Sanjauli Mosque Row: Shimla Court Rejects Appeal Against Order To Demolish Masjid's 'Illegal' Storeys

Additional District and Sessions judge Praveen Garg dismissed the appeal while holding in effect that the petitioner-Hashmi, being a stranger to the lis, had no right to appeal under Section 253 (1) of the 1994 Act, which provides for filing an appeal against an order of the Commissioner made under sub-section (1).

“Moreover, Any Person, having right to appeal provided under section 253(2) of HPMC Act does not means any stranger to lis but only the occupier/owner/person at whose instance construction is being carried or to whom order of demolition is passed by Municipal Commissioner under Section 253 (1) of H.P. Municipal Corporation Act, as Any person described under Section 253(2) of the HPMC Act should be read in continuation with Person to whom notice be issued under section 253(1) of the HPMC Act by applying the principal of “Ejusdem Generis” latin term which means “of the same kind”, the Court observed in its order.

The Court also observed that the Municipal Commissioner did not pass the impugned order under Section 253(1) of the 1994 Act after conducting an enquiry. Instead, the same was based on an application signed by the occupier and owner (Respondent No. 4-Mohammed Latif, President of the Sanjauli Mosque Committee).

The Court said that since the proceedings before the Commissioner in the matter are still ongoing and the order was only an interim measure, the appellant had the right to approach the Commissioner and request participation in the proceedings.

The Court added that in case of any legal injury caused by mismanagement of Waqf property or an application submitted by the Plaintiff, the appellant-Hashmi was also at liberty to move before the Board or Waqf tribunal.

But as far as this appeal was concerned, the Court held that it would not be maintainable before it.

Background of the matte

For context, Shimla's Sanjauli Mosque has been at the centre of the growing communal tension in Himachal Pradesh following protests concerning the additional construction of the mosque.

On September 5, a massive protest took place at the instance of some Hindu right-wing organisations in the vicinity of the Vidhan Sabha, demanding the demolition of the mosque.

However, on September 12, a panel comprising the Imam of the Sanjauli mosque, Waqf board members, and mosque management committee members submitted a memorandum to the Shimla Municipal Corporation Commissioner urging it to seal the unauthorised portion. The panel also offered to demolish it in accordance with a court order.

The Waqf Board's estate officer also submitted that it had no objection to the Masjid Committee, for whom a NOC was granted, being allowed by the Corporation to remove the structure exceeding the permissible limit under the Municipal Corporation Act.

Pursuant to this, on October 5, the Municipal Corporation Commissioner ordered the demolition of the mosque's three unauthorised storeys and gave the Waqf Board two months to execute the order.

Now, challenging this order, All Himachal Muslim Organisation (AHMO) spokesperson and petitioner Nazakat Ali Hashmi moved the Shimla Court.

Hashmi had also argued that Respondent No. 4 lacked any authority to apply to the Municipal Corporation without a resolution from the Masjid Committee, which happens to be the lawful body managing the Masjid.

In its 18-page order, the Court noted that the HP Waqf Board, as the primary custodian and trustee of Waqf properties on behalf of the Muslim community, was already involved in the matter and the board had neither disputed Latif's position as President of the Sanjauli Masjid nor challenged the application he submitted to the Municipal Commissioner, Shimla, to remove the unauthorized construction at the Masjid's risk.

In view of this, the Court concluded that since the principal (Waqf Board) did not dispute the agent's (Mohamad Latiff's) position, there was no merit in the appellant's claim that Latiff was not competent to file such an application.

Further, the court dismissed the appeal, finding that the appellant had no locus to maintain an appeal in the matter.