Mob Fury, Footfall Of People On Land Claimed As 'Dargah' Can't Prove Structure Is Legal: Bombay High Court Refuses To Recall Demolition Order
Mere "mob fury" or "footfall of people" on a particular piece of land based on an assertion that it is a Dargah cannot prove that it is a legal structure, said the Bombay High Court while dismissing the plea filed by Gazi Salauddin Rehmatulla Hoole alias Pardeshi Baba Trust seeking recall of a May 30 order directing demolition of a structure in Thane. It thus refused to recall the demolition...
Mere "mob fury" or "footfall of people" on a particular piece of land based on an assertion that it is a Dargah cannot prove that it is a legal structure, said the Bombay High Court while dismissing the plea filed by Gazi Salauddin Rehmatulla Hoole alias Pardeshi Baba Trust seeking recall of a May 30 order directing demolition of a structure in Thane.
It thus refused to recall the demolition of the Dargah, which has allegedly expanded from 160 sq. ft. to over 17,610 sq. ft. without municipal approvals on private land in Thane district.
Notably, a division bench of Justices Ajay Gadkari and Kamal Khata had by an order passed on April 30, upheld the decision of the Thane Municipal Corporation (TMC) to demolish the structure.
However, the Supreme Court protected the religious structure from demolition and passed an order on June 17 permitting the Trust to re-approach the High Court bench and file a recall application to point out the facts, that were allegedly suppressed before the High Court.
The High Court bench had ordered the demolition of the unauthorised portions, slamming the Trust for "unscrupulous" expansion and the TMC for "evasive affidavits."
Before the Supreme Court, the Trust claimed that the High Court's decision was flawed as it did not consider the fact that the civil suit filed with respect to the construction was dismissed in April 2025. It was pointed out that this crucial development was omitted or buried in the pleadings in the High Court and that only 3,600 square feet of construction was at issue, and that the High Court's focus on the entire 17,610 square feet exceeded the writ petition's scope.
Therefore, in pursuance to the liberty granted by the SC, the Trustees moved the bench led by Justice Gadkari, by filing an interim application arguing that the records clearly reflect that the Dargah was very much at the site in question much prior to 1982.
However, the High Court bench remarked that the Trustees merely 'usurped' the land of a private party and constructed the Dargah without prior civic permissions.
"In our view, the Applicants have neither paid any consideration for acquisition of the land nor have taken any permission for constructing the structure. It is clearly a usurpation of rights based on a mere Notice publication by the Assistant Charity Commissioner. We find no merit in the contention that, by virtue of a Public Notice by the Assistant Charity Commissioner, one can claim ownership of structures and lands and thereby preempt the rightful owners from claiming the right to their property or objecting to illegal constructions being done on their property," the bench said in the order passed on July 9.
Further, the bench held, "We are unable to accept that a mob fury and the mere footfalls of people on a particular piece of land based on an assertion that, this is a Dargah can prove that it is a legal structure. This is a classic case of a usurpation of the land and such a method and for such a usurpation, the Court cannot grant its imprimatur."
The judges in their order, pointed out that the reliance placed by the Trustees on the Judgment dated April 5, 2025 passed by the Joint Civil Judge Senior Division at Thane clearly holds that, the Plaintiff has proved that the Defendants (Trustees) have encroached upon the Suit land.
"It has also proved its ownership over the Suit property. The Judgment also clearly shows that the Defendants have failed to prove their title to the suit land either by a conveyance or by adverse possession. Interestingly, the Judgment observed that, the contention of the Applicant was that the present Writ Petition was regarding a different property and not the same as Dargah. Therefore, the Applicant has himself admitted that the Dargah pointed out in the Government Gazette of the year 1982 is on a different property and not on the property for which the Writ Petition was filed and Orders were passed," the bench stated.
The bench acknowledged that the TMC had granted the Trustees sufficient time to respond to the notices of demolition issued to them but they did not turn up for any hearing and thus there were no breach of principles of natural justice.
"It is evident that, they have not been able to produce a single piece of evidence to suggest that there was any structure owned or possessed by the Trust. The only contention raised by the Applicant is that, when they issued a Public Notice through the Charity Commissioner claiming ownership of the structure as a Dargah, there were no objections taken by anybody. The Trust being certified was therefore declared as the owner of the structure. This in our view can never be the basis of ownership of any structure on anybody's land. The Applicants have not produced any document whatsoever to show ownership of the land or the structure at all. In our view, they have encroached upon the land and claimed rights on a structure that was never theirs," the bench observed.
It is settled law, the bench pointed out, that a person who asserts a particular fact must prove it and cannot rely upon the defences of the other party to claim rights. The existence of a structure in a 7/12 extract cannot be evidence of anything whatsoever. Entry in the 7/12 extract cannot and does not prove anything as such, the judges said.
"Admittedly, there is no permission taken by the Applicants for even a one single square feet of construction. Admittedly, the so-called structure has been increased to a humongous structure of more than 20,000 sq. ft. Such a party in our view cannot claim any equities. A party coming to a Court must come with clean hands. He must state and produce all facts and documents on record to prove his ownership as well as the permissions taken for construction of a structure. He cannot seek protection based on entries in 7/12 extracts and the existence of some structure which he claims to be a Dargah. The claim of a structure being a Dargah must be proved by the Applicant in appropriate proceedings before the jurisdictional Civil Court. There is nothing produced to prove that this was a Dargah prior to their being registered as a charitable institution and being the owner of this structure," the bench opined.
The Trustees, the bench made it clear, entirely failed in proving (i) that, they own the land or (ii) they have taken permissions from the Municipal Authorities to construct even a square inch on the land.
"In our view therefore, the Applicants have no right over the structure now constructed illegally or even the structure on the Petitioner's land," the bench said, while dismissing the plea.
Appearance:
Senior Advocate Rajiv Patil along with Advocates Siddharth Mehta, Harshada Shrikhande and Vaibhav appeared for the Trust.
Advocates Kunal Dwarkadas, Karan Bhide, SC Mahimtura, Nilesh Tated and Ishaan Zaveri instructed by Mahimtura and Company represented the Original Petitioners.
Senior Advocate Ram Apte along with Advocates Mandar Limaye and Juilee Joshi represented the TMC.
Case Title: Gazi Salauddin Rehmatulla Hoole alias Pardeshi Baba Trust vs New Shree Swami Samartha Borivade [Interim Application (Stamp) 21468 of 2025)