Gyanvapi | 'Scientific Survey Will Help Plaintiffs, Defendants Alike; Parties Free To Remain Present During ASI Survey': Allahabad HC

While upholding the Varanasi Court's July 21 order for an ASI Survey of the Gyanvapi Mosque Premises, the Allahabad High Court today said that the scientific survey of the disputed site is "necessary in the interest of justice" and it shall "benefit the plaintiffs and defendants alike" and it will also "come in aid of the trial court" to arrive at a just decision in the matter.

The Court also clarified that the dismissal of the writ petition of the Anjuman Mosque Committee would not affect the right of the parties to the Suit to remain present at the time of the scientific investigation to be made by the ASI. 

It may be noted that the order has been passed on the Article 227 plea moved by the Anjuman Mosque committee challenging to the Varanasi Court's July 21 order of ASI Survey, wherein the District Judge had directed the Director of the Archaeological Survey of India (ASI) to conduct a “scientific survey” of the Gyanvapi mosque premises except for the area that was sealed earlier (wuzukhana) to find out if the same has been built over a pre-existing structure of a Hindu temple.

It may be noted that the court of District Judge AK Vishwesha had passed this order in an application moved in May this year [under Section 75(e) and Order 26 Rule 10A of CPC] by the 4 Hindu Women Worshippers in a suit pending before the Court (Rakhi Singh and others vs State of UP and others) seeking all year-round worshipping rights in the Gyanvapi Mosque compound.

The order, passed earlier today by the Bench of Chief Justice Pritinker Diwaker, has "restored" the order of the District Judge's Varanasi and the parties have been directed to comply with the said order. With this, the Court has also vacated its interim order of July 27 staying the survey in question till August 3

Essentially, this order has paved the way for an ASI Survey of the site, which the Apex Court halted on July 24 to give breathing time to the Masjid committee to approach the High Court. The stay was extended by the HC on July 27 till today (August 3).

In its 16-page order, the High Court has dismissed all the contention raised by the Mosque Committee before it, including the argument that the local inspection or Commission by the Court is made "only in those cases, where on evidence led by parties, Court is not able to arrive at a just conclusion either way or where Court feels that there is some ambiguity in evidence, which can be clarified by making local inspection or Commission".

"It is settled position of law that the purpose of Order XXVI of the Code, is to secure evidence in dispute and the Commission’s report and evidence taken by the Commission becomes admissible evidence. As such, there is no bar in law to appoint a Commission for the better adjudication of disputes. Hence, a Commission may be appointed even prior to the trial, if required. The Court itself can exercise the power to elucidate the disputed fact. A plain reading of the provision says that the power can be exercised at any stage and procedural law is to advance the cause of justice and not to strangulate the litigant on hypertechnical grounds," the Court said.

The Court also rejected another significant objection raised by the Mosque Committee that "it is not the business of courts to discharge the burden of evidence of either party" or 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.

In this regard, the Court said 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".

The Court further discarded the apprehension raised by the Mosque Committee that if during scientific investigation, any excavation is made, that would damage the structure in question. In this regard, the Court referred to the submission made before it by an ASI officer to note that "no demolition of the property will take place by anyone, nor any existing structure would be altered".

"Once the Department of Archaeology and learned Senior Counsel representing the Department have made their stand clear that no damage is going to be caused to the property in question, this Court has no reason to doubt their statements and most importantly, the affidavit filed by the officer of the ASI explaining the circumstances."

The Court also stressed that the scientific investigation has nothing to do with the other evidence and whatever evidence would be collected, that may be for all the parties and not only for the plaintiffs.

The Court further asserted that the scope of interference by the supervisory Court, in a plea filed under Article 227 of the Constitution of India, on the decisions of the fact-finding forum is limited and that it cannot act as an appellate body and is not supposed to re-appreciate the facts.

Consequently, the Court dismissed the plea of the Anjuman Mosque Committee. However, noting that the proceeding of the original Suit (Shringar Gauri Worshipping Suit 2022) has been lingering on for long, the Court has asked the Court concerned to "make all endeavours" to conclude the proceedings expeditiously, without granting unnecessary adjournments to either of the parties by giving short dates, keeping in view of the provisions contained in Order XVII Rule 1 of CPC.

Appearances

Counsel for Petitioner: S F A Naqvi, Sr. Advocate, Puneet Kumar Gupta, Syed Ahmed Faizan, Zaheer Asghar, Ms Fatma Anjum, Munnaur Hussain, Mumtaz Ahmad, Akhlaq Ahmad, Mehmood Alam, Poorva Agarwal, Vipul Dubey and Devendra Mishra.

Counsel for Respondents: Ajay Mishra, Advocate General, Ashok Mehta, AAG, M C Chaturvedi, AAG, Kunal Ravi Singh, CSC, Vijay Shanker Mishra, CSC, Ishan Mehta, Addl. CSC, Ankit Gaur, Standing Counsel, Hare Ram Tripathi, Standing Counsel, Manoj Kumar Mishra, Standing Counsel, Ishan Dev Giri, for the State, Shashi Prakash Singh, ASGI, Manoj Kumar Singh and Purnendu Kumar Singh for the Union of India, Vishnu Shanker Jain, Prabhash Pandey and Saurabh Tiwari, for plaintiffs/opposite parties 1 to 5 and Vineet Sankalp, for opposite party no.9.

Case title - Anjuman Intezamia Masajid Varanasi vs. Rakhi Singh And 8 Others 2023 LiveLaw (AB) 241 [MATTERS UNDER ARTICLE 227 No.7955 of 2023]

Case Citation: 2023 LiveLaw (AB) 241

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