"An attempt to disturb the communal peace and harmony and in contravention to the Places of Worship Act" the Anjuman Intezamia Masajid Management Committee has argued before the Supreme Court while challenging the survey ordered by a Varanasi court in Gyanvapi Mosque premises on a plea by a few Hindu devotees.
The present special leave petition has been filed challenging the recent order of the Allahabad High Court refusing to interfere in Varanasi Court's order directing the survey work to continue in the Gyanvapi mosque-Kashivishvanath temple premises.
It may be noted that after an urgent listing of the case was sought, a bench led by CJI NV Ramana had on Friday directed the case to be listed before a bench presided over by Justice DY Chandrachud, without fixing a specific date for the hearing.
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.
Grounds of Challenge before Supreme Court:
Way To Circle Around The Stay On Suit Proceedings: The petitioner has argued that the High Court failed to note that the respondents' application seeking local inspection of the premises was filed to circle around a stay on the proceedings by a coordinate bench of the High Court.
Further, it is an attempt to disturb the communal peace and harmony and is in contravention to the Places of Worship (Special Provisions) Act, 1991.
The petitioner has pointed out that considering its challenge to order dated 08.04.2021 passed in the 1991 suit directing ASI inspection, a single judge bench of the High Court had on 9th September 2021 granted a stay on the inspection order and further proceedings in the 1991 suit.
Suit being barred by the provisions of Places of Worship (Special Provisions) Act, 1991: While arguing that the suit filed is barred by the provisions of Places of Worship (Special Provisions) Act, 1991, it has been argued that the petitioners' application seeking rejection of plaint for being barred by the Act should have been heard by the court before proceeding further in the matter.
Therefore the three orders passed by the Civil Judge Senior Division, Varanasi on 18th April 2021 and 5th and 8th April 2022 regard to the inspection were in excess of jurisdiction and against the scheme of Places of Worship Act.
It may be noted that the 18th August 2021 order was an ex parte order allowing application for appointment of an Advocate Commissioner to make local inspection of the property, the 5th April order was rejection of Mosque management's objections to appointment of Advocate Commissioner and the 8th April order was directing appointment of Advocate Mishra as the Advocate Petitioner.
These three orders were also challenged by the present Petitioner before the High Court by a Miscellaneous Petition, where the impugned order was passed by the High Court refusing to interfere.
2021 Suit An Abuse Of Process of Law:
The Mosque management has submitted that with proceedings pertaining to the dispute being sub-judice before the High Court, the 2021 suit is an abuse of process of law.
The petitioner management has therefore also sought a stay of proceedings in the 2021 suit in the present special leave petition.
It has been pointed out that in the original suit of 1991, an application was filed for survey of premises in dispute by the ASI, which though allowed by the Court was later set aside by a coordinate bench of the High Court through order dated 09.09.2021, granting a stay upon the order and further proceedings of the original suit.
It's Settled Law That Local Inspection Is Made By Court In Cases Where Its Unable To Arrive At A Conclusion:
The petitioner has argued that the High Court should have appreciated that it is a settled law that local inspection or Commission by court is made only in those cases where on the evidence led by the parties, Court is not able to arrive at a just conclusion either way or where the court feels that there is some ambiguity in the evidence which can be clarified by making local inspection or Commission.
According to the petitioner, the same cannot be claimed as a right by any party.
Advocate Commissioner For Local Inspection Couldn't Have Been Appointed From Plaintiffs' Suggested Choice: Referring to the court's 8th April order, the petitioner has argued that the court couldn't have appointed Advocate Commissioner on the suggested choice of the Plaintiffs.
The Court had appointed Advocate Ajay Kumar Mishra, for local inspection of the property which was specifically sought by the present respondents through an application filed in December 2021.
Here's a timeline of the important events pertaining to the dispute with details of the relevant orders passed:
Original suit of 1991- an Original Suit was filed by Swayambhu Lord Vishweshwar and others with Anjuman Intezamiya Masjid Varanasi as the respondents on 15.10.1991 in the Court of Civil Judge Varanasi.
The suit had sought a decree to declare that the structure on the disputed land was property of the devotees of lord Vishwashwar i.e. the Hindus at large have every right to use it as place of worship.
Further it was argued that the defendants have no right, title or interest of any kind and the entire Muslim community have no right to occupy the land
It was the Plaintiff's case that the place in dispute is the abode of the Deity Swayambhu Lord Visheshwar and the same cannot be made the place of worship for other religion.
In a petition filed by Anjuman Intazamia Masjid, Varanasi an interim order was passed in 1998 imposing an interim stay on the hearing of the dispute in question and staying further proceedings in respect of the 1991 Suit pending in the Court below.
A trial court in Varanasi on February 4, 2020, while hearing the original suit filed in 1991 decided to continue hearing the dispute holding that the stay order stood vacated in light of the Supreme Court's verdict in Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. v. Central Bureau of Investigation, 2018 (16) SCC 299.
In an order dated 26th Feb 2020 a bench of Justice Ajay Bhanot of the High Court stayed the decision of a trial court to proceed with the hearing of the dispute.
High Court's reserves Judgement on 8th March 2020:
All the petitions pertaining to the issue pending before the Court including application seeking survey of premises by ASI and plea challenging maintainability of the 1991 suit were heard together and judgment was reserved on on 15.03.2021.
Order dated 8th April 2021 in the 1991 Suit, Civil Court Directs Inspection By ASI:
Before the High court could deliver its verdict, the Civil Judge allowed the application of Hindu devotees granting relief of inspection by the ASI.
It was directed that the prime purpose of the archaeological survey will be to find out as to whether the religious structure standing at present at the disputed site is a superimposition, alteration or addition or there is structural overlapping of any kind, with or over, any other religious structure.
Further, whether any temple belonging to the Hindu community ever existed before the mosque in question was built or superimposed or added upon it at the disputed site.
Challenge To Order Directing Inspection & HC's 9th Sept Order Staying Proceedings:
The Mosque management challenged the 8th April order through an application before the High Court. Since the application could not be taken up due to Covid 19 pandemic second wave, two Revisions were filed by U.P. Sunni Central Waqf Board and Anjuman Intezamiya Masjid. Thereafter a petition was filed before the High Court seeking to direct the District Judge Varanasi to adjudicate and decide the revisions.
An amendment application was filed by them with prayer to set aside the order dated 08.04.2021 passed by the Civil Judge.
The High Court through its order dated 9th September 2021 stayed further proceedings of Original Suit and allowed the amendment application.
The High Court had observed that since the court below had full knowledge the judgement has already been reserved by High Court, it should not have proceeded and decided application seeking inspection.
Application by Respondents For Appointment of Commissioner:
An application was filed by present respondents seeking appointment of Advocate Ajay Kumar Mishra, as Advocate Commissioner to carry out the inspection.
Objections were raised by the petitioner management, which also moved an application seeking rejection of the plaint for being barred by Places of Worship (Special Provision) Act, 1991.
Order dated 5th April Directing Appointment of Advocate Commissioner:
The Court rejected the petitioner's objections and passed directions for appointment of an Adv. Commissioner while keeping the Petitioner's application against the plaint pending.
On 8th April 2022 the Court appointed Adv. Ajay Kumar Mishra, which was suggested by the plaintiffs, as the Advocate Commissioner for local inspection of the property.
High court's Order dated 21st April 2022: The impugned order was passed refusing to interfere and allow the petitioner' miscellaneous petition.
The present special leave petitioners before the Apex Court are being represented through Senior Advocate Huzefa Ahmadi, Advocate Fuzail Ahmad Ayyubi, Advocate Nizamuddin Pasha, Advocate Ibad Mushtaq and Advocate Kanishka Prasad.
Case Title: COMMITTEE OF MANAGEMENT ANJUMAN INTEZAMIA MASAJID VARANASI vs RAKHI SINGH & Ors