On August 3, the Allahabad High Court dismissed the Anjuman Intezamia Masjid Committee’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 Allahabad High Court reserved its verdict in the case on July 27.
“Issue of a commission is permissible. The Varanasi Court was justified in ordering for ASI survey of the premises. Scientific survey is necessary in the interest of justice,” said Chief Justice Pritinker Diwaker while pronouncing the verdict.
The Muslim side opposed the scientific investigation of the Gyanvapi premises, contending that excavation would cause irreversible damage to the structure. Meanwhile, the ASI has assured the court that no damage would be caused to the structure during the third day of the hearing before the Allahabad High Court on July 27.
The Muslim side further argued that the Hindu plaintiffs are harassing them. The Muslim side submitted that the Kashi Vishwanath Trust is not filing suits, instead, third persons are filing petitions. The Muslim side’s counsel Senior Advocate SFA Naqvi further submitted that the issue concerning the maintainability of the suit is pending before the Supreme Court.
However, Plaintiff No 1 Rakhi Singh’s counsel, Advocate Saurabh Tiwary, intervened and contended that the scientific investigation is important as the Muslim side has argued that the disputed structure has been a mosque since its inception. The counsel further offered to submit photographic evidence to support his contentions.
The Caveator’s counsel, Advocate Vishnu Shankar Jain, had submitted a compilation of judgements in support of his contentions on the third day of hearing. “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.
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 counsel further read from the Varanasi Court’s order noting Hindu signs and symbols found inside 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.
Notably, Plaintiff No 1 in the present case, Rakhi Singh, has also moved a PIL before the Allahabad High Court seeking a direction to the Government of Uttar Pradesh to seal the entire Gyanvapi premises so that “no damage can be done by non-Hindus/Non-Sanatani to Hindu sign/symbol present inside the premises.” The PIL seeks that the premises are sealed without affecting the Varanasi Court’s July 21 order directing the ASI to conduct a scientific investigation of the Gyanvapi premises, excluding the stayed areas.
Furthermore, the PIL seeks to ban the entry of non-Hindus within the Gyanvapi premises till the suits pending before the Varanasi Court are disposed of. The PIL seeks to protect the Hindu signs and symbols found inside the premises, referring to the Advocate Commissioner’s report. The petitioners have moved the PIL before the court intending to “save the centuries-old remains of Sri Adi Vishweshwar temple (present-day Gyanvapi) in Varanasi.” The petitioners further seek “protection of Shivlingam of Sri Adi Vishweshwar Virazmaan and other visible and invisible deities in the precinct of the temple.”
Varanasi Court’s Order Allowing ASI Survey
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.
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