SC to decide on maintainability of Gyanvapi case under 1991 act

The Supreme Court on Friday highlighted the necessity of determining the legal maintainability of a suit — in light of the Places of Worship Act, 1991 — filed by a group of Hindu women seeking the right to worship Hindu deities within the Gyanvapi mosque complex, even as it expressed reservations about transferring the trial of all related suits from civil courts in Varanasi to the Allahabad high court.

During brief proceedings, the court also sought a response from the Gyanvapi mosque management committee on an application filed by the Hindu side demanding an Archaeological Survey of India (ASI) examination of a sealed section in the mosque complex. The Hindu petitioners claim this section contains a “Shivling”, while the mosque committee maintains it is part of a fountain in the ablution tank. This area has remained sealed under Supreme Court orders since May 2022.

Responding to a request made by the Hindu side for transferring 17 suits relating to the Gyanvapi matter to the Allahabad high court, a bench of justices Surya Kant and Ujjal Bhuyan pointed out that the Varanasi district judge might be the appropriate forum for evidence collection and trial proceedings, with an appellate forum available to the parties for a review of factual and legal findings.

“Just consider whether one district judge should hear everything. There will be evidence, testimony and cross-examination etc. We think is that there has to be an appellate forum in the high court to re-appreciate the question of facts before the matter reaches this court,” the bench told senior counsel Shyam Divan, who along with advocate Vishnu Shankar Jain, appeared for the Hindu side.

On his part, Divan pressed for the consolidation of all pending suits and their transfer to a three-judge bench of the Allahabad high court. “Some suits are pending before the district judge, while others are before the civil judge in Varanasi. This could lead to conflicting decisions. Considering the nature and complexity of the case, this court should direct consolidation and transfer of all suits before a three-judge bench in the high court,” argued Divan.

Opposing the Hindu side’s plea, senior advocate Huzefa Ahmadi, representing the mosque committee, urged the court to refrain from setting a precedent that might lead to similar disputes being fast-tracked to high courts. “If this principle is adopted, similar issues will arise in respect to disputes across the country. Should all such cases go directly to high courts?” Ahmadi asked.

Ahmadi underscored the importance of addressing the maintainability of the suit under the Places of Worship Act, 1991, before considering other applications. “What goes to the root of the matter is my challenge to the maintainability of the suit in light of the Places of Worship Act. We have lost in the district court and the high court and came here. That must be decided,” he asserted.

While it highlighted the need for an appellate framework to review factual and legal determinations before the case reaches the Supreme Court, the bench also agreed with Ahmadi on the other aspect, observing: “Whether such suits are barred under the 1991 Act has to be gone into.”

Scheduling the next hearing on December 17, the bench indicated it might earmark a day or two on a fortnightly basis to hear all pending matters relating to the Gyanvapi case.

The mosque management committee has argued that all suits by the Hindu side are s barred by the 1991 Act, which freezes the religious character of all places of worship as of August 15, 1947, except for the Ayodhya Ram Janmabhoomi-Babri Masjid dispute that was kept out of the purview of this law by the statute itself.

The Gyanvapi mosque dispute stems from claims by Hindu devotees that the mosque was built atop a pre-existing Hindu temple. The issue escalated in May 2022 when the Varanasi district court ordered a survey of the mosque complex. The Supreme Court subsequently directed that the sealed section will remain protected, allowing Muslims to continue offering prayers in the mosque’s other sections.

In September 2022, the Varanasi district court dismissed the mosque committee’s plea to reject the suit under Order VII Rule 11 of the Civil Procedure Code (CPC) for not being maintainable in the view of the 1991 Act. This decision was upheld by the Allahabad high court in May 2023, prompting the committee to approach the Supreme Court.

Meanwhile, in July 2023, the Varanasi district court permitted an ASI survey of the mosque to ascertain whether it was built over a pre-existing Hindu temple. While non-invasive methods were mandated, the sealed section was excluded from the survey. This report, which was made public in January 2024, suggested that a large Hindu temple existed before the construction of the Gyanvapi Masjid in Varanasi.

A batch of petitions – some seeking to scrap the 1991 Act and some others asking for tight enforcement of that law -- have remained pending before the top court since March 2021.