17 May 2022 11:58 AM GMT
The Supreme Court on Tuesday clarified that the order passed by the Civil Judge Senior Division at Varanasi to protect the spot where a "shiv ling" was claimed to have been found during the survey of the Gyanvapi mosque will not restrict the right of Muslims to access the mosque to offer namaz and to perform religious observances.The Court issued notice on the petition filed by the...
The Supreme Court on Tuesday clarified that the order passed by the Civil Judge Senior Division at Varanasi to protect the spot where a "shiv ling" was claimed to have been found during the survey of the Gyanvapi mosque will not restrict the right of Muslims to access the mosque to offer namaz and to perform religious observances.
The Court issued notice on the petition filed by the Masjid Committee challenging the survey ordered by the Varanasi court and kept the matter for Thursday (May 19).
A bench comprising Justices DY Chandrachud and PS Narasimha directed the District Magistrate concerned to ensure that the place inside the Mosque where 'Shiv Ling' is stated to have been found is protected. However, it ordered that this should not restrict the right of Muslims to offer Namaz and religious observances.
The operative portion of the order stated as follows :
In order to obviate any dispute on the meaning and content of the order of the Trial Judge, the operation and ambit of the order dated 16 May 2022 shall stand restricted to the extent that the District Magistrate, Varanasi shall ensure that the area where the Shivalinga is stated to have been found, as indicated in the order, shall be duly protected.
The above direction shall not in any manner restrain or impede the access of Muslims to the mosque or the use of the Mosque for the purpose of performing Namaz and religious observances.
The bench passed this clarification after noticing that the operative portion of the Varanasi Court's order had stated that the application filed by the plaintiff has been allowed, although the specific direction issued by it was to seal the spot and to protect the sealed spot and to restrict the entry of people into the sealed spot. However, the application filed by the plaintiff had sought for several reliefs, such as to restrict the number of Muslims entering the mosque for offering namaz as 20 and to prohibit them from performing "wazu" (ablution process). The bench felt that this might lead to confusion.
"We have excluded the three reliefs sought in the application. We have protected the spot where the shiv ling was found. And we have clarified that this will not restrict the rights of Muslims. I think this is a balance," Justice Chandrachud told Senior Advocate Huzefa Ahmadi, who appeared for the petitioner, after dictating the order.
The Bench will hear the matter on May 19.
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The Court was considering a special leave petition filed by Committee of Management Ajnuman Intezamia Masjid Varanasi challenging the orders passed by a civil court in Varanasi for survey of the mosque on a suit filed by few Hindu devotees.
It may be noted that the Varanasi Court on Monday (16th May) directed sealing of a spot in the complex after being told that a Shiva Linga was found inside the Gyanvapi Mosque premises by the court-appointed Advocate Commissioner during the survey.
This development came three days after an urgent listing of the present SLP was sought before a bench led by Chief Justice of India NV Ramana on Friday (May 13). When the Masjid Committee's lawyer, Senior Advocate Huzefa Ahmadi had made an oral request for a status quo order against the survey, the CJI said that he was yet to see the files. On Friday evening, an order was passed in the case to list it before the bench of Justice DY Chandrachud.
In this backdrop, Ahmadi submitted that the Commissioner was fully aware that the Supreme Court is in seisen of the matter and the same is likely to be listed today.
He added that despite the fact that no report after the survey was filed by the Commissioner, an application was filed by the plaintiff that Commissioner noticed a shivling near pond. "This is highly improper as the Commissioner report is supposed to be confidential until it is filed...Unfortunately the trial court entertains the application and marks an area which is to be sealed," he said.
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Ahmadi contended that now, under the garb of commission proceedings and on the oral plea of the plaintiff according to what the Commissioner saw, the entry to the Mosque has been restricted by the Court and the alleged spot of Shivling has been sealed.
"Please see the manner in which order is passed. It is passed when the parties are there for execution of the commission. And on whose say? Not on the report of the Commission. On an application by plaintiff. Does it not show some element of lack of fairness," he submitted. He pointed out that no notice was served on the other side on the application.
It may be noted that the impugned order was passed in a suit for worship filed by Hindu devotees. The Masjid Committee had opposed the suit by filing an application for rejection under Order 7 Rule 11, on the ground that both the suits filed in 1991 and 2021 are barred by the provisions of Places of Worship (Special Provisions) Act, 1991. Reliance was placed on Supreme Court orders which categorically held that the religious character of a place as on August 15, 1947 cannot be tinkered.
The application to reject the plaint was kept pending in the local court, and meanwhile, the impugned orders came to be passed, the Masjid Committee today informed the Supreme Court.
Following which, the Bench suggested that it would issue a direction to the trial judge to first dispose of their application under Order 7 Rule 11 (for rejection of plaint).
"The only point, we are only discussing, the basis of your challenge is that the grant of relief is precluded by Places of Worship Act, that is the relief you sought in application under Order 7 Rule 11. We'll direct the trial court to dispose of that application."
However, Ahmadi sought a stay on the impugned orders in the interregnum.
"How can they seal the premises? There's a string of illegal orders. If you seal the premise, you're altering status quo. Section 3 of the Act makes it clear that it can't be done..The orders right from the beginning, including the one taking cognizance of the suit and the subsequent orders, are illegal," he argued.
The Bench then suggested that it would direct the District Magistrate concerned to ensure that the place inside the Mosque where 'Shiv Ling' is found is protected, but the same would not restrict the right of Muslims to offer Namaz.
"If a shiv ling is found, we have to maintain a balance. We will direct the District Magistrate to ensure protection of the place without restricting Muslims from praying," Justice Chandrachud said.
At this juncture, Solicitor General Tushar Mehta appearing for the UP government submitted that such an order may have "unintended consequences" as the Shivling is said to be found in the Wazukhana, which is a place where one wash before offering prayers.
"The area where shiv ling is found, it should be protected, suppose someone goes there are touches with feet, there will be law and order problem," the SG submitted.
The Solicitor General also opposed the plea to stay the suit proceedings saying the prayer was to "sensationalise" the matter.
The Mosque management has challenged the survey arguing that the plea for local inspection of the premises was filed to circle around a stay on the proceedings by a coordinate bench of the High Court (order dated 9th September 2021) and is an attempt to disturb the communal peace and harmony and is in contravention to the Places of Worship (Special Provisions) Act, 1991.
The present dispute pertains to the land where Gyanvapi Mosque is situated in Varanasi and has been in courts since 1991. In 1991 a suit was filed by devotees of the Kashi Vishwanath temple near which the Gyanvapi Mosque is situated alleging that the Mosque was built after a Lord Vishweshwar's temple was destroyed by Mughal emperor Aurangzeb.
Another suit was filed in 2021 by female devotees and worshippers of Lord Shiva, practicing the vedic sanatan hindu dharma before Civil Senior Judge, Varanasi seeking "restoration of performance of rituals at principal seat of an Ancient Temple" at the Gyanvapi mosque area"
The dispute has now reached the Apex Court after multiple orders having been passed by both the Civil Court in Varanasi and the Allahabad High Court since 1991 on pleas by both the Hindi devotees and Anjuman Intezamia Masjid Varanasi and others. The proceedings in the 1991 suit has been stayed by the Allahabad High Court.
The Varanasi Court had ordered an inspection of the premises on petitions moved by five Hindu women asking for year-long access to pray at a Hindu shrine behind the western wall of the Gyanvapi Mosque complex in Varanasi. The site is currently opened for prayers once a year.
The local court had earlier directed the authorities to submit a report by May 10, however, the survey could not take place as the mosque committee had opposed the videography inside the mosque.
Thereafter, a petition was filed on behalf of the Anjuman Intezamia Masajid Committee demanding the removal of Advocate Commissioner Ajay Kumar Mishra. After 3 days of arguments, the Court ordered that the survey of the premises shall continue.
The Court has appointed 2 more lawyers as commissioners to accompany Court commissioner Ajay Mishra for the survey and further, it has been ordered the Commission to submit a report by May 17 before the court.
The court has also ordered that the entire mosque complex be surveyed and further directed that till the survey is not completed, it shall continue.
The petitioners before the Apex Court are being represented through Senior Advocate Huzefa Ahmadi, Senior Advocate Fuzail Ahmad Ayyubi, Advocate Nizamuddin Pasha, Advocate Ibad Mushtaq and Advocate Kanishka Prasad.
To read about the grounds of challenge in the appeal filed by the Masjid Committee, read this report.
Gyanvapi Mosque Survey An Attempt To Disrupt Communal Harmony, Violates Places Of Worship Act : Mosque Committee Tells Supreme Court
Case Title: COMMITTEE OF MANAGEMENT ANJUMAN INTEZAMIA MASAJID VARANASI vs RAKHI SINGH & Others
Click Here To Read/Download Order