A bench of justices Sanjiv Khanna and Dipankar Datta, however, made it clear that the HC could continue to hear the civil suit pertaining to Sri Krishna Janmabhoomi-Shahi Idgah dispute.
“There are legal issues that arise. That apart, the application for local commissioner is very vague. Can an application be made like this? We are staying the operation of the impugned order. Do not implement the order,” the bench said. It issued notice to the Hindu bodies on the Idgah committee’s plea and posted the matter for January 23.
Maintainability of suit must be decided first: Idgah committee
Responding to the application filed by the Committee of Management Trust of Shahi Masjid Idgah claiming that the high court passed the order when the issue of maintainability of the suit was still pending, the bench said the order on appointment of a commission would not be executed. Senior advocate Taneem Ahmadi and lawyer R H A Sikander, appearing for the petitioner, said the HC could not have passed the order as the plea was barred by law and its very existence was under challenge. They said the court must first examine the issue of maintainability of the suit before granting any interim relief.
Senior advocate Shyam Divan and lawyer Vishnu Shankar Jain, appearing for Bhagwan Shri Krishna Virajman, urged the bench not to pass a stay order and allow the HC to work out the modalities of the survey but the bench turned down their plea. “We have reservations about the application. This is very wrong. You have to be very specific and you cannot file an omnibus application like this. You have to be very clear what you want the local commissioner to do,” the bench said.
The committee said in its petition that an attempt was being made to mislead the HC into believing that the designs of Mughal architecture were Hindu religious symbols and therefore, the Shahi Idgah was a temple.
“The high court failed to consider its submissions that the plaintiffs had failed to substantiate their allegation that the original ‘karagaar’, the birthplace of Lord Krishna, lies beneath the Shahi Idgah as alleged, and the submission of in-depth survey to prove the plaintiffs’ allegations only shows that the plaintiffs’ claim is based on guesswork and cannot be entertained,” the petition said. The committee has also challenged Allahabad HC’s order to transfer all civil suits pending in a Mathura court pertaining to the dispute to itself. It said the HC passed the order transferring all suits to itself on the ground of delay but the petitions were filed only three years ago and there was no delay. It said the parties had compromised in 1968 and now the suit was filed after 55 years which was not maintainable.
The SC had earlier observed that it would be better if Sri Krishna Janmabhoomi-Shahi Idgah dispute was adjudicated by Allahabad HC which would also decide the preliminary objection on maintainability of the suit. It had said multiplicity and prolongation of litigation in such cases could create disquiet one way or the other as history showed.
