Gyanvapi Mosque Case : Supreme Court Orders Status Quo On Namaz In Mosque & Hindu Worship In 'Tehkhana' (Cellar)

The Supreme Court on Monday (April 1) issued notice on a Special Leave Petition filed by the Gyanvapi mosque committee challenging the orders of the Varanasi District Court and the Allahabad High Court allowing the performance of Hindu religious rituals at a tehkhana (cellar) of the mosque.

While doing so, the Court also ordered that that status quo shall be maintained with respect to the observance of Namaz by Muslims in the rest of the Gyanvapi mosque and the performance of Hindu worship at the tehkhana. The Court further directed that this status quo cannot be altered without obtaining prior sanction or permissionon from the Supreme Court. 

The Court also directed that the Hindu religious worship at the tehkhana should be in terms of the order passed by the District Court on January 31, 2024 and subject to the custody of the receiver (District Magistrate) in terms of the earlier order passed on January 17, 2024.

The bench led by CJI DY Chandchrachud and Justices JB Pardiwala and Manoj Misra made the following observation in the order dictated : 

Bearing in mind the fact that the Namaz is offered by the Muslim community unhindered after the orders dated January 17 and Jan 31 and the offering of pooja by Hindu priest is confined to the area of tehkhana, it is appropriate to maintain status-quo so as to enable both the communities to offer worships in the above terms.

The religious observances by the Hindus shall be in terms of directions contained in the order dated January 31, 2024, subject to the custody of the receiver as specified in the earlier order dated Jan 17, 2024.

Status quo as obtained from the above terms shall not be disturbed without obtaining the previous sanction and leave of this Court.

While passing the order, the bench, after seeing the Google Earth images of the structures, noted that the entry to the tehkhana is from the southern side while the entry to the Mosque for the purposes of offering namaz is from the steps on the norther side.

The impugned interim orders were passed in a suit filed by the Vyas family, who stated that they were the hereditary priests who had performed rituals at the location. On January 17, the District Court appointed the District Magistrate as a receiver of the tehkhana. On January 31, the District Court modified this order and passed a mandatory injunction allowing rituals by a priest to be nominated by the plaintiffs and the Board of Trustees of the Kashi Viswanath temple.

The Allahabad High Court on February 26 dismissed the challenge to the Varanasi Court's January 31st order.

Arguments before the SC

Senior  Advocate Mr Hufeza Ahmadi appearing on behalf of the Mosque Committee contended that the orders of the lower courts in appointing the receiver and allowing the puja at the premises of 'Vyas Tehkhana' renders final relief in an interim order. He therefore sought a stay on the performance of puja within the mosque's premises. 

With the greatest respect, this is an extraordinary order passed by the trial court and then the High Court. The effect of the order is to give final relief at the interim stage. 

On principles of mandatory injunction, Mr Ahmadi submitted that there needs to be a 'tearing urgency' for a mandatory injunction to be granted. However, in the present case, such conditions fall short considering the 30-year-long deadlock.  He highlighted that even as per the plaint, the plaintiffs were not in possession from 1993 till 2023.

For mandatory injunction to be issued, there has to be a higher threshold. There has to be tearing urgency. Where was the tearing urgency when the plaintiff waited for 30 years.? 

It was additionally highlighted by Mr Ahmadi that the order of the District Court appointing the receiver and allowing the puja was made under extraordinary circumstances, that is, on the brink of the judge's retirement. 

On the last day when the judge was demitting office, the order was modified to grant a mandatory injunction even without any application. On an oral mention, the order was modified and mandatory injunction was allowed. This is an extraordinary case to stay the entire order. 

Concerns Raised On Puja In The Mosque Premises - Ahmadi Expresses

The Senior Counsel stressed that the impugned orders of allowing puja were implemented by the State government in haste, on the night the same night of the date of the order being passed as an attempt to prevent the respondents from seeking an immediate stay. 

The State govt which is not even a party to the case, implements the order at the dark hours of the night, the puja is performed that very night of the order, preventing me from seeking a stay. 

It was further argued that the impugned orders have restored the 30-year-old status quo ante of 1993. Mr Ahmadi was concerned about the fact that puja rituals are being performed failing within the mosque's cellar. 

My apprehension is this, every day the puja is going on. This is the mosque premises, in the cellar...This will allow things to fester...going by civil law principles, this is an egregious order.  

Mr Ahmadi expressed strong apprehension that allowing the puja to continue would end up stirring drastic events similar to the past. 

History has taught us what happened in Ayodhya. Notwithstanding the undertaking by the highest authorities, the mosque was demolished...Ultimately I am in your lordship's hands. Please protect me from further actions..

It was further informed that from 1993 to 2023 there occurred no possession of the cellar/ Tehkana nor any puja. 

During the hearing, CJI inquired where in the mosque was the namaz conducted. 

To which Mr Ahmadi informed, "All over", he further added concerns over the fragmentation of the mosque.

The point is an entire mosque is a mosque complex. It cannot be fragmented. It is like, if there is a canteen in this Court at the basement with a separate entry, can it be said that it is separate?  ...The mosque complex is larger. The Temple complex is even larger, where daily pujas are taking place. Why do you want this particular spot?

Mr Divan explained that the tehkhana and the mosque where prayers are offered are at different levels with separate entrances. 

The CJI expressed, " Mr Ahmadi, Mr.Divan, this is for absolute clarity. The entrance to the cellar is from the south side. The entrance is to the mosque is from the stairs on the north side. So are we correct in saying that the entrance to the cellar does not affect the entrance to the mosque from the north side? If there is no dispute on this, we can say that let there be no further change in the status quo as on today. We can say let namaz continue after entry from the north side and the worship in the south cellar can continue. So if this is the position, we can issue notice and post the matter for hearing in July."  

No One's Case That The Tehkhana Was A Temple; Trial Court Order & Implementation Done In Unreasonable Haste  : Ahmadi

Mr Ahmadi questioned the "sudden" insistence for religious performances on this particular site. He claimed that there was no evidence of any rituals being performed at the place and the highest case which the plaintiffs can have is that of possession. 

You have a large temple complex on the left side where pujas are performed since time immemorial. All communities have peacefully coexisted with the temple and mosque on the side by side. Why now this insistence on this particular place?

Mr Ahmadi also highlighted the nature in the way the trial court order was modified without any proper application for mandatory injunction.

"There is an American expression "salami tactics". Bit by bit, piece by piece, I am losing the mosque. The wuzukhana, which was there for centuries, is now lost. Now they want to enter tehkhana. Now there is an application that there should be no Namaz in the courtyard since the puja is under the courtyard and their religious rights are getting affected," Ahmadi submitted.

Submissions of the plaintiff

Senior Advocate Shyam Divan appeared for the plaintff. He submitted that the points of access to the tehkhana (cellar) where religious observances have been permitted by the order of the trial judge are distinct from the access to the mosque. While the access to the tehkhana is from the southern side, the access to the mosque for the purposes of offering namaz is from the stairs on the northern side.

The order of the trial judge appointing a receiver and allowing of a priest nominated by the plaintiff and the Kasi Viswanath trust is a well reasoned order.

It would be incorrect to postulate that final relief has been granted. Final declaratory relief sought in the suit pertains to the claim of the Vyas family to perform religious worship, whereas by an interim working arrangement the temple trust has been allowed to carry out religious observances in the centre.

 In the course of an earlier proceedings which culminated in a decree of 1937, there is a judicial recognition of the existence of the tehkhana and that right until 1993, when the locks were placed both by the State administration and by the Vyas family, it continued to be in the possession of the Hindus.

 In pursuance of the order of the trial judge, puja of the idols has commenced since 31 Jan 2024 and this arrangement need not be disturbed.

Background 

In its order, the High Court observed that stopping worship and performing rituals by the devotees in the cellar "would be against their interest". With this, the High Court has effectively upheld the order of District Judge Varanasi. 

It may be noted that the 'Vyas tehkahana' is located in the southern section of the Gyanvapi mosque's enclosed complex. For over two centuries and till 1993, the Vyas family had been performing prayers and conducting various rituals within the tehkhana. However, the rituals were stopped in December 1993 by the State Government, then headed by CM Mulayam Singh Yadav of Samajwadi Party (who had formed the Government on December 4, 1993). 

The Court also rejected the argument raised by the Mosque Committee regarding a clash of interest between the office of the District Magistrate and the Receiver appointed by the Court. 

The Court noted that the Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983 provides that the District Magistrate, who, being the ex-officio Member of the Board of Trustees and also Member of the Executive Committee, is bound to act as per the duties of the Board and also to comply the directions of the Board and State Government being the Member of Executive Committee responsible for the superintendence, direction and control of the affairs of the Temple.  

Lastly, considering the overall submissions advanced by the respective counsel of the parties and after analysing the material on record, the Court concluded that the appellant (Mosque committee) failed to make out any case for interfering in the order dated January 17, 2024, and January 31, 2024, appointing the District Magistrate, Varanasi as Receiver and arranging to carry out worship and rituals in Vyas tehkhana (cellar) under his supervision by the priest, so appointed. 

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