Why in News?

The Supreme Court has directed that order passed by the Varanasi District Court on 21st July 2023 for the ASI survey of the mosque should not be enforced till 26th July 2023 in the matter of Committee of Management Anjuman Intezamia Masajid Varanasi V. Rakhi Singh & Ors.

Background

• The Varanasi District Court directed the Director of the Archaeological Survey of India (ASI) to conduct a scientific survey of the Gyanvapi mosque premises except for the area that was sealed earlier (wuzukhana) to find out if the same has been built over a pre-existing structure of a Hindu temple in the matter of Rakhi Singh and others v. State of Uttar Pradesh.
• The matter pertained to the Varanasi District Court's decision to allow an application filed by worshippers seeking a scientific survey of the entire Gyanvapi mosque premises (except for Wuzukhana) by the Archaeological Survey of India (ASI) to find out as to whether the Mosque had been constructed over a pre-existing structure of the Hindu temple was moved by the Committee of Management, Anjuman Intezamia Masajid, Varanasi.

Court’s Observations

• A bench comprising of Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Manoj Misra passed the order of halting the ASI survey after hearing an urgent mentioning made by the Gyanvapi Mosque committee.
• The court further stated that the petitioners are at liberty to move the High Court in the exercise of its jurisdiction under Article 227 of the Constitution of India or under Section 115 of the Code of Civil Procedure 1908 to challenge the order of the District Judge, Varanasi.

Gyanvapi Mosque Dispute

• It is believed that the Gyanvapi Mosque was built in 1669 by the Mughal ruler Aurangzeb by demolishing the ancient Vishweshwar temple (devoted to the Hindu deity Lord Shiva built by Todar Mal).
• The case of Gyanvapi mosque has been in dispute since 1991, when three persons, including Pandit Somnath Vyas, a descendant of the priests of the Kashi Vishwanath temple, filed a suit in the court of the civil judge of Varanasi claiming that Aurangzeb had demolished the temple of Lord Vishweshwar.
• In 2021, in the same court in Varanasi, a petition was filed demanding to worship in the temple of Shringar-Gauri.
• The court had asked the commission appointed in this matter to give the survey report by videographing the idol of Shringar Gauri and the Gyanvapi complex.
• There has been a controversy over the survey and videography of this basement.
• Under Section 3 of the Places of Worship (Special Provisions) Act, 1991, it is prohibited to convert a place of worship, even its clause, into a place of worship of a different religious denomination or a different class of the same religious denomination.
• Several petitions pertaining to the matter of Gyanvapi Mosque were pending and all have been ordered to have a combined hearing under Order 4A of CPC (U.P. Act 57 of 1976) on previous occasion.
• The Allahabad High Court has previously directed the ASI to conduct a scientific survey (using modern techniques) of the 'Shiva Linga' that has purportedly been found inside the Gyanvapi Mosque premises in Varanasi to ascertain its age.

Legal Provisions

Constitution of India, 1950

Article 227 - Power of superintendence over all courts by the High Court

(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

(2) Without prejudice to the generality of the foregoing provision, the High Court may— (a) call for returns from such courts; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:

Provided that any rules made, forms prescribed, or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being and shall require the previous approval of the Governor.

(4) Nothing in this article shall be deemed to confer on a High Court power of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.

Civil Procedure Code, 1908

Section 115 – Revision

(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears:

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or other proceedings.

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.

Explanation —In this section, the expression “any case which has been decided” includes any order made, or any order deciding an issue in the course of a suit or other proceeding.