The bench of Justices D.Y. Chandrachud, Surya Kant and P.S. Narasimha chose to stick to the procedure, and asked the petitioner to approach the trial court to interdict the survey of the mosque. The bench, however, kept the petition pending.
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IN the Gyanvapi mosque dispute, the Supreme Court earlier today ordered that it would await the decision of the Varanasi District Judge on the maintainability of the suit filed by five plaintiffs, seeking a decree declaring that they are entitled to darshan, pooja and perform all the rituals of Maa Srinigar Gauri, Lord Ganesh, Lord Hanuman and other visible and invisible deities allegedly within the premises situated at settlement plot no. 9130 in the area of ward and Police Station Dashwamedh in Varanasi district, that is, the Gyanvapi mosque.
A special bench comprising Justices D.Y. Chandrachud, Surya Kant and P.S. Narasimha accordingly adjourned the matter to October for further consideration. The bench also refused to entertain an Article 32 petition seeking to allow prayers to a Shivling allegedly found in the Gyanvapi mosque complex. The bench observed that it had to go by the Civil Procedure Code and such issues, if any, can be raised in the suit itself. The petitioner, on being asked by the court, decided to withdraw the petition.
In the main case, initially, the bench was wondering as to why it should keep a petition pending with it when a district court is already examining the maintainability of the suit, and also when the defendant could always argue that the report of the Varanasi court-appointed survey commission cannot be read as evidence.
“Now everything will depend on what the judge will decide on Order 7 Rule 11 application. If he upholds the objection, the suit goes. As regards the commission report, every party is entitled to file objections”, Justice Chandrachud observed.
However, senior advocate Huzefa Ahmadi, for the Masjid Committee, sought to argue that the order passed by the high court affirming the trial court’s order appointing a commission to survey the mosque, needs to be examined by the Supreme Court and set aside. The high court said the survey of the mosque was an innocuous exercise, but now the entire area had been sealed.
“A status quo existing for several years has been altered”, Ahmadi asserted. He added that if the order appointing a commission is illegal, then the report has to be struck off.
The bench, however, suggested that it would clarify that all the objections raised by the defendants to the appointment of commission and its report are open. It suggested that Ahmadi raise all these contentions before the trial court. Ahmadi, however, insisted that the high court order must go.
“Before the commission was appointed, I raised the objections. Those objections were considered and rejected by the trial court. Thereafter, I approached the high court which upheld the appointment of the commission”, Ahmadi told the bench. The bench yet again suggested that the trial court would decide all the objections of the defendants, uninfluenced by the high court’s observation. But Ahmadi contended that the high court order was wrong on the face of it, and that the Supreme Court has to go into the correctness of the high court order. He also submitted that similar kinds of applications are being filed elsewhere to change the status quo of certain places of worship.
The bench eventually decided to keep the petition pending before it awaiting the decision of the Varanasi district judge.
On May 20, the Supreme Court transferred the suit concerning the Gyanvapi mosque, located next to the Kashi Vishwanath temple, from the civil judge to the Varanasi district court. It was of the view that given the sensitivity of the matter, it should be heard by a senior and experienced judicial officer of Uttar Pradesh Higher Judicial Service. It had also extended its interim order directing the protection of the Shivling, and free access of Muslims to the mosque for prayers or any other religious activities. The bench said its interim order would operate till the district judge decides on the maintainability of the suit, and eight weeks thereafter to enable the aggrieved parties to challenge the same before the appropriate court.
The appeal at 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.
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.
