New Delhi, May 20: In a view complexity of matters, the Supreme Court on Friday ordered the transfer of the Gyanvapi mosque case from the civil judge to the district judge, Varanasi.
A bench of Justices DY Chandrachud, Surya Kant and PS Narasimha ordered that a "senior and experienced" judicial officer of Uttar Pradesh Higher Judicial Service should examine the case. Kashi Vishwanath Temple-Gyanvapi Mosque Case: Allahabad High Court Adjourns Hearing Till July 6.
The bench said District Judge should decide the maintainability of the civil suit in the Gyanvapi-Kashi Vishwanath on priority as sought by Committee of Management Anjuman Intezamia Masjid Varanasi.
"Having regard to the sensitivity of this civil suit, this case before the civil judge Varanasi shall stand transferred and be heard by a senior and experienced judicial officer of UP Judicial services. Thus the case was transferred from Civil Judge (senior division), Varanasi to District Judge, Varanasi. The application filed by the plaintiff under Order 7 Rule 11 CPC shall be decided on priority by the District Judge on the transfer of suit," the bench ordered.
It further ordered that its interim order passed on May 17 -- to protect the area where the Shivling was found and access to Muslims for namaz -- shall continue in operation till the maintainability of the suit is decided and thereafter for eight weeks to enable parties to pursue legal remedies.
It further asked the District Magistrate Varanasi to make alternate arrangements for Wazu after consulting the parties. It has now posted the matter for hearing in July second week.
The apex court was hearing a plea Anjuman Intezamia Masajid Committee against the Varanasi district court order which directed a videographic survey of the Gyanvapi Mosque complex, adjacent to the famous Kashi Vishwanath Temple in Varanasi.
During the hearing, the bench suggested that the Gyanvapi mosque case should be heard by District Judge in Varanasi. "A slightly more seasoned and mature hand should hear this case. We are not making aspersion on the trial judge. But more seasoned hand should deal with this case and it will benefit all the parties," said the bench.
Senior advocate Huzefa Ahmadi for Masjid Committee told the apex court that all the orders passed by the trial court from the beginning are capable of creating great public mischief.
Ahmadi said Committee's challenge is to the trial court's order appointing Commission itself, it is prohibited by the 1991 Worship Act and the Constitution itself.
"The Act says such controversies will create great public mischief. Commission report is being selectively leaked. The plaintiff before the trial court are succeeding in getting a place sealed which was being used by this part for the next 500 years. 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 1991 Places of Worship Act wanted to avoid," he added.
The bench said these are complex social problems and no solution by the human being can be perfect. "Our order is to maintain a certain degree of peace and calm and our interim orders calms some frayed nerves with some healing touch. We are on a joint mission on preserving a sense of unification in the country," Justice Chandrachud said.
The apex court further said that once the Commission's report is there, there cannot be selective leaks. "Do not leak things to the press, only judge opens the report," it added after Ahmadi objected to leakage of the report.
Ahmadi also said that what was found inside was not a Shivling as per us, it is a fountain. Wazukhana is sealed and iron gates are placed with heavy police presence, he added. The apex court also remarked that ascertainment of religious character of a Place of Worship is not barred under the Places of Worship Act.
"Ascertainment of religious character is not barred under Section 3 of the 1991 Places of Worship Act. Forget there is mosque on one side and temple on other side. 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.
On Thursday, the top court directed the civil court in Varanasi civil court to not proceed with the case related to the Gyanvapi mosque case till it takes up the case on May 20.
Earlier the bench had directed the concerned District Magistrate in Varanasi to ensure that the Shivling recovered from the Gyanvapi Mosque complex during a survey by court commissioner be protected.
It had also ordered that direction to protect the area where Shivling is found shall not in any manner restrain or impede access of Muslims to the mosque or use of it for performing prayers and religious observances.
The apex court had lifted the prohibition imposed by a Varanasi district court on Muslims from entering Gyanvapi Mosque. The trial court had permitted only 20 people to pray inside the premises. The apex court had also issued notice to the Hindu petitioners, Uttar Pradesh government and others on the plea of the Masjid Committee
A Varanasi court had directed sealing of a spot in the complex after being told that a Shivalinga was found inside the Gyanvapi Mosque premises by the court-appointed advocate Commissioner during the survey.
The appeal was filed by Committee that manages the Gyanvapi mosque challenging an order of Allahabad High Court permitting a court appointed commissioner to inspect, conduct survey and videography of the Gyanvapi mosque to which Hindus and Muslims have laid claim for right to worship.
It had sought direction stay on the survey of the Gyanvapi Mosque complex. A Varanasi civil court had directed a survey to inspect, conduct videography and collect evidence regarding the alleged existence of Hindu deities inside the Gyanvapi mosque located next to the Kashi Vishwanath Temple.
On May 12 the court said that the survey of the Gyanvapi mosque will continue despite objections from mosque authorities. The local court had earlier directed the authorities to submit a report by May 10, however, the survey could not take place as the mosque committee had opposed the videography inside the mosque.
The civil court had appointed a court commissioner to conduct a survey and videography of the site and the same was challenged before Allahabad High Court which dismissed the appeal on April 21. Now April 21 order of the High Court has been challenged in the apex court.
Five women had filed a petition in the court seeking permission for daily worship at the Shringar Gauri temple, which was allegedly situated inside the Kashi Vishwanath-Gyanvapi Mosque premises. The order of the civil court for undertaking survey and videography at the premises came on their petition.
Another petition filed by one Vijay Shankar Rastogi, who had contended that the entire premises belonged to the Kashi Vishwanath and that the Gyanvapi Mosque was only a part of the Temple, had also been pending in the court since 1991.
Rastogi had claimed that the Kashi Vishwanath Temple had been built over two thousand years ago and the Temple had been demolished by Mughal emperor Aurangzeb.
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