'Why Can't Entire Masjid Premises Of Nizamuddin Markaz Be Opened For Offering Prayers?': Delhi HC Tells Centre To Come Out With A Clear Stand

The Delhi High Court on Friday told the Central Government to come out with a clear stand as to why it cannot reopen the entire masjid premises in Nizamuddin Markaz for offering of prayers by devotees. Public entry was banned at the Nizamuddin Markaz in the aftermath of Tablighi Jamaat members testing positive for Covid-19 in 2020.

Justice Manoj Kumar Ohri was dealing with an application in the petition moved by the Delhi Waqf Board seeking to ease restrictions at the Nizamuddin Markaz, which has been locked since March 31, 2020.

The said application was filed by the Wafq Board seeking reopening of Masjid in the Nizamuddin Markaz commonly known as Masjid Bangle Wali owing to the upcoming festival of Shab e-Barat next month.

The development came after the Centre had informed the Court that while few people can be permitted to offer prayers during the upcoming occasions of Shab-e-Barat and Ramzan festivals in the first floor of Markaz, its entire premises cannot be reopened.

Accordingly, Justice Ohri told Rajat Nair, counsel appearing for the Centre, thus:

"Mr. Nair you please seek instructions as to in case there is no objection to opening of first floor, what objection may be there for opening of remaining portion, de hors your submission that you have no objection as far as religious festivals are concerned. Why not for everyday?"

During the course of hearing today, Senior Advocate Sanjoy Ghose appearing for the Delhi Waqf Board apprised the Court that even at the height of COVID 19, the predecessor bench had allowed 50 people to offer Namaz after which a joint inspection was done and the mosque premises was demarcated separately.

Senior Advocate Rebecca John appearing for the Managing Committee of the Masjid told the Court that there was no reason as to why any restriction should be placed and the mosque premises should not be opened.

At the outset, Nair submitted before the Court that there was no objection regarding the permission to open first floor of the mosque as per DDMA guidelines which was earlier also designated for offering of namaz. However, regarding the reopening of entire premises, Nair submitted that the same was a final relief which cannot be granted at an interim stage.

Referring to the joint inspection report, Ghose argued that the mosque premises had been separately demarcated so as to include the basement, terrace, ground floor, upper floor and other floors.

"The entire masjid is defined as having these components. And it is a religious place. Your lordships knows that these are congested areas. Now my learned friend is introducing that in one floor I will allow everyone. That is actually creating covid hazard when you want devotees to throng in one floor when seven floors are available. I don't understand the logic and reason of the Union of India to argue like this," Ghose argued.

To this, Justice Ohri asked Nair thus:

"Today both the claimants are before the Court and they both jointly seek reopening of the area which has been identified as place where devotees can come and offer namaz. You also identify that from basement till fourth floor it is the place and there is no restriction in the numbers, what objection is there for restriction of floors?"

"If the argument holds good, it holds good for first floor then it holds good for other floors as well as far as it is concerning the masjid. Both of them, without prejudice to their claims, if the first floor is used for namaz, then other floors can also be used."

To this, Nair reiterated that he cannot change the stand which was to allow offering of namaz on first floor of the mosque.

Accordingly, the Court listed the matter on Monday seeking a clear stand of the Centre.

Last month, the Centre had informed the Court that the aspect of opening of Masjid in Nizamuddin Markaz will have to be done in terms of the order passed by the Delhi Disaster Management Authority (DDMA).

The Court had in November last year ordered for a joint inspection to be carried out at the Nizamuddin Markaz for the purpose of demarcation of the three areas namely the religious place (Masjid) where people offer namaz, the place where congregation take place and the residential area which has a hostel.

Earlier, the Centre had informed the Court that it was necessary to preserve the premises of Nizamuddin Markaz as the case involves cross border implications and diplomatic relations with other countries.

It also submitted that the petitioner's fundamental right under Article 26 of the Constitution was curtailed only for a short duration owing to the public order considerations and therefore cannot be said to be ultra vires the Constitution.

The petition stated that the central government vide its guidelines for the phased reopening of public places and facilities after the Covid-19 lockdown, known as "Guidelines for Unlock 1" dated May 30, 2020, allowed for the reopening of a list of religious places outside containment zones from Jun 8, 2020, yet the Hazrat Nizamuddin area was kept outside the list, as it was said to be in a containment zone.

However, even after it was removed from the list of containment zones in September 2020, the Waqf property was still locked.

It was submitted that the entire premise of the Markaz was locked by the local police after the registration of an FIR under the Epidemic Diseases Act, 1897 against a congregation at the Markaz.

The Markaz which was locked on the pretext of getting the area sanitized, has remained shut since March 31, 2020, the plea elaborated.

The petitioner states that even if the premises is involved in any criminal investigation/trial, "instead of following a primitive method of keeping the entire premises under lock as an 'out of bound area' a modern or scientific method" should be adopted by the Delhi Police and government to ensure minimum interference with religious rights.

The board further said that its representations to the government and police in this regard were unanswered and therefore it was moving this petition, praying for a reassessment of the need for keeping the premises locked, adoption of scientific or advanced methods to secure the condition of interiors of the premises for investigation/ trial purposes, and a direction to the police and government to ensure minimum interference with the operation of the Markaz for religious purposes.

Case Title: DELHI WAQF BOARD Through its Chairman v. GOVERNMENT OF NCT OF DELHI & ANR