Image: ANI
On August 30, 2022, a Supreme Court bench heard the petitions filed by Karnataka Board of Auqaf and Central Muslim Association of Karnataka challenging Karnataka High Court’s verdict permitting the use of Idgah Maidan in Bengaluru’s Chamarajpet for Ganesh Chaturthi. The High Court’s verdict allowed the use of Idgah maidan for religious and cultural activities for limited period, following which the State government passed an order permitting Ganesh Chaturthi rituals on the said land.
The bench comprising Justices Indira Banerjee, AS OKA and MM Sundresh ordered a status quo with respect to use of Idgah Maidan reportedly stating, “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 order read as, “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.”
Proceedings before the Court
Senior Advocate Kapil Sibal appearing for the Idgah informed the Court that no other community has been allowed to perform rituals at Idgah Maidan in 200 years. To which Justice Sundresh asked if there was any objection to any particular religious festival. However, Sibal informed the Court that it is acceptable to use the land for any other purpose such as children playing on the land as this case would not affect the possession of the land and the corporation cannot take any advantage of that.
Sibal informed the court that once a property has been declared a Waqf property by the Mysore State Waqf Board under Sect 5(2) of the Waqk Act, its character cannot be changed. He argued that the status can only be challenged within 6 months of the declaration and nobody did that.
He even pointed out how the Board had filed a suit against the Corporation to seek permanent injunction but it was decreed. The decree permanently restrained the corporation from entering the property. He then referred to Karnataka High Court’s single-judge bench order dated August 25, 2022, which held that till the notification as waqf is set aside, it is binding on the State, reported LiveLaw.
The court then asked Senior Advocate Mukul Rohtagi, who was appearing for the State, why they preferred an appeal when the single judge has granted liberty to apply for modification.
Rohtagi reportedly argued, “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.”
Speaking about the permanent restrain imposed on BBMP from entering the property, Justice Oka asked if they BBMP can give permission to celebrate festival if they can’t even enter the property. Rohtagi reportedly responded, “It is not the BBMP but the State which allowed (Ganesh Chaturthi celebration). Joint Commissioner makes a finding it belongs to the Govt. Unless this order is set aside, the finding of the quasi 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 is this allowed? If I am the owner, why would I allow. This is not consistent with exclusive ownership title.”
He further contended that the Waqf Board is not in exclusive possession of the subject land since it is an open ground with a municipal tank and footpaths where children play all year round and the Waqf Board members pray twice a day. He reportedly argued, “What has the High court 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?”
To this, Senior Advocate Dushyant Dave appearing for the Idgah retorted, “I wonder if in any temple in this country, minority community will be allowed to enter for prayers?”
Solicitor General Tushar Mehta appearing for the State submitted that the Municipal Corporation was party to the suit whereas the State is not a party to any proceedings and therefore it is not bound. He further argued that the entire premise of the petitioner was based on the entry to the Waqf register and not a title suit. He reportedly stated, “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.” In the end he asked for a two-day permission to celebrate the festival without putting put any permanent structure.
Dave reportedly remarked that the Chief Minister of Uttar Pradesh had given an undertaking and Babri Masjid was demolished. Sibal added, “Single judge has admitted, it means prima facie case. And for 200 years they never held it. So what is the irreparable injury if it is not held. Let us go by first principles.”
On confirming that no preparations had been undertaken at the land for the celebrations, the Court ordered interim status quo for two days as Justice Banerjee reportedly said, “You have the pooja somewhere else. And go back to High Court.”
A copy of the Supreme Court’s order may be read here:
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