30 Aug 2022 12:54 PM GMT
The Supreme Court on Tuesday ordered status quo with respect to land use of Idgah Maidan in Bengaluru's Chamarajpet, in effect putting in abeyance the move of Karnataka Government to allow Ganesh Chaturthi festivals at the land."For 200 years it was not done, you also admit, so why not status quo, for 200 years whatever was not held, let it be," the bench comprising Justices...
The Supreme Court on Tuesday ordered status quo with respect to land use of Idgah Maidan in Bengaluru's Chamarajpet, in effect putting in abeyance the move of Karnataka Government to allow Ganesh Chaturthi festivals at the land.
"For 200 years it was not done, you also admit, so why not status quo, for 200 years whatever was not held, let it be," the bench comprising Justices Indira Banerjee, AS Oka, and MM Sundresh orally remarked.
The bench orally said that the the pooja be held somewhere else.
The order passed by the bench stated as follows :
"The writ petition is pending before the Single Bench of High Court and has been fixed for hearing on 23.09.2022. All questions/issues may be agitated in the High Court.
In the meanwhile, status quo, as of date, with regard to the land in question shall be maintained by both the parties. The special leave petitions are, accordingly, disposed of"
The matter was heard by a 3-Judge following "difference of opinion" between the roster bench comprising Justices Hemant Gupta and Sudhanshu Dhulia.
The bench was constituted after Senior Advocate Dushyant Dave appearing for the Idgah made an urgent mentioning before CJI UU Lalit, stating that if the matter is not heard today, status quo of 200 years will be disturbed.
Dave submitted that under Section 3 of the Places of Worship Act, there is an absolute bar against conversion of use of religious land for any other religion.
The Muslim community claimed that they have been in uninterrupted possession of the land since 1871, which was used as place of worship, graveyard. "Article 25 and 26 expressly protects right of religious minorities to possess their properties."
The Karnataka Board of Auqaf and Central Muslim Association of Karnataka approached the Supreme Court against the Karnataka High Court's August 27 verdict which allowed the use of Idhah maidan for religious and cultural activities for limited period. Following that, the State Government passed an order permitting Ganesh Chaturthi rituals at the land.
During the course of hearing, Justice Oka asked Senior Advocate Mukul Rohatgi appearing for the State whether in the past, State or BBMP has allowed this festival in the subject land. Rohatgi responded in the negative, adding "even if it was not used in the past, it cannot be an argument to say it cannot be used now."
Senior Advocate Kapil Sibal appearing for the Idgah informed the Court that in 200 years, no other community has been allowed to perform rituals at the Idgah Maidan. "And this is covered in our favour by a judgment of 1964 by Justice Hidayatullah," he said.
Justice Sundresh asked Sibal "Is it your objection to any particular religious festival? After all it is a land."
Sibal responded that they have an objection against use of the land for any other purpose. "Children playing does not affect the possession of the land. (Bangalore) Corporation cannot take advantage of playing of children."
Sibal submitted that the Idgah Maidan has been declared as a Waqf property by the Mysore State Wakf Board under Sect 5(2) of Wakf Act. He argued that once it is declared a wakf, its character cannot be challenged. "Under the Waqf Act, if somebody has to challenge it, it has to be challenged it within 6 months. Nobody has challenged. And in 2022, the dispute is raised..."
He added that the Corporation never challenged it was waqf land, and they accepted. Later, they tried to interfere and a suit was filed by the Board against the Corporation seeking permanent injunction. The suit was decreed.
"Where is the question of ownership and possession to be established when it is a Waqf land...How does the Joint Commissioner have this kind of a jurisdiction?," Sibal asked.
"Waqf Act 1995 overrides every other law. State is denuded of any authorities to deal with waqf Property," Dushyant Dave added.
Sibal also referred to Karnataka High Court's single bench order dated 25.08.2022 which held that till the notification as waqf is set aside, it is binding on the State.
"What is troublesome, decree permanently restrained the corporation from entering the property and confirmed by the Court. And the Corporation, which has been permanently injuncted by this court, asks us to show title," he said.
The bench then turned to Rohatgi and asked why the State preferred an appeal when the single judge had granted liberty to apply for modification.
Rohatgi submitted that for the past 200 years, the land was used as playground for children and all revenue entries are in the name of the State.
"15 years ago, when similar issues arose, an informal committee was formed, including the minister of Waqf, and kindly see, members agreed to allow use of ground for Dussera, Kannada Rajyotsava, Shivratri...so this was the decision taken 15 years ago...One of the petitioners before this court was part of the meeting."
Justice Oka then referred to the civil court's decree and pointed that it permanently restrains BBMP from entering the property. "So BBMP can't even enter the lands..so if BBMP can't enter the property, can they allow celebrate festival," he asked.
Rohatgi responded, "It is not the BBMP, but the State which allowed (Ganesh Chaturthi celebrations)."
"Joint Commissioner makes a finding it belongs to the Govt. Unless this order is set aside, the finding of the qausi judicial authority binds. Why the single judge only granted use for only 2 days? Single Judge allowed State to celebrate Independence Day and Republic Day. Why this is allowed? If I am the owner, why would I allow. This is not consistent with exclusive ownership or title."
Rohatgi also claimed that the Waqf Board is not in "exclusive possession" of the subject land.
"At the end of the day, what is the position? It is an open ground. They are allowed 2 days prayer. There is a municipal tank. There are footpaths. Children are playing round the year. Is it exclusive possession?"
He continued, "And what is the High Court has done? Every part of this country you have festivals. In Bengal, you have Durga Puja, in Maharashtra, roads are closed..one should be broad minded...what is going to happen if Ganesh Chaturthi is allowed for two days."
"Can somebody say no because it is a Hindu festival?", Rohatgi asked.
"I wonder if in any temple in this country, minority community will be allowed to enter for prayers?", Dave retorted.
Solicitor General Tushar Mehta appearing for the State submitted that the provision of the Waqf makes the notification conclusive only between Wakf, muttawali and the person interested in the property. "The State is not bound...State is not a party to any of the proceedings. It was a suit by the corporation."
He argued that the entire foundation of the petitioner is based on an entry in Wakf register but the party did not file a title suit, despite the dispute. "If a person who is non muslim and if he is in possession of certain property, his right title and ownership cannot be put in jeopardy because it's under waqf list," he said.
Nonetheless, the SG suggested that a Government managed temple may be permitted to hold Ganesh festival at the subject land only for tomorrow and day after with the responsibility of the govt, without putting any permanent structure.
"Now at this stage, allow us for two days. It is not going to be a permanent structure. Ganesh festival is ultimately for visarjan...And we will take care of law and order," he said.
"Chief Minister of Uttar Pradesh gave an undertaking and Babri Masjid was demolished", Dave replied.
Sibal submitted that allowing the SG's suggestion will make the petitions infructuous. "Single Judge has admitted, it means prima facie case. And for 200 years they never held it. So what is the irreperable injury if it is not held. Let us go by first principles", Sibal said.
The bench asked if any preparations have been done at the land for the celebrations tomorrow. Rohatgi replied no.
"Interim status quo for two days. You have the pooja somewhere else. And go back to High Court", Justice Banerjee said at this point. After this, the bench dictated the order.
Through the impugned order, a division bench of Karnataka High Court modified the single bench order and permitted the State government to consider and pass appropriate orders on applications received by the Deputy Commissioner seeking use of the land in question (Idgah Maidan) for holding religious and cultural activities for a limited period from 31.08.2022 onwards.
"The Indian Society comprises religious, linguistic, regional or sectional diversities. The Constitution of India itself fosters brotherhood amongst various sections of the Society. The principle of religious toleration is the characteristic of Indian civilization," it had observed.
The petition of Karnataka State Board of Auqaf was filed through Advocate on Record Lzafeer Ahmed and the petition of the Central Muslim Association of Karnataka was filed through Advocate on Record Aditya Samaddar.
Case Title: SLP (C) No. 15155/2022 Iv-A The Central Muslim Association Of Karnataka Versus The State Of Karnataka And Ors, Karnataka State Board of Auqaf versus State of Karnataka SLP (c) 15154/2022
Click here to read/download the order