Gyanvapi Case: ‘Court not mute spectator, can issue ASI survey in interest of justice’ says Allahabad HC; Read Details

On August 3, the Allahabad High Court restored the Varanasi Court’s July 21 order directing the Archaeological Survey of India (ASI) to conduct a scientific investigation of the Gyanvapi premises, excluding Supreme Court stayed areas, subject to the high court’s observations and the contents of ASI’s affidavit filed before the court.

“In the opinion of the Court, the scientific survey/investigation proposed to be carried out by the Commission, is necessary in the interest of justice and shall benefit the plaintiffs and defendants alike and come in aid of the trial court to arrive at a just decision,” Chief Justice of the Allahabad High Court, Pritinker Diwaker, said in his 16-page order.

During the course of hearings, the court sought an expert’s opinion from government agencies with expertise in the field. Thereafter, the court had asked an ASI official to assist the court. The Additional Director General (ADG) of ASI, Alok Tripathi, appeared before the court and informed the court about the methodology of the ASI to conduct the scientific investigation of the structure.

The ASI official, in his affidavit, submitted that the ASI would conduct a detailed scientific investigation in accordance with the law and prepare a list of the antiquities which are found in building and carry out a detailed survey and undertake the exercise to find age and nature of the structure.

The ASI official further submitted to the court that ASI’s scientific investigation would be conducted without causing harm or damage to the existing structure. He submitted that the investigation would be carried out beyond the structure and in open areas. The official submitted that no drilling, no cutting, no removal of brick or stones from the existing structure will be done while conducting the scientific investigation. Furthermore, if further investigation or excavation is required to be done, then the permission of the court will be sought.

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.”

Hindu Side’s Arguments

In the suit before the trial court, the plaintiffs sought the protection of their right to religion as guaranteed under Article 25 of the Constitution of India. The Hindu side, in the suit, further sought a mandatory and permanent injunction to the defendants that interference is made in the performance of darshan/pooja of Maa Shringar Gauri, Bhagwan Ganesh, Hanuman Ji, Nandi Ji and other visible and invisible deities, mandaps and shrines as existing within the “old temple complex.” Furthermore, the Hindu side has sought that no images of deities in the complex are damaged, defaced, destroyed or harmed in any manner.

In the suit, the Hindu side has averred that there existed a glorious temple at the Adivisheshwar Jyotirlinga in Varanasi. The Hindu side alleged that the Muslim invaders, due to hatred in their hearts against idol worshippers and non-Muslims, destroyed and desecrated Hindu temples right from 1193-94 AD, when Mohd Gori attacked, demolished, plundered and looted the temple dedicated to Bhagwan Shiva. Thereafter, a number of Muslim invaders attacked Varanasi, repeating the acts of Mohd Gori, however, the Hindus sustained such attacks and the temple was rebuilt and restored at the same place.

“It has been averred in the Suit that Settlement Plot No.9130 along with five kosh land already stood vested in the deity Adivisheshwar lacs of years ago and that the deity is the dejure owner but despite this fact, Muslims, without creating any waqf or having ownership of land, forcibly, without any authority of law, raised a construction and termed the same as Gyanvapi mosque,” the court noted.

The Hindu side further averred that the Muslim rulers demolished Gyanvapi, which was a pre-existing Hindu temple. “The plaintiffs have put forth their claims by pointing out several facts which according to them, make it clear that the structure (Gyanvapi) was nothing but a temple,” the court noted.

The Hindu side’s counsel argued that the scientific investigation of the Gyanvapi premises is not going to cause any injury to any of the parties, rather, it would facilitate and crystallise each and every issue. Furthermore, the counsel argued that the ASI has the mechanism and facilities to find out the age, composition, nature and other relevant things relating to any monument, relic, artefact and other things.

The counsel further informed the court that u/s 22 of the Ancient Monuments and Archaeological Sites and Remains Act of 1958, the ASI has the power to excavate any area, other than the protected areas, if it has reason to believe that the area contains ruins or relics of historical and archaeological importance.

The Hindu side’s counsel cited Chhattisgarh High Court’s verdict in the Phoolchand Asra case, the court has the power to issue a commission to elucidate any matter in dispute if the court thinks fit that the same is required. The court has the discretion to direct a commission to investigate and submit a report to the court. In support of its contentions, the counsel further submits certain case laws observing that the court can pass an ex parte order to issue a commission for investigation even before the defendant has entered an appearance.

Muslim Side’s Arguments

On July 25, the Anjuman Intezamia Masjid Committee moved the Allahabad High Court challenging the Varanasi Court’s order allowing ASI to conduct a scientific investigation of the Gyanvapi premises. The Muslim side’s counsel argued that the Hindu side lacks admissible evidence, thus, such “false tactics” are being applied.

The counsel argued that the plaintiffs are trying to create evidence in their favour at this stage, contending that the same is not permissible in law. The counsel argued that the onus is on the plaintiffs to prove their case by adducing evidence during trial and the same cannot be permitted by way of getting a commission appointed.

The Muslim side’s counsel argued that the scientific investigation of the Gyanvapi premises could not be carried out without causing damage to the structures. The counsel said that if during the investigation, any excavation is made, it would damage the structure. The counsel further alleged that the suit is barred by the Places of Worship (Special Provisions) Act, 1991, as the disputed structure existed before 1947.

The counsel argued that the scientific investigation can only be conducted when, after adducing evidence, the court is unable to decide the dispute. The counsel further averred that the ASI was not made a party to the suit, and thus, no direction to conduct a scientific investigation of the disputed structure can be issued.

Allahabad High Court’s Verdict

The court found no substance in the Muslim side’s submission that that court can order a scientific investigation if it is unable to decide the dispute after the parties adduced evidence. The court said that there is no bar in law to appoint a commission for better adjudication of the dispute. Furthermore, the court said that it could appoint a commission even prior to the trial, if required. The court observed that it could exercise the power to elucidate the fact itself.

“A plain reading of the provision says that the power can be exercised at any stage and procedural law is to advance the cause of justice and not to strangulate the litigant on hyper technical grounds. Thus, the judgement relied upon by learned counsel for applicant/defendant no.4 in the case of Sri Kant (supra) is of no help to him,” the court order reads.

On the issue of the court discharging the plaintiff’s burden of proof, the court found no substance in the Muslim side’s arguments and held that if the court deems it necessary or expedient, in the interest of justice, the court can issue a commission to inquire into such question and submit a report to the court.

“It is settled proposition of law that the Court will not sit as a mute spectator and can always interfere in such matters to arrive at a particular conclusion. Thus, judgements relied upon in the cases of Naseeb Deen (supra), Km. Chandana Mukherji (supra), Rama Avatar Soni (supra) and Shanta Devi (supra) are of no help to the applicant/defendant no.4,” the court said.

On the issue of excavations of the disputed structure, the court found no substance in the Muslim side’s arguments that if during the scientific investigation, any excavation is made, the same would damage the disputed structure. The court noted that the ASI had filed an affidavit submitting that it would not conduct excavation in the disputed structure.

“This Court has repeatedly asked the officer present in the Court and learned counsel appearing for the ASI that as to what procedure would be adopted at the time of scientific investigation, and they have reiterated that no demolition of the property will take place by any one, nor any existing structure would be altered,” the court said.

The court found no substance in the Muslim side’s arguments that the scientific investigation is being conducted to create evidence for the plaintiffs. The court said that whatever evidence will be collected through the investigations, it would be available to all parties.

“The scientific investigation has nothing to do with the other evidence and whatever evidence would be collected, that may be for all the parties and not only for the plaintiffs,” the court said.

Furthermore, the court has noted that once the ASI has made its stand clear that no damage would be caused to the disputed structure, the court has no reason to doubt its statements. The court further noted that the ASI official has also filed an affidavit explaining the circumstances.

“The law laid down and discussed above, make it clear that the Court below was justified in passing the impugned order. The present petition lacks substance and is liable to be dismissed,” the court said.

“The petition is, accordingly, dismissed. Interim order, if any, stands vacated. The order dated 21.7.2023 passed by the District Judge, Varanasi is restored and the parties are to comply the said order, subject to the observations made by this Court hereinabove and the contents of the affidavit filed on behalf of the ASI before this Court,” the court concluded.

“As the proceeding of Suit has been lingering on for long, it would be appropriate to observe that the Court concerned shall make all endeavour to conclude the proceedings expeditiously, without granting unnecessary adjournments to either of the parties by giving short dates, keeping in view of the provisions contained in Order XVII Rule 1 of CPC,” the court concluded.

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.