NATHU KHAN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Heard learned counsel for the petitioner and learned standing counsel. We have also heard Sri R. C. Kandpal. We have perused the writ petition and the short counter-affidavit filed by the Additional City Magistrate. Bareilly.

(2.) The petitioner has prayed for a mandamus directing the respondents not to interfere in peaceful offering of Namaz in a mosque in village Rukumpur district Bareilly. It is alleged in paragraph 2 of the writ petition that respondent No. 3 Harpal Singh who is incharge of the police station Fatehganj all of a sudden without any complaint stopped the evening prayer. Namaz Magrib, and appointed four constables at the mosque and restrained the Namazees from offering Namaz. In paragraph 4, it is alleged that the mosque was established in the year, 1973 by one Shahzade Khan. It is alleged that the aforesaid property is a waqf property and the mutwalli is at present Natthu Khan. In paragraph 5, It is alleged that earlier the property was owned by Shahzade Khan who is said to have constructed the mosque. In paragraph 7, it is alleged that without any complaint, the respondent No. 3 in an arbitrary manner posted four constables at the spot depriving persons from offering Namaz. In paragraph 10, it is stated that respondent No. 3, Harpal Singh, stopped offering of Namaz on 18.2.1999 and the functioning of the Madarsa attached to the mosque.

(3.) A short counter-affidavit has been filed by the Additional City Magistrate, Bareilly. It has been admitted in paragraph 8 that there is construction of the walls on the land in question but without any roof. Learned counsel for the petitioner states that the roof is being repaired. The enclosed area is 20 ft. x 15 ft. and in the front of which towards the east, there is an open land which again is 20 ft. x 17 ft. in dimension. Thereafter there is a road which leads to Marghat and Devasthan towards the south. In paragraph 9 of the counter-affidavit, it is stated that effort is being made to convert it into a mosque because of which communal tension is brewing. In paragraph 11 of the counter-affidavit, it is stated that if the members of the Muslim community are permitted to offer their Namaz on the disputed site taking into account their population, the plot being so small in size, it is bound to over-flow and in the process, the whole road falling to the east of the disputed site is likely to get occupied by Namazees at the time of Namaz, causing stopping of free flow of traffic through the road. In paragraph 12, it is stated that towards south, there is a place of worship for Hindus and as such, the persons of Hindu community have serious objection with regard to the conversion of the disputed site into a mosque.