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The district judge had held that since the Supreme Court had ordered to protect the place where alleged Shivlingam was found, therefore, the plea for its 'scientific investigation' could not be allowed.
While directing the Archaeological Survey of India (ASI) to conduct a safe scientific investigation of the site / Shivlingam at Gyanvapi, the Allahabad High Court recently observed that the trial court, without collecting specific data/material from the able agency, jumped to the conclusion that such an investigation will in all probability result in the destruction of the site/Shivlingam itself.
The single judge bench of Justice Arvind Kumar Mishra noted in the order passed in the revision petition moved by the Hindu plaintiffs against the order of District Judge, Varanasi dated October 14, 2022, whereby the judge had dismissed their application seeking a scientific probe of the Shivlingam-like structure, that:
"If the trial Judge had any apprehension of damage being caused to the site in case scientific investigation of the site is directed in that event it was obligatory on his part to have sought expert opinion of the persons well versed in carrying out such type of enterprises like the present one."
Justice Mishra wrote that on a bare perusal of the order passed by the district judge, it was clear that the trial Judge was of the view that the Apex Court vide its order dated 17.05.2022 had directed that the Shivlingam that was found on the spot in the survey commission to be protected and preserved and in case any direction for using carbon dating technique or ground penetrating radar is made there would be a possibility of causing harm to the Shivlingam itself and that would be in derogation of the order of the Apex Court.
"Now insofar as the above observation of the District Judge, Varanasi in regard to the direction being issued for carrying out scientific investigation is concerned, it is admitted fact that before passing the order (14.10.2022), due diligence was not exercised by the District Judge, Varanasi and for this specific reason the finding reached by the District Judge, Varanasi regarding damage being caused to the structure in issue was assumptive and presumptive and the same was not based upon any relevant material on record as such not supported by the record (sic)," Justice Mishra opined.
The judge highlighted that the report forwarded by the Superintending Archaeologist, ASI Sarnath Circle, Sarnath, Varanasi, made it clear that a scientific investigation can be made to the extent and purport without causing harm to the site / Shivlingam found at Gyanvapi.
"That way, the natural premise that would follow, would proceed on the theme that the actual site of the Shivlingam would remain preserved and protected. It being a factual reality, the technical and scientific report of the Archaeological Survey of India has opened ways for carrying out a scientific investigation of the site / Shivlingam without causing any damage to the structure in question," Justice Mishra held.
The revision petition was filed by the Hindu plaintiffs challenging the decision of the district judge. During the course of the hearing in the matter, the counsel representing the Hindu side argued that their plea for a scientific probe of the Shivalingam had been rejected by the trial court more on technical grounds than on merits.
The counsel claimed that insofar as the order dated 17.05.2022 passed by the Apex Court was concerned that did not deter the high ourt from considering the aspect of the scientific investigation to be done in the manner that it is done without causing damage to the site in question and the site remains protected and preserved.
Further, the counsel for the Central, as well as the State, government also submitted that as per the ASI's report on the matter, the ground penetrating radar technique/method will be helpful towards identifying the remains of the ancient structures buried, if any, at the site and a scientific investigation of the site can be ably done without causing harm to the Shivlingam / site.
On May 16, 2022, during a survey by the court-appointed commission, a Shivling-like structure was found inside the Wazookhana of the mosque complex.
It was the Hindu plaintiffs' claim that the structure found inside the Wazookhana of the mosque complex was a Shivalingam, however, the claim was contested by the Muslim side who argue that it was actually a non-functioning old fountain.
On May 16, 2022, itself, Civil Judge (Senior Division) Ravi Kumar Diwakar passed an order to seal the disputed site at the complex. Thereafter, the matter reached the top court and a division bench while upholding the order of the Varanasi court to protect the area modified it to the extent that the local court's direction in any manner will not restrain the access of Muslims to the mosque or use of it for performing prayers and religious activities.
Subsequently, the Hindu side moved an application seeking a scientific investigation of the Shivlingam before the local court which citing the Apex Court's order, rejected it.
Through the present order, Justice Mishra has directed the trial Judge / District Judge, Varanasi to proceed further in the case pending before it and supervise the scientific investigation of the site / Shivlingam which is to be conducted under the aegis and guidance of the Archaeological Survey of India.
Case Title: Laxmi Devi And 3 Ors. v. State Of U.P Thru Principal Sec.(Civil Sec.) Lko. Nd 5 Ors.
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