SC stays HC order for survey of Mathura mosque

The Supreme Court on Tuesday stayed the operation of Allahabad high court order that allowed a court-monitored survey of the Shahi Idgah mosque complex adjoining the Krishna Janmabhoomi temple in Mathura.

A bench of Justices Sanjiv Khanna and Dipankar Datta stayed the implementation of the December 14, 2023, order by which it had agreed to the appointment of a court commissioner to oversee the survey of the mosque premises which, the Hindu side claims, hold signs suggesting that it was a temple once.

However, the apex court made it clear that proceedings before the high court in the dispute including the maintainability of the suit under Order 7 Rule 11 of the Civil Procedure Code (CPC) will continue.         

The bench said there are certain legal issues which have arisen and questioned the "vague" application made before the high court for appointment of a court commissioner for the survey.

"We have reservations about the application. Look at the prayer. It's so vague. Read it. You can't file a vague application for appointment of court commissioner. You cannot make an omnibus application like this. You have to be very clear what you want the local commissioner to do in application under Order 26 Rule 9 of CPC," Justice Khanna told senior advocate Shyam Divan, appearing for Hindu bodies like Bhagwan Shri Krishna Virajman and others.

The bench said that everything can't be left to the court to look into and the application for appointment of court commissioners should be very specific on the purpose. 

At the outset, advocate Tasneem Ahmadi, appearing for the mosque management committee, submitted that the high court could not have passed the order when an application seeking rejection of the suit on being barred by the Places of Worship Act 1991.

Ahmadi said that the second question relating to the maintainability of the suit under Order 7 Rule 11 of CPC is also pending before the high court. 

She referred to the recent judgment in Asma Lateef versus Shabbir Ahmad of the apex court which had held that when an interim relief is claimed in a suit and the party to be affected by grant of such relief, or any other party to the suit, raises a point of maintainability thereof or that it is barred by law, then the civil court ought to record at least a prima facie satisfaction that the suit is maintainable or that it is not barred by law.

After hearing the submissions of Ahmadi, the bench expressed reservations about the manner in which the application for appointment for court commissioners was filed before the high court and said that certain legal issues arise in this matter for consideration.

"That apart, the application for appointment of 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.

Divan objected to the stay of the order and urged that the high court be allowed to work out the modalities of the commission survey.

The bench said it is issuing notice to the Hindu bodies and sought their response by January 23 while making it clear that proceedings before the high court in the dispute including the maintainability of the suit under Order 7 Rule 11 of the CPC will continue.   

"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 said in its order.

The top court was hearing a plea of the committee of management, Trust Shahi Masjid Idgah, challenging the high court order that allowed a court-monitored survey of the Shahi Idgah.

The mosque committee, in its plea, has submitted that the high court ought to have considered its petition for rejection of the plaint before deciding on any other miscellaneous applications in the suit.

The committee had sought rejection of the plea on the grounds that the lawsuit is barred by the Places of Worship (Special Provisions) Act, 1991, which puts a bar on change of character of religious places. While allowing the plea for a court-monitored survey, the high court had said no harm should be caused to the Mathura structure during the survey, which it indicated could be overseen by a three-member commission of advocates.

The top court is already seized of another petition filed by the mosque committee challenging the May 26, 2023, order of the high court transferring to itself all matters related to the dispute pending before a Mathura court.

In Mathura, a suit was filed in the court of civil judge senior division (III) for shifting of the Shahi Idgah mosque with the claim that it was constructed on a part of the 13.37-acre land of the Shri Krishna Janmabhoomi Trust.

The Hindu side had told the high court that the original trial must be conducted by it like the Babri Masjid-Ram Janmabhoomi title dispute.