By Shahnaz Parveen Mahrose for Muslim Mirror
New Delhi: The Allahabad High Court on July 26 extended by one day the “breathing time” granted to the Gyanvapi Masjid managing committee by the Supreme Court and stayed the Varanasi district court’s order to the Archaeological Survey of India (ASI) to conduct a “scientific survey” within the mosque’s complex till July 27.
Though the court the ASI teams to be there at the site, yet directed it not to carry out any excavation or demolition till further orders.
Chief Justice Pritinker Diwakar will hear the matter again at 3:30 pm. An ASI officer has been directed to be present in the court during the proceedings.
The Anjuman Islamia Masajid (AIM), which manages 22 mosques — including Gyanvapi, had on July 24 challenged the Varanasi District Judge Ajay Krishna Vishvesha’s order in the Supreme Court, contending that its right to appeal was frustrated as it was not granted enough time to explore legal remedies.
Accepting the contention, the Supreme Court on July 24 stayed the order for three days that expired today at 5 pm and asked the AIM to move to the High Court, which heard the matter at 4 pm yesterday.
Representing the AIM, senior counsel Farman Naqvi yesterday told the High Court that the survey, if allowed to be carried out, would create an “upheaval” in the country.
He had further said the ASI was never a party in the matter before the district court, and they (the AIM) were issued all the directions.
He had submitted if the ASI survey is conducted in accordance with the district judge’s order and as sought by the Hindu women worshippers, the entire mosque premise would be destroyed.
However, Advocate Vishnu Shankar Jain, representing the caveator (the plaintiffs), had submitted that Solicitor General Tushar Mehta has already assured the Supreme Courtp that there will be no damage to the structure during the survey.
The High Court had taken the cubmission on record.
However, Advocate Naqvi had pointed out that the SG had said that it would not be done for initial one week.
He had said the Hindu worshippers’ application and the Varanasi court’s order were “premature” as it was on the stage of inception even without a written statement.
The court had sought to know from Advocate Jain as to whether the same survey had been even undertaken before. To which, he had responded by referring to the Babri mosque’s case, wherein the ASI had extensively carried out the survey.
The court continued the hearing today from 9:30 am.
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As the matter came up for hearing today, Advocate Jain provided the list of dates and events to the chief justice. He also filed a copy of the documents submitted before the lower court.
Advocate Naqvi too placed the impugned order.
When asked to look into the provisions, the senior counsel read out Section 75 of the Code of Civil Procedure (CPC).
“The application by the four women women petitioners was filed under Section 75(e) of the CPC,” the senior counsel told the court.
The chief justice asked if such an application can be filed before the pleadings (in the case) are complete.
“Even before the completion of the pleadings, the application was not only filed but decided as well,” he replied.
Naqvi then read out Order 26 Rules 9 and 10 of the CPC. “The application was filed, and the order for a scientific probe was passed,” he submitted, pointing out that they (the women litigants) don’t have evidence to prove their case; and therefore, they want the ASI to collect the same though a survey.
He placed the application before the court for its perusal.
Reading out the application, he said, it has been stated (in the plea) that “the actual fact cannot be proved by oral evidence”.
“Through the application”, Naqvi explained, “the plaintiffs have been asking the court to direct the ASI to collect the evidence to prove their case”.
The claim has also been made in the AIM’s plea filed before the High Court under Article 227 of the Constitution of India.
“This is not permissible. You cannot ask anyone else to collect evidence on your behalf,” the senior lawyer told the court.
The single-judge bench asked Naqvi to read out the application filed by the four women. He obliged and continued reading.
The CJ sought to know from the counsel if the exercise (of the scientific survey) has to be conducted in the (Gyanvapi) mosque only and not in the (Kashi Vishwanath) temple.
“No. The ASI survey has been ordered for the Gyanvapi mosque only,” the senior advocate replied.
Advocate Jain intervened and told the court — a pathway in the new corridor structure goes to the temple and the mosque comes in between.
Continue reading the application, Naqvi claimed contradictory have been made in it. “In one paragraph of the application, they (the women applicants) claimed to have evidence. But in later paragraphs, they said evidence needs to be collected by the ASI. They are not even clear on their stand,” Naqvi claimed.
The chief justice to Naqvi: It may be true. But what harm will it do, if they want to adduce the evidence at this stage?
Naqvi replied: “They are praying for excavation because they don’t have evidence at this stage. The structure is 1,000 years old and in a dilapidated condition.”
Advocate Jain intervened and claimed the ASI will not excavate the building. “It will be done barren area,” he said.
“Is it necessary to excavate?” queried the CJ.
Jain said replied in affirmation. “Yes, but not inside the so-called mosque. We (the ASI) are using the ground radar mapping. Excavation will be done only if it’s necessary and that too in the last stage,” he said.
It prompted the court to ask Jain as to why he has repeatedly referred to ASI in his application without making it a party.
“The ASI is an expert agency to carry out the job. And an expert can never be made a party to the suit. Its mandate is to give an opinion to the court and then become functus officio (agency whose mandate has expired),” he replied.
CJ again asked Jain: “What’s the standing of the ASI?”
“It’s a statuary body,” he said, referring to the Supreme Court, which has earlier said it’s a premium agency whose credibility cannot be doubted.
The bench asked Naqvi to place reply to the application filed the four women.
He read out the reply.
CJ told the senior counsel to satisfy the court about the illegality in the impugned order of the Varanasi court.
Naqvi read out the order.
The court asked the counsel representing the caveator and the Advocate General for the State of Uttar Pradesh: “What exactly do you mean by excavation?”
Jain replied the ASI will dig the area and make trenches.
But, the court said, the application as well as the court’s order do not clarify as to how the excavation will be conducted by the ASI.
The advocate read out the order and pointed out it says no harm should be caused to the existing structure. “There is a barren land, which forms the western wall of the so-called mosque,” he reiterated.
The CJ to Jain: “For arguments sake, you can say you will use machines and technology. But excavation means digging. If you find a large stone, you will move it and not put it back on the same place.”
Explaining it, Jain submitted the same — there is a barren land from gate number 4 of the temple to the mosque.
The CJ asked him to make a statement that no damage will be done to the structure and the building will not be touched.
Jain agreed and said he is making a statement that no damage will be done to the structure.
He sought to give a suggestion but the court did not let him proceed as Naqvi was nodding in a no.
The mosque panel’s lawyer said the excavation has to be carried out under the three domes of the mosque.
“It is clearly stated in their application. We don’t trust the guarantee because of the past experiences. And the trust deficit is because of their own wrongdoings,” he told the court.
It prompted the court to ask the senior counsel as to how will he trust any order of the High Court if he does not trust the litigants as well as the Varanasi court’s order. “Do you think that they will still damage the structure?” the judge asked.
He continued: “Do you have an apprehension that the court’s order will not be followed?”
Senior Advocate Naqvi replied, “The ASI does not have any mechanism to conduct a survey. The applicants are seeking excavation in their application.”
The chief justice passed a dictionary to Naqvi, defining the word “excavation”.
“It means, they will dig deep in the ground,” said the senior lawyer.
“There are chances of the collapse of the building,” said the chief justice.
Naqvi agreed as the mosque is at least 1,000 years old.
“No reason or finding has been given by the Varanasi court’s impugned order behind the need for excavation. The order was passed just by considering the pleas made by the plaintiffs. It’s not clear from his order as what was going on in his mind. It’s fine that he appreciated the ASI, but it cannot be a ground to pass an order to conduct a survey. There is no application of the judicial mind” he told the court.
Alleging an ill will on part of the plaintiff, he submitted when they (the applicants) failed to take over a portion of the building (the ‘wazukhana’ — place of ablution) because it was stayed by the Supreme Court, they filed the application in question.
The judge asked whether there is an any overlapping (in the orders of the top court and the Varanasi court).
Advocate Jain replied that no work would be conducted in the area, which has been sealed on the orders of the apex court.
To which, Naqvi submitted the sealed area is within the mosque premises. “Anything done to the building will result into the destruction of the sealed area. It’s a 20/20 area,” he told the court.
The CJ too acknowledged the Varanasi court’s order does not talk about the strong possibility of a collapse of the building.
To cement his arguments, Advocate Naqvi read out the Supreme Court’s order wherein the counsel for the ASI has said that no excavation will be carried out for one week.
The court asked Advocate Naqvi, “So, demolition is your apprehension?”
“Yes,” the counsel replied, adding that the building may fall if the excavation is carried out after one week. “The interpretation of the ASI’s submission before the Supreme Court can be that they will carry out an excavation after one week of the survey,” he explained.
The bench told the senior counsel to let them (Advocate Jain and the AG) make a statement in this regard, and the court will take it on record.
Advocate Naqvi agreed but with a condition: “Let them say who will be held responsible if the building falls,” he said.
The chief justice said Advocate Jain, the AG and even the High Court would be responsible for the same.
He asked the senior counsel to have some trust. “One interpretation can be that they will not demolish, respecting the court,” he said.
The court now sought to know about the 2022 plaint.
Advocate Naqvi replied the dispute has been persisting since 1991.
“No efforts were ever made for settlement?” asked the court.
The mosque panel’s lawyer said they reached an agreement with the Kashi-Vishwanath temple. It was decided, he said, that the petitioner would give away some part of the land of the mosque for construction a guardroom.
“We gave them a part of the land somewhere else,” he said, claiming that there is no dispute between the mosque and the temple managements.
But they (the two managing bodies), asked the court, don’t have any dialogues between them.
Naqvi replied both the bodies have cordial relations; they have dialogues; and therefore, the transfer of land took place peacefully.
“The mosque and the temple managing committees are not fighting each other. The suits have been filed by third parties (the women litigants). Though they have a right to perform worship, yet they should not have any interest in the matter,” he submitted.
The chief justice now asked the Assistant Solicitor General of India (ASGI), representing the ASI, to explain the process of survey.
He submitted they would stick to the court’s directions and use the ground-penetrating radar (GPR) method with causing any damage to the mosque.
The court sought to know from him specifically whether they are going to drill.
Dissatisfied with his submission, the chief justice expressed doubt on the process to be followed and said he is not satisfied with what they (ASI) are are going to do.
The court asked him if the ASI has done it before and if yes, then asked him to produce some photographs.
Naqvi, in the meantime, intervened and submitted a certified copy of the Varanasi court order was not even given to the respondents, but the ASI came to know about the order and sent a team of 30 members for excavation at 7 am on July 23.
The court asked Advocate Jain to satisfy it whether the application can be filed at this stage when the main suit under Order 7 Rule 11 of the CPC (maintainability of the women’s petition) is already pending.
Jain replied the commission can be issued at any stage even if framing of issues has not been done.
The court asked the AG if worship inside the mosque premises was going on till 1993, he should have entire bunch of evidence.
The court ordered the ASGI to to call an ASI official from Varanasi to explain the methodology of the survey.
After listening to him in brief, the court adjourned the matter for tomorrow and extended the stay till 5