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'Ascertaining of religious character of place of worship not barred under 1991 law': SC on Gyanvapi row


Gyanvapi_Mosque_PTI_Final1

NEW DELHI: The Supreme Court Friday observed that ascertaining the religious character of a place of worship is not barred under the Places of Worship Act of 1991.

A bench of Justices DY Chandrachud, Surya Kant, and PS Narasimha made the important observation during an hour-long hearing of the Gyanvapi mosque dispute and said that it has dealt with provisions of the Places of Worship Act in its 2019 Ayodhya verdict and section 3 does not expressly bar ascertaining of the religious character of the place of worship.

"We have dealt with the provisions in our Ayodhya verdict. The ascertainment of the religious character of the place of worship is not expressly barred", the bench said and also clarified that it is not its opinion but is in dialogue with the parties.

Justice Chandrachud, who made the observation, was also part of the five-judge bench that delivered its verdict on the Ayodhya dispute in 2019.

The judge said, "Suppose there is an Agiyari (a Parsi fire temple) and there is a Cross in another segment of the Agiyari in the same complex. Does the presence of an Agiyari make the Cross an Agiyari? Does the presence of the Cross make the Agiyari a place of Christian worship? Therefore if you have this hybrid character forget this arena of contestation. This hybrid character is not unknown in India".

Justice Chandrachud further said,"What is the Act of 1991 therefore recognises. The presence of the Cross will not make an article of Christian faith into an article of the Zoroastrian faith. Nor does an article of Zoroastrian faith make it a structure of Christian faith. Therefore, at some level the survey whether the trial judge went far beyond his remit and whether it was appropriate, we will not hazard ourselves by rendering an opinion in the order at this stage. We are also concerned about these issues but the ascertainment of the religious character of a place as a procedural instrument may not necessarily fall foul of the provisions of sections 3 and 4 of the Act of 1991".

The top court was hearing a plea of the Committee of Management Anjuman Intezamia Masjid which manages Gyanvapi mosque in Varanasi challenging the order of Allahabad High Court by which it had refused to interfere with the civil court order to appoint a court commissioner to survey the mosque area.

Senior advocate Huzefa Ahmadi, appearing for the Mosque committee said, "This will cause grave public mischief, which the Act of 1991 tried to avoid. A narrative is being built. We cannot leave these issues pestering. The Commission's reports are being leaked selectively and disrupting the communal harmony, which the 1991 Act wanted to avoid. Don't look at this from the point of one suit alone but look at its ramification across the country".

The bench said that it will not allow the trial court to run amok and every endeavour should be made by the parties to soothe the frayed nerves by not selectively leaking the commission's report, it is for the trial court to open it.

"We have tried to create a balance by our orders. Our orders will preserve that sense on the ground. If we dispose of your appeal challenging the appointment of court commissioners, then the civil court order will attain finality. Therefore we are keeping the appeal (SLP) pending and in the meantime your application under Order 7 Rule 11 will be taken up by the trial court", the bench said.

Senior advocate Ranjit Kumar, appearing for some of the Hindu devotees, said that application under Order 7 Rule 11 will have to be gone into by the trial court.

Ahmadi then read the provisions of the Places of Worship Act, 1991, and said that the suit which was entertained by the civil court is barred as it tries to change the character of the religious place.

He said that though the court allowed Muslims to offer Namaz in the mosque, a certain area of it is sealed and they are not allowed to take water from the tap to do Wazu (ablution).

"There are police and iron gates all over. The status quo has been altered. Even after the order was passed by the court, people are not allowed to take water from the tap. The area falls in the middle of the tank. From the sides, you have taps where people used to do 'wazu'. The access needs to be granted", he said.

Solicitor General Tushar Mehta, appearing for the UP government, said that these facts which are being stated may not be correct as alternative arrangements have been made for doing 'Wazu' and the protection is provided to avoid any law and order problem.

Senior advocate CS Vaidyanathan, appearing for one of the Hindu devotees, said that the area has been sealed to protect it from desecration.

On May 17, the top court had directed the district magistrate of Varanasi to ensure the protection of an area inside the Gyanvapi-Shringar Gauri complex where a 'Shivling' is said to have been found during a survey and allowed Muslims to offer 'namaz' and perform "religious observances".

The Muslim side has been referring to the Places of Worship (Special Provisions) Act, 1991 and its Section 4 which bars filing of any suit or initiating any other legal proceeding for a conversion of the religious character of any place of worship, as existing on August 15, 1947.

The civil court is hearing a suit by a group of women seeking permission for daily worship of Hindu deities whose idols are located on an outer wall of the mosque.

The original suit was filed in 1991 for the restoration of the ancient temple at the site where the Gyanvapi mosque currently stands.

The Supreme Court Friday transferred the civil suit filed by Hindu devotees on Gyanvapi mosque from civil judge (senior division) to district judge, Varanasi saying looking at the "complexities" and "sensitivity" of the issue, it is better if a senior judicial officer having an experience of over 25-30 years handles this case.

In an important observation, the top court also said that the process to ascertain the religious character of a place of worship is not barred under the Places of Worship Act of 1991.

A bench of Justices DY Chandrachud, Surya Kant, and PS Narasimha said that the matter involves complexity and sensitivity and it would be better if a district judge handles the case and made it clear that it is not casting any aspersion on the civil judge (senior division) who was earlier dealing with the suit.

"Having regard to the complexities of the issue involved in the case, in the civil suit and their sensitivity, we are of the considered view that the suit before the civil judge (senior division) Varanasi should be tried before a senior and experienced judicial officer of the Uttar Pradesh Higher Judicial Service", the bench said.

"We accordingly order and direct that the suit shall stand transferred from the file of civil judge (senior division) Varanasi to the court of the district judge, Varanasi for trial, and all the interlocutory and ancillary proceedings in the suit shall be addressed to and decided by the court of the district judge," the bench said.

The top court directed the district judge to decide on the priority of the application under Order 7 Rule 11 of CPC (on maintainability) filed by the Mosque committee, which said that the civil suit is barred by a 1991 law of Parliament, be decided upon the transfer of papers of suit from the civil judge (senior division).

"The application filed by the petitioners under Order 7 Rule 11 of the CPC shall be decided on priority by the district judge on the transfer of the suit", it said and posted the matter for further hearing in the second week of July.

The top court said that its earlier interim order of May 17 directing protection of the area where 'Shivling' is said to be found and allowing Muslims to offer 'Namaz' in mosque premises shall remain in operation till the maintainability of the suit is decided by the district judge and thereafter for eight weeks to allow the aggrieved parties approach the higher court.

"The interim order of this court dated May 17, 2022, shall continue to remain in operation pending the disposal of the application under Order 7 Rule 11 of CPC and thereafter for a period of eight weeks to enable the parties which is aggrieved by the order of the district judge to pursue rights and remedies in accordance with law", the bench said.

The bench also directed the district magistrate to make adequate arrangements for 'wazu' (ablution) for the Muslims coming for offering Namaz in the mosque in consultation with the parties involved in the dispute.

At the outset, the bench suggested the course of action to be adopted by it and said it is important that there is a need to maintain calm on the ground and calm the frayed nerves by not allowing selective leaks of the court commissioner's report and media interviews.

Senior advocate CS Vaidyanathan, appearing for one of the Hindu devotees, who has filed the suit said the appeals filed by the Mosque committee have become infructuous against the order of the Allahabad High Court as all the orders of the trial court concerning the survey have been complied with.

He said that as far as the application under Order 7 Rule 11 of CPC is concerned, the report of the court commissioner needs to be seen and taken into account.

Senior advocate Huzefa Ahmadi, appearing for the Mosque Committee, said that all the orders of the civil court are capable of creating a “grave mischief” and are in the teeth of the injunction provided by the 1991 Act.

The bench said that since the application of Order 7 Rule 11 is pending, the court will direct it to be taken up first and it would not allow the commission's report to be opened before deciding the application.

Vaidyanathan said that the Supreme Court should not tie the hands of the district judge and the commission's report needs to be considered for deciding the application under Order 7 Rule 11.

Ahmadi objected to the submission and said that the commission's report is "selectively leaked" and an attempt is being made to create "a narrative" and it should be "nipped in the bud".

"By the orders of the civil court, the status quo which was prevailing for the past 500 years is now being altered. As the place has been sealed, which was used for worshipping for the past 500 years," he said.

The bench said it is doing a free dialogue with the parties without coming to any conclusion and told Ahmadi that if their application of Order 7 Rule 11 is allowed, then will it not nullify the impact of all the orders passed by the civil court including that appointment of commissioners and survey of the area.

Ahmadi said that these orders have caused public mischief across the country after the commission's reports were selectively leaked and a narrative is being sought to be built.

On May 17, the Varanasi court, which had ordered the videography survey of the Gyanvapi Masjid complex, removed Advocate Commissioner Ajay Mishra for displaying "irresponsible behaviour towards the discharge of his duties" and granted time till today to the commission to file the survey report.

(THE NEW INDIAN EXPRESS)