The Supreme Court is hearing an appeal challenging the order of Allahabad High Court permitting a court appointed commissioner to inspect, conduct survey and videography of the Gyanvapi mosque in Varanasi to which Hindus and Muslims have laid claim for right to worship.On Tuesday, the top court had ordered that the Shivling stated to have been found during the survey of the mosque be protected. It had also lifted the prohibition imposed by a Varanasi court on Muslims from entering the mosque.The appeal arises from a suit filed in lower court by Hindu parties claiming that the mosque houses Hindu deities and Hindus should be allowed to do worship and puja at the site.The lower court had appointed a court commissioner to conduct a survey and videography of the site.The same was challenged before Allahabad High Court which dismissed the appeal on April 21.Subsequently, the Masajid Committee filed a plea before the lower court claiming that the court commissioner was biased and should be replaced.The same was dismissed paving way for the survey.Pertinently, the Varanasi court on Tuesday removed advocate commissioner Ajay Kumar Mishra from the court-appointed committee that was formed to survey the Gyanvapi Mosque.Read details on the survey report submitted by the advocate commissioner here.The plea before the Supreme Court will be heard by a bench of Justices DY Chandrachud, Surya Kant and PS Narasimha.Live updates from the hearing below..Hearing begins..Senior Advocate CS Vaidyanathan: I appear for one of the Hindu plaintiffs (respondent No 4).Justice DY Chandrachud: 3 suggestions: 1. the application order 7 rule 11 is pending before trial court we can say let the application be disposed off..Supreme Court: We have passed an interim order making such tentative arrangements and that order can continue till O7R11 application is decided. Then order can be challenged. Or thirdly. In this sensitive matter, the suit should be heard by a District Judge..Supreme Court: A slightly more seasoned and mature hand hear this. No aspersion on trial judge. He is part of our system. This will benefit all the parties..Sr Adv Vaidyanathan: Today the SLP is infructuous since all three orders have been complied with. Religious character of the mosque has to be decided. The commission report has to be seen by the court. Supreme Court: We took your point, that is why entrusting it to a district judge. We cannot guide a District judge. Let them handle it, they have enough experience at the bench. We cannot command him to hear it in this way or that way. .Supreme Court: We are not casting any aspersion on any judicial officer. All three of us discussed. This was the best way ahead. Senior Advocate Huzefa Ahmadi: All these orders passed from beginning are capable of creating great public mischief. Its in teeth of an injunction passed by parliament..Sr Adv Ahmadi: Right from the date commission was appointed and before that orders were passed, all orders have to be declared non est..Supreme Court: O7 R11 application had to be decided first. That has not been done. So, to decide whether order of commission was lacking jurisdiction we have to get into Order 7 Rule 11 application outcome. That's why we thought the application can be decided and our interim order can continue..Supreme Court: Our order was to create a balance. Now they would not have an objection to this.Sr Adv Vaidyanathan: Let not the judge decide O7 R11 first and let the judge decide.Supreme Court: No, we cannot put that application in the backburner. We cannot tie his hands. You make your submissions there..Sr Adv Ahmadi: My challenge is to the order appointing commission itself, it is prohibited by the 1991 Act and the Constitution itself. Act says such controversies will create great public mischief. Commission report is being selectively leaked. This must be interdicted here..Sr Adv Ahmadi: It is not so simple that the case is sent back and the court wants to maintain status quo, this status quo has already been altered by virtue of plaintiff providing what happened in the commission enquiry. This status quo they want to continue..Sr Adv Ahmadi: They are succeeding in getting a place sealed which was being used by this part for the next 500 years. Supreme Court: We have to rise at 4 pm today..Supreme Court: We would have gladly come back from the farewell and hear the case again.Justice Surya Kant: Whatever the preliminary submissions you point out, suppose your O7 R11 application is allowed, all your challenge to orders will become nullity?.Sr Adv Ahmadi: Till that application is decided what will happen in the ground? You have to see how this case is being used for 4 or 5 mosques across the country. This will create public mischief which the act wanted to avoid. Taste of the pudding is in the eating..Sr Adv Ahmadi: If today this is allowed, and tomorrow you say that another mosque was temple, not even a title suit. Then report of the commission is leaked. A narrative is being created. Look at the egregious effect it has on the ground. Look at how this is being raked across India..Supreme Court: This is a civil suit under section 9 of CPC, if we accept your submission that appointment of commissioner was against the 1991 Act and without jurisdiction. Right? Sr Adv Ahmadi: My submission is different. A suit could not even proceed....Supreme Court: Moment you say that frame of suit is barred under 1991 act, then you are raking order 7 rule 11 point. You are not arguing that application before the supreme court, but you say that commission was void ab initio..Supreme Court: But the issue is to accept this argument, it is for us to comment on maintainability of the suit. Supreme Court cannot say suo motu it will decide maintainability of the suit. We have to follow due process of law..Supreme Court: Let the District judge handle this with 20 - 30 years of experience in judiciary. Sr Adv Ahmadi: To decide the correctness of the order of commission, prima facie. Supreme Court: Prima facie, if we hold in your favour they are ousted under O7R11 and if we hold against then you are ousted..Supreme Court: Having seen merit in your argument, we are not allowing trial court to run amuck. Therefore, we hold the balance. We have created a framework to maintain peace and an atmosphere of fraternity between communities as constitution envisages and it's our duty to uphold that message..Supreme Court: If there is suggestion to tweak the order to maintain peace on the ground then please tell us. Sr Adv Ahmadi: High Court has wrongly upheld the commission conducting survey. Please see the 1991 Act..Supreme Court: There is another way. You have challenged the appointment of commission. If you succeed under order 7 rule 11 all comes to an end, if you fail in the application, we can post this SLP a little later after the vacation, so that in case you fail, this appeal will be pending..Senior Advocate Ranjit Kumar for Hindu parties: The order passed in September 2021 has worked itself out. Supreme Court: If Mr Ahmadi succeeds then the basis of that order will be taken away..Supreme Court: There is merit that challenge to the appointment of commission overlaps with order 7 rule 11 application. So, we can keep this SLP pending and let that application be decided and hold the status quo..Supreme Court: These are complex social problems and no solution by the human being can be perfect. Our order is to maintain a certain degree of peace and calm. Interim orders calms some frayed nerves with some healing touch..Supreme Court: We are here in a joint mission to preserve a sense of unification in the country. Once commission report is there, there cannot be selective leaks. Do not leaks thing to the press. Only judge opens the report..Sr Adv Ahmadi: High Court did not interfere with the appointment of commission because they say it is only a fact finding commission. High Court says it is innocuous. We challenged it and Chief Justice of India granted us indulgence. Then in interim commission proceeding progresses..Sr Adv Ahmadi: While commission is in progress, an application was made to the court ex parte citing commission proceedings. It is not a shivling as per us, it is a fountain. Sr Adv Vaidyanathan intervenes.Ahmadi: This is nothing but an attempt to gag which is unbecoming of traditions of Supreme Court..Sr Adv Ahmadi: Now that entire area is out of bounds for us. Supreme Court: No namaz is allowed? Sr Adv Ahmadi: It is allowed but wazu khana is sealed and iron gates are placed with heavy police presence..Supreme Court: Take it worst against you. Suppose you lose order 7 rule 11, you can go to High Court, and then appeal in Supreme Court, we will keep this SLP also pending. You can let it stand over and let it O7 R11 be decided. We can pass protective arrangements for wazu..Solicitor General: Arrangements have been made for wazu. Sr Adv Ahmadi: You are changing the status quo of this place. Sr Adv Vaidyanathan: Desecration is also not the norm. Sr Adv Ahmadi: This is not the way not the way. Supreme Court: You are speaking with us, you are seasoned hand..Solicitor General says he will take instructions on arrangements being made for Wazu..Sr Adv Ahmadi: Please see the Places of Worship Act, and it envisages the situation that has arisen today since it spoils the communal atmosphere in the country. Justice Chandrachud asks for the Places of Worship Act..Sr Adv Ahmadi reads the objects and reasons of the 1991 act "Act to prohibit conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on Aug 15, 1947, and for matters connected therewith or incidental thereto"..Supreme Court: But that earlier suit is not a title suit, but a right to worship.Sr Adv Ahmadi: That is worse! Can it be decided without a declaratory relief..Supreme Court: We have dealt with this in Ayodhya judgment, what section 4(1) does is... Sr Adv Ahmadi: Crux is section 3 milords.Supreme Court: Read section 3..Section 3: Bar of conversion of places of worship. No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination..Sr Adv Ahmadi: There is no exception to section 3. Change of religious character of a place of worship is expressly barred. You appointed a commission to see whether there are deities or symbols. That is precisely prohibited..Justice Chandrachud: Ascertainment of religious character IS NOT BARRED under section 3 of the 1991 Act. Suppose there is a Parsi temple and there is a cross in the corner of the area. Does the presence of agyari make the cross agyari or agyari christian. This hybrid character is not unknown..Justice Chandrachud: Here a structure of Zoroastrian faith will not make the Christian structure Zoroastrian or vice versa. But the ascertainment if religious character of a place may not necessarily fall foul of section 3 of the 1991 act..Sr Adv Ahmadi: The religious character of the mosque as on August 15, 1947 is not in dispute. Opposite side: Strongly in dispute.Sr Adv Ahmadi: You may think so. If this is entertained then the 1991 Act may be only a dead letter. This is the controversy the act wanted to avoid..Justice Chandrachud discusses whether hearing should resume post Justice Rao's farewell..Senior Advocate Kumar: Please have it on Monday or Tuesday. But not today Milords..Solicitor General: Not today appears a general consensus. There is a vacation, and the Lordships may have some plans. The interim orders have balanced the equity. Sr Adv Ahmadi: If we are having this after the vacations...Sr Adv Ahmadi: Even after that order where the area should be protected, that shivling or fountain is in centre of the pond. That middle area can be protected. But, let the pond be used. This is an attempt to gag..Sr Adv Ahmadi: Let the tap water be used at least. Supreme Court: We don't have the photographs. Solicitor General: Let the commission report be presented. Using pond water will lead to law and order situation..Justice Narasimha: That May 16 order was not challenged before the High Court since you say it was an ex parte order. Sr Adv Ahmadi: If the appointment of commission is challenged itself then how can we challenge it..Supreme Court OrderHaving regard to the sensitivity of this civil suit case, this case before the civil judge Varanasi shall stand transferred and be heard by senior and experienced judicial officer of UP judicial services..Supreme Court: Thus, case transferred from civil judge senior division Varanasi to district judge Varanasi. The application filed by plaintiff under O7 R11 CPC shall be decided on priority by the district judge on transfer of suit..Supreme Court: Our interim order dated May 17 shall continue to remain in applicating till O7 R11 Application is decided and thereafter for 8 weeks so that parties aggrieved by district judge order can challenge the same..Supreme Court: Unless due arrangements have been made for wazu, we direct the district magistrate to consult with parties and appropriate arrangements been made for wazu. Sr Adv Ahmadi: Why alternate arrangements?Supreme Court: Our order does not say alternate..Supreme Court: The order passed by civil judge senior judge Varanasi on May 16 shall be subsumed by the order of this court on May 17..Solicitor General: Please add that the there is no aspersions on the judge. Senior Advocate Kumar: The application under Order 10 Rule 2 has to be decided also. Supreme Court: Validity of the appointment of commissioner has already been decided by HC. We are seized of the matter..Supreme Court: We direct the District Magistrate the decide the O7 R11 application on priority..Matter to be listed after vacations. Supreme Court: We hope everyone has a happy and healthy vacation since most are going out..Hearing ends.