Muslim bodies criticize the order to allow a survey of the Mathura Shahi Eidgah Mosque

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Mathura Shahi Eidgah Mosque.

By Anwarulhaq Baig

NEW DELHI—Muslim organizations have strongly criticized the Allahabad High Court order allowing inspection of the Shahi Eidgah mosque at Mathura as well as the Supreme Court’s refusal to stay the high court order.

Muslim bodies have termed the Allahabad High Court order as a violation of the provisions of The Places of Worship (Special Provisions) Act, 1991, and the 1968 agreement between local Hindus and Muslims concerning the 13.37-acre land area of the mosque.

The apex court’s refusal to stay the high court order has now paved the way for inspection of the Mathura Shahi Eidgah mosque, on the pattern of the Gyanvapi mosque in Varanasi. The inspection of the mosque site will further complicate the issue.

However, the Supreme Court bench, comprising Justices Sanjiv Khanna and SVN Bhatti, agreed to hear all arguments related to the case during its hearing scheduled on January 9, 2024.

 The apex court bench gave the assurance on a special leave petition filed by the Committee of Management Trust Shahi Masjid Eidgah, challenging the May 2023 Allahabad High Court order that transferred all suits related to the land dispute to itself from lower courts.

In a ruling on December 14, the Allahabad High Court’s single-judge bench of Justice Mayank Kumar Jain permitted a plea filed on behalf of the Hindu deity ‘Bhagwan Shri Krishna Virajman’ and other devotees in an ongoing civil suit, seeking the appointment of a court commissioner to inspect the mosque premises.

According to the order, a court-monitored three-member team of advocate commissioners will now conduct a primary survey of the mosque.  The details of the survey will be decided on December 18, when the court will hear the case.

Expressing concerns over the high court considering interlocutory applications having ‘far-reaching implications’, Advocate Huzefa Ahmadi, representing the Masjid Committee, argued before the apex court that the High Court shouldn’t have taken up the inspection issue while their challenge to its jurisdiction was pending in the SC.

SC refuses to stay the Allahabad High Court order

Declining to interfere in the High Court’s order, the Supreme Court bench questioned how they could stay the order when its copies were not before them.

Advocate Ahmadi pleaded that the top court should intervene but Justice Khanna asked him to tell the high court that the matter was listed on January 9. Justice Khanna said, “Let it come up on the said date. All issues and contentions will be considered. In case the petitioner has any grievance, it will be open to the petitioner to file a challenge in accordance with law.”

Earlier this month, the top court had also dismissed a plea of the Mosque Committee to halt the High Court proceedings in the case.

 A civil suit seeking Shahi Idgah mosque removal was filed on behalf of a Hindu deity by devotees. Plaintiffs claim the mosque was built on Krishna Janmabhoomi land. Hindu petitioners contended that the mosque was built on the Krishna Janmasthan, the birthplace of Shri Krishna, by Emperor Aurangzeb.

Mathura lower court dismisses the Hindu party’s petition, District court rejects the lower court’s order

The suit was first dismissed by a civil court in 2020, saying that it was barred by law under the Places of Worship (Special Provisions) Act, 1991.  But in 2022 the Mathura District Court turned down the civil court’s order. The main suit is still pending in the High Court after being transferred from the lower court earlier this year. In the meantime, the Hindu plaintiffs had requested the high court to appoint a court commissioner to verify their claim of signs of the temple beneath the mosque site.

A similar order was passed by a court a few months back to examine the claims of a pre-existing Hindu temple under the centuries-old Gyanvapi mosque site in Varanasi.

Mosque counsels opposed the Hindu party’s petition for inspection of the mosque site

During the hearing in the High Court, while objecting to the application filed by the Hindu side for the appointment of a commission, senior counsels for the Idgah mosque, Advocate Nasiruzzaman, Advocate Mehmood Pracha, and Advocate Punit Kumar Gupta argued that the application had no connection with the request made in the original suit. They claimed that at this stage, no commission was required to be appointed to collect evidence for the adjudication of the dispute as it contradicted the main suit in the plaint.

Vehemently refuting the claims of the Hindu petitioners as being based on guesses and lacking substantiation by any documentary evidence, the counsels for the mosque asserted that the Shahi Idgah Mosque does not fall within the 13.37 acres of land at Katra Keshav Dev. They also contended that the place of birth of Shri Krishna does not lie beneath the Mosque. The lawyers representing the Masjid argued that the allegations by the Hindu side, suggesting that the mosque was removed in 1770 and the temple of Shri Krishna was restored and renovated, amount to an admission on behalf of the plaintiffs concerning the existence of the mosque for a long time.

“It goes to prove that the mosque has not been constructed on the demolished temple of Krishna since the Shahi Idgah Mosque has never been demolished since its construction in the 1600s. The disputed land has been in continuous possession of the Muslim community since then, and prayers have been regularly offered till date,” both counsels submitted in the court.

Mosque architecture does not resemble Hindu religious symbols

The lawyers representing the Masjid side also categorically denied that designs in Mughal architecture resemble Hindu religious symbols or establish that the Shahi Idgah Mosque is a temple. The counsels argued that the high court could not be made a tool to collect evidence for the plaintiffs, as none of the assertions made in the plaint were substantiated with any evidence.

The counsels for the Hindu side heavily relied on the Supreme Court’s recent judgment, allowing the ASI to conduct a survey of the Gyanvapi mosque site.

Hindu petitioner’s application lacks substance, aims to garner public attention

Advocates Nasiruzamman and Pracha further argued that the Hindu petitioner had failed to demonstrate any irreparable or incalculable loss if the court denied their application for a commission. They pointed out that the entire disputed property was heavily guarded by the CRPF, making any potential harm or damage to the suit property very implausible. They contended that the Hindu petitioners’ application seemed motivated by a desire to garner public attention rather than a genuine concern about the property. They further submitted that the cause of action, as disclosed by the plaintiffs in their plaint, could not be taken as gospel truth because the cause of action as stated in the plaint was that the plaintiffs were shocked to see that a Mosque was standing at the disputed place when they visited the temple on 15.01.2020 for Darshan of Bhagwan Shri Krishna at Mathura and the cause of action was completely false and imaginary because the plaintiffs bothered to visit the temple in the year 2020 i.e. after almost 46 years of the judgment and decree dated 20.07.1973 which was challenged in the case. The mosque’s counsel vehemently argued that this judgment had been challenged by the Shri Krishna Janambhoomi Mukti Nirman Trust in a special leave petition. By its order dated September 22, 2023, the Supreme Court dismissed the petition, upholding the high court’s finding that the suit’s maintainability must be determined first.

Concluding the hearing, the High Court bench ruled that Order XXVI, Rule 9 of the Code of Civil Procedure, empowers the Court to appoint a commission to conduct a local investigation to clarify a disputed matter and bring the actual and factual status of the property on record for just and proper adjudication of the dispute. However, the HC noted that in the proceedings for the appointment of a commission by the Court, the mosque side could participate. “Moreover, if they feel aggrieved by the report of the commission, they have an opportunity to file their objections against the said report,” the high court said. The court observed that appointing a three-advocate commission would not harm either party, and the commission’s report would not affect the case’s merits. During the commission’s execution, the sanctity of the campus will be maintained strictly and no harm or injury be caused to the structure in any manner, the court added.

Court’s decision unfortunate: AIMPLB

The All India Muslim Personal Law Board (AIMPLB), the apex body governing Muslim personal law in India, termed the court’s decision “extremely unfortunate” and warned of potential “dangerous consequences.”

AIMPLB spokesperson Dr. SQR Ilyas expressed concern that the Allahabad High Court’s permission for a survey of the Mathura Shahi Eidgah may violate both the 1991 Places of Worship Act and the 1968 agreement between local Hindus and Muslims regarding the disputed 13.37-acre land. According to the 1968 agreement between the Shri Krishna Janmasthan Seva Sansthan and the Shahi Eidgah Masjid Trust, 10.9 acres of the disputed land in Mathura were allocated to the temple, while 2.5 acres were granted to the mosque. This agreement, reached after years of tension, aimed to permanently resolve the dispute over the ownership of the land.

Dr. Ilyas drew a parallel to the Babri Masjid dispute while highlighting the 1991 Places of Worship Act enacted by the central government to resolve such conflicts definitively. This law stipulates that the status of any place of worship as it existed on August 15, 1947, remains unchanged. He expressed concern that attempts to revisit such settled matters might be driven by those who oppose peace and harmony, seeking to exploit religious tensions for political gain.

Lauding the Shahi Eidgah Trust’s decision to challenge the high court order in the Supreme Court, the AIMPLB spokesperson pledged the board’s full support. The AIMPLB’s legal committee will offer comprehensive legal assistance to the Trust in this matter, he added.

Jamiat Ulema-e-Hind President Maulana Syed Arshad Madani, referred to the survey order as being completely contrary to both the 1991 Places of Worship Act and the historic agreement reached between the Hindu and Muslim communities in 1968.  Maulana Madani also affirmed that Jamiat is already engaged in legal proceedings before the Supreme Court to uphold the 1991 Act and will strongly fight the matter related to the Mathura Shahi Idgah mosque through legal channels.

Criticizing the survey order, AIMIM chief Asaduddin Owaisi in his post on X, stated, “After the judgement on Babri Masjid, I had said that it would encourage Sangh Parivar’s mischiefs.”  He said, “A new group has been initiating these disputes, whether it is Kashi, Mathura, or Lucknow’s Tiley Wali Masjid. It’s the same group. One can read the agreement here, which was settled before a court of law. The Places of Worship Act is still the law in force. But this group has made a mockery of the law and the judicial process. The SC was supposed to hear this matter on January 9, so what was the hurry that a survey had to be ordered?”

Owaisi, a prominent lawyer and a member of the AIMPLB, added that robbing Muslims of their dignity was the only goal now.

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