1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Writ Petition No.6532 Of 2008 Panch Committee Masjid ] Police Head Quarters ] Vazirabad Nanded ] Through Secretary - ] Siddi Abdul Khader S/o ] Siddi Bandagi ] And Another. ] .. Petitioners. Versus The State of Maharashtra] & Another. ] .. Respondents. -------- Shri. Mohd. Mustafa Ahmed Momin, Advocate for petitioners. Shri. V.H. Dighe, Assistant Government Pleader, for respondents. -------- CORAM: NARESH H PATIL & K.K. TATED, JJ. Order reserved on : 01st July 2010 Order pronounced on : 12th July 2010 2 ORDER : (Per Naresh H Patil, J.): 1) The petitioners pray for directions to grant permission for erecting RCC slab construction in respect of old Masjid at Police Headquarters Vazirabad, Nanded. 2) The learned counsel for the petitioners submitted that the subject Masjid is situated in the premises of the police headquarters of Nanded City. According to the petitioners, the Masjid is erected on 44 x 40 area and registered in the Government Gazette on 1-10-1974 published by Maharashtra Wakf Board as Wakf property at Sr. No.203. The Panch Committee approached the Superintendent of Police for permission to construct the Masjid as it was old and required new RCC construction. It is contended that the then Superintendent of 3 Police Mr. Anupkumar Singh on 31-7-2004 granted permission by putting certain conditions. The new Superintendent of Police Shri. Riteshkumar by a communication dated 13-8-2004 submitted a proposal in detail to the Additional Chief Secretary, Home Department, Mantralaya Mumbai. Thereafter the Superintendent of Police Nanded Mr. Thakur by giving reference of the Circular dated 14-6-2004 submitted a proposal to the Government and the D.I.G. and issued further orders to the Panch Committee to stop the construction, if any. 3) The petitioners contention is that the Masjid is covered with zinc sheets and old brick and mud work. During rainy season there are leakages in the construction and structure has become old. The Masjid is mainly used by the police staff personnel 4 belonging to Muslim religion who offer Namaj. The Maharashtra State Wakf Board Aurangabad by its letter dated 18-8-2004, under intimation to all concerned offices, issued No Objection Certificate to the petitioner for the proposed construction of the Masjid, according to the petitioners, on their own costs. The Commissioner, Nanded Waghala Municipal Corporation Nanded accorded permission to put RCC slab vide permission No.118 dated 24-8-2005 in favour of the petitioners. A proposal was submitted by the DIG to the Additional Chief Secretary, Home Department on 20-9-2004 requesting to grant permission as the Masjid was situated since 1972 in the Police headquarters premises. 5 4) The petitioners are aggrieved by a communication made by the Section Officer, Home Department dated 21-9-2005 addressed to the Inspector General of Police Mumbai informing that the permission be granted as per the conditions imposed by the Superintendent of Police Nanded in his communication dated 31-7-2004. 5) The learned counsel for the petitioners submits that, no harm would be caused if RCC slab is allowed to be laid. There is no issue of any law and order problem as projected by the State. The Municipal Corporation had granted permission for the proposed construction. 6) The respondent No.2 filed affidavit in reply through the Deputy Superintendent 6 of Police (HQ), Nanded. It is necessary to quote some of the averments finding place in the affidavit-in-reply. “2. I say that, the present petition in the present form is not maintainable because it is filed under misconception. There was no permission for construction of Mosque. The permission was granted only to repair the earlier structure, under the garb permission for repairing, entirely new and concrete construction was started. It was against the spirit of permission granted by the authorities in the year 2004. The conditions for grant of repairing permission were laid down vide communication dated 31-7-2004. Thereafter, proposal is forwarded to the Government. However, it is found that, the activities are going on, contrary to the repairing permission, it is stopped. Therefore, the petition under the garb of said repairing permission may not be entertained. 14. In reply to para No.12 of the petition, I say and submit that, the letter Osmanabad Special Inspector General of Police for 7 Director General of Police Mumbai, Shri. Madhu Shinde vide his letter dated 21-5-2009 provided the necessary information to the Additional Chief Secretary, Home Department, wherein he informed about the present status and situation of the Mosque according to him the construction in RCC is made up to slab level the height of column from the ground is 20 feet around 2,00,000/- have been spent on construction of Mosque this fund raised from Muslim Police employees and Muslim Community be provided that the Mosque is in existence since 1972 and it was made in mud and bricks with roof of tin shed. The then S.P., Nanded only permitted to replace the tin shed roof and make repairs of the Mosque. However, the Committee of Mosque put up in RCC, structure and the height is beyond permissible limits. This work was stopped vide letter dated 14-8-2004 and informed the order of cancellation of permission vide letter dated 28-12-2004 to the committee of Mosque. He further informed about the preventive action taken by them. 15. In reply to para No.13 of the petition, I say and submit that, the letter of Desk Officer, Home Department, Mantralaya, Shri. Sunil 8 Yeglikar dated 21-9-2005 who after having all correspondence from the Department and considering the ground situation pleased to grant sanction to the construction on the same terms and conditions which was imposed by then Superintendent of Police, Nanded vide letter dated 31-7-2004 clearly provides in express terms that 1) the construction must be confined on 44 x 40 feet. 2] the roof must be of tin shed as previously it was. 3] the height of roof must be the height which was the Mosque was having and it must not be enhanced, 4] the committee will be responsible and must take the caution that only Police employees shall be the persons to pray in the Mosque and unknown person must not linger or gather in the area of Mosque. All these conditions are legal and justifiable, hence no permission can be allowed to have RCC slab on roof of the Mosque. 20. In reply to Ground No.3 & 4 of the petition, I say and submit that, illustration of Mosque at Sangali District and Dabhol Ratnagiri District are of resembling nature to the present case. In all these cases the Mosque Committees have breached the conditions of permission and infringed the law. When they were 9 having legal recourse to their action they have taken law in their lands. Even then the Government of Maharashtra have granted the permission for the repair and maintenance of the Mosque on certain terms and conditions. The imposition of terms and conditions are with a view to safety concerns of the Police Department, because the Mosque at Nanded is situated within the Police Headquarters premises. Therefore, the terms and conditions are for the safety of Police Department and also to take care of law and order situation. The entire contents of the para have been drafted so as to invoke a sympathetic view from this Hon’ble High Court. For the safety of Mosque the then S.P., Nanded vide his letter dated 31-7-2004 and by the Government letter dated 21-9-2005 already permission have been given for necessary repair and construction of Mosque. On the contrary, it is the Committee of Mosque who have continuously breached the terms and conditions while constructing / repairing of Mosque, such as raising the height beyond permission etc., Rest of the contents of the ground are denied.” 7) The learned Assistant Government Pleader Shri. Dighe submitted that the State 10 had already taken overall view of the matter. The Masjid is situated in the police headquarters area since long so that staff members of the police department belonging to Muslim religion could offer prayers. There is no necessity of having RCC slab on the existing structure. Allowing RCC structure would further permit the Panch Committee to increase further construction. Considering the object behind having Masjid in the police headquarters premises and in view of the law and order situation the higher authorities of the Police Department and the State are not inclined to grant such permission. 8) In the facts of the case, after considering the submissions advanced and perusal of the material placed on record we 11 find that the issue raised in this petition does not call for judicial scrutiny. Such issues shall be best left to the discretion of the authorities concerned as the parties are raising issues which would be best considered by them. As the petitioners contend that this is a Wakf property the issue could be dealt with by an appropriate authority, if permissible in law. 9) In the facts of the case we are not not inclined to interfere in exercise of extra ordinary writ jurisdiction under Article 226 of the Constitution. 10) The writ petition is rejected. Sd/- Sd/- (K.K. TATED, J.) (NARESH H PATIL, J.) rsl/ wp.6532.08