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SC rejects plea for scientific survey of Shahi Idgah Masjid-Krishna Janmabhoomi site in Mathura

23 Sep: The Supreme Court has declined the plea by the Shri Krishna Janmabhoomi Mukti Nirman Trust, which sought a scientific survey of the Shahi Eidgah Masjid premises in Mathura, Uttar Pradesh, Bar & Bench and others reported yesterday. The Trust alleges that the mosque was built over the Krishna Janmabhoomi, the birthplace of Lord Krishna.

The bench, consisting of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia, was addressing a special leave petition against a July 2023 order from the Allahabad High Court. The High Court had previously dismissed a writ petition by the Trust, which had sought a directive for a local court to decide on an application for a scientific survey of the mosque’s premises.

Senior Advocate Gaurav Bhatia, representing the Trust, pointed out that after the civil judge had accepted the mosque committee’s application to hear its challenge to the trust’s plaint first, the Allahabad High Court later “transferred to itself all the suits pending before the Mathura court praying for various reliefs pertaining to the Sri Krishna Janmabhoomi-Shahi Eidgah Mosque dispute.”

Bhatia further argued that the Trial Court was precluded from passing this order in light of the transfer of the suits. In response, Justice Kaul highlighted that the Civil Judge’s order preceded the Allahabad High Court’s decision to transfer the suits. He noted, “The transferred court cannot be the revisionary court.”

“In the peculiar circumstances,” Bhatia asked the bench, “Could it be clarified that the Trust can approach the High Court with this plea so that I am not left in the lurch and remediless?”

Advocate Tasneem Ahmadi, representing the Committee of Management Trust Shahi Masjid Idgah, informed the bench that the High Court’s transfer order was challenged by it in a special leave petition.

After hearing both sides, the bench clarified that while it was not inclined to invoke its powers under Article 136 due to the ongoing litigation before the high court, all questions related to the Krishna Janmabhoomi-Shahi Eidgah Masjid dispute would be left open for the Allahabad High Court. Justice Kaul stated,

“The trial court passed the order before the transfer took place and so it cannot be said that the trial court did not have jurisdiction to pass the order. The High Court on transfer will do the trial court and become the court of the first instance. That being the position, it cannot be urged that the said court should also be the revisional court against the order of the trial court.”

The core of the dispute centers around the Shahi Eidgah mosque, constructed adjacent to the Krishna Janmasthan Temple on orders from Mughal Emperor Aurangzeb. In 1968, a ‘compromise agreement’ was brokered between the Shri Krishna Janmasthan Seva Sansthan and the Trust Shahi Masjid Eidgah, allowing both places of worship to coexist.

However, litigants, including the Trust that approached the Supreme Court, argue that this agreement was made fraudulently and is invalid in law.

The current contention is whether an application questioning the maintainability of the plaint filed by the Shri Krishna Janmabhoomi Mukti Nirman Trust should be considered before deciding on an application seeking “an office for a survey and scientific commission to be constituted through an independent and competent authority.”

The local court had decided to consider the aspect of maintainability raised by the mosque committee before considering the petitioner’s application. Displeased with this order, the Trust approached the Allahabad High Court, which upheld the local court’s decision. The High Court emphasized that when a suit’s maintainability is questioned, that fact must be determined first and no other pleading nor any evidence may be considered by the court while adjudicating in respect of an application under Order VII Rule 11.

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