Supreme Court Stays Demolition Of Dargah Mubarak Khan Saheed, Gorakhpur; Issues Notice To UP Govt

The Supreme Court on Monday ordered stay on any further demolition of any structure at Dargah Mubarak Khan Shaheed at Gorakhpur, Uttar Pradesh. The Court has restrained the demolition till disposal of the proceedings pending under the Uttar Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 1972.

A division Bench of Justice Navin Sinha and Justice Krishna Murari has also issued notice to the State of Uttar Pradesh in the matter. The special leave petition has been filed challenging Allahabad High Court's judgement dated 10th Feb 2021 dismissing petitioners request of declaring the demolition as void and interdicting the authorities from further demolition.

During the hearing before the Apex Court, Senior Advocate Vibha Dutta Makhija argued for the petitioners.

The Court was orally informed by the petitioners that they received information today about a letter dated 3rd March 2021 by Secretary, GDA requesting SP (City) Gorakhpur to depute police force for starting the demolition drive tomorrow i.e. 9th March. The Court then granted an interim relief of stay on any further demolition.

The present special leave petition has been drawn by Advocate Shariq Ahmed, and filed by AOR Sunil Kumar Verma on behalf of the petitioner Dargah Mubarak Khan Saheed.

The plea has stated that the petitioner Idgah has a tomb of Saint Mubarak Khan Saheed and Mosque in southern side of the tomb, which according to the petitioners has been since time immemorial been used by the Muslim Community for offering prayers on important festivities such as Id and Baqrid, and being a symbol of unity of both the Hindu and Islamic faith is daily visited by large number of people of both the communities.

According to the petitioner, when in the year 1959 the use and arrangement in and around the properties in question was disturbed by Principal of Government Normal school, Gorakhpur and even egress and ingress was stopped, a suit was filed before Munsif's court Gorakhpur praying a relief against the defendants including State of UP and Collector Gorakhpur to open the eastern gate of the Brijman's compound, facing the Collector's compound to allow ingress and outgress from gate to the tomb, mosque and graveyard after removing any wire fencing blocking the said passage. The other reliefs sought were not to create any change in the newly opened gate on the western side which was the only passage from west to the tomb mosque and the grave yard and to injunct the authorities from interfering with repair works of the tomb or the grave and also from doing any damage to them. The suit was decided in favour of the plaintiffs, directing defendants to allow ingress and outgress and not interfere in the repair work of the tomb, graves, etc.

The plea has stated that the Trial Court in its order had also observed that the plaintiff and the Muslim have a right to use the open land near the Mosque and Id-gah for offering prayers. Since then the petitioner has been using the compound and there has been no interference by the State Authority. However through an order dated 29th June 2019 the Sub divisional officer apparently proposed to initiate proceedings under section 4 of the UP Public Premises Act 1972 and enjoined the Subordinate Revenue Authorities to enquire into the matter and submit a report. A report submitted by the Revenue Team consisted of names of 18 alleged unauthorised occupants including the petitioner. This was followed by show cause noticed being issued to these alleged unauthorised occupants, to show as to why order of eviction be not passed against them.

The plea further stated that the Gorakhpur Development Authority treating the petitioner's possession over the property in question as unauthorised, undertook to demolish the construction that too without any notice issued to the petitioner. The petitioner tried to convince them that its occupation over the property in dispute is not unauthorised and even referred to the Trial Court's order . However, after the demolition of a part of the construction, the Gorakhpur development authority asked petitioner to produce other document to prove their right over the property in dispute. An application was moved by the petitioner on 1st January 2021 before the Sub Divisional Officer stating that Trial Court's judgement dated 3rd September 1963 has become final and it prohibits the State of UP from interfering in any manner.

The plea has further stated that the petitioner also approached the Allahabad High Court seeking quashing and declaring that action of demolition dated 29th December 2020 as illegal and interdicting respondents from further from further demolition. The High Court granted an interim relief ordering no demolition or eviction till next hearing. The High Court through its impugned order dated 10 Feb 2021 dismissed the case, holding that in pith and substance the petitioner has asked for execution of the Trial Court's judgement and decree dated 3rd September 1963, and remedy of the petitioner was to file a civil suit before Court concerned for grant of injunction, or file for an execution of the decree.

Click here to read/download the order