About two weeks ago, on July 25, 2012, I was in the court of the Acting Chief Justice of the Delhi High Court, waiting for a PIL of mine to be heard. I wasn’t aware that on the very same day, the Court was scheduled to hear the Akbarabadi Mosque dispute. Since my matter was scheduled to be taken up after the hearing on the dispute, I decided to stay back to observe the proceedings.
A PIL was filed by members of the Akhil Bharatiya Hindu Mahasabha (ABHM), who were represented by Senior Advocate Aman Lekhi (son of the late Shri P.N.Lekhi, a renowned Senior Advocate known for taking up politically incorrect causes). The Respondents appeared to be (a) MLA Shoaib Iqbal, the person accused of building an illegal structure (Mosque) in violation and in contempt of the High Court’s orders, (b) the Municipal Corporation of Delhi (MCD), (c) the Delhi Metro Rail Corporation (DMRC) and (d) the Archaeological Society of India (ASI).
The dispute was heard by a special bench comprising the Acting Chief Justice of the Delhi High Court, Justice A.K.Sikri along with Justice Sanjay Kishan Kaul and Justice Rajiv Shakdher. The interim order of the Court passed on July 30, 2012 is available here.
The facts of the case appear to be as follows:
- In April 2012, the North Delhi Municipal Corporation handed over land in Subhas Park, near Jama Masjid, Old Delhi to the DMRC for construction of Phase III of the Delhi Metro.
- In July 2012, the DMRC accidentally unearthed a structure during excavation.
- Members of the Muslim community led by MLA Shoaib Iqbal and Shahi Imam of Jama Masjid, Syed Ahmed Bukhari claimed that the structure was the Akbarabadi Mosque built during the reign of Shahjahan. Unauthorized Construction of a new Mosque began at the disputed site. The construction activity also encroached into the area marked by ASI for archaeological excavation.
- Shoaib Iqbal requested the Chief Minister of Delhi, Ms.Shiela Dikshit to re-align the metro line in order to facilitate construction of the Mosque. Members of the Akhil Bharatiya Hindu Mahasabha object to the construction of the mosque on the ground that the unearthed ruins belonged to a temple which dated back to the Mahabharata period built by the Pandavas.
- On July 19, 2012, a public notice was issued by ASI seeking removal of the illegal construction, despite which construction continued.
- On July 20, 2012, the Court ordered cessation of all construction activity initiated by Shoaib Iqbal and Imam Bukhari.
During the hearing on July 25, 2012, members of ABHM informed the Court that despite the Court’s order to cease all construction, the illegal structure was allegedly being raised at a frenetic pace right in front of policemen, who remained mute spectators to the violation of the law. At this juncture, both sides hurled accusations at each other.
The voice of reason and sanity was that of Mr.Aman Lekhi, who pointed out to the Court that the short question to be addressed was whether the newly raised mosque was an unauthorized construction under the law? If yes, shouldn’t the law be allowed take its course to deal with the illegal structure as per the law? Mr.Lekhi submitted that this question had to be addressed regardless of whether the underlying ruin was a mosque or a temple.
To support his submission, Mr.Lekhi cited the observations of the Supreme Court in Dr. M. Ismail Faruqui and Others v. Union of India and Others. In that case, the Apex Court observed 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.
The High Court was visibly persuaded by the reason and logic underlying this submission of Mr.Lekhi, and then sought to know the stance of Shoaib Iqbal on the issue of unauthorized construction. The dissatisfaction of the Court with the response is captured in Para 28 of the decision as follows:
“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 or 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.”
The Court went on to hold that the Mosque under construction was an illegal structure and that the ASI was well within its rights to deal with the structure as per the law. In short, the illegal structure had to be demolished in accordance with its notice of July 19, 2012. Further, the ASI was directed to undertake excavation of the site to ascertain the nature of the underlying ruins, and submit a status report by October 11, 2012.