The Supreme Court on Tuesday put on hold the Allahabad High Court order that had allowed the appointment of an Advocate Commission to conduct a survey of the Krishna Janmabhoomi-Shahi Idgah complex in Uttar Pradesh's Mathura.
The Allahabad High Court had passed orders on December 14 allowing the appointment of the commission. The High Court was scheduled to appoint the commission and set down the modalities of the survey. The Supreme Court has now directed that the order will not be implemented till further orders.
The bench of Justices Sanjiv Khanna and Dipankar Datta issued the order on grounds that the application filed by the Hindu devotees seeking the survey was "vague".
"This is wrong. You have to be clear about what you want the commission to be for. You cannot make an omnibus application," noted Justice Khanna during the hearing.
Senior advocate Tasneem Ahmadi, appearing on behalf of the Shahi Idgah masjid trust in her arguments stated that the High Court order allowing the appointment of the Commission was incorrect. Ahmadi also argued that the issue of maintainability under Order 7 Rule 11 was already pending before the court. The senior advocate based her arguments on a recent verdict of the Supreme Court which had held that interim reliefs cannot be granted unless the prima facie issue of maintainability and jurisdiction is decided first.
"There are legal issues that arise. The Order 7 Rule 11 application is pending... the application for the appointment of the local commissioner is very vague. Can it be made in this way? The third issue is that the transfer matter is pending before this court..." observed Justice Khanna.
The Supreme Court has made it clear that it is not barring the High Court from continuing to hear the other issues involved in the matter.
"We are not issuing a complete stay," clarified the court, adding that the stay order is related only to the implementation of the High Court order to set up an advocate Commission for a survey of the site.
The top court has for now issued a notice to the Hindu devotees to respond to the plea filed by the Masjid trust. The matter will now be heard on January 23.
The Shahi Idgah Masjid trust has challenged the December 14 decision of the Allahabad High Court on the grounds that a survey cannot be conducted as a "fishing exercise." The Masjid trust has argued that the pleas filed by the Hindu Devotees laying claim to the Idgah mosque structure are barred by the Places of Worship Act 1991.
It has also been argued that the petitions of Hindu devotees are not maintainable since there were judgements by the Courts in 1973 and 1974 upholding the settlement agreement between the Temple trust and the Mosque trust.
The Mosque Committee has further argued that the Hindu devotees had not brought any substantive evidence for their claim that the "jail cell" where Krishna was born was under the existing Idgah Mosque. It has been argued that a survey exercise cannot be conducted to "find evidence" of the claim, which is barred by the 1991 Act and the settlement agreements.
Over a dozen petitions are pending before the Allahabad High Court concerning the Idgah complex, with the Hindu side claiming that the mosque was constructed by Mughal Emperor Aurangzeb by demolishing a temple on 13.37 acres of Lord Krishna's birthplace.