Bombay High Court
Juma Masjid Of Bombay Trust vs State Of Maharashtra And 2 Ors on 14 April, 2021
Bench: R.D. Dhanuka, Virendrasingh Gyansingh Bisht
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 10152 OF 2021
Juma Masjid of Bombay Trust ... Petitioner
Versus
State of Maharashtra and Ors. ... Respondents
******
Mr. M. A. Vaid a/w Ms. Shagufa Ansari, Ms. Vidhya Seth i/by
M/s.Vaid and Associates for the Petitioner.
Ms. Jyoti Chavan, AGP for the Respondent No.1-State.
******
CORAM: R. D. DHANUKA AND
V. G. BISHT, JJ.
DATE : 14th APRIL, 2021.
(Through Video Conference)
P.C. :-
. Papers are allowed to be produced at 12:30 p.m.
2. By this petition filed under Article 226 of the Constitution of
India, the petitioner has prayed for a Writ of Mandamus directing the
respondents to allow Muslims to offer 5 times prayer and Taraweeh
namaz at mosque situated at 46, Janjikar Street, Mumbai - 400 002
from 14th April, 2021 till end of Ramzaan adhering social distancing
and SOP's in force.
3. In view of the extreme urgency, we have allowed the production
of papers at 12:30 p.m.
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4. Mrs. Chavan, learned AGP for the respondent no.1-State states
that the papers of the writ petition are served at mid-night and the
notice of mentioning the matter was issued at 11:30 p.m. We have
however heard the learned counsel for the petitioner and the learned
AGP for the respondent no.1.
5. The petitioner claims to be a Public Trust registered under the
Bombay Trust Act and also under Wakf Act, 1995. It is the case of the
petitioner that the subject mosque is spread over 1 acre and that at a
time on a normal day 7000 people offer namaaz which shows that it is
quite spacious and all the SOP's meant to break the chain of Covid can
be very easily followed and adhered to under supervision of local
police as may be required.
6. Learned counsel for the petitioner submits that Holy month of
Ramzaan is starting from today. It is during the month of Holy
Ramzaan that the Muslim religion obligates Muslims to observe fast
for 30 days alongwith 5 times prayers and also to pray Taravi or prayer
in congregation (jamaat) which is considered to have more social and
spiritual benefit than praying by oneself. It is submitted by the learned
counsel that the petitioner be permitted to offer prayers 5 times at the
said mosque from 14th April, 2021 till the end of Ramzaan. He submits
that all the persons who would offer such prayers would adhere to
social distancing and SOP's in force.
7. Learned counsel for the petitioner submits that by the
Government Order dated 13th April, 2021, the State of Maharashtra has
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directed that all the Religious places of Worship to remain closed w.e.f.
14th April, 2021 till 1st May, 2021.
8. In the Writ Petition, the petitioner has also invoked the
provisions of Article 25 of the Constitution of India.
9. Learned counsel for the petitioner invited our attention to the
order dated 12th April, 2021 passed by the Delhi High Court in Writ
Petition (CRL) No. 421 of 2021 in case of Delhi Waqf Board v/s.
Government of NCT of Delhi and Anr. and would submit that the
Delhi High Court by the said order dted 12 th April, 2021 has permitted
the petitioners therein to offer prayers during the month of Ramzaan on
various conditions and by providing safeguards. He submits that the
petition in this case also may be permitted to offer prayers as prayed on
similar terms as enforced by the Delhi High Court by the order dated
12th April, 2021.
10. Mrs. Chavan, learned AGP for the respondent no.1-State, on the
other hand, submits that in Maharashtra as on today there are more than
65,000 covid cases. In Mumbai itself there are more than 11,000 active
covid cases. She submits that considering this critical situation
prevailing in the State of Maharashtra and more particularly in
Mumbai, the State of Maharashtra has already issued an order "Break
the Chain". She submits that considering the prevailing situation in the
State, the State Government has rightly considered that all Religious
places of Worship to remain closed till 7:00 a.m. on 1st May, 2021
w.e.f. 8:00 p.m. on 14th April, 2021. She submits that the said
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restrictions applies to the members of all the Community and following
whichever religion they follow. She submits that no case is made out
for invoking Article 25 of the Constitution of India. This Court has
rejected permission in past for such religious ceremonies.
11. A perusal of the order dated 13th April, 2021 issued by the
Government of Maharashtra under the provisions of Disaster
Management Act, 2005 would show that the State Government having
been satisfied that the State of Maharashtra is threatened with the
spread of Covid-19 virus, and therefore it is imperative to take certain
emergency measures to prevent and contain the spread of virus.
12. The Government in exercise of the powers conferred under
Section 2 of the Epidemic Diseases Act, 1897 read with other powers
found it expedient to enforce various measures throughout the State
from 8:00 p.m. on 14th April, 2021 till 7:00 a.m. on 1st May, 2021 to
break the chain of transmission.
13. A perusal of the said order indicates that the State of
Maharashtra has already enforced night curfew under Section 144 of
the IPC and have restricted all activities except the activities falling
under essential category specified therein. The State Government has
also banned all religious, social, cultural or political functions of any
kind during this period. In paragraph 7 of the said order, the State
Government had made it clear that the Religious places of Worship to
remain closed. All the personnel engaged in the service of the place of
Worship shall continue to perform their duties though no outside visitor
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shall be allowed.
14. In our view, these restrictions imposed by the State Government
in the said order dated 13th April, 2021 have been imposed after
considering the prevailing circumstances and various other pros and
cons.
15. This Court in a judgment delivered on 27 th November, 2020 in
case of Dhananjay Mohan Deshmukh and Ors. v/s. The Sub-
Divisional Officer, Igatpuri-Trimbakeshwar Sub-Division, Nashik
and Ors. in Writ Petition (Stamp) No. 96664 of 2020 had considered a
petition seeking permission to carry out age old tradition of Rath yatra
of Lord Trimbakeshwar on the occasion of Tripurari Pournima Rath
Yatra which was scheduled on 29th November, 2020. The submission
of the petitioner in that case was that all the 12 Jyotirlingas have deep
sanctity in all the people belonging to Hindu religion all over India.
Trimbakeshwar temple is one of the such temples. The said Rath Yatra
was being held for more than 5 decades. The request of the petitioner
in that case was to permit only two priests to pull the bullock-cart even
by imposing sealing of the entire locality for 24 hours prior to the date
of procession.
16. This Court after adverting to various orders passed by this Court
and the Hon'ble Supreme Court dismissed the said Writ Petition. This
Court held that Article 25 of the Constitution of India though permits
all persons equally entitled to freedom of conscience and the right to
freely profess, practice and propagate religion, the same is subject to
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public order, morality and health. This Court held that such
congregation which is apprehended by the State, if such permission is
granted, it is likely that it would seriously affect the public order and
health. If such permission is granted, it would violate the condition
imposed under Article 25 of the Constitution of India.
17. This Court adverted to the order passed by this Court in case of
Warkari Seva Sangh and Anr/ v/s. The State of Maharashtra refusing
permission to carry out Ashadhi Ekadashi Wari/Yatra which tradition
was being followed uninterruptedly for last 800 years, considering the
ground reality and factum of ongoing pandemic situation. This Court
also considered the order passed by the Delhi High Court in case of
Durga Jan Seva Trust v/s. Goverment of NCT of Delhi where
permission was applied for performing Chhat Puja which is a major
religious festival celebrated by the people of Bihar and Eastern U.P. on
an annual basis. The Delhi High Court held that the petitioner should
have been alive of the situation before approaching the Court for such a
relief. While religious sentiments of all sections of the society must be
respected, the right to life and health of the public at large cannot be
sacrificed at the altar of a right to celebrate a festival, however,
significant it may be for a particular community. This Court accepted
the views expressed by the Delhi High Court in the said judgment. The
principles laid down by this Court and the Delhi High Court applies to
the facts of this case.
18. Insofar as the order dated 12th April, 2021 passed by the learned
Single Judge of Delhi High Court in case of Delhi Waqf Board v/s.
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Government of NCT of Delhi and Anr. is concerned, a perusal of the
said order clearly indicates that the Union of India had agreed for
allowing the petitioners therein to offer prayers subject to following
covid norms. In our view, Mr. Chavan, learned AGP for the respondent
no.1-State is right in her submission that the said order passed by Delhi
High Court cannot be considered as a precedent in this case.
Considering the prevailing situation and the ground reality prevailing
in the State of Maharashtra, we cannot permit the petitioner to perform
any prayers in the said mosque in violation of the order dated 13 th
April, 2013 issued by the Government of Maharashtra which is issued
in public interest and for safety of all the residents of Maharashtra. In
our view, offering of prayers only in the mosque as sought by the
petitioner cannot be considered, in view of the ongoing critical covid
situation which is serious in nature.
19. In our view, the petition is devoid of merits and is accordingly
dismissed.
20. There shall be no order as to costs.
[V. G. BISHT, J.] [R. D. DHANUKA, J.]
