IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 27.04.2009 CORAM THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR. JUSTICE V.DHANAPALAN W.A. NO. 1208 OF 2008 AND M.P. NO. 1 OF 2008 1. The Union of India rep. by its Under Secretary to Government Ministry of Defence New Delhi. 2. The Defence Estate Officer Madras Circle No.305, Anna Salai Chennai 600 018. 3. The Station Commandant HQ ATNKK & G Area (Q) Station Headquarters Fort St. George Chennai 600 009. 4. The Cantonment Board rep. by its Executive Officer St. Thomas Mount Chennai 600 016. 5. The Garrison Engineer (Projects) St. Thomas Mount Barrack No.2, Military Camp Pallavaram, Chennai 600 043. .. Appellants / Respondents - Vs - The Masjid-E-Aalishn @ Military Mosque rep. By its Secretary Janab Shaikh Liaquat Ali Munro Lines St. Thomas Mount Chennai 600 016. .. Respondent https://hcservices.ecourts.gov.in/hcservices/ Appeal filed against the order dated 21st April, 2008, passed by learned Single Judge in W.P No.12149 of 1998. Writ Petition 12149 of 1998 filed under Article 226 of the constitution of India to issue a Writ of Mandamus directing the respondent from any manner whatsoever interferring with the petitioner mosque land situated in T.S.No.1449/1 and the right to construct the compoung wall. For Appellant : Mr. Ravindran, ASG for Mr.S.Udayakumar For Respondents: Mr. Habibulla Basha, SC, for Mr.K.Ilias Ali JUDGMENT S.J.MUKHOPADHAYA, J. Masjid-E-Aalishn @ Military mosque, petitioner-respondent herein, preferred the writ petition for direction on respondents from in any manner whatsoever interfering with the petitioner's mosque land situate in T.S. No.s1449/1 and the right to construct compound wall. The writ petition having allowed forbearing the respondent, Cantonment Board and others from interfering with the petitioner's land, Union of India preferred the appeal against the order dated 21st April, 2008. Before the writ court, the petitioner -respondent took plea that the property is declared a wakf property as per Wakf Act and, therefore, the same cannot be treated as a defence land. The defence authorities have attempted to interfere with the possession of the mosque, which is not permissible. 2. The case of the appellant was that the learned single Judge, without looking into the relevant facts, particularly the question relating to right and title, which cannot be determined under Article 226, has passed the injunction order in the manner as was sought for. 3. On 20th Jan., 2009, when the case was taken up, learned counsel appearing on behalf of the mosque and the counsel for the Cantonment Board accepted that the mosque is within the military cantonment and used since long and army people used to perform nawar and now civilans have also been allowed to enter and offer nawaz in the mosque. Taking into consideration the religious sentiments, the Court allowed the parties to settle the dispute, if possible, amicably. Parties were also allowed to file affidavit. 4. Learned senior counsel appearing on behalf of the respondent- mosque, relying on the sketch produced by the cantonment board submitted that a road in between the army quarters, which goes through East to West could be extended even upto the mosque premises, i.e., in front side of the mosque and they be allowed to construct a boundary wall surrounding the rest of the portion. An affidavit has been filed by the appellant giving all the details taking specific plea that the mosque is situate in the https://hcservices.ecourts.gov.in/hcservices/ defence land classified as A-1 defence land under the management of the local military authorities. The maintenance of the mosque premises lies within the regimental committee of Officers Training Academy and the boundary wall upto a height of three feet, if requierd, to be constructed and maintained by them, i.e., local military authorities. This has not been disputed by the respondent mosque or their counsel. In fact, learned senior counsel for the respondent mosque accepted that they agree for construction of three feet height boundary wall by the regimental committee of Officers Training Academy, but it was submitted that the main gate, which generally opens at 6.00 a.m., should be allowed to be opened at 4.30 a.m., so that the Muslim community may offer nawaz in the early morning at 5.00 a.m. 5. We have heard the learned senior counsel appearing on behalf of the cantonment board and the learned senior appearing for the Union of India and the respondent-mosque and also perused the record. In view of the fact that the land in question is classified as A-1 defence land and the management is under the local military authorities and that the maintenance of the mosque premises lies with th regimental committee of the Officers Training Academy and the appellant has agreed to construct a boundary wall upto a height of three feet, if so required and that the aforesaid fact has been accepted by the learned counsel for the mosque, we are of the view that in public interest, in the interest of the military and Muslim community in general, the following directions will suffice:- 1) The appellant, including the competent authority of the cantonment board/Local Military Authority is allowed six months time to construct a boundary wall, minimum three feet high, around the mosque. It will be open to the cantonment board/Local Military Authority to construct a pucca road in front of the mosque by extending the existing road from East to West. 2) The cantonment board/Local Military Authority and its competent authority will maintain the boundary wall, premises of the mosque; but so far as the mosque is concerned, the management will maintain the mosque. 3) The cantonment board/Local Military Authority and its authorities should open one of the gate at 4.30 a.m., everyday, for Muslim community (followers of Islam) to offer nawaz at 5.00 a.m. The front gate of the mosque should be closed by 9.00 p.m., everyday, except during the period of Ramzan when it should be kept upen upto 10.30 p.m. 4) The respondent mosque, its management, its followers, who offer nawaz within the mosque are prohibited from taking any vehicle or other carrier inside the premises of the mosque without the prior permission of the cantonment board/Local Military Authorities and in case of disabled persons, the competent authority of the cantonment board/Local Military Authority may provide wheel chairs to carry disabled persons inside the mosque. https://hcservices.ecourts.gov.in/hcservices/ 5) The order is passed in the interest of Muslim community, but in case of emergency, if any direction is given by superior authority of Indian Army or Union of India, it will be open to the cantonment board to make appropriate changes as per the emergent situation and, thereafter, inform the matter to the court, if any objection is raised by any party. Further, we make it clear that the management of the mosque will co-operate with the appellant in case of emergency need within the mosque as the land belongs to the Army and for security and defence of the country. 6) The relevant portion of the key plan/map showing the mosque within the area, as produced by the appellant-cantonment board is annexed as 'Annexure – A'. 6. The order of learned single Judge dated 21st April, 2008, is modified to the extent above. The writ appeal stands disposed of. But there shall be no order as to costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar GLN To 1. The Under Secretary to Government Ministry of Defence Government of India New Delhi. 2. The Defence Estate Officer Madras Circle No.305, Anna Salai Chennai 600 018. 3. The Station Commandant HQ ATNKK & G Area (Q) Station Headquarters Fort St. George Chennai 600 009. 4. The Executive Officer Cantonment Board St. Thomas Mount Chennai 600 016. https://hcservices.ecourts.gov.in/hcservices/ 5. The Garrison Engineer (Projects) St. Thomas Mount Barrack No.2, Military Camp Pallavaram, Chennai 600 043. 1 cc To Mr.S.Udayakumar, Advocate, SR.18560 1 cc To Mr.K.Ilias Ali, Advocate, SR.18381 W.A. NO. 1208 OF 2008 RB(CO) SRA(22/5/2009) https://hcservices.ecourts.gov.in/hcservices/