Politics, News Articles, Technology, Cinema...and other mysteries of life!
Sunday, August 5, 2012
A Vandalised Secular State
This is the high court ruling in the matter of demolished mosque found near Subhash Park. A lot of Muslims had vandalized and closed the area, and demanded shifting of Metro, which would envisage hundreds of crores of rupees.
All this on the base of the fact that 'A Mosque' existed a centuries back. By that standard didn't temples exist before Mosques were carved out a little more earlier than that. And by the same standard, weren't all Muslims Sanatani a couple of centuries back. ANyways, have a look at high court ruling
WP (C) No. 4323 of 2012 & Connected Matters Page 1 of 25
* 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 - V E R S U S - GOVT. OF NCT OF DELHI & ORS. ...RESPONDENTS + WP (C) No. 4432 of 2012 SS SAI BABA OM JEE @ SS OMJI & ORS. …PETITIONER - V E R S U S - SHOAIB IQBAL & ORS. ...RESPONDENTS + CONT. CAS. (C) No. 459 of 2012 COURT ON ITS OWN MOTION …PETITIONER - V E R S U S - K.S. MEHRA & ORS. ...RESPONDENTS + CONT. CAS. (C) No. 460 of 2012 SS SAI BABA OM JEE @ SS OMJI & ORS. …PETITIONERS - V E R S U S - SHOAIB IQBAL & ORS. ...RESPONDENTS
WP (C) No. 4323 of 2012 & Connected Matters Page 2 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‟).
WP (C) No. 4323 of 2012 & Connected Matters Page 3 of 25
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,
WP (C) No. 4323 of 2012 & Connected Matters Page 4 of 25
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
WP (C) No. 4323 of 2012 & Connected Matters Page 5 of 25
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
WP (C) No. 4323 of 2012 & Connected Matters Page 6 of 25
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
WP (C) No. 4323 of 2012 & Connected Matters Page 7 of 25
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
WP (C) No. 4323 of 2012 & Connected Matters Page 8 of 25
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.”
WP (C) No. 4323 of 2012 & Connected Matters Page 9 of 25
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-
WP (C) No. 4323 of 2012 & Connected Matters Page 10 of 25
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.
WP (C) No. 4323 of 2012 & Connected Matters Page 11 of 25
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
WP (C) No. 4323 of 2012 & Connected Matters Page 12 of 25
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
WP (C) No. 4323 of 2012 & Connected Matters Page 13 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.–
WP (C) No. 4323 of 2012 & Connected Matters Page 14 of 25
(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.”
WP (C) No. 4323 of 2012 & Connected Matters Page 15 of 25
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‟.
WP (C) No. 4323 of 2012 & Connected Matters Page 16 of 25
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.
WP (C) No. 4323 of 2012 & Connected Matters Page 17 of 25
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
WP (C) No. 4323 of 2012 & Connected Matters Page 18 of 25
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;
WP (C) No. 4323 of 2012 & Connected Matters Page 19 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
WP (C) No. 4323 of 2012 & Connected Matters Page 20 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
WP (C) No. 4323 of 2012 & Connected Matters Page 21 of 25
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
WP (C) No. 4323 of 2012 & Connected Matters Page 22 of 25
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
WP (C) No. 4323 of 2012 & Connected Matters Page 23 of 25
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.
WP (C) No. 4323 of 2012 & Connected Matters Page 24 of 25
(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.
WP (C) No. 4323 of 2012 & Connected Matters Page 25 of 25
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. JULY 30, 2012 madan