Shahi Idgah dispute: SC asks Muslim side's to apprise it whether appeal need to be filed in HC

New Delhi: The Supreme Court on Tuesday asked the Muslim parties to apprise it whether an appeal before a division bench of Allahabad High Court would lie against the single-judge order which rejected their petition challenging the maintainability of 18 cases related to the Krishna Janmabhoomi-Shahi Idgah dispute in Mathura.

A bench of Justices Sanjiv Khanna and Sanjay Kumar, which was initially inclined to issue notice to the Hindu side on the appeal filed by Muslim parties against the August 1 order of the high court, posted the matter for further hearing on November 4.

Senior advocate Madhavi Divan and advocate Vishnu Shankar Jain, appearing for the Hindu side said that the top court had earlier stayed the operation of order, appointing court commissioner for survey of the Idgah complex and now it should be vacated.

The bench said that there are several legal issues in the matter, which needs detailed consideration and directed that all the pending matters on the dispute will be taken up together.

One of the lawyer, appearing for the Hindu parties, raised preliminary objection on filing of appeal before the apex court saying that August 1 order is an appealable decision before the division bench of the high court.

Agreeing with the contention, the bench told senior advocate Tasneem Ahmadi, appearing for the Committee of Management Trust, Shahi Masjid Idgah, to apprise the court whether they can file appeal against the August 1 order of the high court before the division bench.

"I think you (Muslim side) can do it. There are some judgements of this court, which says you can do. If you can do so, then this appeal needs to be withdrawn," the bench said.

Law firm Karanjawala and Company is representing Rajendra Maheshwari, one of the original Hindu parties, who has filed a suit in 2020 before the Mathura court in the dispute.

On August 1, the high court rejected the plea challenging the maintainability of 18 cases related to the temple-mosque dispute in Mathura, and ruled that the "religious character" of Shahi Idgah needs to be determined.

The high court had dismissed the Muslim side's contention that the suits filed by Hindu litigants relating to the dispute over the Shahi Idgah mosque complex adjoining the Krishna Janmabhoomi temple violated the Places of Worship (Special Provisions) Act, and were thus not maintainable.

The 1991 Act prohibits changing the religious character of any shrine from what existed on the day of the country's Independence. It exempted only the Ram Janmabhoomi-Babri Masjid dispute from its purview.

The cases filed by the Hindu side seek the "removal" of the Aurangzeb-era mosque they claim was built after demolishing a temple that once stood there.

In its ruling, the high court had said the 1991 Act did not define the term "religious character" and the "disputed" place cannot have a dual religious character -- of a temple and a mosque, which are "adverse to each other" -- at the same time.

"Either the place is a temple or a mosque. Thus, I find that the religious character of the disputed place as it existed on August 15, 1947 is to be determined by documentary as well as oral evidence led by both the parties," the high court judge had said.

Justice Mayank Kumar Jain of the high court had concluded that the cases "do not appear to be barred by any provisions of the Wakf Act, 1995; the Places of Worship (Special Provisions) Act, 1991; the Specific Relief Act, 1963; the Limitation Act, 1963 and Order XIII Rule 3A of the Code of Civil Procedure, 1908".

On August 9, the top court had extended its stay till November on the operation of the Allahabad High Court order that allowed a court-monitored survey of the Shahi Idgah mosque complex.

A bench headed by Justice Sanjiv Khanna had ordered continuation of the stay the apex court had imposed on January 16 on the operation of the December 14, 2023 order of the high court.

The high court in its December 14, 2023 order had allowed a court-monitored survey of the Shahi Idgah mosque complex and agreed to the appointment of a court commissioner to oversee it.

The Hindu side claims the premises hold signs suggesting that a temple once existed at the site.

A bunch of petitions has been filed by the mosque management committee in the apex court including the one 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 the Shahi Idgah mosque, claiming that it was constructed on a part of the 13.37 acre land of the Shri Krishna Janmabhoomi Trust.

The Hindu side had requested the high court to conduct the original trial like it had done in the Babri Masjid-Ram Janmabhoomi title dispute.

While allowing the plea for a court-monitored survey, the high court had last year said that no harm should be caused to the structure during the exercise which it indicated could be overseen by a three-member commission of advocates.