The Court was hearing an appeal filed by the Committee of Management of Anjuman Intezamia Masajid (appellant) challenging an order of the Allahabad High Court permitting a court commissioner appointed by a civil court in Varanasi to inspect and conduct a survey and videography of the Gyanvapi Mosque over which Hindus and Muslims have laid claims for the right to worship.
When the matter was taken up for hearing on Friday Senior Counsel CS Vaidhyanathan, appearing for the Hindu parties submitted that the appeal has become infructuous since the court commissioner has already conducted the survey.
“Today the SLP is infructuous since all three orders have been complied with. Religious character of the mosque has to be decided. The commission report has to be seen by the court,” Vaidyanathan said.
The bench suggested that the order VII Rule 11 application should be decided by the lower court.
If the same is decided in favour of Muslim party, the issue will come to an end, the Court remarked.
“Order 7 Rule 11 application had to be decided first. That has not been done. So to decide whether order of commission was lacking jurisdiction we have to get into Order 7 Rule 11 application outcome. Thats why we thought the application can be decided and our interim order can continue,” the Court suggested.
The bench also suggested that it will sent the matter to a District Judge so that an experienced hand deals with the issue.
“In this this sensitive matter, the suit should be heard by a District Judge. A slightly more seasoned and mature hand (should) hear this. No aspersion on trial judge. He is part of our system. This will benefit all the parties,” the bench remarked.
Senior Counsel Huzefa Ahmadi appearing for the appellant (Muslim party), however, said that the top court should quash and set aside the Allahabad High Court since it was not in keeping with the Place of Worship Act, 1991.
He submitted that if the top court does not intervene, similar such mischief will be raked up as regards other structures too.
“Till that application (Order VII Rule 11 application) is decided what will happen in the ground? You have to see how this case is being used for 4 or 5 mosques across the country. This will create public mischief which the Act wanted to avoid. taste of the pudding is in the eating. If today this is allowed, and tomorrow they say that another mosque was temple,” he said.
The Supreme Court, however, said that it cannot suo motu decide on the maintainability of a suit.
“The moment you say that framing of suit is barred under 1991 act then you are raking Order VII Rule 11 point. You are not arguing that application before the supreme court, but you say that commission was void ab initio. but the issue is to accept this argument, it is for us to comment on maintainability of the suit. Supreme Court cannot say suo motu it will decide maintainability of the suit. We have to follow due process of law,” the bench remarked.
The Court then suggested that it will keep the appeal before it pending till the Order VII Rule 11 application is decided.
“There is another way. You have challenged the appointment of commission. If you succeed under Order VII Rule 11, all comes to an end. If you fail in the application, we can post this SLP a little later after the vacation, so that in case you fail this appeal will be pending,” the Court suggested.
Pertinently, the Court remarked that religious ascertainment of religious character of a place of worship is not barred under the Place of Worship Act.
“Ascertainment of religious character is not barred under Section 3 of the 1991 act. Suppose there is a Parsi temple and there is a cross in the corner of the area. Does the presence of Agyari make the cross Agyari or Agyari christian. This hybrid character is not unknown,” Justice Chandrachud remarked.
Ahmadi, however, contested the same.
The religious character of the mosque as on August 15, 1947 is not in dispute,” he said.
“It is strongly in dispute,” the lawyer for Hindu parties responded
“You may think so. if this is entertained then the 1991 Act may be only a dead letter. This is the controversy the Act wanted to avoid,” Ahmadi contended.
Source: Barandbench
