16 Jan 2024 5:36 AM GMT
The Supreme Court on Tuesday (January 16) stayed the implementation of the Allahabad High Court order appointing a Commissioner to inspect the Shahi Eidgah mosque at Mathura in the Krishna Janmabhoomi case.
A bench comprising Justices Sanjiv Khanna and Dipankar Datta passed the interim order while issuing notice on a special leave petition filed by the mosque committee gainst a December 14 order of the Allahabad High Court by which it had allowed an application for the appointment of a court commissioner to inspect the mosque.
Advocate Tasneem Ahmadi, appearing for the Mosque Committee, argued that the High Court could not have passed the order when an application seeking rejection of the suit as barred by the Places of Worship Act 1991 (under Order VII Rule 11 CPC) is pending. She also placed reliance on the recent judgment in Asma Latheef v. Shabbir Ahmad which held that when the maintainability of a suit is questioned, the trial court must decide at least prima facie on the jurisdiction before granting interim relief.
The bench, while accepting the legal contention on a prima facie level, also expressed reservations about the manner in which the commission application was filed.
"There are legal issues that arise. That apart, the application for local commissioner is very vague. Can an application be made like this? ...We are staying the operation of the impugned order to the extent of the commission being executed.…", Justice Khanna said.
Senior Advocate Shyam Divan, appearing for the plaintiffs, objected to the stay of the order and urged that the High Court be allowed to work out the modalities of the commission survey.
"We have reservations about the application. Look at the prayer. It's so vague. Read it. You cannot make an omnibus application like this. You have to be very clear what you want the local commissioner to do," Justice Khanna told Divan.
The bench issued notice on the petition, returnable on January 23, 2024. "Some legal issues arise for consideration, including the question in light of a judgment of this court in Asma Lateef. Proceedings before the High Court can continue but the commission will not be executed in the meantime", the bench noted in the order.
The Allahabad High Court's order allowed an application under Order XXVI Rule 9 of the Code of Criminal Procedure, filed on behalf of the deity Bhagwan Shri Krishna Virajman and seven others in an original suit. The application contended that Hindu God Krishna's birthplace lies beneath the mosque, presenting various signs establishing the mosque's Hindu provenance. The main suit, presently pending before the Allahabad High Court, seeks a declaration that the disputed land, including the area where the Shahi Eidgah Mosque is situated, belongs to Lord Shree Krishna Virajman. The plea also requests a direction to the defendants, including the Uttar Pradesh Sunni Central Waqf Board, to remove the mosque in question.
The day after the high court passed this order, the Supreme Court, while hearing a special leave petition filed by the mosque committee challenging a May 2023 order of the Allahabad High Court transferring to itself a clutch of suits over the land dispute, refused Senior Advocate Huzefa Ahmadi's oral plea to stay the order for the appointment for a court commissioner, saying that the order has not been formally challenged. Later, the Mosque panel filed a special leave petition, formally challenging the High Court's order.
In the special leave petition, the mosque committee has argued that the High Court ought to have considered its plea for rejection of the plaint before deciding on any other miscellaneous applications in the suit. The Committee has sought for rejection of the plaint on the ground that the suit is barred by the Places of Worship (Special Provisions) Act 1991. Merely because the application for the appointment of a commission was filed eight days before the application for the plaint's rejection was not a reason for deciding the former first.
The mosque committee has also disputed the plaintiffs' claims by arguing that they had failed to provide substantial evidence supporting their assertion that the original karagaar, the purported birthplace of Lord Krishna, is situated beneath the Shahi Eidgah Mosque. The committee also questioned the plaintiffs' demand for an in-depth survey to validate their allegations, characterising it as mere guesswork. Further, it alleged that the plaintiffs had an ulterior motive to seek demolition of the mosque during the pendency of the suit.
Denying the claim regarding certain architectural features allegedly pointing to a Hindu provenance, the mosque committee has termed the plaintiffs' application as a blatant effort to mislead the court to believe Mughal architectural designs as Hindu religious symbols.
It also contended that unless the primary prayer of the plaintiffs – the cancellation of the 1973 and 1974 judgments – was addressed, the stage for determining the factual position of the building, as stated in the application, remains irrelevant.
Background
The controversy is related to Mughal emperor Aurangazeb-era Shahi Eidgah mosque at Mathura, which is alleged to have been built after demolishing a temple at the birthplace of Lord Krishna.
In 1968, a 'compromise agreement' was brokered between the Shri Krishna Janmasthan Seva Sansthan, which is the temple management authority, and the Trust Shahi Masjid Eidgah allowing both places of worship to operate simultaneously. However, the validity of this agreement has now been doubted by parties seeking various forms of relief in courts with respect to Krishna Janmabhoomi. The litigants' contention is that the compromise agreement was made fraudulently and is invalid in law. Claiming a right to worship at the disputed site, many of them have sought the Shahi Eidgah mosque's removal.
"...Looking to the fact that as many as 10 suits are stated to be pending before the civil court and also there 25 should be more suits that can be said to be pending and issue can be said to be seminal public importance affected the masses beyond tribe and beyond communities having not proceeded an inch further since their institution on merits for past two to three years, provides full justification for withdrawal of all the suits touching upon the issue involved in the suit from the civil court concerned to this Court under Section 24(1)(b) CPC."
This transfer order has been challenged in the Supreme Court by the mosque committee, and later by the Uttar Pradesh Sunni Central Waqf Board.
In related news, the apex court in September refused to entertain a plea by the Shri Krishna Janmabhoomi Mukti Nirman Trust seeking a scientific survey of Shahi Eidgah Masjid premises, leaving all questions relating to the ongoing land dispute open to the Allahabad High Court to decide. Recently, the high court dismissed a public interest litigation (PIL) seeking the recognition of the disputed site as Krishna Janmabhoomi and the removal of the mosque after noting that several suits for declaration, injunction, and the right to worship at the site as well as for removal of the structure was already pending before it. A special leave petition challenging this order by the Allahabad High Court was dismissed by the Supreme Court earlier this month.
Case Details
Committee of Management, Trust Shahi Masjid Idgah v. Bhagwan Shri Krishna Virajman & Ors. | Special Leave Petition (Civil) No. 481 of 2024