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Synopsis

The Allahabad High Court today tabled its verdict in the plea moved by Anjuman Intezamia Mosque Committee, Varanasi against the order of the Varanasi Court passed on July 21 directing the Archeological Survey of India (ASI) to conduct a survey of Gyanvapi without causing any damage. 

The bench of Chief Justice Pritinker Diwaker had reserved the judgment on July 27 which was pronounced today and the high court dismissed the mosque management committee's plea. 

In a 16-page long judgment, the high court categorically dealt with all the objections raised by the mosque management committee against the Varanasi Court order.

Court stressed that during the hearing in the matter, keeping the seriousness of the issue in mind, court had sought expert opinion from Government Agencies.

A responsible Officer of ASI was called upon to assist the court and, in turn, Alok Tripathi, Additional Director General, ASI, New Delhi appeared before the court and submitted that the ASI will conduct a detail survey in accordance with law and prepare a list of the antiquities which are found in building and carry out detail survey and undertake the exercise to find age and nature of the structure.

The officer also assured the court that the ASI will conduct the survey, documentation, photography, detail description, GPR survey and full studies without harming the existing structures.

Court underscored that the officer also informed the court that the scientific investigation would be carried out beyond the structure and in open areas only; no drilling, no cutting, no removal of brick or stones from the existing structure will be done while conducting the survey and study.

Therefore, court held that it had no reason to doubt the officer's statements and most importantly, the affidavit filed by the officer of the ASI explaining the circumstances.

Moreover, on the objection raised by the mosque management committee that the provisions of Order XXVI Rule 10-A cannot be permitted to be used as a tool by the parties concerned to create evidence in their favour, court held that where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the court, be conveniently conducted before the court, the court may, if it thinks it necessary or expedient in the interest of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon 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," stated the single-judge bench in the order. 

Further, on the issue of suit by the Hindu worshipper seeking permission to perform worshipping of Hindu deities inside Gyavapi being barred by the Places of Worship (Special Provisions) Act, 1991, the high court held that this question was not a subject matter before it. 

Apart from that, on the objection that since ASI was not made a party to the present proceedings before the local court, it could not be directed to do any technical investigation, the high court held that "whenever, the report of the ASI would be utilized by the parties, they can submit their proposition/objection, if any".

More importantly, court refuted the contention raised by the mosque committee that without digging any wall at the Gyanvapi premises, things cannot be finalized by the ASI. Court held that:

"In this advance stage of time, many new things have been developed and now with the help of new technology and able guidance of responsible officers of ASI, the scientific investigation can be made. The officer present in the Court together with learned Additional Solicitor General of India has made submission in the form of an affidavit that no excavation whatsoever will take place."

Therefore, the high court opined that the court below had not acted beyond jurisdiction and the order for ASI survey of Gyanvapi was in consonance with the provisions of Section 75 (e) read with Order XXVI Rule 10A of CPC.

Varanasi District Court, on July 21, had allowed the plea moved by four Hindu worshippers seeking a survey of the entire Gyanvapi premises except for the Wazukhana area by ASI.

The Hindu worshippers' application had been filed in the suit pending before the local court for year-round permission to worship Hindu gods inside Gyanvapi.

Soon after Varanasi Court's order on July 21, the mosque management committee had moved the Top Court which stayed the ASI survey till 5:00 pm, July 26. Thereafter, the mosque management committee moved the high court against the local court's order.

Today, soon after the high court pronounced the judgment in the mosque management committee's plea, the committee approached the Supreme Court of India challenging the high court's decision. 

Case Title: C/M Anjuman Intezamia Masajid Varanasi Vs. Smt. Rakhi Singh And 8 Others