New Delhi: The Supreme Court on Tuesday stayed the implementation of the Allahabad High Court order appointing an advocate commissioner to inspect the Shahi Eidgah mosque in the Krishna Janmabhoomi case.
A bench comprising Justices Sanjiv Khanna and Dipankar Datta took up the matter for consideration. Justice Khanna, during the hearing, observed that he has reservations. “Prayer is very vague, it has to be specific, you can't leave it to the court to determine. You can't make an omnibus (prayer) in your application as to what you want", justice Khanna told senior advocate Shyam Divan, representing the Hindu side.
The apex court issued notice returnable on January 23, 2024, and added that some legal issues arise for consideration including the question in light of judgement in Asma Lateef. The apex court said that the proceedings before high court can continue but commission will not be executed till.
An advocate, representing the Muslim side, referred to an apex court ruling holding that where maintainability of a civil suit is questioned and the grant of interim relief is opposed on that ground. The counsel added that then the trial court, before deciding to grant the interim relief, must at least make a prima facie satisfaction regarding the maintainability of the suit.
Justice Khanna said there are legal issues that arise and also the application for local commissioner is very vague. “Can an application be made like this? Third aspect is the transfer...We are staying the operation of the impugned order to the extent of the commission being executed,” noted the bench.
Advocate Tasneem Ahmadi appeared for the Idgah committee and the Uttar Pradesh Sunni Wakf Board. Divan vehemently argued against a complete stay on the order and stressed before the apex court that the high court may be allowed to at least work out the modalities of the survey. However, the bench said that the commission shall not be implemented for now.
The apex court told Divan "Your application for commissioner was very vague. It had to be specific... You have to be very clear what you want him (commissioner) for, but you leave it to the court”.
The bench, while staying the Allahabad High Court order of December 14 for the appointment of an advocate-commissioner to oversee the survey of the mosque, observed that the Hindu plaintiffs did not specify the rationale behind the plea.
"You cannot say that appoint a commissioner in terms of the prayers in the plaint. You must be specific about what exactly you are asking for….", said the bench.
The apex court has fixed the matter for further hearing on January 23 when the other batch of petitions, which have challenged the High Court order deciding to hear nearly 18 suits relating to Krishna Janmasthan-Shahi Eidgah land dispute by transferring them to itself from various civil courts in Mathura, would also be considered.
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