The Allahabad High Court has reserved its order in the case concerning the Muslim side’s challenge to the Varanasi Court’s order directing the Archaeological Survey of India (ASI) to conduct a scientific investigation of the Gyanvapi premises, excluding the stayed areas. The court will pronounce its verdict on August 3 and the interim stay on Varanasi Court’s order would continue till then.
The court asked the ASI official appearing before the court to define ‘excavation,’ during today’s hearing. The official replied that the term had not been defined in the act, however, the dictionary meaning is khudai (digging). The Chief Justice further asks if excavation is possible without digging or not, the ASI official responds that the attempt to find antiques of archaeological nature is called excavation with or without digging.
The court further asks if ‘drilling’ has been defined in the act, and the ASI official responds replied no. The ASI official submits that the ASI would not cause damage to the structure. “At best brushing may be needed. There will be no scratching or damage,” the official said. The court then asked by when the ASI would complete the survey, to which the ASI official responded that it would be completed by August 4, 2023.
The court further asked that why the matter has been pending for the last two years and no direction for early disposal of the suit has been passed.
The Muslim side’s counsel Senior Advocate SFA Naqvi said, “We are just being harassed at least 9 suits are pending. Kashi Vishwanath Trust not filing any suit, 3rd persons are filing suit. We are facing about 19 suits at this stage at Varanasi regarding Gyanvapi.” He further submitted that the issue concerning the maintainability of the suit is pending before the Supreme Court. “If it decides that the Suit before the Varanasi Court is not maintainable then the whole exercise is futile,” the Muslim side’s counsel submitted.
Plaintiff Rakhi Singh’s counsel, Advocate Saurabh Tiwary, intervened and said that the scientific survey of the disputed structure is important as the Muslim side has argued that the structure in question has been a Mosque since its inception. “ASI Survey is necessary because Anjuman Masjid has said that the structure in question is based on imagination and it has nothing to do with ground reality. They say the Mosque was never in possession of anyone else except Muslims since its inception,” he argued.
He further offered to submit photographic evidence to support his contentions; however, the Chief Justice said that there was no need to decide on evidence at this stage. “Allahabad High Court has already said that if devotees like us can do Puja on one day how can making it a daily or weekly affair lead to conversion of mosque character? For the disposal of suit, a survey is required,” Tiwary further contended.
Meanwhile, the Caveator’s counsel, Advocate Vishnu Shankar Jain, submitted a compilation of judgements in support of his contentions. “Relevant portion is para 20 – the claim of deity existence is a matter about which parties under circumstances can hardly produce evidence,” he submitted. “Even otherwise, the evidence has to be found at the site of dispute and can best be gathered therefrom. Under order 26 Rule 9 CPC, the appointment of commission would not be out of the jurisdiction,” he added. The Hindu side’s counsel further argued that experts are not required to be made parties to the suit, in response to Chief Justice’s query.
Meanwhile, the Muslim side’s counsel argued that while the Hindu side and the ASI claimed that no digging would be done at the disputed structure, there are photos of the ASI reaching the site with spades. “They tried their level best to say that no digging is being but we have annexed photos where they have used spades. They reached there with these instruments,” he said. The Chief Justice asked if they have used the spades, to which Naqvi responded in negative, stating “Since a stay was granted, otherwise it would have been used.” The Chief Justice replied to Naqvi’s apprehensions, “if someone comes into court with a weapon doesn’t mean he will use it.”
Advocate Vishnu Jain read the Hindu side’s application before the Chief Justice, submitting that inside the Gyanvapi premises, there are Sanskrit shlokas, old Jyotirlinga, Hindu artefacts and other such symbols present. The court asks Varanasi Court’s order to be read. Jain reads the parts about Hindu symbols found in the Gyanvapi premises. “Pillars exist inside the structure on the northern side. The same was painted repeatedly to hide its original character. Beneath the central dome of the Mosque, hollow sounds come,” he submits.
Vishnu Jain further submits that the Muslim side has relied on the Shrikant Moolchand case, however, the Allahabad High Court had said that its verdict is misplaced. “Commission can very well be constituted in order to obtain evidence which from its peculiar nature can only be obtained from the spot,” he submits.
The court heard the arguments put forth by the parties and reserved its order. The Allahabad High Court will pronounce the verdict on August 3, 2023. The court has directed that the interim stay on Varanasi Court’s July 21 order would continue till the verdict.
Yesterday, on July 26, the Allahabad High Court heard the case concerning the challenge to the Varanasi Court’s order directing the ASI to conduct a scientific investigation of the Gyanvapi premises, excluding the stayed areas.
In compliance with the court’s directions, an ASI official appeared before the court to explain the technicalities involved in technologies that might be used for conducting the survey. The court called the ASI official to the dais and asked him about the Radar Imaging method. The court inquired about the success rate of the method. The ASI official responded, “It can go up to 10 metres deep in the ground and things also depend upon the soil.”
The ASI official further informed the court that an ASI team commenced the survey work on Monday morning (July 24) at about 9 am. The court asked, “How much work have you done?” The ASI official replied, “We have just started. We don’t know the exact site.” Furthermore, the ASI has filed an affidavit in the case. The ASI further informed the court that a team from IIT Kanpur would be called to conduct a GPR survey and a Radar survey.
The court noted the ASI’s affidavit and said, “The Varanasi District Court granted relief to the plaintiff. Supreme Court reduced the relief. ASI’s affidavit further reduces the reliefs claimed by the plaintiffs.”
Thereafter, the Muslim side’s counsel, Senior Advocate SFA Naqvi, requested the court to grant it two days of breathing time and argued that they need to seek technical assistance. The counsel remarked, “What is the hurry? All of a sudden as if heavens are falling. They are doing it at the speed of a jet. We are not taking away the property.”
The Chief Justice responded, “If there is no progress in the suit, the client might be pressing (for relief). That happens all the time with lawyers.” However, Naqvi said, “Presently there is no urgency.” The Chief Justice remarked, “What if the suit is decided? It is the Plaintiff’s choice when he wants to pursue the matter.”
Background
On July 25, the Anjuman Intezamia Masjid Committee moved the Allahabad High Court challenging the Varanasi Court’s order directing the Archaeological Survey of India (ASI) to conduct a scientific investigation of the Gyanvapi premises, excluding the stayed areas.
On July 24, the Supreme Court’s three-judge bench, comprising Chief Justice DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra, passed the order to allow some breathing time to the Anjuman Intezamia Masjid Committee to move the Allahabad High Court to challenge the Varanasi Court’s order.
In proceedings before the apex court, the Muslim side’s counsel, Huzefa Ahmadi, argued that the excavation of the structure would cause irreversible damage to the structure. The counsel further alleged that the trial court’s order contravened the Supreme Court’s earlier order deferring the scientific investigation to be carried out on Gyanvapi premises.
However, the Hindu side’s counsel, Senior Advocate Shyam Divan, informed the court that the Supreme Court’s earlier order was in the context of the ‘Shiva Linga’ found in the Gyanvapi premises. The counsel further submitted that the trial court’s order has specifically excluded the ‘Shiva Linga’ from the scope of ASI’s scientific investigation.
The ASI’s counsel Solicitor General of India Tushar Mehta concurred with advocate Shyam Divan’s submissions and said that the top court’s previous order concerned the carbon dating of the ‘Shiva Linga,’ which the Muslim side claims is a fountain. The Solicitor General submitted that the court’s earlier order was in view of the possible damage to the structure, however, the trial court’s order does not relate to any ‘invasive procedure.’
On July 21, a Varanasi Court directed the Director of the ASI to undertake a scientific investigation/excavation of the Gyanvapi premises, excluding the areas sealed by the Supreme Court to ascertain whether the present structure was constructed over a pre-existing Hindu temple. The court further directed the ASI to investigate the age and nature of the construction of the western wall of the structure. The court directed the ASI to submit the report by August 4 and scheduled the case for the next hearing on the same date.
The court noted that the application seeks to prove that the facts mentioned in the plaint are corroborated through scientific evidence collected by a fact-finding expert agency. The court noted that the ASI is a premier institution, equipped with infrastructure and instruments to conduct a GPR survey and find out the age and nature of the construction.
“In my view, if ASI will be directed to hold survey and scientific investigation at the property in question and submit report then it will help in just and proper disposal of the case and true facts will come before this Court. I am also of the view that objections, filed by defendant no.4 are unfounded and without any substance,” the court said.
“In my view, the law laid down in the above mentioned ruling is not applicable here because scientific investigation by ASI seems to be necessary in this case so that true facts relating to this case can come before the Court and this Court can arrive at just and reasonable conclusion,” the court further added, referring to Allahabad High Court’s ruling in Sri Kant v Mool Chand and others (2019) as put forth by the respondent.
The court allowed the plaintiff’s application and directed the Director of ASI to undertake a scientific investigation/excavation of the Gyanvapi premises, excluding the areas sealed by the Supreme Court to ascertain whether the present structure was constructed over a pre-existing Hindu temple. The court directed that the entire survey proceedings must be photographed and videographed. The court further directed the ASI to investigate the age and nature of the construction of the western wall of the structure. The court also directed that the Director of ASI must ensure that the disputed structure must not be damaged and remains unharmed.
