‘Why are there spades when no digging has to be done?’: Allahabad HC reserves order on ASI survey inside Gyanvapi mosque

By Shahnaz Parveen Mahrose

New Delhi: Following a three-day marathon hearing, the Allahabad High Court on July 27 reserved order for August 3 on the petition, challenging the Varanasi district court’s direction to the Archaeological Survey of India (ASI) to conduct a “scientific survey” inside the Gyanvapi mosque complex. Till then, the agency has been barred to carry out any activity in the mosque premise.

The Anjuman intezamia 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 had stayed the order for three days and asked the AIM to move to the High Court, which began hearing the matter at 4 pm from July 25.

The application, seeking a scientific investigation within the mosque, was filed by four Hindu women in the Varanasi court — which is alleged to have ordered the ASI probe even without hearing the respondent (the AIM). The plaintiffs are party to the main suit filed before the district court, praying for round the year worship rights of Goddess Shringar Gauri inside the mosque premise.

The mosque committee has challenged the maintainability of the lawsuit under Order 7 Rule 11 of the Code of Civil Procedure, and the matter is pending before the Supreme Court.

During the three-day hearing in the High Court, the mosque panel restricted its arguments to largely three points — since the petitioners lack evidence, they want the court to collect the same and it cannot be allowed as the court is supposed to be neutral; despite the fact that the ASI was never a party to the suit or never served any notice, the district judge asked it to conduct the survey; and if the survey is allowed as the petitioners want, the entire mosque building, which is over 1,000 years old and dilapidated condition, will collapse.

As the single-judge bench of Chief Justice Pritinker Diwaker assembled today, Senior Counsel Syed Farman Ahmad Naqvi, representing the AIM, reiterated his apprehension that the structure could be damaged if the excavation — as ordered by the lower court — is allowed to be done.


He apprised the court the ASI teams are there at the disputed site with spades. “They (the ASI) tried their level best to say that no digging will be carried out and there will be no damage to the mosque structure, but we have annexed photos where they have used spades,” he told the court.

The submission prompted the bench to shot back, “Have they used it?”

Naqvi said they would have used it had there been no stay.

The chief justice, on lighter notes, said if someone comes into the court with a weapon, it does not mean that he will use it.

To which, the senior counsel responded if someone comes to the court with a weapon, it is not for fun. “Yesterday, 5 percent work was done, what sort of activity was it?” he asked.

During the hearing on the first day, he had told the High Court that the survey, if allowed to be carried out, would create an “upheaval” in the country.

The bench took note of the photos submitted by the AIM that purportedly shows people with lots of dundas (batons) and sought to know which communities do these dundas belong to.

He asked the advocate general to file a reply later to the apprehensions raised.


Naqvi said the issues have been framed in the court, but a survey was ordered.

“If the Supreme Court decides that the suit before the Varanasi court is not maintainable, then the entire exercise of survey will be futile,” he submitted.

Yesterday, as Advocate Naqvi placed the impugned order, the court had asked him to look into the provisions. He had 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,” he had told the court.

When queried by the chief justice if such an application can be filed before the pleadings (in the case) are complete, he had submitted, “Even before the completion of the pleadings, the application was not only filed but decided as well.”

Regarding conversion of a place of worship, the senior lawyer said controversy had been arising from time to time; and therefore, it was decided to prevent the practice.

“It was considered necessary to preserve the religious character of such places worship (and the Places of Worship Act was passed by the Parliament). Consequently, all suits that are pending may abate and be barred. Since the case of Ram Janambhoomi is separate, it is an exception to the Act,” he contended.

Naqvi explained the suit (by the four women litigants) was filed in 2021, but it is barred by the 1991 legislation. This is the point, he said, they have raised under Order 7 Rule 11 application in the apex court.


It was his further argument that the court can not be used to collect evidence on behalf of a litigants who have no evidence.

“Another issue is that whether the court can be used to collect evidence on behalf of a litigant who has no evidence. They have admitted that they lack evidence,” he submitted.

To which, the bench remarked, “If the court feels evidence needs to be preserved, it must be as per the rules. The court is not prohibited from collecting the evidence.”

Naqvi replied, “In that case, they (the petitioners) could have stated in their plaint that the evidence is with the defendant, and they are asking a third party to collect the evidence. They had ample time from 2021 to 2023. But they were silent. Now, they are coming and asking for a digging. Why should the court collect evidence for them?”

He placed on record a judgment, which says courts cannot be used to collect evidence of behalf of the litigants.

Advocate Punit Gupta, representing the Sunni Waqf Board, intervened and explained as per the Hindu worshippers’ plaint, a temple was demolished to construct the mosque. The Varanasi court has now directed the ASI to find out whether a temple was existed.

“It is mandatory for the plaintiffs to prove their case. Our submission is — what is the stage for a scientific survey. Only after the completion of evidence, such a survey can be ordered,” he said, describing the petition “premature”.


Replying to the respondent’s submissions, Advocate Vishnu Shankar Jain, appearing for caveators, argued that the commission does not impinge upon the petitioner’s rights, and they can always object to the same.

In defence of the Varanasi district court’s July 21 order, he submitted the order for issuance of commission is valid under Order 26 Rule 10 read with section 75 CPC.

When asked by the chief justice as to whether experts need to be made a party to the suit, he said that experts are never required to be made parties to suit.

Explaining why the petitioners are seeking the survey, he submitted Hindu artefacts, Sanskrit shlokas (verses) and old Jyotirlinga, etc. present inside Gyanvapi premises.

He added the pillars exist on the northern side of the structure and the same was painted repeatedly to hide its original character. He also claimed that beneath the central dome of the mosque, hollow sounds come.

At last, he submitted that the commission can very well be constituted to obtain evidence, which from its peculiar nature can only be obtained from the spot.

Pursuant to the court’s order, an ASI official was present before the bench. He submitted that ASI monitors archaeological activities within the country and that its prime objective is to protect monuments within the country.

He assured the court no damage would be caused to the structure. It was also submitted that at best “brushing” may be needed, and there would be no scratching or damage to the structure.

After hearing everyone at length, the court reserved its order to be pronounced on August 3 and said the interim order will continue till then.

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