The Supreme Court has dismissed a petition challenging the Delhi High Court order which had refused to advance the hearing of a plea by the Managing Committee of Delhi Waqf Board against the Archaeological Society of India (ASI) stopping namaz at the Mughal Mosque in the city’s Mehrauli area.
The apex court, however, requested the high court to take up the pending matter and decide it as expeditiously as possible.
A bench of Justices Krishna Murari and C T Ravikumar passed the order while hearing a petition filed by the Managing Committee of Delhi Waqf Board through advocate M Sufian Siddiqui against the March 7 order of the high court.
“We do not find any good ground to interfere in the matter which is already pending before the high court. Accordingly, the Special Leave Petition is dismissed,” the bench said in its April 5 order.
“However looking in the facts and circumstances of the case, we request the high court to take up the pending matter … and decide the same in accordance with law on its own merits as expeditiously as possible,” the bench said.
The grievance of the petitioner before the high court is that officials of the ASI have completely stopped namaz in the Mughal mosque since May 13 last year in an “absolutely unlawful, arbitrary and precipitous manner”, without serving any notice or order.
The petitioner told the apex court that they were aggrieved by the high court’s order which re-notified the matter to August 21 observing that similar relief is pending in another application.
“The high court has passed the impugned order without appreciating that the CM (criminal miscellaneous) application… was necessitated in view of the holy month of Ramzan, which is set to begin on March 22, 2023 and no similar relief is pending in any of the previous applications,” the plea filed in the top court said.
It said the germane relief in the application before the high court was to allow the performance of prayers and other religious practices at the mosque during the holy month of Ramzan in terms of the unceasing past practice and in consonance with the letter and spirit of Article 21 of the Constitution.
The plea said the holy month of Ramzan culminates upon Eid-ul-Fitr, which is scheduled either on April 21 or April 22, and by adjourning the matter to August 21 the high court has rendered the application infructuous for all practical purposes.
It said the mosque is located inside the Qutub complex but outside of the Qutub enclosure, the area which comprises protected monuments.
The plea said, “The high court erred in not appreciating that the remedies under Article 226 of the Constitution are to save the persons/ citizens from the excess of the State’s power, the said constitutional goal cannot be achieved by delaying the adjudication.”
It said the mosque is not notified as a protected monument or even a part of the monuments declared as protected, and prior to May 13 last year, it was never closed for namaz.
It had sought an ad-interim ex-parte relief restraining the respondents, including the ASI, from causing interruption “in the performance of the namaz at the mosque, i.e., Mughal Mosque, ‘Masjid adjacent to Eastern Gate of Qutab Minar, Mehrauli’ duly notified in Delhi Administration’s Gazette Notification dated April 16, 1970…”
In its reply to the petition filed before the high court , the ASI has said the mosque comes within the boundary of Qutub Minar and is within the protected area where prayers cannot be permitted.
In its reply, the ASI has said that allowing prayers at the Mughal mosque will “not only set an example but it may also impact other monuments too”.
“Qutub Minar is a Monument of National Importance and a UNESCO World Heritage Site. It is submitted that it is not a place of worship, since the time of its protection the monument or any part of it, has not been used for any type of worship by any community. It is submitted that the Mosque in question comes within the boundary of Qutub Minar Complex,” the reply said.
