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The Hindu parties in their reply to the plea challenging the Gyanvapi survey have submitted before the Top Court that the Hindu religious character of the Gyanvapi Mosque complex is continuing till date despite the construction illegally raised by Muslims.
The Hindu parties, which are the plaintiffs before the lower court in Varanasi and the respondents in the Supreme Court have stated that the building in question contains Swayambu deity of goddess Shringar Gauri and images of gods and goddesses among other objects of worship and Hindu religious facets.
The reply reads that on April 18, 1669, the Mughal ruler Aurangzeb issued a Farman for demolishing the Adi Vishweshwar temple. It quotes historians Sir H.M.Elliot and John Dowson and their book “The History of India” to note that “foolish Brahmans” were in habit of expounding frivolous books in their schools and that people from all faiths went to such schools led by their desire to become acquainted with the “wicked sciences” that were taught as a result of which the temple was destroyed.
It has been brought to the court’s notice that the fact of demolition of Shri Adi Visheshwar temple under the command of Aurangzeb was also mentioned in a work called ‘Maasir-I-Alamgiri,’ memoirs written in the time of Aurangzeb.
The reply states that the original temple was partly demolished and utilising the remaining structure and the materials, a construction was raised and named ‘Gyan Vapi Mosque’ and that the deities continued in visible and invisible forms within the premises of the old temple. A large portion of the building and a portion of Tahkhana remained in the control of Hindus, the reply alleges.
The reply relies on a book named ‘History of Benares’ by Dr. A. S. Altekar, the Professor and Head of the Department of Ancient History and Culture of Banaras Hindu University, to state that the eastern portion of the open platform of the alleged Mosque is formed by covering with stones slabs on extensive Hindu Mandap about 125 Feet X 18 Feet in dimension a part of which is at present in the possession of Hindus.
It further states that a portion of the Mandap of Hindu temple exists in the courtyard of the alleged Gyan Vapi Mosque. The reply notes, "Hindus have continued to worship in the western side of the alleged mosque of ‘Gupt’ i.e. invisible deity. Hindus still continue to worship the place in the dilapidated wall of the ruins to the west of the alleged mosque as the abode of Gauri and her son Lord Ganesh. They also pay homage to Panch Mandap.”
According to the reply, between the years 1777- 80, the Queen of Indore Ahilya Bai Holkar constructed a new Sri Vishwanath temple adjacent to the old temple of Adi Visheshwar.
The reply also claims that in 1698, Bishan Singh, the ruler of Amber, launched an initiative to build the Vishwanath temple and that his agents surveyed the surrounding land, and detailed various claims and controversies on the topic. Furthermore, his Court purchased the land around the Gyanvapi precinct but was unable to rebuild the temple, the reply alleges.
It is asserted in the reply that in the light of the above facts deity Adi Visheshwar is continuing as De-Jure owner of the entire land of Settlement Plot No.9130, 9131, and 9132 in Mauza Shahar Khas, Tahsil and District Varanasi.
The 1936 suit:
The reply speaks of the suit instituted by one Deen Mohd without impleading any member of Hindu community but impleading only the Secretary of State for India through District Magistrate, Benares and Anjuman Intajamia Masajid, Benares through Secretary for granting declaration that the disputed land situated in the city and District Benaras described in the plaint was Waqf in his and other Musalmans had right to say their prayers specially Alvida prayers and to exercise other religious and legal rights as the need and occasion arise.
It is noted that at the Muslims had filed above mentioned suit only for declaration without seeking any consequential relief. The reply extracts the position taken by the Secretary of State of India for India thus “The idols and the temple which stand there exist since long before the advent of the Mohammadan Rule in India. The other allegations are denied. It is submitted that the non-Muslims have been using the land for their religious purposes as a matter of right and have got a right of way over it. The allegation that they were permitted by persons in-charge of the Mosque is unfounded and baseless.”
The stand of the secretary of India is extracted to say that the land in question was never stamped with the character of ‘Waqf’ land and it was never dedicated to God, nor could it have been dedicated and God has no proprietary interest. According to the reply the government took a stand that the Mohammadans of that time or for the matter of that Aurangzeb himself was not the owner of the site in which the old temple of Vishwanath existed and which was demolished by Aurangzeb owing to the religious antipathy, hence it could not have been dedicated according to the true spirit of the Mohammadan faith.
According to the reply, the U.P. State Legislature has recognized the deity ‘Adi Visheshwara’ Jyotirlinga in its original form alongwith subsidiary deities existing from the time immemorial within old temple complex and the right of devotees to worship there. The reply noted that the entire property including “property in question” i.e. old temple complex vested in deity Adi Visheshwar is to be managed by Board of Trustees and that it is the duty of the State Government and the Board of Trustees to recover the entire property belonging to and dedicated to ‘Adi Visheshwar’ and the ‘Asthan’ which has been usurped and encroached upon by Anjumn Intazamia Masaajid Committee and its supporters and followers.
Places of Worship Act:
The reply notes that in view of the provisions of the Places of Worship Act, 1991 the Court has to visualize as to what was the religious character of the place in question on August 15, 1947 and whether it was a place of Hindu or Muslim worship or putting a superstructure can convert a temple into a mosque or vice versa.
According to the reply, to find out the religious character of the property in question, one has to take into consideration the historical and religious background of the entire Avimukt Area and also the nature of construction raised by Muslims thereat.
The reply emphasizes that the fact that deities continued to exist within the building complex were being worshiped by devotees and the sentimental attachment of the devotees should also be considered.
In the context of the Places of Worship Act, the reply states that from the narration of the facts and available evidences, it is clear that Asthan of Adi Visheshwar Jyotirlingam is being worshiped in a radius of 5 Kos (Krosh) and the entire area is sacred for the devotees of Lord Visheshwar.
It states, “If any portion of a temple is demolished under the orders of a ruler i.e. the sovereign of the time and a superstructure is put thereon, the same will not change the religious character of the shrine.”
The reply notes that the property in question is not a Waqf property for the simple reason that as per Hindu Law the property vested in the deity shall continue the deity property.
The reply also states that a mosque can be constructed only on a Waqf property and that a Waqf can be created by a waqif who is the owner of the property. It reads, “In this case Aurangzeb, did not create any Waqf and did not bequeath the property in question to the God. Therefore, the construction in question cannot be even presumed to be a mosque.”
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