Monday, December 5, 2022

UP Sunni Central Waqf Board appeal says Barabanki Gareeb Nawaz mosque demolished over SDM’s grievance over azaan on loudspeaker

Jaideep Narayan Mathur, Senior Counsel for the petitioner submitted that while doing so the officer concerned not only dwelt on the question of title of the land over which the mosque existed but also on the validity of the registration of the mosque, etc. as Waqf under the relevant Waqf Act which in fact he did not have jurisdiction to do in proceedings under 133 CrPC.

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The Uttar Pradesh Sunni Central Waqf Board has challenged the demolition of the 100-year-old Gareeb Nawaz Mosque in Uttar Pradesh’s Barabanki District by the SDM, Tehsil- Ram Sanehighat, District- Barabanki, at the Allahabad High Court. On Tuesday, the court issued notice on the writ petition. The court will hear the matter on July 23.

Justices Saurabh Lavania and Rajan Roy observed: “Having heard counsel for the parties who are represented, we are of the opinion that these petitions prima facie raise important questions… as to the existence of a mosque on public utility land… if it is so, as also, with regard to exercise of power by state authorities under Section 133 CrPC and other related provisions, its scope, especially the allegations of malafide exercise of power and the manner in which it has been done, as alleged by the petitioners.”

The court held: “It is said that the officer even went to the extent of changing the order initially passed by him on April 3, as, on a bare perusal of the contents thereof wherein there was a reference to the proceedings held on April 9, it was apparently ante-dated and realizing this error he made changes in the said order and passed another order on April 12 in an attempt to justify his action whereas in fact the said orders were passed without any opportunity of hearing to the concerned committee of management of the mosque. Not only this, the officer went to the extent of uploading the said order which in fact had been passed under the provisions of CrPC on the website of the board of revenue where only the orders passed by the revenue courts are uploaded.”

The writ petitions have been filed challenging the orders passed by the sub-divisional magistrate, Tehsil- Ram Sanehi Ghat, District- Barabanki and action taken in pursuance thereof in proceedings under Section 133 CrPC by which, as alleged, a mosque which was existing on Plot no. 776, 777, 841 and 842 of Village Banikodar, Tehsil Ram Sanehi Ghat, District- Barabanki for the past 100 years and where people of the area pray has been demolished. It is said that in addition to the mosque there were certain other constructions, all of which have been demolished.

According to counsel for the petitioners, the petitions raise various questions as to the scope and exercise of power under Section 133 CrPC including malafide exercise of power by the then Sub-Divisional Magistrate, Tehsil- Ram Sanehighat, District- Barabanki who has been arrayed by name and who used to reside just across the ‘Masjid’ and had certain grievances with regard to the ‘azaan’ being called from the loudspeaker and which in fact was redressed and the use of loudspeakers was discontinued, but according to Petitioners this did not satisfy the said officer who abused the power vested in him by passing arbitrary orders under Section 133 CrPC in exercise of the jurisdiction vested in him and he ensured demolition of mosque in gross abuse of law.

Jaideep Narayan Mathur, senior counsel for the petitioner, submitted that while doing so the officer concerned not only dwelt on the question of title of the land over which the mosque existed but also on the validity of the registration of the mosque, etc. as Waqf under the relevant Waqf Act which in fact he did not have jurisdiction to do in proceedings under 133 CrPC. He submitted that questions of title and possession cannot be decided in such proceedings under section 133 CrPC.

It is alleged that the Senior authorities were mute spectators to the gross abuse of power and violation of rule of law by the said officer. The entire exercise according to the petitioners has hurt the sentiments of a large section of society including the petitioners and there is grave discontent at such abuse of power.

Mathur has taken us through the contents of the petition filed by the Waqf Board as also the reliefs claimed herein. He has submitted that no doubt that against an order passed under Section 133 CrPC a revision lies under CrPC but considering the blatant misuse and abuse of power by the authority concerned that too for malafide reasons and the manner in which the constitutional scheme and rule of law has been violated it raises important questions touching upon the exercise of such power by State authorities violating valuable rights including constitutional rights of the citizens.

The plea is that senior authorities have also turned a blind eye to the arbitrary actions. He also says that not only the mosque etc. have been demolished but its bricks which were proof of the time when the mosque had been constructed had been thrown in the river on the directions of the aforesaid officer.

The court asked advocate Mathur as to what was the nature or category of land on which the Mosque, as alleged, existed; who was its owner? In this regard Mathur invited our attention to certain consolidation records of 1960s wherein said land is mentioned as ‘Abadi’ though Masjid is also mentioned.

The court further asked the advocate as to how the Mosque was constructed on Abadi land, Mathur submitted that it had been constructed 100 years ago, however, he was unable, as of now, to show any documentary proof in this regard to justify the same, whether of the period prior to the date of vesting as per the UPZALR Act, 1950 such as Revenue Records of 1356 F or thereafter (Revenue Records of 1359 F, Basic year khatauni of Consolidation) or for that matter any other document.

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The court pointed that if the relief for restoration of mosque is to be considered in these proceedings, assuming that the occasion so arises, then, the fact that the mosque validly existed on the land in question would have to be established and that this issue may also fall for consideration in the context of other reliefs claimed, Muchhala appearing in connected matter referred to concept of ‘Waqf by user’ but ultimately submitted that they would not enter into complicated questions of title and would not raise the same in these proceedings and would confine their grievance to the relief claimed against the arbitrary, illegal and blatant exercise of power under section 133 and claim for compensation for the same.

Therefore, leaving all pleas open for consideration, the court issued notice to the respondents in the Writ Petitions, “in addition to the normal mode of service, shall also be served through the Additional Chief Secretary/Principal Secretary Appointment, Government of UP, as it is said that he has been transferred elsewhere after the incident,” the order reads. 


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