Although senior advocate, Huzefa Ahmadi alleged that the trial court's order directing cordoning off the area where the 'Shivling' is found lacked fairness, the division bench of Justices D.Y. Chandrachud and P.S. Narasimha, wanted to wait till May 19, when it will be hearing the plaintiff's side.
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EARLIER today, the Supreme Court refused to interfere with the Varanasi court's order that directed to protect the Shivling claimed to have been found on the premises of the Gyanvapi mosque, located next to the Kashi Vishwanath temple. It, however, modified other parts of the trial court's order and directed that the protection of the Shivling will not impede the access of Muslims to the mosque for prayers or any other religious activities. It directed the issuance of notice to the plaintiff, and listed the matter on May 19.
"In order to obviate any meaning and dispute on the order of the trial judge, the operation and ambit of the order dated May 16, 2022, shall stand restricted to the extent that the DM Varanasi shall ensure that the area where Shivling is found will be duly protected. The above direction shall not in any manner restrain or impede access of Muslims to the mosque or use of it for performing prayers and religious observances", it directed.
The court said its present order would balance the rights of both parties.
A division bench of Justices D.Y. Chandrachud and P.S. Narasimha was hearing an appeal filed by the Committee of Management, Anjuman Intezamia Masjid Varanasi, against the Allahabad High Court's order refusing to stay the order of the trial court directing the survey of the mosque. The survey has already been done, but its results are not yet public. The bench heard the matter beyond court hours and rose only at 5:10 p.m.
Appearing for the appellant, senior advocate Huzefa Ahmadi argued that the three orders passed by the trial court concerning the appointment of the commissioner and videography of the mosque were non-est in law as they seek to alter the character of the religious place, which is prohibited under the Places of Worship (Special Provisions) Act, 1991. He contended that the appellant had filed an application raising objections to the maintainability of the suit filed in 2021 but the trial court, without deciding it, went on to pass orders which are the subject matter of challenge.
Ahmadi also pointed out that the trial court order passed on Monday directing the cordoning off the area where Shivling is alleged to have been found, was passed without having the report of the commissioner. He added that the order was passed merely on the basis of a three-paragraph application filed by the plaintiff. He thus alleged a lack of fairness in the manner the order was passed by the trial court.
The request of Ahmadi to restrain the trial judge from going ahead with the proceedings till May 19 didn't find favour with the bench, which refused to pass any such order. The Solicitor General, Tushar Mehta termed the request as sensationalising the issue.
Mehta, on behalf of the Uttar Pradesh Government, urged the court to wait for a day to present the factual and geographical position of the site so that the court's order may not result in unintended consequences.
The court was informed that the plaintiff's advocate Hari Shankar Jain was admitted to the hospital for some medical exigencies and thus could not appear before the court.
In August last year, a Varanasi court, in a suit, appointed an advocate commissioner to supervise the survey of the Gyanwapi mosque. The order was passed ex-parte. Pertinently, on September 9, 2021, the Allahabad High Court granted a stay on the Archaeological Survey of India [ASI]'s inspection in the suit, which was filed in 1991 on the same issue.
The appeal in the Supreme Court contends that the proceedings being sub-judice at the High Court, the new suit filed in 2021 is an abuse of the process of law.
"In the Suit of 1991, an application was filed by the Plaintiffs therein for a 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] vide order dated 09.09.2021, granting a stay upon the aforesaid order as well as further proceedings of the original suit", the appeal reads.
It adds that "it is a settled law that local inspection or Commission by the 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. It cannot be claimed as a right by any party".
It also argues that the Advocate Commissioner for local inspection could not have been appointed upon the suggested choice of the plaintiffs.