Temple's character can't change with demolition or encroachment; rights of devotees never lost: Plea in SC

A plea has been filed in the Supreme Court to oppose Committee of Management Anjuman Intezamia Masjid Varanasi claim on Gyanvapi mosque on the ground that a temple’s religious character does not change after the demolition of roof, walls, pillars, foundation and even offering 'namaz'.

The plea by BJP leader and advocate Ashwini Kumar Upadhyay, who sought to intervene in the pending matter before the top court, said 1991 Places of Worship (Special Provisions) Act would not apply in the instant case.

It claimed Hindus, Jains, Buddhists and Sikhs have right to profess, practice and propagate religion as provided in their religious scriptures and Article 13 of the Constitution clearly prohibited making law which took away their fundamental rights of citizens.

"Moreover, the status of mosque can be given only to such structures which have been constructed according to tenets of Islam and buildings constructed against the provisions contained in Islamic law cannot be termed as mosque," it contended.

The Hindu side, represented by a group of women, claimed Aurangzeb had issued an order on April 9, 1669 directing his administration to demolish the temple of Lord Adi Visheshwar at Varanasi. There is nothing on record to establish that the then ruler or any subsequent ruler has passed any order to create a Waqf over the land in question or for handing over the land to any Muslim or body of Muslims, it said.

The plea by Upadhyay also said the property once vested in the deity continues to be deity's property and right of deity and devotees are never lost, howsoever long illegal encroachment continues on such property and the right to restore back religious property is unfettered and continuing wrong and injury may be cured by judicial remedy.

"After the 'pran pratishtha' of idol, a temple always remains a temple until the idol is shifted to another temple with the rituals of 'visharjan'. Moreover, religious character of temple (a place of worship) and mosque (place of prayer) is totally different. So, same law can't be applied on both," it added.

The application also claimed the petition filed by the Anjuman Intezamia Masjid, Varanasi, has become infructuous as 1991 Act doesn't bar determination of religious character. The top court las week transferred the suit filed by Hindu side for right to worship to the district judge, Varanasi and put the matter for consideration in July.

The applicant, on whose separate plea challenging validity of the 1991 law, the top court had earlier issued notice to the Centre, also claimed Section 4(1) of the Act violated the concept that temple property is never lost even if is enjoyed by strangers for hundreds of years; and the idol/deity, embodiment of supreme God, and is a juristic person, represented the infinite- the timeless, and cannot be confined by the shackles of time.