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Kashi Vishwanath vs Gyanvapi Mosque: Court orders ASI to survey disputed site

The Sunni Central Waqf Board and the Anjuman Intejamiya Masjid, which had objected to the petition, said they will approach a higher court against the order.

Written by Asad Rehman | Lucknow |
Updated: April 9, 2021 8:57:08 am
The disputed complex in Varanasi on Thursday. (Express photo by Anand Singh)

Stating that “the matter in dispute pertains to have connection with our deep history”, a Varanasi court Thursday ordered the Director General of Archaeological Survey of India to “get a comprehensive archaeological physical survey” done of the disputed Kashi Vishwanath Temple-Gyanvapi Mosque complex and “find out as to whether the religious structure standing at present at the disputed site is a superimposition, alteration or addition or there is a structural overlapping of any kind, with or over, any religious structure”.

Fast Track Court Civil Judge (Senior Division) Ashutosh Tiwari’s order came less than a month after the Supreme Court sought the Centre’s response on a PIL challenging the constitutional validity of the Places of Worship (Special Provisions) Act, 1991 which mandates that the nature of all places of worship, except the one in Ayodhya that was then under litigation, shall be maintained as it was on August 15, 1947, and that no encroachment of any such place prior to the date can be challenged in courts.

The Act, brought in by the P V Narasimha Rao-led Congress government during the height of the Ram temple movement, also applies to the disputed Kashi Vishwanath Temple-Gyanvapi Mosque complex in Varanasi and the Krishna Janmabhoomi Temple-Shahi Idgah Mosque in Mathura – two places, once part of the temple campaigns, later shielded by the 1991 law. Even the Supreme Court, in its landmarking November 2019 ruling on the Ram Janmabhoomi-Babri Masjid title suit which went in favour of the Hindu parties, had underlined that the Act is “a legislative intervention which preserves non-retrogression as an essential feature of our secular values”.

Ruling on a 2019 application by lawyer-petitioner Vijay Shankar Rastogi — the original suit in 1991 was titled Ancient Idol Swayambhu Lord Vishweshwar and Others Vs Anjuman Intejamiya Masjid and Another — who called it “a representative suit wherein the interest of large number of persons, having faith in Hindu religion, are at stake”, judge Tiwari’s order noted that “the question as to whether plaintiff’s suit is barred by section 4 of Places of Worship (Special Provisions) Act, 1991 and consequently by order 7 Rule 11 (d) of Code of Civil Procedure, 1908… were decided negatively by the predecessor court vide its order dated 18/10/1997… order was challenged in revision, and the revisional court vide its order dated 23/09/1998 directed this court to decide said issue afresh only after taking evidences of the parties”.

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Shielded by law

The Places of Worship (Special Provisions) Act, 1991, applies to the disputed complex in Varanasi. The Act mandates that the nature of all places of worship, except the one in Ayodhya that was then under litigation, shall be maintained as it was on August 15, 1947, and that no encroachment of any such place prior to the date can be challenged in courts.

He rejected the argument of the defendants – the Muslim parties to the case – that since “a mosque has been entered at the disputed site in the revenue records, hence the same is not open for challenge,” saying “it is well settled that a revenue entry is not conclusive piece of evidence establishing the title of the person whose name has been mutated”.

Directing that copies of the order be served on the ASI, the Uttar Pradesh government and the Varanasi administration for “necessary compliance”, judge Tiwari ordered that the suit be listed for further orders on May 31.

The Sunni Central Waqf Board and the Anjuman Intejamiya Masjid, which had objected to the petition, said they will approach a higher court against the order.

In his order, the judge noted that the plaintiff had said the “temple existed since time immemorial” and that King Vikramaditya reconstructed it 2050 years ago, that it was reconstructed again during the reign of Emperor Akbar. The plaintiff said that following an April 18, 1669 farman from Emperor Aurangzeb, local officials “demolished the temple of Swayambhu Lord Vishweshwar and constructed a mosque with the help of the ruins of said temple”.

The plaintiff stated that “since the Shivlinga of above said temple is self-existing and naturally arisen from deep inside the earth, hence even after demolition, the Swayambhu Shivlinga of Lord Vishweshwar continues to exist along the argha surrounding the Shivlinga at the very same place where it was prior to demolition of the temple”, and though they “continue to worship and offer prayers to Lord Vishweshwar by circumambulation… they and all the Hindus having faith in Lord Vishweshwara are deprived of their right to offer Jal to Shivlinga”.

In its order, the court said the Director General of ASI shall constitute a 5-member committee of eminent persons who are experts and well-versed in the science of archaeology, two out of which should preferably belong to the minority community.

It directed that an expert be appointed as an observer for the committee; the committee should report to the observer about the survey work done; that the entire survey be photographed and videographed, and on its completion, the committee should submit its report of the entire survey in a sealed cover without undue delay.

Following the order, plaintiff Vijay Shankar Rastogi said: “This is a huge win for the Hindu side because the Muslim side argued that at the ground level it has been a mosque since the beginning. Whereas the Hindu side said that a temple was demolished and a mosque was built on the premises.”

He said the original petition was filed in 1991 by three persons – Pandit Somnath Vyas whose ancestors were priests of the temple, Sanskrit professor Dr Ramrang Sharma, social worker Harihar Pandey – and that he had been their counsel.

According to Rastogi, Vyas and Sharma passed away and in the 2019 petition, the plaintiffs were Pandey, Lord Vishweshwar as the primary petitioner, and that he himself as the next friend of the deity.

The Allahabad High Court, he said, had earlier stayed the matter in 1998. “A judgment by the Supreme Court in 2018 ruled that any stay order which has extended beyond a period of six months will be considered void (unless extended by a speaking order showing extraordinary situation). The ruling came in the matter of Asian Resurfacing of Road Agency vs Central Bureau Of Investigation (CBI),” said Rastogi.

UP Sunni Central Waqf Board chairman Zufar Farooqui said: “We will be challenging the order in the Allahabad High Court. Our understanding is clear that this case is barred by the Places of Worship (Special Provisions) Act, 1991. The Places of Worship Act was upheld by a 5-judge Constitution Bench of the Supreme Court in the Ayodhya judgment. The status of Gyanvapi Masjid is, as such, beyond question. Even otherwise, we can say, as per legal advice, that the order of survey is questionable because technical evidence can only supplement certain foundational facts. No evidence has been produced before the Learned Court that suggests that there was a prior existing temple at the site of the mosque.”

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