Questions Of Title, Ownership Can't Be Decided In PIL Jurisdiction: Intervenors Tell MP High Court In Bhojshala Temple-Kamal Maula Dispute

In the ongoing proceedings over the Bhojshala Temple-Kamal Maula Dispute, intervenors to the PILs in the case told the Madhya Pradesh High Court on Tuesday (April 28) that the issue majorly pertains to the question of title and ownership, and therefore it cannot be adjudicated in a public interest litigation (PIL). The dispute concerns Bhojshala, an 11th-century monument protected by the ASI. Hindus regard the site as a temple dedicated to Vagdevi, or Goddess Saraswati, while Muslims regard it as the Kamal Maula Mosque. Under a 2003 arrangement by the ASI, Hindus perform puja at the complex on Tuesdays, while Muslims offer namaz there on Fridays. One of the PILs seeks a scientific review of the site, intending to reclaim the site on behalf of the Hindu community. Additionally, the petition sought a prohibition on Muslim community members from offering namaz at the premises.The High Court ordered a survey of the site. However, this order was challenged before the Supreme Court by the Maulana Kamaluddin Welfare Society, Dhar. The Supreme Court, while allowing the survey, directed the High Court to unseal the report, supply copies to parties, and consider their objections at the final hearing. Appearing for Intervenors in WP No.10497 and 10484 /2022, Senior Advocate Shobha Menon submitted before a division bench of Justice Vijay Kumar Shukla and Justice Alok Awasthi that although PIL jurisdiction has evolved as a powerful tool for advancing public causes, courts have consistently cautioned against using the same for private disputes. Menon argued, "PIL petitioners had no reason to file a public interest litigation when the subject matter was evidently a tragic claim between a private party and the state". She further emphasised that the present dispute squarely involves competing claims over ownership of the disputed structure, which requires adjudication based on evidence. Relying on settled principles, she argued that the question of title cannot be determined in summary proceedings under Article 226 of the Constitution, and a writ court is not equipped to conduct detailed evidentiary inquiries. Such issues, Menon argued, fall within the domain of civil courts. She further added that even claims relating to religious practices must be examined within the framework of civil law, noting that the right to worship is recognised as a civil right and any alleged interference with it gives rise to a civil dispute that must be addressed through appropriate civil proceedings Menon added, "The civil courts have jurisdiction to entertain the suit for violation of the fundamental rights guaranteed under Articles 25 and 26 of the Constitution of India". On the issue of maintainability, Menon argued that the present proceedings were initiated after a considerable lapse of time, as the earlier proceedings were initiated in the late 1990s and early 2000s. Thus, the present petition is a repeated attempt to re-agitate similar issues and thus lacks bona fide. Regarding the status of the disputed structure, Menon submitted that it is a protected monument of national importance under the control of the Archaeological Survey of India, with ownership and regulatory authority vested in the Central Government under applicable statutory provisions. It was argued that official records do not conclusively establish the continuous religious use of the site and that the site was treated originally as a protected monument rather than an active religious institution. Menon referred to Article 25 of the Constitution, submitting that the fundamental right of freedom of religion is subject to public order, morality and health, and therefore cannot be asserted in a manner that disrupts legal or administrative control over protected heritage sites. Menon argued, "The present structure which is under disputed was declared protected by the Act of 1951 and dated so and so as Bhojshala and Kamala mosque in the declaration, it was not mentioned as to whether the protected monument was an educational institute and it should be treated as such. Neither was it mentioned that the present structure was being used in an institution where religious instruction was being imparted, nor was it mentioned that religious worship was being performed within the structure. The archaeological survey of India considers the edifice merely as an ancient protected monument that has national importance". Menon referred to the notification of 1935, which declared the monument as a protected monument, arguing that the notification declared the structure as the Kamala Mosque, and nowhere was the structure recorded as a temple of Saraswati. Menon clarified that in the subsequent hearing, she would argue on the status of the site before the Constitution came into effect and how the matter evolved since then. In the previous hearing, the court had directed the Archaeological Survey of India to upload videographic records of the survey to a secure digital portal to be accessed ...

Questions Of Title, Ownership Can't Be Decided In PIL Jurisdiction: Intervenors Tell MP High Court In Bhojshala Temple-Kamal Maula Dispute

Jayanti Pahwa

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