Bombay High Court Stays District Magistrate's Order Restraining Namaz In Jalgaon Mosque

Justice RM Joshi of the Aurangabad bench observed that prima facie, the DM passed the order without being satisfied that there is likelihood of breach of peace, and directed the mosque keys to be handed over to Jumma Masjid Trust Committee, which maintains the mosque.

“Prima facie perusal of the order impugned shows that there is no finding recorded about the Authority being satisfied that there is likelihood of breach of peace on account of alleged dispute…Section 144 of Cr.P.C no doubt provides the powers to the District Magistrate even to take suo moto action, however, existence of likelihood of causing of disturbance of public peace or tranquility is sine qua non to assume such power. In prima facie opinion of this Court for want of such findings being recorded makes impugned order vulnerable and not sustainable in law”, the court stated.

Hindu group Pandavwada Sangharsh Samiti (PSS) has claimed that the mosque in question resembles a temple and accused the local Muslim community of encroachment. The Trust responsible for maintaining the mosque claims to possess records proving the existence of the structure at least since 1861.

The current situation arose from a complaint submitted by the Pandavwada Sangharsh Samiti to the District Magistrate on May 18. The petitioner Trust claimed that notice was issued to it based on the complaint and a hearing was scheduled for June 27. However, the hearing did not occur as the DM was preoccupied. On July 11, the DM issued an interim restraining order under Sections 144 and 145 of the CrPC and directed the tahsildar to take charge of the mosque. Thus, the petitioner Trust approached the High Court against this order.

On July 13, a division bench of Justices RG Avachat and SA Deshmukh had observed that a single-judge bench would handle the matter since the order was passed by the quasi-judicial authority of the District Magistrate under the CrPC.

The authorities opposing the plea argued that the Collector's order was interim and not final, and a detailed hearing was scheduled before issuing a final decision.

The court dismissed the objection raised by the authorities against the maintainability of the petition on ground of existence of alternate remedy.

“Perusal of the relevant provisions do not show that any appeal is provided against interim order passed by District Magistrate under Section 144(1) of Cr.P.C. The remedy of filing an application before the same authority or before the State Government for alteration of the order cannot be equated with an Appeal. Hence, prima facie this Court finds that for want of efficacious remedy Petition is tenable and hence, there is no substance in the objection raised regarding maintainability of the Petition”, the court held.

The dispute over the structure's ownership and purpose has been ongoing since the 1980s, with Hindu groups claiming association with the Pandavas, who were believed to have spent years in exile in the area.

Thus, the court issued notice to the respondents and posted the matter for further hearing on August 1, 2023.

Case no. – Criminal Writ Petition No. 1026 of 2023

Case Title – Jumma Masjid Trust Committee v. State of Maharashtra and Ors.