• Know facts of case of how a mosque came up on premises of Allahabad High Court & how the legal system was used to delay demolition for over 20 years. Deeper point-Should a Constitutional Court be spending time on such issues?

In 2017 I read about an illegal mosque in the premises of the Allahabad High Court (AHC). In 2018 read that Supreme Court (SC) heard the matter but ordered status-quo. In March 2023 read that the SC had ordered demolition of the mosque in three months. In August 2023, I got to know that the mosque is demolished.

After the High Court order in November 2017, it took the SC over five years to order demolition of a mosque that was on the premises of AHC. Can you visualise time-frame if the affected party was an ordinary citizen and not a High Court.

What are the facts of the case and observations? 

1. Sale deed of plot was registered in April 1945 by its owner Lala Purshottam Das. 

2. He or his heirs gave the plot on lease to M Ahmed Kazmi in 1958. Plot size was 9112 sq. yards or 7618 sq. meters.

3. The lease was not renewed. In 1967, the Uttar Pradesh government executed a 30 year lease subject to conditions.  

4. “Subsequently the State Government passed an order on 15th December, 2000 for cancelling the lease deed and resuming the possession of the plot in question.” 5 The plot was required for extension of the court building.

5. “The District Magistrate considered the objection and rejected the same by an order dated 24.8.2001. A copy of the aforesaid order along with cheques representing the compensation for the building standing over the plot (cheques for total amount of Rs.10 lakhs) were served upon the appellants.” 5

6. The lessee M Ahmed Kazmi filed a writ petition in the AHC against the government order asking for a stay on possession on the plot. This was disposed off in December 2001.

7. The lessees’ filed a SLP in the SC in 2001 which was disposed off in 2003. “The Supreme Court even before confirming the judgment of the High Court, vide its interim order dated 3 March 2003, permitted the State to take forcible possession of the leased property.” 6

8. The lessee SLP was converted into a Civil Case which was disposed of in 2012. Vide its order dated July 16, 2012 the SC said, “The State Government is allowed to take possession of the demised premises for extension of High Court building etc., as decided. However, the appellants are given three months time to hand over the possession of the land and building to the State.” 5

9. Note that post the December 2001 AHC order, the lessees’ plot was applied for registration as a waqf, to the UP Sunni Central Board of Waqf. It was converted into a waqf property in May 2002. 

10. Local Advocate Shukla filed a Public Interest Litigation in the AHC in 2017.

One of the arguments made was that the Mosque was in existence since last about six decades having been established in 1959 by the lessees as a private Mosque and thereafter as a public Mosque since the year 1981. One needs to know the difference between a private and public mosque in a legal sense.

11. In November 2017, the AHC ordered that the mosque be demolished.

12.  Subsequently, in 2017 itself the UP Sunni Central Waqf Board petitioned the SC.

13. In December 2018, SC asked to maintain status-quo meaning illegal mosque not to be demolished. Source TOI and Business Today  

Senior Advocate Sibal said that the mosque had been existence since the 1950s.

14. On March 15, 2023 the SC passed an order, that they should remove mosque in 3 months failing which the administration would do so. 

Mosque. Pic credit Pyara Bharat. 

Area post demolition.  

Hear  Pyara Bharat video interview with petitioner Advocate Shukla

Through a web of legal cases and petitions, it took more than 20 years for the Courts to order a demolition of a illegal structure. Either laws need to change or Courts need to move faster. 

This article is concerned with the legal issues only and is not meant to cast aspersions or hurt the sentiments of any individual, community or court.

This March 2023 Indian Express report captures SC proceedings shown in inverted commas with my thought provoking questions in red.  

“During the hearing, the court told the appellants who contended that they have been there for many years, “You do not have any right, you cannot claim to continue in possession as a matter of right. It was a leased property. Can leased property be made Waqf? The lease was already terminated and resumed. It was confirmed in 2021 by this court.”

Can leased property be made waqf?

“Appearing for the appellants, Senior Advocate Kapil Sibal said the “mosque” is willing to move provided an alternative land is allotted, but the state is not willing to do that. “In the given facts of the case, they should give us an alternative site where we can go and pray…. We are standing only for the community, nothing more than that,” Sibal submitted.”

If state governments keep giving alternate land to encroachers it will encourage encroachment of public property?

“The bench pointed out that the said land belongs to the government, and was given on lease to a private person who then allowed it to be used as a place for offering namaz. Now, the lease has been terminated and possession given to the HC.

Sibal said “we are not disputing those facts. But if there is something which has been used as a public mosque since 1981-82, the administration can give us land outside”.”

Just because Namaz is offered there does not make it a mosque. Today, namaz is offered on railway platforms, inside trains and airports.

Read  What is the role of mosque in Islam  

Senior Advocate Indira Jaisingh also appearing for the petitioners said "though it was a privately used mosque to begin with, it was later dedicated to the public and then it was registered under the Waqf Board Act and used to be regulated by the Waqf Board and as such it is a public mosque not a private one.”

A Waqf cannot be created on leased land. This is a classic case of waqf being used to justify encroachment. The IE report states that the application of waqf and its grant were made on the same day, the date of registration being 30/5/2002. AHC order of November 2017 covers the waqf bit exhaustively.

Also read    All you wanted to know about WAQF 

I have always admired the brilliant and respected Shri Kapil Sibal. 

In May 1993, Justice V Ramaswami was the first SC judge to face an impeachment motion but it failed. Identity and vote bank politics came into play when matters reached Parliament. 

The person who argued Justice Ramaswami’s case in the Lok Sabha, for five hours, was Mr Kapil Sibal. Source Not sure if a recording is available. Also read this India Today report of 1993 to know Justice P.B. Sawant's (of the SC) verdict on Ramaswami. Mr Sibal's arguments in the Article 370 matter are a treat to watch. I am grateful to the SC for permitting live telecast of select proceedings. Great learning - we ordinary people are able to appreciate contribution of judges better. Read Judges have little work-life balance 

Should a Constitutional Court be burdened with issues of demolition of illegal constructions is a point worth pondering over?

According to this August 16, 2023 report in The Telegraph SC ordered status-quo on demolition drive in Mathura. SC halted demolition for 10 days being carried out by railway authorities. A August 29 report in The Times of India states that SC refused to halt demotion drive and asked them to approach lower court where the suit is pending. 

Also read   Decoding Haldwani Land Encroachment case – SC is not quite consistent on the issue

Utmost care was taken in culling out data. Errors if any are unintended and without malafide intent. Intent of this piece is to provoke thought and not cast aspersions on any individual, legal professionals or and courts.

References

1. Background information on case

2. FAQ on Article 370 hearings in the SC

3. Pyara Bharat video interview with petitioner Advocate Shukla

4. 2001 AHC order

5. SC Order July 16, 2012

6. Allahabad High Court order of November 2017. Click on PDF to download. Courtesy www.indiankanoon.org

Allahad High Court pic in cover pic taken from Here