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2009 DIGILAW 3394 (ALL)

JAMA MASJID CHAWNI BAZAR v. UNION OF INDIA

2009-11-03

AMITAVA LALA, ASHOK SRIVASTAVA

body2009
JUDGMENT By the Court.—Rejoinder affidavit filed today be taken on record. 2. This writ petition has been made for the following : 1. Issue a writ, order or direction in the nature of mandamus commanding the respondents not to damage the mosque situate over plot Nos. 30 & 31, Village Khan Kalan (Chawni Bazar), Tehsil Harraya, District Basti. 2. Issue a writ, order or direction in the nature of mandamus commanding the respondents to comply the settlement/compromise dated 29.11.2008 and to reconstruct the portion of mosque demolished by them or to cooperate suitably with a liberty to petitioners to reconstruct. 3. Sri M.A.Qadir, Learned Senior Counsel appearing on behalf of the petitioner contended before this Court that there is a clear arrangement amongst all the parties to shift the mosque in the area in plot Nos. 30 & 31 of the land in question. Admittedly, the mosque situates at plot No. 31, which is shown as ‘Abadi’ in the revenue record and the surrounding area of such mosque is shown as ‘Banjar land’, being plot No. 30. 4. The petitioner does not want to encroach upon the land of anybody else, apart from such area where the petitioner wants to make necessary construction or shifting the mosque and leaving aside the portion, as shown in the road map by the National Highways Authority of India, to construct the road in question. 5. We have to see the public purpose at first and thereafter the religious sentiments, if any. Since in this case the persons connected with the religious faith, being the Jama Masjid, Chawni Bazar, Tehsil Harraya, District Basti and President of the same being petitioners, after obtaining public opinion have arrived at a consensus to shift the mosque to such plots for public purpose, we can not ignore the good gesture on their part, but we have to draw a line in between the causes of the contesting parties so that neither the public purpose nor the religious sentiments should suffer. Admittedly, position is this that the mosque authorities agreed to shift it to the places appurtenant to the mosque so that public purpose should not suffer. Therefore, there is no embargo upon the National Highways Authority of India to construct the road subject to handing over the vacant land by the state authority to them. 6. Admittedly, position is this that the mosque authorities agreed to shift it to the places appurtenant to the mosque so that public purpose should not suffer. Therefore, there is no embargo upon the National Highways Authority of India to construct the road subject to handing over the vacant land by the state authority to them. 6. We have gone through the affidavits of both the National Highways Authority of India and the State and we find that the State is unnecessarily delaying the cause. The relevant part of the affidavit of the NHAI and the State is quoted herein : “However, it is submitted that after removing the encroachment made by one Sri Ramesh Kumar, the land for construction of the mosque on the back of the existing mosque is lying vacant and the same can not be constructed without co-operation and protection of the district administration.” 7. Paragraph 23 of the affidavit of National Highways Authority of India is quoted hereunder : “The NHAI is ready to pay the expenses for construction of the mosque at the available land bearing plot Nos. 30 & 31or anywhere else in consultation with the community and local self government provided the co-operation and protection provided by the district administration.” 8. So far as the State Government is concerned, it is stated in their paragraph 8 as follows : “It is further stated that plot No. 30 area measuring 0.0440 Hect. land has been recorded in revenue record as Banzar and which has been demarcated and underlined.” 9. It is further stated in paragraph 10 which is as follows : “Sri Ramesh Kumar the respondent demolished the outside boundary of mosque which was covered by tin shade and interior side of mosque has not been damaged. It is further stated that there is no commitment made by the authorities concerned about shifting the mosque situation either in writing or oral.” 10. It is also stated in paragraph 16 which is as follows : “It is relevant to mention here that the petitioners are demanding the remaining part of the plot No. 30 area measuring 0.0180 Hect. which is vacant land for shifting his mosque. It is also stated in paragraph 16 which is as follows : “It is relevant to mention here that the petitioners are demanding the remaining part of the plot No. 30 area measuring 0.0180 Hect. which is vacant land for shifting his mosque. It is further stated that aforesaid mosque comes under the National Highways road area when they increased the road then it is the responsibility of that community to shift his Mandir or Mosque to any other place and not the responsibility of State Government and there is no liability upon the State Government/District Administration to construct the Mandir or Mosque.” 11. In all the petitions and affidavits name of one Ramesh Kumar arose before us. He is a private party. He has also filed a copy of the plaint of the civil suit filed in the Civil Court, Basti, being No. 1007 of 2008, which is annexed to the writ petition, where also we find that the dispute is with regard to plot No. 32, but not with regard to plot Nos. 30 & 31. Mosque is already there in plot No. 31, which has been appurtenant by the land at plot No. 30 where also some part of the construction is there though, the land is described ‘Banzar Land’. Against this background we can only dispose of the writ petition restricting the petitioners and the authorities to make necessary construction only in respect of the plot Nos. 30 & 31, but not with regard to plot No. 32, which is subject matter of the suit of a private individual. 12. We have gone through the plan prepared by the settlement and we find that strip of the land going by the side of both the plots being Nos. 30 & 31 of such private individual is not causing any interference with the plot No. 32 in which the dispute arose before this Court. 12. We have gone through the plan prepared by the settlement and we find that strip of the land going by the side of both the plots being Nos. 30 & 31 of such private individual is not causing any interference with the plot No. 32 in which the dispute arose before this Court. Therefore, we dispose of the writ petition with a direction to the State authorities to make an immediate survey and take appropriate steps so that making construction of the road by NHAI should not be disturbed in any manner whatsoever and it is expected that all the process either administratively or at the State exchequer be completed by giving appropriate land for the construction of new mosque to the petitioner and other formalities ought to be completed positively within a period of three months from the date of communication of this order. 13. No order is passed as to costs. ————