Supreme Court Affirms Order To Remove Mosque From Allahabad High Court Premises; Allows Waqf To Request State For Alternative Land

The Supreme Court, on Monday, affirmed the order passed by the Allahabad High Court in 2017 for the removal of a mosque named "Masjid High Court" from its premises.

While dismissing the special leave petitions filed by Waqf Masjid High Court and the UP Sunni Central Waqf Board, a bench comprising Justices MR Shah and CT Ravikumar granted three months time to the petitioners to remove the mosque. If the construction is not removed within a period of 3 months from today, it will be open for authorities including the High Court to have them removed or demolished, the bench added.

The bench has also granted permission to the petitioners to make a representation to the Uttar Pradesh Government for allotment of alternative land in the nearby area. The State may consider the representation in accordance with law and on its own merits, taking into consideration if such lands are not required for any other public purpose, either present and future.

The bench passed the order taking note of the fact that the mosque was situated in a government lease land and the grant was cancelled way back in 2002. After the cancellation of the lease, the land was resumed in favour of the High Court in 2004 for its expansion. The bench noted that the Supreme Court had in 2012 affirmed the resumption of land and hence, the petitioners cannot claim any legal right over the premises. In this backdrop, the bench refused to interfere with the High Court's order which was passed in a PIL filed by an Advocate named Abhishek Shukla.

Arguments in Court.

Senior Advocate, Mr. Kapil Sibal, appearing for the Waqf Masjid High Court, briefly narrated the history of the Masjid in order to provide a background to the dispute. He submitted that the present building of the Allahabad High Court was constructed in the year 1861. Since then the Muslim advocates, Muslim clerks, Muslims clients were offering namaz on the northern corner on Fridays; there was an arrangement for wazu as well. Later, the chambers of judges were constructed near the verandah where namaz was being offered. At the request of a Muslim Lawyers’ delegation, the Registrar of the High Court provided another place at the southern end for offering namaz. At the time, an individual, who was having a government grant land, offered them space to offer namaz at a private mosque on the premises.  Thus, the private mosque was converted into a public mosque. Around 1988, the lease of the land on which the mosque was situated was renewed for another 30 years, which was to come to an end in 2017. However, on 15.12.2000, the lease was cancelled, but namaz continues to be offered at the mosque till date.

He said that the mosque is situated across the road outside the High Court and it was wrong to say that it was situated within the premises of the High Court.

“Govt changes in 2017. The Government changed, and everything changed. PIL is filed ten days after the new government was formed", he said.

It was urged that the Waqf does not have a problem if the mosque is shifted to an alternative place. However, he submitted the Bench that the High Court has constructed a 9 storied building although they had authorization to build only 6 stories, and the mosque land is sought to be taken for satisfying the increased set-back requirement 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 added -

“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.”

Mr. Sibal submitted that the mosque was functioning as a public mosque for decades. He emphasized that the Waqf doesn’t want to jeopardize fire safety and for that reason is amenable to an alternative solution, i.e., alternative site.

He further submitted -

“The entire impression in the HC judgment is that the mosque is in the premises of the High Court. That is not correct.”

Senior Advocate, Ms. Indira Jaising appearing for UP Sunni Waqf Board submitted -

“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.”

Ms. Jaising submitted that the original set back was supposed to be 6 meters -

“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.”

Stand of the High Court

Senior Advocate, Mr. Rakesh Dwivedi appearing for the Allahabad High Court submitted, at the threshold, “This is a case of complete fraud ....”

Dwivedi took the Bench through the history of the status of the lease since 1861. He pointed out that there was a clause in the lease deed that buildings should not be constructed without prior permission. Thus, previous sanction of the government was required to subdivide or transfer the plot. He added that renewal applications were filed twice since the lease was granted but there was no whisper at all about the mosque being constructed and it being a public mosque. The Bench was apprised that the renewal was sought demonstrating need for residential purposes. Mr. Dwivedi pointed out that even when the Lessees filed writ petition against notice issued by collector for cancellation of lease, there was no mention of mosque or dedication. It was argued that in order to dedicate, one ought to be full owner of the land. Considering these factors, the High Court had upheld the resumption. Against the said order a Special Leave Petition was filed before the Apex Court. A status quo order regarding dispossession was granted. Soon after the status quo order, the lessee filed an application before the Waqf Board oon 30.05.2002 and on the same day, the land was registered as waqf. Later, the Supreme Court vacated the status quo and granted time to vacate the land. The High Court took over the possession in 2004.

Mr. Dwivedi submitted, “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 colour. 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 added -

“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 argued that the petitioners are unnecessarily giving the matter a religious colour when it is a clear case of fraud on the part of the Waqf.

“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, Mr. Dwivedi submitted, “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.”

Justice Shah enquired, “Is there no other land nearby which can be given?”

Mr. Dwivedi submitted, “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.”

Additional Solicitor General, Aishwarya Bhati for State of Uttar Pradesh responded, “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.”

Justice Shah told Adv MR Shamshad appearing for the Mosque that they cannot claim right to the lease property since the lease was terminated and land was resumed and confirmed by the Apex Court.

"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"

At the centre of the controversy is a mosque situated within the premises of the Allahabad High Court, which, it has been alleged, was illegally constructed on encroached land. In 2017, the high court had instructed the registrar-general to ensure that no part of its premises, either in Allahabad or in Lucknow, was permitted to be used “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 bench headed by the then-chief justice, Dilip B. Bhosale. The High Court alleged that the waqf was registered only after the lessees, who had originally constructed no more than a ‘tin shed’, lost in the Supreme Court and were directed to hand over possession of encroached land.

[Case Title: Waqf Masjid High Court v. High Court of Judicature Allahabad Registrar General And Ors. SLP(C) No. 3085/2018]

Live-thread from the hearing :

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