On Monday, the Supreme Court upheld the Allahabad High Court’s 2017 decision to remove the “Masjid High Court” mosque from its grounds.
A bench made up of Justices MR Shah and CT Ravikumar dismissed the special leave applications brought by the Waqf Masjid High Court and the UP Sunni Central Waqf Board, but gave the petitioners three months to demolish the mosque. The bench said that if the construction is not taken down within three months of today, it will be possible for authorities, including the High Court, to order its removal or demolition.
The petitioners are now permitted by the bench to approach the Uttar Pradesh government to request the allocation of substitute land in the neighbourhood. The State may take into account the representation in line with the law and on its own merits, taking into account whether or not such lands are needed for any other current or future public use.
The bench upheld the decision, noting that the mosque was located on government-leased property and that the grant had been revoked in 2002. After the lease was terminated, the property was reclaimed in 2004 for the Supreme Court’s enlargement.
The bench noted that because the Supreme Court had upheld the resumption of land in 2012, the petitioners could not have any legal claim to the property. In light of this, the bench declined to overturn the High Court’s decision that was reached in a PIL submitted by an attorney by the name of Abhishek Shukla.
2000:An illegal Masjid claimed property of Allahabad High Court.
2004:Allahabad High Court won the case against it before Supreme Court.
2004:Illegal Masjid became Waqf to fight Allahabad High Court.
2023:Allahabad High Court won case against Waqf before Supreme Court.
— Shashank Shekhar Jha (@shashank_ssj) March 13, 2023
Claims in court
Mr. Kapil Sibal, a senior attorney for the Waqf Masjid High Court, gave a brief history of the Masjid in order to set the scene for the conflict. According to him, the Allahabad High Court’s current structure was built in 1861. Since then, Friday namaz has been offered on the northern corner by Muslim clients, Muslim clerks, and Muslim advocates. There is also a plan for wazu. Subsequently, a building housing the courtrooms was built close to the verandah where namaz was being offered. The High Court Registrar supplied a second location for namaz at the southern end at the request of a delegation of Muslim attorneys.
At the time, they were given permission to hold namaz at a private mosque on the property by a person who was having a government grant land. The private mosque was changed into a public mosque as a result. The lease for the property where the mosque is located was extended in the late 1980s for an additional 30 years, with an expiration date of 2017. The lease was terminated on December 15, 2000, however namaz is being offered at the mosque today. He claimed that it was incorrect to claim that the mosque was located inside the High Court’s grounds and that it was actually across the street from the building.
“Govt changes in 2017. The Government changed, and everything changed. PIL is filed ten days after the new government was formed”, he stated.
The Waqf, it was argued, wouldn’t have an issue if the mosque were moved to a different location. He did, however, argue before the Bench that the High Court built a 9-story structure despite only having permission to erect a 6-story structure, and that land belonging to the mosque is being sought in order to meet the higher set-back requirements for the additional floors.
“Now they say they have built 9 storeys, so they need a set back of 11 meters. So, they say we have to go…They don’t have 11 meters on all sides. And they want 11 meters on our side.”
He continued –
“We are still willing to move, if we are given another space. That they are not willing.”
Justice Shah enquired, “What is the area of namaz sthal?”
Mr. Sibal responded, “450 square meters. And this has been going on since 1960. It is not even near the High Court.”
Justice Shah stated, “This land belongs to the government which was given to lease to a private person. And now the lease has been terminated.”
According to Mr. Sibal, the mosque has been serving the general public as a mosque for many years. He highlighted that the Waqf is open to a different solution, such as a different site, because they don’t want to endanger fire safety.
He further added -“The entire impression in the HC judgment is that the mosque is in the premises of the High Court. That is not correct.”
Ms. Indira Jaising, senior advocate appearing for UP Sunni Waqf Board stated-“This was a renewable lease. It was a private mosque to begin with and thereafter, it was dedicated to the public and registered with the Waqf board. So it is today a Waqf mosque. The land belongs to the Govt. There are documents showing we are in possession. We are willing to be given to an alternate site. We are not insisting that namaz should be offered on the present site.”
She added, “Also, the original set back was assigned on the basis that the HC building will have 6 meters. If your lordships are satisfied that safety regulations are sufficiently complied, please allow us to continue or offer alternate space, considering it is a worship place.”
Supreme Court’s Opinion
At the threshold, senior attorney Mr. Rakesh Dwivedi representing the Allahabad High Court stated, “This is a case of complete fraud.
Dwivedi walked the Court through the status of the lease’s history going back to 1861. He emphasized that the lease document had a provision prohibiting the construction of buildings without prior approval. To divide or transfer the plot, therefore, required prior government approval. The lease has been renewed twice since it was given, but no mention of the mosque’s construction or its status as a public mosque was made, he continued. The renewal request was made known to the Bench along with documentation of its requirement for residential purposes.
Mr. Dwivedi emphasized that there was no mention of the mosque or the dedication even when the Lessees filed a writ suit in opposition to the collector’s notice of lease cancellation. It was maintained that one needed to own the entire parcel of property in order to dedicate it. The High Court had supported the restart after taking these circumstances into account. A Special Leave Petition was submitted to the Apex Court in opposition to the aforementioned order. Regarding dispossession, a status quo order was obtained. The land was registered as waqf the same day that the lessee submitted an application to the Waqf Board, shortly after the status quo order was issued. Subsequently, the Supreme Court overturned the previous ruling and gave them time to leave the property. In 2004, the High Court acquired possession.
When Mr. Dwivedi stated, “The first legal point is on a private lease land, you cannot create a waqf. You have only limited rights as a lessee. There are restrictions. And now they try to give a religious color. They have no right…It was a nazul land and as per patta conditions, there was no permission to raise a mosque there. The tin sheet building was raised there without authorization.”
He continued -“Mere fact that they are offering namaz will not make it a mosque. If in the Supreme Court verandah or HC verandah namaz is allowed for convenience, it will not become a mosque. These activities will not make it a mosque. Mosque is a serious affair. It should be dedicated in a proper way. Sometimes we see namaz in roads outside small mosques. That will not make the roads mosque.”
He claimed that the petitioners are unnecessarily giving the issue a religious spin while the Waqf is clearly the victim of fraud.
“This is a case of complete fraud and religious colours are given. In 2002, they managed to get it registered as a waqf to stall eviction and they managed for 20 years. Then they say it is because of the Govt change. They are making religious colours in the HC direction too.”
Regarding the 11m setback, “On all four sides it will be 11 meters. And in any case, it is not their business to say what should be set back, ”Mr Dwivedi stated.
Justice Shah asked, “Is there no other land nearby which can be given?”
“Anyway, the question of alternate land need not be linked with this. They have to vacate first. They cannot make a bargain that they will vacate only if they are given alternate land. The High Court has dealt with all these issues. And compensation has also been granted,” Mr Dwivedi stated.
Additional Solicitor General, Aishwarya Bhati for State of Uttar Pradesh replied, “There is another mosque existing within 500 meters of the High Court. And there is no vacant plot in the tehsil. This is the second round of litigation. In 2004, the land was resumed for the HC. And we are in 2023 now. They are not raising any other ground except that the government has changed.”
After the lease was cancelled and the land was resumed and confirmed by the Supreme Court, Judge Shah informed Adv. MR Shamshad, speaking on behalf of the Mosque, that they could not assert a claim to the lease property.
“Try to understand one thing. You have no right. It was a lease property. Lease was terminated and land was resumed and confirmed by this Court. Immediately, it was registered as waqf. You can’t claim as a matter of right to continue”
The mosque, which is said to have been built illegally on encroached land and is located on the grounds of the Allahabad High Court, is at the centre of the controversy. The registrar-general was given a directive by the high court in 2017 to make sure that no area of its locations in Allahabad or Lucknow could be exploited, “for practicing religion or offering prayers or to worship or to carry on any religious activity by any group of persons”. “While a citizen has complete freedom to profess, practice and propagate religion of his choice, he cannot claim right to erect structure in the name of religion in an unauthorized manner over public land or over land of others,” a jury presided over by Dilip B. Bhosale, the chief justice at the time. The High Court claimed that the lessees, who had initially only built a “tin shed,” lost in the Supreme Court and were ordered to turn over possession of the encroached land. It was only then that the waqf was registered.
[Case Title: Waqf Masjid High Court v. High Court of Judicature Allahabad Registrar General And Ors. SLP(C) No. 3085/2018]
#SupremeCourt to shortly hear a petition challenging a 2018 decision by Allahabad HC to remove a mosque called Waqf Masjid High Court from its premises, on the ground that "no part of its premises was permitted to be used to carry on any religious activity".#SupremeCourtofIndia pic.twitter.com/TXsKDbWgMT
— Live Law (@LiveLawIndia) March 13, 2023