Rajasthan High Court rejects petitions against demolition of mosques, dargahs situated along Indo-Pak border

The Rajasthan High Court on Monday dismissed petitions challenging the proposed demolition of various mosques, madrasas and dargahs situated within 50 kilometers of India-Pakistan border [Peer Mohammad Shah Jilani Dargah Samiti v The State of Rajasthan]

Justice Sameer Jain appreciated Union government’s decision to enhance and rationalise the territorial jurisdiction and operational powers of the Border Security Force (BSF), stating that it manifests a proactive and well-calibrated approach to address emerging security challenges.

The Court said the "attempt to attribute communal color” to the proposed evictions or demolitions was wholly misplaced and devoid of factual foundation. 

“The material placed on record indicates that notices have been issued across the board, without reference to any particular community, wherever structures are belt. Thus, it has to be made cautiously unambiguous that the issue at hand is one of national security and regulatory compliance, and not of religious discrimination,” the Court said.

Following examination of the material on record, the Court said the structures prima facie were unauthorized as no permission under provisions of the Rajasthan Religious Buildings and Places Act had ever been obtained for their construction.

The Court also noted that issues pertaining to title, ownership, possession and land use in the matter remain seriously disputed, adding that these questions cannot be adjudicated in writ jurisdiction.

It said that though the petitioners had been issued show-cause notices, they chose not to participate in the process.

“Therefore, having failed to participate in the statutory process, they cannot now be permitted to invoke writ jurisdiction on the ground of violation of natural justice. Nevertheless, it is a thought deeply ingrained in the consciousness of every citizen of this nation that when the security of the State is at stake, the rigidity of procedure must yield to the imperative necessity of protection,” it said.

Further, the Court opined that since the properties are situated near the international border, there was a need for heightened vigilance and regulatory oversight. 

It held that in matters involving national security, strict adherence to the traditional rigours of natural justice is not always warranted, and a pragmatic, situation-responsive approach is permissible, provided that there exists material justifying such action.

“In the present case, sufficient procedural compliance has been made, and no prejudice can be said to have been caused to the petitioners, who themselves have abstained from participation. Accordingly, the writ petitions are held to be not maintainable and are liable to be dismissed,” the Bench said.

Considering the element of national security in the matter, the Court ordered the constitution of a committee comprising the district collector, superintendent of police and a representative of the BSF for examination of sensitive properties along the border.

“The Committee, in discharge of its mandate and having regard to the exigencies of the situation, may order eviction, dispossession, demolition, or adopt any other appropriate course of action, as deemed necessary, considering the material available, and as per the warrants of the situation and circumstances,” the Court directed.

It added that while principles of natural justice shall not be wholly dispensed with, their application may be suitably tailored, keeping in view the nature of the case, sensitivity involved, a threat to national security as alleged and larger public interest.

Senior Advocate Vikas Balia appeared for the petitioners.

Advocate General Rajendra Prasad and Additional Solicitor General Bharat Vyas appeared for the State government and Union of India.

[Read Judgment]