A Division Bench of Justices Attau Rahman Masoodi and Ajai Kumar Srivastava said that no coercive action should be taken against the petitioners. The State has been granted three weeks to file its rejoinder affidavit. The order states,
"In the meantime, it is provided that until a police report under Section 173(2) Cr.P.C. is filed, the petitioners shall not be subjected to any coercive measures. It is made clear that the petitioners shall co-operate with the investigation and shall not evade their presence as and when called for."
On May 17, a mosque in the Ram Sanehi Ghat tehsil in Uttar Pradesh was demolished by administrative order. The mosque, famously known as the Gareeb Nawaz Masjid, was razed after authorities deemed it an illegal structure. The Masjid Committee was in charge of the affairs of the mosque.
An FIR was subsequently registered against the President of the Committee, Mushtaq Ali; Vice-President Waqeel Ahmad; Secretary Mohamad Aneesh; and Dastageer, Afzaal Mohammad Naseem, along with Uttar Pradesh Sunni Central Waqf Board Inspector Mohammad Taha, prompting them to approach the High Court for relief.
The demolition of the Mosque amid the COVID-19 pandemic, despite express orders by the High Court to halt demolition activities during this period, raised many an eyebrow. Let us attempt to decode the history and legal aspects of the dispute.
The following are the chain of events revolving around the dispute.
The 2016 Lavkush case
In 2016, a petition was filed before the Allahabad High Court alleging that the respondents were encroaching upon a public pathway by constructing a religious structure (temple).
The petitioners asked the Court to issue appropriate directions to remove such construction that encroaches on public roads (including highways), streets and pathways, etc.
The Division Bench of Justices Sudhir Agarwal and Rakesh Srivastava issued the following directions in that case:
(i) Directions on illegal structures
The State was directed to issue a general direction to all authorities to maintain roads (including highways) across the State and to ensure that no religious structure, in any form whatsoever, be allowed to be raised on a public road.
(ii) Demolition of such structures erected post-2011
The Court said that if any such structure is existing and has been raised on or after January 1, 2011, the same shall be removed forthwith.
On the other hand, the Court said that if any such religious structure has been constructed encroaching upon the public road before January 1, 2011, a director shall be issued to shift the structure to a private land offered by beneficiaries of such religious structures or persons responsible for its management, or to remove it, within six months.
(iii) Disobedience would amount to criminal contempt
The Court warned that any disobedience of its orders shall be treated as deliberate and intentional disobedience and would amount to criminal contempt.
Apprehension raised by Masjid Committee
On March 18 this year, a petition was filed by the members of the Masjid Committee challenging the notice issued by the local administration which eventually led to the May 17 demolition of the Mosque.
The petitioners challenged the notice citing the Lavkush judgment, particularly the direction that called for a scheme to shift structures erected before January 2011 to private land offered by the beneficiaries of such religious structures or persons responsible for their management.
While hearing the plea, the Court remarked that the notice has been issued “only to solicit the evidence/the documentary evidence and not for demolition.” Thus, it was observed that the apprehension of the petitioner as regards demolition was unfounded.
Accordingly, the petition was disposed of by the Court with the following direction:
“The petitioners shall be permitted to file a reply to the said notice dated 15th March 2021 within 15 days from today, in addition to the reply already filed by them. Once any reply is filed, the matter shall be considered by the authorities concerned and a fresh decision thereon shall be taken.”