Delhi High Court
Court On Its Own Motion vs Govt. Of Nct Of Delhi & Ors. on 30 July, 2012
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul, Rajiv Shakdher
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 25.07.2012
% Date of decision : 30.07.2012
+ WP (C) No. 4323 of 2012
COURT ON ITS OWN MOTION ...PETITIONER
-VERSUS-
GOVT. OF NCT OF DELHI & ORS. ...RESPONDENTS
+ WP (C) No. 4432 of 2012
SS SAI BABA OM JEE @ SS OMJI & ORS. ...PETITIONER
-VERSUS-
SHOAIB IQBAL & ORS. ...RESPONDENTS
+ CONT. CAS. (C) No. 459 of 2012
COURT ON ITS OWN MOTION ...PETITIONER
-VERSUS-
K.S. MEHRA & ORS. ...RESPONDENTS
+ CONT. CAS. (C) No. 460 of 2012
SS SAI BABA OM JEE @ SS OMJI & ORS. ...PETITIONERS
-VERSUS-
SHOAIB IQBAL & ORS. ...RESPONDENTS
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WP (C) No. 4323 of 2012 & Connected Matters Page 1 of 25
Presence : Mr. Aman Lekhi, Sr. Adv. with Ms. Monica Arora,
Mr. Varun Sinha, Mr. Vikas Gupta, Mr. B.S. Shukla
and Mr. A. Gaur, Advocates for the petitioner.
Baba Nand Kishore Misra and Sardar Ravi Ranjan Singh,
Petitioner Nos. 2 and 3 in WP (C) No. 4432/2012 and
Cont. Cas. (C) No. 460/2012.
Mr. Pawan Sharma, Standing Counsel (Crl.) with
Mr. Sahil Mongia, Advocate for GNCTD.
Mr. A.D.N. Rao with Mr. Jayant Tripathi, Advocates for ASI.
Mr. Ajay Arora with Mr. Kapil Dutta, Advocates for MCD.
Mr. Kirti Uppal, Sr. Adv. with Mr. M.M. Kashyap, Adv.
for the Applicant / Mr. Shoaib Iqbal.
Mr. Atyab Siddiqui, Advocate for the Intervener.
CORAM:
HON‟BLE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MR. JUSTICE RAJIV SHAKDHER
BY THE COURT :
1. Religion is said to be the opium of the masses. It can be both a
great unifying factor, but also disruptive of social peace where in
the name of a religion, extreme postures are taken. It is the
bounden-duty of all sane members of the society to ensure that the
lives of general public are not affected by posturing on matters of
religion. The common man, as it is, has his hands full making his
two ends meet. The diversity in religion and culture of our country
is, thus, to be treated as a unifying factor rather than disrupting
peace. The three limbs of the system being Legislature, Executive
and Judiciary, thus, have a duty to perform as enshrined under the
Constitution of India, 1950 (for short, „the Constitution‟).
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2. We have entertained the present public interest litigation (for short,
„PIL‟) on account of the grievance made regarding some
unauthorized construction stated to be going on at Subhash Park
facing Red Fort, which was likely to create an adverse law and
order situation. We passed Orders on 20.07.2012 after calling
upon the Government of National Capital Territory of Delhi and
the Municipal Corporation of Delhi (for short, „MCD‟) to apprise
the Court about the situation prevailing at the site. The site in
question had, in fact, been handed over to the Delhi Metro Rail
Corporation (for short, „DMRC‟) some time ago for purposes of
construction in respect of metro rail project. It appears that the
DMRC washed its hands of the land in question diverting its path
possibly because of the ground reality and in view of the
apprehension of what actually came to transpire subsequently.
There was apparently some communication gap insofar as the
handing over site back to the MCD is concerned and the land
remained unattended for some time. It is during this interregnum
period that some digging at the site is stated to have been carried
out and articles found, which were alleged to be of archeological
significance.
3. The records produced before the Court show that various
authorities passed on the buck to each other. The Archeological
Survey of India (for short, „ASI‟) did not step in despite the
request. Not only that as a sequitur to the discovery of these
articles, even some local persons started raising construction,
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without obtaining any permission, on the land, which undisputedly
belongs to the MCD. This construction apparently continued
unabated despite intervention at the highest level as a meeting is
stated to have been called by the Chief Minister of Delhi, which
was attended by the Commissioner of Police, Director General of
ASI and the Officers/officials from the Ministry of Urban
Development. It may be added here that Subhash Park is stated to
fall within the restricted zone of two protected sites, i.e., Sunehri
Masjid and Red Fort and, thus, any construction in the said area
required the permission from the National Monuments Authority
(for short, „NMA‟). On 19.07.2012, the Lieutenant Governor of
Delhi even ordered the North Delhi Municipal Corporation and the
police authorities to stall the construction at the site. It, however,
appears that intervention of the authorities only took place in
pursuance to the Orders passed by this Court on 20.07.2012. In
terms of the said Order, this Court opined that it was the ASI,
which ought to take possession of the site to carry out necessary
exercise and determine the significance of what is found at site.
We took note of a letter of Mr. Shoaib Iqbal dated 13.06.2012
produced by the authorities wherein he himself had requested for
intervention of the Chief Minister for handing over the site to the
ASI; for excavation and re-building of what he claimed to be the
Akbr-a-badi Masjid; and for stoppage of the work being carried
out by the DMRC. We further opined that it was not proper for
him or any other person to start construction over the site, but such
a step had possibly arisen on account of lack of any timely action.
The significance of the role of the ASI was also apparent from the
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communication dated 28.09.2007 addressed by the Delhi Urban
Arts Commission (for short, „DUAC‟) to M/s. Pradeep Sachdeva
on the issue of re-development of the area around Jama Masjid
where the DUAC had requested that necessary archaeological
excavation would be required by the ASI. The Court was
informed that this claim started assuming communal overtone and
there was hesitancy on the part of the authorities to intervene. We,
thus, directed that there should be no further construction nor
should the place be used for the purpose of any congregation
whatsoever. The MCD was directed to cordon off the area with
police assistance. We also expressed hope that the Government at
the highest level would take steps to convene meetings of all the
stakeholders to defuse the situation.
4. In pursuance to our Order dated 20.07.2012, a status report has
been filed by the Additional Commissioner of Police, Central
District, Delhi dated 24.07.2012. In terms of the report, adequate
police force was mobilized for the next day for the MCD officials
to cordon off the site and several meetings were held with Peace
and Aman Committees, Nagrik Suraksha Smitis and respectable
persons of the area to brief the community on the developments
and neutralize any rumour mongering. The work of cordoning off
the site was started on 21.07.2012 at 10.30 a.m. and is stated to
have continued till 2.30 p.m. The items found at the site consisting
of Holy Quran and other religious items used for offering Namaz,
PA system, etc. were inventorised and the same was signed by a
self-appointed Khadim stated to be person at site. The entire
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process was videographed and photographed. These inventorised
goods are stated to have been shifted to a mosque after
intervention and handed over to the Imam of Ferozshah Kotla
Mosque. It has been stated that despite all the precautions, the
atmosphere got surcharged on the arrival of the MCD and police
officials at site and the arte-facts found at site claimed to have been
excavated were taken possession of. There was some rioting and
damaging of public as well as private property in the evening of
21.07.2012 when large groups wanted to enter the premises at site
resulting in injuries to policemen and necessary action qua the
same has been taken. We must note here with regret the
endeavours of a few miscreants who by their hostile action tend to
create a surcharged atmosphere and damage public and private
property. It is high time that such a group is made accountable
both in civil law and criminal law for their misconceived actions.
5. The positive development has been that the Lieutenant Governor
held a meeting with all the stakeholders in the afternoon of
23.07.2012 to defuse the situation, which was attended by the
representatives of the Delhi Government; police authorities; ASI;
North Delhi Municipal Corporation; local MLA; Chairman, Wakf
Board; Chairman, Delhi Minorities Committee; Shahi Imam of
Fatehpur Masjid and the representatives of Vishwa Hindu
Parishad. The Lieutenant Governor exhorted all the stakeholders
to abide by the Orders of this Court and maintain peace and
harmony and also urged the ASI to take up investigation of the site
expeditiously. All present assured full co-operation and agreed not
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to issue provocative press statements, which would create public
disharmony.
6. The status report, however, goes further to state that since it is the
holy month of Ramzan, groups are moving in the area offering
Namaz and attending Taravi in nearby mosque and, thus, any
rumour regarding demolition of the recently built structure had the
possibility of setting off the crowd in a mob frenzy. Such mobs
were tactfully dispersed by the police officials deployed in the
area.
7. We may notice that in the proceedings held on 25.07.2012, we
have taken note of the assurance held by all the stakeholders to the
Lieutenant Governor and have expressed our confidence that in
view of pendency of the matter before this Court, there would be
adherence to the assurance extended in the meeting convened by
the Lieutenant Governor on 23.07.2012. While we appreciate this
spirit of all the stakeholders, we hope that they would keep in mind
the following words of wisdom of the father of nation, Mahatma
Gandhi:
"The need of the moment is not one religion, but
mutual respect and tolerance of the devotees of the
different religions."
8. A separate status report has been filed by the Deputy
Commissioner, City Zone, North Delhi Municipal Corporation.
The MCD states that it came to its notice that after the land was
transferred to the DMRC on 11.04.2012, certain unauthorized
activities were going on on the land, which needed to be stopped
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immediately and construction activity was detected on
17.07.2012 on the field staff of Horticulture Department going
to the site when police was again requested to stop the
unauthorized encroachment on the government land. The MCD
also received a letter on 18.07.2012 from the ASI that the
unauthorized construction falls within the regulated area of
centrally protected monuments and the same cannot be
undertaken without obtaining permission from the NMA /
competent authority. In view thereof, even a public notice was
given in leading newspapers in Delhi in the following terms :
"BE IT KNOWN TO ALL CONCERNED THAT
ARCHEOLOGICAL SURVEY OF INDIA HAS
INFORMED REGARDING ILLEGAL
CONSTRUCTION ACTIVITIES BEING CARRIED
ON AT SUBHASH PARK, OPPOSITE RED FORT,
DELHI IN AND AROUND PROTECTED
MONUMENT OF RED FORT IN VIOLATION OF
THE ANCIENT MONUMENTS AND
ARCHEOLOGICAL SITES AND REMAINS ACT,
1958, RULES, 1959 AND THE ANCIENT
MONUMENTS AND ARCHEOLOGICAL SITES
AND REMAINS (AMENDMENT AND
VALIDATION) ACT, 2010 ON THE PRETEXT OF
EXPOSURE OF REMAINS OF AKBARABADI
MOSQUE AT THE SITE. IT IS CLARIFIED THAT
THE SAID LAND BELONGS TO NORTH DELHI
MUNICIPAL CORPORATION AND ANY
CONSTRUCTION OVER THE SAME IS LIABLE
FOR ACTION UNDER DMC ACT, APART FROM
ACTION UNDER THE SAID ACT. ALL THE
CONCERNED ARE NOTIFIED THAT ANY
PERSON FOUND INVOLVED IN RAISING
CONSTRUCTION OVER THE SAID SITE SHALL
BE PROSECUTED AS PER LAW."
(emphasis supplied)
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9. In the latter part of the day, a letter was received from the
DMRC to take back the land and in pursuance to a meeting held
with the Secretary, Urban Development and the Delhi Police, a
decision was taken to do so, but no police force was provided,
though the officials of the MCD waited till 9.00 p.m. on
18.07.2012. Thus, possession was taken over on 19.07.2012 in
the morning on „as is where is‟ basis and a letter was sent to the
DCP (Central) to provide police force to maintain law and order
at site.
10. The status report of the MCD also makes a reference to some
local representatives of the area along with police force and the
mob coming to the office of the Deputy Commissioner and
pressurizing him to grant conditional approval for continuing the
prayers till the decision was taken by the MCD. Such
permission was, however, subsequently withdrawn in pursuance
to the decision taken by the MCD, now NDMC.
11. The factum of the entire area being cordoned off has been noted
in the report. The version of the police and the MCD (now
NDMC), post-passing of our Order, is more or less identical. It
is, however, stated that the ASI officials, who came to site, did
not take possession of the two boxes containing the alleged
articles found at site of broken pieces of pottery.
12. Since our Order dated 20.07.2012 also called upon the MCD to
submit latest status report regarding Jama Masjid Re-
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development Plan, it has been stated that approval for the same
was granted by the Standing Committee on 14.10.2009 vide
Resolution No. 241. The DUAC accorded its approval on
30.07.2010 and the administrative approval for the preliminary
estimate of Rs.145.43 crores was granted by the Corporation
vide Resolution No. 629 dated 12.12.2011. However, Re-
development Plan is stated not to have been executed for want of
approval from the NMA and the ASI. But the case has been
referred to the concerned authorities by the Town Planning
Department of the MCD (now NDMC). The land in question
falls within the land use of „park‟ and „upper level walk way‟.
The MCD has emphasized the significance of a notice dated
19.07.2012 received by it on 24.07.2012 where directions have
been issued by the ASI to remove the unauthorized construction,
which had come up in the present case. Since the same is within
the regulated area of the protected monuments, it has been
categorically stated that the illegal construction existing at site is
an encroachment on public land belonging to the MCD (now
NDMC), which had come up without any prior permission /
sanction and in gross violation of the land use apart from being
within the regulated area of the protected monuments and,
therefore, liable to be removed. The notice dated 19.07.2012
reads as under:
"F.No. DC/405/2012-M-(U/C)-259
Government of India,
Archaeological Survey of India,
Delhi Circle, Safdarjung Tomb,
New Delhi - 110 003.
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Dated 19-7-2012
NOTICE
WHEREAS it has been noticed that some
unauthorized construction is coming up in the land of
Municipal Corporation of Delhi at Subhash Park
which fall in regulated area of centrally protected
monument of Red Fort and Sunehri Masjid.
Construction within the regulated area of a centrally
protected monument without obtaining No Objection
Certificate for the same from the competent authority
is illegal under the provisions of the Ancient
Monuments and Archaeological Sites and Remains
(Amendment and Validation) Act, 2010.
WHEREAS as per the provision of Section 20B of
the said Act, every area beginning at the protected
limits of the concerned centrally protected monument,
as the case may be, and existing upto a distance of
100 meters in all directions shall be prohibited area of
the purpose of constructions and mining and further
beyond 200 meters from the limit of prohibited area of
declared as regulated area for the purpose of
constructions/mining/repair/renovation/reconstruction
/addition/alteration.
Under Section 30(B) of the Act, whoever raises
any construction in the regulated area without the
permission of the competent authority or in
contravention of the permission granted by the
competent authority, shall be punishable with
imprisonment not exceeding 2 years or with fine
which may extent to one lakh rupees or with both. A
copy of the Ancient Monuments and Archaeological
Sites and Remains (Amendment and Validation) Act,
2010 is enclosed herewith for ready reference.
NOW THEREFORE, you are directed to remove
the said unauthorized construction within 15 days of
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the receipt of this notice failing which the same will
be removed at your cost.
sd/-
Superintending Archaeologist
The Deputy Commissioner,
Municipal Corporation of Delhi,
City Zone, M.L. Underground Car Parking,
Asaf Ali Road,
New Delhi.
... ... ... ... ... ... ... ..."
(emphasis supplied)
13. In the contours of the factual matrix set out hereinabove, we
heard all the stakeholders. An application for intervention was
filed on behalf of Mr. Shoaib Iqbal, MLA stating that he had
been pursuing the cause of Akbr-a-badi Masjid since the last ten
years and, thus, should be permitted to intervene. We heard Mr.
Kirti Uppal, learned senior counsel on behalf of the said
applicant. The said applicant also filed another application
seeking directions not to remove anything from the site, allow
Namaz prayers in the area, religious books, which had been
brought to site, should not be touched and for the ASI to submit
a report in a time-bound manner within three months. The
police authorities have pointed out to us that the area does not
fall within the constituency of the said applicant, namely, Mr.
Shoaib Iqbal, MLA and this position has not been disputed.
14. A contempt petition bearing Cont. Cas. (C) No. 459/2012 has
also been filed by one Vikas Gupta alleging that there had been
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WP (C) No. 4323 of 2012 & Connected Matters Page 12 of 25
violation of the Orders passed by this Court on 20.07.2012 qua
both construction and congregation at site.
15. Another contempt petition bearing Cont. Cas. (C) No. 460/2012
has been filed by S.S. Sai Baba Om Jee, Baba Pandit Nand
Kishore Mishra and Sardar Ravi Ranjan Singh of the Akhil
Bharat Hindu Mahasabha making the same kind of allegations
and of sloganeering at site. Specific allegations have been made
against Mr. S.A. Bukhari, Imam of Jama Masjid; Mr. Shoaib
Iqbal, MLA and others. It has been alleged that goons are
roaming free around the areas with a threat to the public at large.
The same three persons have also filed another writ petition
bearing WP (C) No. 4432/2012 in the nature of a PIL making a
grievance of the unauthorized construction and use of the site for
any congregation without obtaining any requisite permission. A
number of allegations relate to the past disputes and conduct of
Mr. S.A. Bukhari and are not confined to the site in question. It
has been denied that there is any mosque at site. It has been
stated that innocent public is being misled. Inaction is alleged
on the part of the authorities in permitting the unauthorized
construction. A claim is made that there are markings and
symbols, which would show that the site was possibly a temple.
These are the conflicting claims and need to be verified.
16. It would be relevant to refer to some of the provisions (Articles) of
the Constitution, which read as under:
"25. Freedom of conscience and free
profession, practice and propagation of religion.-
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(1) Subject to public order, morality and health
and to the other provisions of this Part, all persons are
equally entitled to freedom of conscience and the right
freely to profess, practise and propagate religion;
(2) Nothing in this article shall affect the
operation of any existing law or prevent the State
from making any law
(a) regulating or restricting any economic,
financial, political or other secular activity which may
be associated with religious practice;
(b) providing for social welfare and reform or
the throwing open of Hindu religious institutions of a
public character to all classes and sections of Hindus.
Explanation I. - The wearing and carrying of kirpans
shall be deemed to be included in the profession of the
Sikh religion.
Explanation II. - In sub-clause (b) of clause, reference
to Hindus shall be construed as including a reference
to persons professing the Sikh, Jaina or Buddhist
religion, and the reference to Hindu religious
institutions shall be construed accordingly.
26. Freedom to manage religious affairs.-
Subject to public order, morality and health, every
religious denomination or any section thereof shall
have the right
(a) to establish and maintain institutions for
religious and charitable purposes;
(b) to manage its own affairs in matters of
religion;
(c) to own and acquire movable and immovable
property; and
(d) to administer such property in accordance
with law."
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17. A bare perusal of Articles 25 and 26 of the Constitution makes it
amply clear that they embody the principles of religious
tolerance that have been basic features of the Indian Civilization.
However, the provisions of both the Articles are subject to
public order, morality and health, that is to say that no religious
sect may carry on activities which may disturb morality or order
in the State. Article 25 confers the right of freedom of
conscience and right freely to practice and propagate religion on
all individuals, but such a practice and propagation of religion
shall not be the one which disturbs or endangers public order
and might lead to a serious situation of disturbed law and order.
18. Article 25 does not confer by itself any right to property. It does
not specifically deal with the rights of a religious denomination
to own or acquire property.
19. Article 26 confers the right to establish and maintain institutions
for religious and charitable purposes. It, however, does not
guarantee the freedom to establish and maintain them at a
particular place or to make it immune from the acquisition.
When Article 26 permits the acquisition, by the State, of lands
belonging to religious or charitable institutions, then the public
or any section of the public cannot take the law onto its own
hands and build a structure on any land belonging to the
government. The land in question is undisputedly a property of
the MCD (now NDMC) and the persons, who built the structure
at the site, are liable of the offence of „trespassing‟.
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20. Religion is certainly a matter of faith with individuals or
communities and it is not necessarily theistic. Restrictions by
the State upon free exercise of religion are permitted both under
Articles 25 and 26 on the grounds of public order, morality and
health. See The Commissioner, Hindu Religious Endowments,
Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,
AIR 1954 SC 282.
21. No right in an organized society can be absolute. Enjoyment of
one‟s rights must be consistent with the enjoyment of rights also
by others. See Acharya Maharajshri etc. v. State of Gujarat,
(1975) 1 SCC 11.
22. While the citizens of this country are free to profess, practice
and propagate such religion, faith or belief as they choose; so far
as the State is concerned, i.e., from the point of view of the
State, the religion, faith or belief of a person is immaterial. To
it, all are equal and all are entitled to be treated equally. The
State has to be neutral in all cases. It cannot be biased or
inclined towards any sect on such a scenario. At least, an
elected member of the Assembly, who belongs to the ruling
government and, thus, a part of the State, should not have
resorted to illegal construction. The State has no religion. The
State is bound to honor and to hold the scales even between all
religions. It may not advance the cause of one religion to the
detriment of another.
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23. Mr. Aman Lekhi, learned senior counsel emphasized that the
matter should be viewed from a secular perspective and the
verification must be done, but there cannot be a premium on
unauthorized construction, which is alleged to have been done
with a „motive‟. He, thus, canvassed for demolition of the
structure and relied upon the observations made in paras 80 and
82 of the judgment of the Constitution Bench of the Supreme
Court in Dr. M. Ismail Faruqui and Others v. Union of India
and Others, (1994) 6 SCC 360 at page 417 where mosque has
been held to be subject to the provisions of the statutes of
limitation and acquisition apart from the right of adverse
possession. The acquisition of the site was upheld. The
Supreme Court emphasized that the status of a mosque in the
secular ethos of India under the Constitution is the same and
equal to that of the place of worship of any other religion and it
is neither more nor less.
24. To sum up the conflicting positions, which are taken by different
stake-holders, we find that in the digging, some articles have
been found. The claim of one community is that these are the
remains of Akbr-a-badi Masjid and would prove that such a
mosque existed. They want this Court to allow Namaz prayer in
the area. Other group claims that there are marks and symbols
which would show that site was possibly a temple. This group,
thus, insists that there may be further excavations for this
purpose. Even this group wants, in the meantime, to perform
Puja and for this purpose they want to bring idols on this site. In
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this backdrop, the first question is the verification of the articles
which have been found there from archaeological point of view
by an expert body, namely, the ASI. Second question pertains to
the interim arrangements, which are required during the period
such an investigation is carried out. Third aspect pertains to the
structure / unauthorized construction, which has already been
carried out. We have heard the counsel for the parties on all
these aspects.
25. We may notice that all the stakeholders are at ad idem on the
issue that necessary excavation, verification and site analysis can
be carried out only by the ASI with the assistance of technical
expertise. Therefore, this positive attitude needs to be
appreciated, which is even otherwise in tune with legal position.
The ASI, being a scientific body, is appropriate body to which
the land should be handed over in the present case. It is an
expert body which can investigate as to the remains which are
contended by the people. Being an autonomous body, it will be
able to conduct a research free from any political pressure, bias
or undue influence. The functions and responsibilities of the
ASI as per the statute are:
"1. Protection of monuments and sites under
AMASR Act, 1958;
2. Maintenance and conservation of centrally
protected monuments, sites and remains of
national importance;
3. Exploration and excavation of
archaeological sites;
4. Scientific preservation of monuments and
antiquarian remains;
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WP (C) No. 4323 of 2012 & Connected Matters Page 18 of 25
5. Architectural survey of monuments and
buildings;
6. Development of epigraphical research,
numismatic studies;
7. Registration and regulation of trade of
antiquities under AAT Act, 1972;
8. Setting up of site museums;
9. Horticultural and environmental up
gradation;
10. Publication of technical reports, guidebooks,
etc.;
11. Institute of Archaeology for imparting
training in archaeology and allied subjects;
12. Underwater archaeological operations."
26. As to whether there was any mosque at site or not, the
significance of what was found at site, etc. are all matters which
only an expert body, i.e., ASI can determine. The basic role of
the ASI, in the present case, is to ascertain as to whether the
remains, which are supposed to be found are of any importance
from archaeological point of view. The ASI is also to find
thorough scientific expedition in the nearest possible realistic
time-frame and ascertain whether there was ever an Akbr-a-badi
Masjid or not. In addition to this, the ASI shall carry out this
process in the adjoining area which is still unoccupied to
ascertain whether there was any religious building or anything
belonging to any other religion.
27. Thus, the ASI has to carry out the task at site. We may note that
the learned counsel for the ASI, in fact, volunteered that steps
were being taken to begin this process, but it may take some
time. The ASI emphasized that there should be adequate
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WP (C) No. 4323 of 2012 & Connected Matters Page 19 of 25
protection at site from the police authorities so that they can
carry out their task unhindered and any ingress and egress in the
premises should not be permitted. Further, excavation may also
become necessary.
28. Coming to the issue of construction, which has been carried out,
we have already taken note of the submission of Mr. Lekhi. His
plea for demolition of the structure was also supported by the
petitioners in WP (C) No. 4432/2012 and the MCD (now
NDMC). In this context, Mr. Kirti Uppal had submitted before
us, in no uncertain terms, that rule of law should prevail and that
he could not be heard to argue to the contrary. To which, the
Bench had queried as to whether the application of rule of law
would include bringing down a structure, which had come up at
site overnight without due sanction of the authorities concerned.
Mr. Kirti Uppal avoided a direct answer by submitting it is not
for him to suggest whether or not the structure should be
demolished. Alas! Such an approach shows that warring parties
for their own narrow political motives are paying lip service to
the fundamental edifice of our State, which is, the rule of law.
We posed a pointed query to him as to whether there was any
prior permission for construction. He conceded there was none!
He also acknowledged that he could not seriously dispute the
position that the construction, thus, made was unauthorized. Mr.
Atyab Siddiqui, learned counsel for the intervener also sought
permission of the Court for some group of persons to offer
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Namaz at the site. On the other hand, group of other religion
wants to perform Puja at the same site.
29. We have no hesitation in saying that the endeavour to construct
anything at site was misplaced as it was without any sanction /
permission. If there were persons aggrieved by the inaction of
the authorities including the ASI in carrying out excavation and
site verification, the remedy was to approach the Court for
appropriate directions and not to dig the site themselves or raise
any construction on it. Such endeavour, in fact, impedes and
endangers the exercise to be carried out by the ASI at site.
30. We may emphasize that even if by the end result of scientific
expedition to be carried on by the ASI, it is established that
during old times, a temple or a mosque once stood here, and it is
to be treated as protected monument, the land will have to
remain with the ASI, which is to see whether to build or not to
build a monument, or to preserve it in its natural state, so as to
open the place for public use, etc. For this reason also, both the
stake-holders should stay off their hands and exclusive charge
has to be with the ASI.
31. We would like to emphasize that religious colour may be attached
to things, which are used to profess or practice a religion, like the
holy Quran for Muslims, the Bhagwad Gita for Hindus and so on
and so forth. But land is something, which belongs to the people
as a whole, which, in turn, belongs to only one religion, i.e., public
order, morality, health and welfare. It is rightly said by George
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Bernard Shaw, "There is only one religion, though there are a
hundred versions of it." It must be noted that all religions stand for
the welfare of one and all, and in a secular country like ours, there
is no religion bigger than the other, all stand on an equal footing.
Therefore, the matter is to be left to the wisdom of the ASI,
depending upon the results of investigation as to the nature of use
of this land. Of course, it would be subject to further directions of
this Court, which can be given after hearing the parties.
32. The last aspect to be dealt with is the arrangement. We have
already noted above that both the parties want to perform their
rituals. In the given circumstances, that may not be appropriate
when both sides have expressed their faith in the ASI and the
matter is yet to be investigated and also when all the stake-
holders have not only expressed their solidarity but given
assurance to maintain peace and harmony, we are of the view
that till the time the ASI comes with some concrete findings,
restraint should be exercised by these stake-holders. It would
facilitate smooth and unhindered progress in the task to be
carried out by the ASI facilitating the ASI to complete the same
speedily and in the shortest possible time. Thus, it is in the
interest of peace and harmony that prayers are not allowed to be
offered by any of the stake-holders. The decision will depend on
the outcome of the result of investigation to be carried on by the
ASI. It will also depend upon one fact, i.e., as to what use the
ASI will put the site to. So, therefore, it would be premature on
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our part to give permission to offer Namaz by Muslims or
perform Puja by Hindus as it may lead to serious problems later.
33. In the end, we must note that all the learned counsel for the
parties requested that the work to be carried out by the ASI
should be under the supervision of a retired Judge of this Court
to give greater credence to the process and ensure timely
conclusion / endeavour. However, we find no reason for
issuance of such a direction at this stage. It is the ASI which has
the technical expertise. The impartiality of the ASI is not in
issue. We did impress upon the learned counsel that this Court
intends to monitor the process so that the glitches, if any, are
ironed out.
34. In view of the aforesaid factual matrix, we proceed to give the
following directions:
(i) The ASI should begin its task in a right earnest with all technical
assistance to verify the position at site as also qua the items
discovered from the site, which they should take possession of. It
will be open to the ASI to carry out further digging or any other
activity at site as they deem appropriate for verifying the site
position and respective claims.
(ii) The MCD (now NDMC) and the police authorities will render all
assistance to ensure that the area is kept cordoned off for an
unhindered access to the ASI to carry out its exercise and requisite
security should be provided to prevent any untoward incidence.
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(iii) No congregation of any kind would be permitted at the site, which
includes complete area cordoned off.
(iv) The directions passed by us on 20.07.2012 restraining any further
construction on the site would continue till varied.
(v) The stand of the ASI is unequivocally reflected in its notice dated
19.07.2012 with which MCD (now NDMC) is, in fact, in
agreement. The said two concerned authorities with the assistance
of police should, thus, implement the statutory mandate without
fail.
(vi) The police will maintain vigil so that law and order is maintained
at site and unnecessary rumour mongering and endeavour to give
communal overtone is prevented. All measures as are necessary to
do so will be taken.
(vii) The police authorities will also make all endeavours to bring to
book the miscreants who caused damage to public and private
property, injured persons and attempted to create a communal
incident at site post our Order dated 20.07.2012.
(viii) The Government at the highest level would continue its endeavour
to ensure that all stakeholders adhere to their assurances given to
the Lieutenant Governor and to this Court for maintaining peace
and harmony.
(ix) The ASI will submit a status report to us in a sealed cover by the
next date showing the progress made.
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35. List for directions on 11.10.2012.
36. We end with a fervent hope that better sense will prevail over
one and all, who will let the ASI perform its task and not to seek
to draw their own conclusions or give unnecessary communal
overtone to the issue or take law onto their own hands, especially
when this Court will be monitoring all aspects or the issues
involved therein.
ACTING CHIEF JUSTICE
SANJAY KISHAN KAUL, J.
RAJIV SHAKDHER, J.
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