Waqf Is A Small Thing When It Comes To A Building Of National Importance: SC While Issuing Notice In SLP Against Direction To Archaeology Department To Maintain 100-Yrs Old Kerala Mosque

The Supreme Court has issued notice in a special leave petition filed by the mosque committee, assailing an order passed by the Kerala High Court directing the Director of Archaeology of the State of Kerala to maintain and repair the 100-year-old Choorottu Juma-ath Mosque. 

The Bench of Justice Surya Kant and Justice Ujjal Bhuyan ordered, "Issue notice to the respondents for the limited purpose to clarify the effect and impact of the directions issued by the High Court, after the mosque is fully repaired by the Archaeological Department."

While responding to the submission of the Waqf Board that the Waqf Act has an overriding effect over other laws (laws pertaining to the ancient monuments), Justice Kant said, "A building which is of national importance, Waqf will be a very small thing before that." 

During the hearing, Justice Kant said with regard to the order of the Waqf Board challenged before the High Court, "This order is ruthless. How can a historical building be demolished like this?"

Senior Advocate Huzefa Ahmadi, appearing for the Choorottu Juma-ath Mosque Committee, submitted, "There are two aspects that I want to place for consideration...the effect of the order is that it is a waqf, it is a waqf property...The High Court was correct in coming to the conclusion that this order is wrong, it could have stayed that order or set it aside...it could have also said that all the restoration that you have done, you can do under the aegis of the ASI...what it effectively now does is...it says that ASI will take control..."

Justice Kant replied, "That is because nobody other than ASI could do it." 

Ahmadi referred to various provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958, and said that each and every property over a hundred years old, may not be considered a monument. For such purposes, the Archaeological Survey of India ('ASI') must come to a satisfaction. He submitted that the Petitioner herein was not heard in the matter as required by the provisions of law and statutory mandate. 

Justice Kant remarked, "Your apprehension appears to be that the Mosque is entrusted to the ASI, as it for all times will become their property..."

Ahmadi submitted, "The point is this, you may record my statement that I don't want mosque to be demolished or reconstructed, let us restore it, in the manner ASI deems fit...the Waqf Committee also had a right of management."

Justice Kant replied, "Once it is restored, the waqf committee can take over...what is the problem...we can also clarify that."

It is pertinent that the ASI was not involved in the litigation before the High Court and the Directions were issued to the Kerala State Archeology Department. After the order was dictated, Ahmadi clarified that he wrongly referred to the ASI during his submissions and that the State Archeology Department alone is involved in the matter. 

Respondent No.1 before the Apex Court had filed a writ petition before the Kerala High Court. Respondent No. 1 is a Muslim devotee and a descendant of the Muthavalli of Secretary of the Mosque. Choorottu Juma-ath Mosque, constructed as far as back in 1849 is situated on 2.5 acres of land, i.e., more than a hundred years old. It is an ancient mosque in the Malappuram District. The dispute arose concerning the cutting of the trees situated in the mosque and an application for taking action was submitted. It was found that the roof of the ground floor of the mosque was so fragile that it would cause injuries to the devotees.

In December 2019, the Chief Executive Officer of the Wakf Board ordered demolition. It was contended that Respondent No. 1 was not a party but a devotee and was of the view that it could not be ordered to be demolished in the manner and mode as suggested. 

The High Court, in the impugned order, had referred to its previous order which had said, "Ext.R3(a) is the detailed report with photographs of the building of Choorottu Juma- ath Mosque submitted by the officials of the Archaeology Department. The recommendation made in Ext.R3(a) report is that Choorottu Juma-ath Mosque can be declared as a protected monument, as it is a heritage structure over a hundred years old and has rare inscriptions. In the report, it is suggested that after being declared as a protected monument, the Mosque can be restored by carrying out necessary conservation works. Certain other recommendations are also be made in Ext.R3(a). A few photographs which form part of Ext.R3(a) report are reproduced hereunder:..."

The High Court had then ordered, "The order speaks for itself the condition and the state of the mosque, which, over a period of time, has the trappings of the monuments and therefore would be of national importance, to be maintained instead of demolished as per the order Ext.P4. The order Ext.P4 has been passed without seeking a report from the expert with regard to the condition much less the historical background of the mosque. Order Ext.P4 thus is not sustainable. It is totally aberrative and repugnant and hereby quashed...Directions are issued to respondent No.3 – Director of Archaeology of the State to maintain the mosque in terms of the provisions of the Act aforementioned and after repairing and maintaining the same, shall pass an appropriate order permitting the devotees to pay the obeisance by imposing certain restrictions so that the value and utility of the mosque is not deteriorated."

Cause Title: Choorottu Juma-ath Mosque Committee v. Unnimohammed and Ors. (SLP(C) No. 21620/2024)

Click here to read/download the Order