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Breaking: Supreme Court Transfers Gaynvapi Mosque Suit To District Court Varanasi

Shruti Kakkar
20 May 2022 10:52 AM GMT
Breaking: Supreme Court Transfers Gaynvapi Mosque Suit To District Court Varanasi
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The Supreme Court has transferred the suit filed by Hindu devotees in connection with the Gyanvapi Mosque-Kashi Vishwanath Temple dispute, to the District Court in Varanasi. The suit was filed before the Civil Judge Senior Division, alleging that the Mosque was built after a Lord Vishweshwar's temple was destroyed by Mughal emperor Aurangzeb.

The bench of Justices DY Chandrachud, Surya Kant and PS Naramsimha ordered,

"Having regards to complexities involved in civil suit & the sensitivity we are of the view that the suit before the Judge, Varanasi should be tried before a senior and experienced judicial officer of UP Higher Judicial Service. We accordingly order and direct that the Civil Suit before Civil Judge Senior Division Varanasi shall stand transferred to District Judge Varanasi and all interlocutory applications shall stand transferred."

The Supreme Court also ordered that the application filed by the Committee of Management Anjuman Intezamia Masjid (which manages Gyanvapi mosque in Varanasi) before the trial court under Order 7 Rule 11 CPC for rejection of the suit as being barred in law, shall be decided on priority by the District Judge.

Meanwhile, its interim order dated May 17 shall continue in operation till the application is decided and for a period of 8 weeks thereafter. Further, the concerned District Magistrate has been directed to make proper arrangements for observance of wuzu.

In its May 17 order, the Supreme Court had 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. It had also directed the District Magistrate concerned to ensure that the place inside the Mosque where 'Shiv Ling' is stated to have been found is protected.

Today, the Court ordered,

"Having regards to complexities involved in civil suit & the sensitivity we are of the view that the suit before the Judge, Varanasi should be tried before a senior and experienced judicial officer of UP Higher Judicial Service. We accordingly order and direct that the Civil Suit before Civil Judge Senior Division Varanasi shall stand transferred to District Judge Varanasi and all interlocutory applications shall stand transferred. The application filed under Order 7 Rule 11 CPC shall be decided on priority by the District Judge. The interim order dated May 17 of this Court shall continue in operation till O 7 R 11 is decided and for a period of 8 weeks thereafter."

The order further stated,

"Unless adequate arrangements for observance of wuzu has been made by the District Magistrate, we direct the District Magistrate, in consultation with the parties, to make appropriate arrangements for the observance. The order which was passed by the CJ, Senior Division, Varanasi on May 16, 2022 shall stand subsumed by the terms of the orders of this court dated May 17 pending further orders."

Courtroom Exchange

Stating that the matter involves a fair amount of complexity and sensitivity, the Bench suggested that it be heard by a District Judge, in order to "protect the interests" of all parties. Presently, the suit pending before the file of a Civil Judge Senior Division at Varanasi.

"In a matter of fair amount of complexity and sensitivity, we are of the view that the suit should be heard by a District Judge. We are not casting aspersions on the trial judge. But in a matter like this, a more seasoned hand is better. This will protect the interests of all parties...they know how to handle it," the Bench said.

Senior Advocate Huzefa Ahmadi, appearing for the Masjid committee, expressed an apprehension that continuation of the impugned proceedings before the trial court would have the potential for "grave mischief". "This has to be nipped in the bud. All the orders right from the appointment of commission are illegal and are to be declared as void," he contended.

However, the Court has ordered,

"Having regards to complexities involved in civil suit & the sensitivity we are of the view that the suit before the Judge, Varanasi should be tried before a senior and experienced judicial officer of UP Higher Judicial Service. We accordingly order and direct that the Civil Suit before Civil Judge Senior Division Varanasi shall stand transferred to District Judge Varanasi and all interlocutory applications shall stand transferred."

On Masjid Committee's application for Rejection of Suit

At the outset of the hearing today, the Bench put forth three suggestions before the parties:

1. It could direct the trial court to dispose of the application filed by the Masjid Committee under Order 7 Rule 11, for rejection of the suit for worship filed by Hindu devotees.

2. It could order that its interim order shall continue until the aforesaid application under Order 7 Rule 11 is disposed.

3. It could order that the suit should be heard by a District Judge.

Senior Advocate CS Vaidyanathan, appearing for one of the plaintiffs before the trial court, however submitted that the Special Leave Petition has become infructuous as all the impugned orders (relating to survey of the Mosque) have been implemented.

As far as Order 7 Rule 11 application is concerned, he submitted that the religious character of the property has to be seen and for that purpose, the Commission report has to be seen.

Ahmadi on the other hand contended that the SLP is directed against the appointment of the Commission, whose report was later leaked in a selective manner, purportedly to create a narrative in the public.

"It is to prevent this type of mischief that the 1991 (Places of Worship (Special Provisions)) Act was enacted. A status quo which has been in existence for last 500 years has been altered. And this altered status quo to continue. They have achieved this through a particular design. Even if the suit has to go back, the status quo as existed on the date of suit must be restored," he said.

At this juncture, Justice Kant suggested that their grievance may be resolved if their application under Order 7 Rule 11 is decided by the trial Court.

"Whatever preliminary issues you want to raise, if tomorrow your Order 7 Rule 11 application is allowed, then whatever interim orders you are challenging, don't you think they will become a nullity?" Justice Kant said.

However, Ahmadi responded, "But till the Order 7 Rule 11 application is taken up, what will be on ground. What will be left festering. This will cause grave public mischief, which the Act wanted to avoid. If this is allowed to fester, those directions will only remain a pipe dream. There is a narrative which is being created. Commission reports are being leaked selectively. This is disturbing communal harmony. Don't look at this from the point of one suit alone. Look at the ramifications across the country."

Expressing its inability to entertain the matter, Justice Chandrachud said,

"The moment you argue that the appointment is Commissioner is void ab initio because the suit is barred by the Act, it is far fetched, because we can't decide the maintainability of suit here. Your submission overlaps with the Order 7 Rule 11 application. Our difficulty is that to accept that argument we'll have to comment on the maintainability of the suit which has to be decided. Their argument is that to decide Order 7 Rule 11 application, you have to open the Commission report. If we hold in your favour, they are ousted from their argument but if we accept their submission, you will be ousted. Is it right for the Supreme Court to do? We have to adopt fair process across the board."

The Judge continued,

"We hold the balance and we have created a sense. The Need for fraternity which is crucial in our minds as well and there is need to balance. Our interim order will preserve that sense in the ground. There's another way of doing it. You have challenged the order of appointing the Commissioner and if we dispose of the SLP there would be finality to that order. But in case you fail your Order 7 Rule 11 challenge, then to cause no prejudice, we can keep this SLP pending, we can post this SLP after vacation and in the meantime the Order 7 Rule 11 can be taken up."

The Bench stated that in case the application under Order 7 Rule 11 is dismissed, the Masjid Committee still has scope to challenge the order appointing the Commissioner. And in case, the application is allowed, the grievance of the Committee will stand resolved at once.

On Places of Worship Act

Ahmadi vehemently contended that the impugned orders passed by the trial court are repugnant to the Places of Worship (Special Provisions) Act 1991.

"The prayer in the suit is to change of religious character...Under Section 3 there is an absolute bar on religious character of a place of worship and there is no exception to this. Why did you appoint a Commission? To find out if there are deities etc. This is an extension of bar under Section 3," he said.

However, Justice Chandrachud responded that there are various nuances of the Act which will fall for consideration.

"The ascertainment of religious character is not barred...The ascertainment of religious character of a place as a processural instrument may not fall foul of Section 3 or 4. These are matters where we will not hazard an opinion in our order. We are in a dialogue," Justice Chandrachud said.

He added, "Suppose there is an aghyari. And there is a cross. Does the presence of cross not make the pplace an aghyari? Does the presence of cross make it a Christian place? Such hybrid nature are not unknown in India."

On Leaking of Commissioner's Report

The Supreme Court also expressed its dismay over the "selective leaks" of Commission report, stating that the same "must stop".

Context here: Gyanvapi Mosque Survey | Varanasi Court Removes Court Commissioner For Leaking Info To Media, 2 Day Time Granted To Submit Report

"We must tell the other side that the selective leaks must stop. It should be submitted to the court. Do not leaks things to the press. You must present it to the judge," Justice Chandrachud said.

On observance of Wuzu

During the hearing, Ahmadi submitted that though the Supreme Court through its may 17 order made way for Muslims offering Namaz at the Mosque, however, the area that was used for wuzu has been sealed.

"There are police and iron gates all over. The status quo has been altered...Even after the order was passed by this court, that area is in the middle of a tank. From the sides, you have taps, where people used to offer wazu. The middle area can be protected. Let access be..." he submitted.

However, the Solicitor General submitted that permitting wuzu in the area where allegedly a Shivling has been found may create law and order problems.

"Let that tap water be used, as has been for the last 500 years," Ahmadi insisted.

However, the Bench said that it has not seen the photographs of the area. It thus ordered that unless adequate arrangements for observance of wuzu are made, the District Magistrateshall, in consultation with the parties, make appropriate arrangements for the observance.

There should be an alternate arrangement for wuzu, the SG suggested.

"We have said arrangement, not alternate arrangement," Justice Chandrachud clarified.

What has transpired in SC so far?

The bench of Justices DY Chandrachud, Surya Kant and PS Naramsimha was considering petition filed by the Masjid Committee challenging the survey ordered by the Varanasi court.

On May 19, 2022 the Court while adjourning the matter for May 20, 2022 on the request made on behalf of the plaintiffs before the Varanasi civil court had directed the Varanasi civil court to not pass any orders today in the case.

On May 17, the Top Court 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. It had also 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 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).

It may be noted that Hindu plaintiffs before the Varanasi civil court had filed a reply in the opposing the special leave petition filed by the Masjid Committee against the orders passed by the Civil Court for survey and sealing of the mosque property. In the reply filed through Advocate Vishnu Shankar Jain, the plaintiffs had asserted that the property vest with deity Lord Adi Visheshwar and contend that Gyanvapi is not a mosque as Aurangazeb did not create an Waqf by dedicating the property. It is stated that the property vests with Adi Vishweshwar since thousands of years ago and has been forcibly taken by Aurangazeb.

Even the Gyanvapi Mosque Survey report was on May 19 submitted to Varanasi civil judge (senior division) Ravi Kumar Diwakar, pursuant to Court's May 17th Order. The comprehensive report was compiled by a court-appointed commission after surveying the Mosque premises on May 14, 15, and 16 and the Court had now invited objections to the report from both sides in the matter.

Background

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.

(Compiled and Edited by Akshita Saxena)

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