction of 6-lane Agra-Etawah bye-pass from 199.660 Km. to 292.800 Km. of National Highway-2 in the State of U.P
2. Brief background of the case is that there is a church body known as Commission on Ecumenical Mission and Relations of the United Presbyterian Church in the United States of America (hereinafter referred to as COEMAR) which is a body corporate and politic forever, constituted by and under the Charter granted by the Legislature of the State of New York. COEMAR has its registered trust and had been established for the purpose of promoting Christianity outside the area of the United States of America particularly by carrying on and maintaining all forms of religious & charitable work including relationships and cooperation with other Christian churches. Petitioner submits that the object of COEMAR was to establish various churches, schools, hospitals, dispensaries and other religious and charitable institutions in India, which included acquiring of properties for the said objective in India. Petitioner further submits that COEMAR has a religious and charitable trust and for making proper and better provisions for the management, protection, preservation and the use of its properties appointed new Trustee in India being the Church of North India Trust Association, a company incorporated under section 25 of Indian Companies Act, 1956, having its registered office at 6 Pant Marg, New Delhi (hereinafter referred to as the Trust Association). It is pertinent to state that a Deed of Appointment of New trustee appointed by COEMAR is the CNI Trust Association. However, in respect of each property instrument of appointment of new trustee was executed. One such instrument of appointment of new trustee which is relevant for the controversy involved in the instant writ petition relates to Village Sehjalpur, Pargana Shikohabad, District Mainpuri of a total area of land in 6.91 acres bearing new Khasra No. 393, 394, 395-400, 377/1.
3. Petitioner has contended that CNI Trust Association in its Articles of Association executed the Power of Attorney in favour of Rt. Rev. S.R Cutting, Bishop of Agra under whose territorial jurisdiction the property in question was situated. District Mainpuri falls within the territorial jurisdiction of Diocese of Agra under the control and supervision of its Bishop. Petitioner submits that the Gazette Notification was published on 22.12.1981 in the Gazette dated 3.7.1982 The notification dated 22.12.1981 was under the provisions of Land Acquisition Act, 1894. The land was being acquired for the purpose of construction of Shikohabad bye-pass at National Highway-2, District Mainpuri. By the said notification part of the land of the petitioner was also sought to be acquired and accordingly vacant part of Plot No. 397 area 0.20 acres and part of Plot no. 400 area 0.79 acres was acquired. The acquired land was vacant and the petitioner had no objection to the land being acquired as the same was vacant.
4. On Plot No. 399 there is an old church known as ‘Moore Memorial Church Shikohabad District Firozabad’ in which Christian worship takes place even till date. Adjacent to the church on Plot No. 396 there is a Christian graveyard. Though by the acquisition of part of plot nos. 397 & 400, the church compound was reduced and the bye pass constructed was few feet away from the church and the graveyard. The petitioner however, in the interest of the general public had agreed to release the acquired plots without objection though it confined the church and the graveyard closely adjacent to the bye-pass. The bye-pass was constructed with the result that total area of land belonging to the petitioner was bisected and the land of the petitioner fell on both the sides of the bye-pass.
5. By publication dated 15.09.2012 in the local daily ‘Amar Ujala’ a Gazette Notification (Extraordinary) dated 17.8.2012 was published. This publication was for widening of the bye-pass and extending the same from 4-lane bye-pass to 6-lane by-pass. For this purpose further land was to be acquired on National Highway-2 from 199.660 Km. to 292.800 Km. The details of land to be acquired was also published and on this occasion part of four plots of the petitioner viz. Plot No. 399 area .0085 hectares, Plot No. 400 area .0913 hectares, Plot No.. 396 area .0060 hectares and Plot N. 397 area .0216 hectares were sought to be acquired. The plots sought to be acquired by the notification dated 17.8.2012 published in the local daily Amar Ujala dated 15.9.2012 include Plot Nos. 399 & 396, i.e that the Church and the Graveyard of Christian was sought to be acquired. Rt. Rev. S.R Cutting the then Bishop of Agra filed his objections before Additional District Magistrate (Land Acquisition)/Competent Authority, Agra on 04.10.2012 bringing to light the fact that the land sought to be acquired was a Church & Christian Graveyard and also included the land on which residences of the members of the Church and Parsonage of priest were existing.
6. A notice/general public intimation was published in the local daily ‘Amar Ujala’ dated 7.9.2013 inviting objections from the interested persons to be filed before the competent authority or the Addl. District Magistrate (Land Acquisition) Agra. The objections were to be preferred under the provisions of Section 3 of National Highways Act, 1956. In the notice/intimation published in the local daily ‘Amar Ujala’, the land of the petitioner was once again sought to be acquired. The land sought to be acquired was identical to the one published in Sept. 2012. During the intervening period Rt. Rev. S.R Cutting Bishop of Lucknow died and in his place Rt. Rev. Dr. Prem Prakash Habil was elected Bishop of Agra. Accordingly, a fresh Power of Attorney dated 6.11.2013 was executed by the Church of North India Trust Association in favour of the new Bishop i.e Rt. Rev. Dr. P.P Habil and the Secretary of ADTA. Rt. Rev. Dr. P.P Habil, Bishop of Agra filed his objection dated 31.1.2014 again bringing to light the fact that the land sought to be acquired is in fact a Church & Christian Graveyard and the residences of the members of the Church including Parsonage of the priest. Rt. Rev. P.P Habil also made a representation dated 20.9.2016 to the District Magistrate, Firozabad, competent authority/ADM (Land Acquisition) Agra and to the Director, NH-2 District Agra once again bringing to light the fact that on the plot nos. 396, 397, 399 & 400 there exist functional Church and Christian Graveyard adjacent to the same and on the other part there exist residences of Christians and the members of the Church and as such the land of the petitioner sought to be acquired be exempted from acquisition. The Competent Authority/Additional District Magistrate (Land Acquisition) Agra on 28.9.2016 sent a letter to the Project Director, National Highways Authority of India, Agra stating therein that since the area sought to be acquired has already been notified, therefore it was not within his jurisdiction to exempt the land on which there exist a Church & the Christian Graveyard and the residences of the Christians & the members of the Church and Parsonage of the priest. The competent authority/Additional District Magistrate (Land Acquisition), Agra requested the Project Director to look into the matter for the exemption of the land.
7. At this juncture petitioner came before this Court with the grievance that Constitution of India provides for Right to Freedom of Religion under Article 25 and the Freedom to Manage Religious Affairs under Article 25 and 26 of the Constitution of India, and as Christian Community has their place of worship viz Moore Memorial Church, Shikohabad, District Firozabad and ancient graveyard, which is operative till date, these properties are place of worship under freedom of conscience, the removal of Church and the Graveyard by the impugned notification by which it is sought to be acquired, hurts the sentiments and religious conscience of the Christian community, in view of same, this Court should protect the properties, assets, rights and obligations in respect of religious place. Apart from above, the place of Worship (Special Provisions) Act, 1991 also safeguards all the religious properties and any interference with it would offend the provisions of said Act also.
8. Supplementary affidavit has been filed to show and demonstrate that religious places of other community have been accommodated whereas no care has been taken to protect the religious place of Christian community.
9. Supplementary affidavit dated 06.12.2016 has also been filed to show and demonstrate the existing status of the property in question and map has also been sought to be appended to show and demonstrate that petitioners are prepared to offer vacant land.
10. On behalf of the National Highway Authority of India, through its Project Manager, Agra full details have been sought to be furnished to substantiate requirement of 6-lane road alongwith ground constraints in case claim of petitioner is to be accepted and further it has been submitted that proceedings have been finalised strictly in consonance with the provisions as are contained in National Highways Authority of India Act 1988.
11. After respective pleadings have been exchanged, with the consent of the parties, present writ petition has been taken up for final hearing/disposal.
12. Sri. A.D Saunders, learned counsel for the petitioner contended with vehemence that in the present case Place of Worship has been sought to be demolished, whereas Section 3 of the Place of Worship (Special Provisions) Act, 1991 prohibits conversion of a place of worship of any religious denomination, and in view of this, by no stretch of imagination, church can be permitted to be demolished. Apart from this, further arguments has been advanced that right conferred under Article 25 and 26 of the Constitution of India stands infringed on account of proposal of demolition of Church and shifting of graveyard, in view of this, interference of this court is required in the peculiar facts and circumstances of the case.
13. Sri. Pranjal Mehrotra, learned counsel for the respondents on the other hand contended that entire plan in question for constructing 6-laning road from 4-lane road has been completed and there are ground constraints that has forced to make flyover over the land belonging to the petitioner and for achieving larger public purpose, such a course hs been taken and under the scheme of things provided for, award has been finalised and as such belated challenge be not at all entertained.
The National Highways Act, 1956 (for short, ‘the 1956 Act’) was enacted by Parliament to provide for the declaration of certain highways as national highways and for matters connected therewith. sections 3a to 3 of the 1956 act contains a comprehensive scheme for the acquisition of land for the building, maintenance, management or operation of a national highway or part thereof and determination of amount payable as compensation and other related issues.
Sections 3A, 3C and 3D, which have bearing on this case, read as under:
“3A. Power to acquire land, etc.-
(1) Where the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the Official Gazette, declare its intention to acquire such land.
(2) Every notification under sub-section (1) shall give a brief description of the land.
(3) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language.
3C. Hearing of objection,-
(1) Any person interested in the land may, within twentyone days from the date of publication of the notification under sub-section (1) of section 3A, object to the use of the land for the purpose or purposes mentioned in that sub-section.
(2) Every objection under sub-section (1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections.
Explanation. – For the purposes of this sub-section, legal practitioner has the same meaning as in clause (I) of sub-section (1) of section 2 of the Advocates Act, 1961 (25 of 1961).
(3) Any order made by the competent authority under subsection (2) shall be final.
3D. Declaration of acquisition.-
(1) Where no objection under sub-section (1) of section 3c has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under sub-section (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification in the Official Gazette, that the land should be acquired for the purpose or purposes mentioned in subsection (1) of section 3a.
(2)(2) On the publication of the declaration under subsection (1), the land shall vest absolutely in the Central Government free from all encumbrances.
(3) Where in respect of any land a notification has been published under subsection (1) of section 3a for its acquisition but no declaration under sub-section (1) has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect:
Provided that in computing the said period of one year, the period or periods during which any action or proceedings to be taken in pursuance of the notification issued under sub-section (1) of section 3A is stayed by an order of a court shall be excluded.
(4) A declaration made by the Central Government under subsection (1) shall not be called in question in any court or by any other authority.”
20. The scheme of acquisition enshrined in the above reproduced provisions makes it clear that once the Central Government is satisfied that any land is required for the building, maintenance, management or operation of a national highway or part thereof, then, it shall declare its intention to acquire such land by issuing a notification in the official Gazette giving brief description of the land. The substance of the notification is also required to be published in two local newspapers of which one has to be in a vernacular language. Any person interested in the land can file objection within 21 days from the date of publication of the notification in the official Gazette. Such objection is required to be made to the Competent Authority in writing. Thereafter, the Competent Authority is required to give the objector an opportunity of hearing either in person or through a legal practitioner. This exercise is to be followed by an order of the Competent Authority either allowing or rejecting the objections. 20. Where no objection is made to the Competent Authority in terms of Section 3C(1) or where the objections made by the interested persons have been disallowed, the Competent Authority is required to submit a report to the Central Government, which shall then issue a notification in the official Gazette that the land should be acquired for the purpose or purposes mentioned in Section 3A(1). On publication of declaration under Section 3D(1), the land vests absolutely in the Central Government free from all encumbrances. sub section (3) of section 3d provides that where no declaration under sub-section (1) is published within a period of one year from the date of publication of notification under Section 3A(1), the said notification shall cease to have any effect. By virtue of proviso to Section 3D(3), the period during which any action or proceeding taken in pursuance of notification issued under Section 3A(1) remains stayed by a Court shall be excluded while computing the period of one year specified in Section 3D(3).
14. The provisions of National Highways Act, 1956 are self explanatory. This much fact is reflected that National Highways Authority of India has been entrusted the work for constructing 6-laning of existing 4-lane road by concentric widening. In the said direction for 6-lane of Agra-Etawah Bypass Section from Km. 199.660 to Km. 292.800 of National Highway No. 2 in the State of Uttar Pradesh, the Gazette notification under Section 3A(1) of National Highways Act, 19056 (hereinafter also referred to as “the Act’) was published in the Extraordinary Gazette on 17.08.2012 by the Government of India. The aforesaid notification an area of 0.0085 Ha. Fro Gata No. 399, 0.0913 Ha. From Gta No. 400, 0.0060 Ha from Gata 396 and 0.0216 Ha. From Gata No. 397 of village Shahjalpur (Shikohabad) had been acquired for the aforesaid project. By the publication of the said Gazette Notification under Section 3A of the Act, the objections were invited under Section 3C of the Act, which had to be filed by the concerned land owners within twenty-one days from the date of publication of the aforesaid 3A Notification before the Competent Authority, i.e, Additional District Magistrate (Land Acquisition), Agra. These objections were heard and finally disposed of, by the Competent Authority. This was followed by the Gazette Notification dated 17.04.2013 issued under Section 3-D(1) of the Act. The said 3D Declaration was also published in the newspapers, Amar Ujala dated 15.07.2013 and Hindustan dated 16.07.2013 As per Section 3D(2) of the Act, on the publication of the Declaration under Section 3D(1), the land shall vest absolutely in the Central Government free from all encumbrances. Thereafter the award dated 10.08.2015 was passed.
15. This much is clear that in compliance of the provision as contained under Section 3H (1) of the Act, NHAI has has also deposited the awarded amount in the account of the Competent Authority. Once such has been the factual situation that Gazette Notification in question for acquiring of the property has been done on 17.08.2012 and said proceedings have been finalised by taking the same to its logical belated conclusion, then challenge cannot be entertained by us, and in our considered opinion, once there is public purpose for which land in question has been acquired, invoking provision of National Highways Act, 1956, then no relief can be accorded to the petitioner.
16. We next proceed to consider the issue raised by the petitioner that Place of Worship cannot be acquired as conversion is prohibited by the provisions of the Places of Worship (Special Provisions) Act, 1991, whereof Section 3 specifically bars conversion.
17. Issue that has been raised by the petitioner before us, same has already been answered by Bombay High Court in the case of Yusuf Ajij Shaikh v. Special Land Acquisition Officer No. 2, Pune 1995 (1) Mh. L.J 483 wherein Pune Municipal Corporation took into consideration bottlenecks to the traffic due to the said structure and passed a resolution for acquiring the same for road widening, whereas said property was belonging to a religious trust known as Subhansha Durgah and Masjif Trust was an ancient monument and structure of archaeological importance and for a permanent injunction restraining respondents from acquiring the land. Acquisition made by the Pune Municipal Corporation has been subject matter of challenge and Bombay High Court has held that as to whether acquisition can be dropped in view of the enactment i.e the places of Worship (Special Provisions) Acts, 1991, keeping in view of Preamble of the said Act, proceeded to form opinion that provision of Act i.e the places of Worship (Special Provisions) Acts, 1991 does not prohibit conversion of property under Land Acquisition Act expressly or impliedly. The provisions of the Land Acquisition Act are not abrogated. Relevant para nos. 8, 9, and 10 are being extracted below:-
8. The new question now raised is whether this acquisition can be dropped in view of the enactment i.e The Places of Worship (Special Provisions) Act, 1991 (hereafter referred to as the Places of Worship Act). The learned Advocate for the Appellants drew my attention to the Preamble of the said Act which says that this is an Act to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August 1947. This is also to be found in Section 4(1). Section 2(b) defines ‘conversion’ which is as follows:
“2(b) “conversion” with its grammatical variations, includes alteration of change of whatever naturel”;
Section 3 is a charging section. It says that “No person shall convert any place of worship of any religious denomination or any Section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof. The learned Advocate for Respondents submits that this enactment has no application as far as the acquisition of land under the Land Acquisition Act is concerned. The ban is on persons to convert, alter or change from one section etc. to another. This has been done with a view that persons of one community or section do not trespass and usurp the land or religious place of some other religious community or section and convert it into their place of worship. This has been done with a view to maintain communal harmony in the country. He submits that this is also clear from Section 6 which provides for punishment for contravention of Section 3, Section 6(1) provides for punishment to person who contravenes Section 3 with imprisonment for a term which may extend to three years and shall also be liable to pay fine. Section 6(2) and Section 6(3) provide for attempt and abetment in that respect. The submission made on behalf of respondents deserves to be accepted. In this case land is sought to be acquired under the provisions of the Land Acquisition Act. No provision of the Places of Worship Act bans such acquisition under Land Acquisition Act expressly or impliedly. The provisions of the Land Acquisition Act are not abrogated. It is very clear that this Act has been enacted for the limited purpose to prohibit and punish one section or community who illegally takes over the land of religious worship of another community or section and changes its character. It is not possible to accept the submission that acquisition of land under the Land Acquisition Act loses its character and therefore prohibited. Under this Act, conversion contemplated by Section 3 is by persons of the place of worship of one community or Section to religious place of worship of some other community or section. It is not mere conversion as defined. This legislative intent is clearly discernible and done with a view to see that communal harmony is not disturbed by such acts of one community or section or denomination. The injunction under Section 4(1) is for the people of all communities to see that the religious character of a place of worship existing on the 15 day of August, 1947 is maintained and continued and there is no conversion. This cannot cover in its sweep the acquisition of land under the Land Acquisition Act. It is not merely because there is a loss of Dargah or the Mosque this would amount to conversion in view of Section 3. This is also clear from Section 6 which prescribes punishment to those persons who indulge in such conversion. Hence I reject this contention.
9. The learned Advocate for the Appellants submitted that the second acquisition in respect of this property is a mala fide one and, therefore, illegal. It is true that earlier part of the land came to be acquired for the purpose of road widening and award in that respect was also passed in 1966. However, it is to be noted that the Municipal Corporation had originally sent the proposal to the Government to acquire the entire land. But part of the land came to be acquired and award was passed. At that time the Government made clear to the Municipal Corporation that the Corporation should study the traffic and liberty was granted to make a fresh proposal. The Municipal Corporation considered the traffic problem and the bottleneck created. Admittedly, this is situated in a congested business area having heavy traffic. The Corporation, therefore, made a fresh proposal to acquire the remaining land so as to cease the growing traffic problem and the Government accepted the same. Therefore it cannot be said that there was any malice or the acquisition was mala fide. Further, enquiry under Section 5A was held and and similar objections raised came to be negatived by the Land Acquisition Officer. It is not disputed that there is no traffic problem. It is also not possible to accept that some other portion may be acquired and this Mosque or Dargah be saved or retained. This Dargah and Mosque are just in the middle of the road and there are some shops in it. It has been pointed out by the Respondents that it is not possible to solve the traffic problem in view of the situation of the structure. This contention of Respondents has been accepted by both the Courts below. The learned Advocate for the Appellants submitted that this Dargah structure can be retained as a traffic island. In view of this submission, I made an attempt to see that only Dargah portion is saved and retained as a traffic island. A suggestion was also made to the Municipal Corporation to that effect and the matter was adjourned on last occasion. But it was found by appellants that part of the structure is required to be demolished even for retaining the Dargah part. Later on, the learned Advocate appearing for the Appellants submitted that it is not acceptable to the appellants as it would require demolition of a part of the structure. Hence, this suggestion fell through. Therefore, I concur with the Courts below that there were no mala fides in this acquisition.
10. The learned Advocate appearing for the Appellants relied upon Para 101 of the Manual of Land Acquisition for State of Maharashtra. It provides that when the Acquisition Officer cannot save Government from a possible conflict with religious sentiment by modifying the original proposition, his next endeavour will be to make a tactful negotiation with the parties.” It further says as follows:
“The Act enables him to acquire “land”, but not the sentiment of a community. When, therefore, the two are inseparable, he will naturally seek to appease communal feeling by which concession in the matter of market value as is represented ordinarily by (he adoption of the principle of reinstatement rather than capitalisation of income.”
It also makes a further reference that special care is required in cases of congested areas and street improvements. First, this part does not prohibit acquisition of land but only shows a desire to safeguard the religious sentiments of a community. It provides that some generous compensation should be paid in such cases. It does not provide that public interest should be lost sight of and there should be no acquisition for protecting the religious sentiments of a community. Secondly, these are only guidelines given to the Acquisition Officer having no legal force. Obviously, they are to be taken into consideration by the Acquisition Officer when the enquiry under Section 5A is held and it is not for the Court to interfere.
18. Here in the present case also what we find from the scheme of thing that Existing 4-Lane road has been sought to be extended by making 6-Lane by mode of concentric widening and at the point of time when 6-Lane road is to be constructed, note has also been taken note of the fact that at the location of Church, there is a T Junction (Subhash Tiraha) at Km. 259+350 (RHS) which constraints any possibility for the change in Alignment.
19. Once public purpose is there for acquisition of the land in question and Section 3 prohibits conversion of any place of Worship and religious denomination, then under the scheme of things provided for under the Act i.e the Places of Worship (Special Provisions) Acts, 1991, when the Act has been enacted to prohibit conversion of any place of worship and to provide for the maintenance of its religious character as it existed on the 15 day of August, 1947 and for matter connected therewith or incidental thereto. Section 2(C) defines ‘worship’ to mean “a temple, mosque, gurudwara, Church, Monastery or any other place of public religious worship of any religious denomination or any section thereof, by whatever name called”. Section 3 bars any person from converting any place of worship of any religious denomination into place of worship of a different section of the same religious denomination or of different religious denomination or any section thereof. Section 4 declares that religious character of a place of worship existing on 15 day of August, 1047, shall continue to be the same as it existed on the date. Under the place of worship Act conversion contemplated by Section 3 is by persons of the place of worship of one community or section to religious place of worship of the other community in question. Legislative intent of the same is clear that said provision had been introduced to see that communal harmony is not disturbed and persons of one religious community may not take on the other. Section 3 under the scheme of things excludes State Action. Section 4(1) also has to be read in the backdrop of fulfilment of aforesaid object, and accordingly under the scheme of things, there is no bar to acquisition of land under the provision of National Highways Act, 1956, as said Act enables to Central Government to acquire land. In view of this, looking into the aim and object of National Highways Act, 1956 with specific provision containing comprehensive scheme of acquisition of land for national highway or part there of, then on this score acquisition of land cannot be held to be bad.
20. Now we proceed to consider the arguments that acquisition of land on which the Church and Graveyard is situated or where the graves exist cannot be the subject matter of acquisition in view of the mandate of Article 25 and 26 of the Constitution of India.
21. A Co-ordinate Bench of this Court in the case of Mohammad Ali Khan v. The Special Land Acquisition Officer, Lucknow Nagar Mahapalika, Lucknow AIR 1978 (All) 280 in relevant para nos. 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 has held, as follows:-
“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 provisions of 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 counsel is 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 Wakfa case (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 graveyard is 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. In view of the aforementioned judgement, judicial discipline binds us to follow the said judgement as same has been holding he field since last more than 30 years and there is no occasion or reason for us to take a different or contrary view, the view that has been taken by the Co-ordinate Bench in the Case of Mohd. Ali Khan and that too based on the judgement of Apex Court in the case of Khaja Miyan Waqf Estate (Supra) and Acharya Maharajshri Narendra Prasad Ji (Supra). In view of this, as far as acquisition proceeding under National Highways Act, 1956 is concern, same cannot be permitted to be defeated, on the purported premises that said action is hit by Article 25 and 26 of the Constitution of India. For the same set of reasoning that has been given in the case of Mohd. Ali Khan, argument raised stands negated.
23. We may also make a mention that keeping in view the religious sentiments we have given thoughtful consideration as to whether it was feasible to change the course of 6-Lane Road. In the said direction ground constraints vis-a-vis Church as well as 6-Lane road construction, possibility of re-alignment has been explained before us, as follows:-
“SIX LANING CONSTRUCTION CONSTRAINT.
The Constraints with respect to the Construction of the Sixlaning and the Intervening Church is indicated sequentially in the following paragraph:
As per the Concession Agreement, the formation width of Proposed Flyover is 13.40m and the available width at the location of the Church is only 11.50m The Flyover therefore cannot be constructed as provisioned in the Concession Agreement.
Further the Flyover is proposed to be constructed on Single Pier. For constructing the foundation of such a structure, the Minimum Working Zone required shall be about 8m from the Center of the Existing Road.
Also Service Road of about 8.5m (7m carriageway and 1.5m shoulders) is required to be constructed for the diversion of traffic for the Construction of the Proposed Foundation, requiring thereby total of 16.50m (8.00m + 8.50m), during construction period.
With the Church at 11.5m offset, it would not be possible to complete the Construction of the Flyover and the associated Service Road while maintaining a width of 8.5m for the movement of traffic during the Construction.
POSSIBILITY OF REALIGNMENT
The possibility of Realignment was also examined and the Constraining issues with respect to the possibility of Realignment are as under:
At the location of the Church, there is a T. Junction (Subhash Tiraha) at Km. 259+350 (RHS) which constraints any possibility for the change in Alignment.
As indicated in the enclosed Plan, there are buildings and Commercial Development on the both sides of the road which further and also significantly constraint the possibility of the change in the Alignment.
As regard the realignment, the affected Party (the Church) has requested that, let the alignment be shifted behind the church, in order to avoid impacting the Existing church. In this connection, it is submitted that the following are the Constraints as regard the shifting of the Alignment.
The Shifting of the Alignment behind the Church would impact the existing heavily builtup area (structures/houses) along the LHSside of the Existing Road as indicated in the Plan and photographs.
Also it would involve fresh acquisition of land which would be a sustained process and the Project Completion Schedule would be affected.
Further it would involve re-routing of the NH and is likely to set a precedence for future conflicts.
24. Apex Court in the case of Union of India v. Kushala Shetty (2011) 12 SCC 69 has clearly proceeded to make a mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of national highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of National Highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The Courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullify the acquisition of land and, in rarest of rare cases, the particular project, if it is found to be ex-facie contrary to the mandate of law or tainted due to mala fides. Relevant para no. 28 is being extracted below:-
28. Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of National Highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development and maintenance. NHAI prepares and implements projects relating to development and maintenance of National Highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The Courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The Court can nullify the acquisition of land and, in rarest of rare cases, the particular project, if it is found to be ex-facie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither any violation of mandate of the 1956 Act has been established nor the charge of malice in fact has been proved. Therefore, the order under challenge cannot be sustained.
25. In the present case, for the reasons already indicated above, the order under challenge warrants no interference at our level.
26. At last Sri. A.D Saunders, learned counsel for the petitioner submits that it would be too harsh to demolish the Church at this point of time i.e on Christmas eve and as such for the period of one month, demolition may not take place on the spot and thereafter, petitioner in consultation with the NHAI authority would see and ensure demolition/shifting of the Church as well as of the Graveyard.
27. At this juncture, Sri. Pranjal Mehrotra, learned counsel for the respondents submits that NHAI would extend all possible cooperation in this regard.
28. Consequently, looking into the fact and circumstances of the case, we proceed to pass order that for the period of one month, on the spot Church in question be not demolished and thereafter petitioner and NHAI authority should work out modality for demolition/shifting of Church/Graveyard.
29. With the above, present writ petition stands disposed of.
30. No order as to cost.
V.K. Shukla and Mahesh Chandra Tripathi, JJ.