Breaking: Ascertainment Of Religious Character Not Barred Under 1991 Act: SC Transfers Suit To District Judge, Interim Order Extended

In the Gyanvapi matter, the Supreme Court today extended the interim order it has passed earlier and transferred the suit from Civil Judge Senior Divison Varanasi to the District Judge while ordering the District Magistrate to ensure that arrangements are made for the performance of 'wuzu'.  

At the outset, the Bench comprising of Justice D. Y. Chandrachud, Justice Surya Kant and Justice P. S. Narasimha suggested to the lawyers who were appearing in the matter that the judges had a discussion among themselves and that according to them the application of the Defendants in the Suit under Order 7 Rule 11 be decided by the District Judge instead of the Court that it hearing it now. The Bench clarified that it is not casting any aspersion on the Court that is presently hearing it. It said that considering the sensitivity of the matter, it is better that the District Judge hears it. The Bench suggested that the interim arrangement, as ordered by the Supreme Court continue till the application is decided.

Senior Advocate Huzefa Ahmadi submitted that the suit is not maintainable in view of the Places of Worship Act and that the status quo of over 500 years has already been altered. He submitted that the status quo as on the date of filing of the suit has to be brought back. 

"This is capable of grave public mischief that is exactly what the Act wanted to avoid", referring to the disputes in other parts of the country with respect to other Mosques.

The Bench said that it cant deal with the maintainability of the Suit, which has to be decided in the application under Order 7 Rule 11. "Let the District Judge handle it", the Bench remarked adding that it will not pronounce on whether the report of the Commissioner should be looked into for deciding the Order 7 Rule 11.

Court also observed that selective leaks in the matter should stop.

Senior Advocate Ranjith Kumar for Respondent Nos. 1 to 3 said that the orders challenged before the Court have worked themselves out. 

Senior Advocate C S Vaidyanathan appeared for one of the Respondents and made the same submission.

Solicitor General Tushar Mehta for UP Government submitted that the state is concerned with the law and order.

Huzefa Ahmadi submitted that pursuant to the interim order, 'wuzu' is not being permitted in the Mosque. Vaidyanathan submitted that it will result in desecration.

Huzefa Ahmadi read the Places of Worship Act and submitted that the commission ought not have been to be appointed 

Ascertainment of religious character is not barred by Section 3, Justice Chandrachud replied. He gave the example of the Agyari (Parsi Temple) and a cross. He asked if a cross is found in an Agyari, will it change the nature of the Agyari into a Christian place of worship. He said that such hybrid structures can exist.

Ahmadi submitted that the taps on the side of the tank be permitted to be used for wuzu. "Let the middle area of the pond be protected", he said. 

The Solicitor General objected to the suggestion saying that it will lead to law and order issues.

"Having regard to the complexity involved in the case in the civil Suit, we are of the considered view that the suit before the Civil Judge Senior Division Varanasi, Suit No. 693 of 2021 should be tried before a senior and experienced judicial officer of the UP higher judicial service. We accordingly order and direct that the Suit shall stand transferred from the Civil Judge Senior Division Varanasi to the Court of the District Judge Varanasi for trial and all interlocutory and ancillary proceedings in the Suit should be decided by the District Judge. The application filed by the Petitioners under Order 7 Rule 1 of CPC shall be decided in priority by the District Judge on the transfer of the Suit. The Interim order of this Court dated 17 May, 2022 shall continue to remain in operation pending the disposal of the application under Order 7 Rule 11 and thereafter for a period of 8 weeks to enable any party to pursue remedies in accordance with law. Unless adequate arrangements for ensuring due observance of wuzu have already been made by District Magistrate, we direct the DM in consultation with parties to ensure that appropriate arrangements are made. The order which was passed by the Civil Judge Senior Division Varanasi on 16 May 2022 shall stand subsumed by the order of this court of 17 May, pending further orders", the Court ordered. 

The court-room exchanges during the hearing are as follows:-  

SC bench comprising of Justice Chandrachud, Justice Surya Kant and Justice Narasimha to hear the Gyanvapi Matter

Yesterday, the Bench had adjourned the matter to today after the matter was mentioned by Advocate Vishnu Shankar Jain. He submitted that his senior, Advocate Hari Shankar Jain is unwell and will be able to attend the Court tomorrow.

Plaintiffs in the Gyanvapi Mosque suit i.e. the Respondents in the appeal before the Supreme Court have filed an application for permission to bring on record additional facts and documents before the Supreme Court, wherein, it is submitted that the religious character of the disputed places continues as uninterruptedly as a Hindu religious place and that the Places of Worship Act will not apply to the case. 

On Tuesday, a Bench of Justice Chandrachud and Justice Narasimha had issued notice to all the parties and had directed the District Magistrate, Varanasi to secure the area where Shivling was found. The Court had also clarified that Muslims can access the Masjid to offer Namaz and perform other religious observances.

The Court had adjourned the matter to today for Advocate Hari Shankar Jain, who had appeared for the Plaintiff in Varanasi Court to appear. He had not appeared on Tuesday and the Court was informed that he is hospitalised. None had appeared before the Supreme Court for the Plaintiff on Tuesday.

On Tuesday, the State of Uttar Pradesh had submitted before the Court that the Shivling and the area where it was found should be protected. Solicitor General Tushar Mehta told the Court that since the Shivling is said to be found at the Wuzukhana of the Mosque, "if someone touches with feet, there will be law and order problem".

The Special Leave Petition before the Supreme Court filed by the Committee of Management of Anjuman-e-Intezamia Masjid Varanasi challenges the order passed by Allahabad High Court dismissing the challenge to the Varanasi District Court's order appointing Advocate Commissioner for conducting a video survey of the Gyanvapi-Shringar Gauri complex.

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