Gyanvapi| 'Have Strong Doubts About Survey Work To Be Carried Out By ASI': Allahabad HC Seeks Presence Of ASI Official At 4:30 PM Today

On the second day of the hearing of the Anjuman Intezamia Masjid Committee's challenge to the Varanasi District Judge's July 21 ASI Survey order of the Gyanvapi Mosque, the Allahabad High Court today expressed its "strong doubts" regarding the work to be carried out by the Archaeological Survey of India (ASI) at the Mosque premises.

The oral observation was made by the bench of Chief Justice Pritinker Diwaker after the ASGI (appearing for the ASI) failed to explain to the bench the exact methodology of the proposed survey.

Although the ASGI made efforts to clarify to the bench that it would be using the Ground-penetrating radar (GPR) method without causing any damage to the structure as per the Varanasi Court's order, the bench was not convinced.

Consequently, the Chief Justice directed the ASGI to call an ASI official from Varanasi by 4:30 pm today to the Court with an affidavit explaining the structure and details of the proposed survey. The bench is likely to decide the fate of the challenge of the Gyanvapi Mosque committee after 4:30 pm as the Supreme Court's order staying the ASI survey will expire at 5 pm today.

It may be recalled that the Anjuman Mosque Committee moved the HC yesterday challenging the order of the Varanasi Court directing the ASI to survey the mosque premises (except for wuzukhana). This order was passed on an application filed by 4 Hindu Women Worshippers who are party to a suit filed before the District Court seeking year-round access to worship inside Mosque premises.

The Supreme Court on July 24 stayed the ASI survey till July 26, 5 PM so as to allow some "breathing time" to the Masjid committee to approach the High Court.

Yesterday, the Anjuman Committee argued before the HC the Archeological Survey Of India (ASI) was never a party to the suit or never noticed by the Varanasi Court and despite this, the District Judge directed it to survey the mosque premises. He had also contended that once the scientific survey is done, in the way they (Hindu women worshippers) have claimed, the entire Mosque Premises will be destroyed.

Read more about Yesterday's arguments here: Gyanvapi| 'ASI Survey Will Create Some Upheaval In Country': Mosque Committee Argues In High Court Challenging Varanasi Court Order

Arguments made today

Continuing from where he left his arguments yesterday, Senior Counsel SFA Naqvi (appearing for Anjuman Committee) submitted that the application of the 4 Hindu women worshipers was premature as the pleadings are not complete in the case.

He also read from their application to note that they had stated that they don't have evidence in the matter, so ASI should collect evidence. Challenging this, he argued that by means of this application, the plaintiffs were asking the court below to ask ASI to collect evidence to prove their case.

"This is impermissible. You cannot ask anyone else to collect evidence on your behalf. They are asking the Court to collect evidence through ASI to prove their case. They will adduce evidence based on the evidence collected by ASI...In earlier paragraphs (of the application), they said that evidence is available with them. In later paragraphs, they said that evidence needs to be collected by the ASI. Their stand is not clear," Senior Counsel SFA Naqvi submitted.

Interjecting at this moment, the Chief Justice asked him as to what was wrong in their application as if they wanted to adduce evidence at this stage and if the law permits them to seek evidence, what harm would be caused to the Mosque committee.

In response to this, Senior Counsel Naqvi submitted that there is no evidence at this time of time so as to warrant a survey of the premises. He further pointed out a prayer in the application wherein the 4 Hindu Women Worshippers sought for excavation in the premises.

At this moment, Advocate Vishnu Shankar Jain (appearing for the Caveators) clarified that the excavation is not sought for inside the Mosque and that, right now, the ASI is merely using the Ground-penetrating radar (GPR) method and excavation will be done afterwards and that too, only if it is necessary to do so.

Further, the Court persued the impugned order of the Varanasi Court to note that Hindu Worshippers' Application and the Varanasi Court's order did not say as to how the excavation would be carried out by the ASI.

"For the sake of arguments, you can say that you will use machines etc. But excavation means digging. If there is a large stone, you will move it and not put it back...Get the videography done or make a statement that no damage will be caused to the structure," the Court sternly remarked.

However, in response to this, Advocate Jain said that he was indeed making a statement in record that no damage will be done to the structure and that there is a barren land that forms the western wall of the so-called mosque, which will be surveyed by the ASI. He added no work will be carried out in the area that has been sealed by the Top Court.

However, interrupting him, Senior Counsel Naqvi submitted that the excavation was proposed to be done under three domes and the same fact was stated there in their application. He added that he can't trust the statement (that no damage will be caused) because of "past experiences". He submitted that excavation meant that they would dig deep in the ground.

Further, challenging the impugned order of the Varanasi Court, Senior Counsel Naqvi said that the order was passed without giving out any reasons and sans any findings.

"The impugned order was passed only considering the pleadings of the plaintiff.What went in the mind of the Judge, is not clear from the order. He is appreciating ASI...fine...but that is not the reason to pass an order for survey. There is no application of judicial mind in this application. When issues with regard to a part of the building, wuzukhana were stayed by the Apex Court and once they (Plaintiffs) failed in their attempt to take over that part of the building, they filed this application... If any excavation is carried out, then the building might fall. For one week they will not do any excavation as they have submitted before the SC. But the interpretation can be that they will excavate thereafter." he further submitted.

To allay his fears of damage to the structure, the CJ said that the plaintiffs/caveators can be asked to make a statement that they will not damage the structure and the said undertaking can be recorded in the order. To this, Senior Counsel Naqvi said that if at all the structure falls, let them say who will be responsible for the same.

"You cannot say that. AG and Adv. Jain or the court cannot be held responsible for the same...They will take your suggestions to not dig. The court or the defendants cannot compel them to adduce evidence in a particular manner", CJ quipped.

The Court was further informed by Senior Counsel Naqvi there is no dispute between (Kashi Vishvanath) temple and (Gyanvapi) mosque management and it is only the third parties that were interfering without having any interest in the matter.

After Senior Counsel Naqvi concluded, Advocate Puneet Gupta (for Sunni Waqf Board) argued on similar lines by contending that the plaintiffs, in this case, were trying to take the help of the court to create evidence.

"The burden to bring evidence is on you (the plaintiff). The court is impartial. The court cannot lead evidence. There is no dispute with the parent body," he added while concluding his arguments.

After this, Advocate Vishnu Shankar Jain started arguing and submitted that the ASI would be using GPR, Radar Forumula and Carbon dating methods to survey the premises and no damage would be caused to the structure. He contended that the commission can be issued at any stage and the framing of issues was not required for the same.

However, when he further added that the ASI Team was waiting at the site, the CJ remarked thus:

"Why is it waiting? So that as soon as the order is passed, you start? Why the hue and cry?"

Further, the Court asked the ASGI to explain what was proposed to be done during the survey by the ASI, however, since it was convinced about the way ASI proposed to proceed in the matter. He also questioned if worshipping had been done inside the Mosque Premises till 1993, then why there was no evidence with the plaintiffs. 

At this moment, Advocate Jain clarified that he had some evidence, to which, the Court asked him if he could lead evidence after the report of the survey is filed, he responded by stating thus:

"Yes. And we do not know as to what will come out of the report of the commission...When this commission will be issued. It will be subject to further examination and cross-examination. The court can accept or disregard the report of the commission. The defendants also have the option to disregard and discredit them in cross-examination. In the Ayodhya Case, the Top Court said that the report of the commission be treated as a piece of evidence and be a part of the record and the commissioner so appointed may be examined in accordance with CPC. The report comes within the definition of expert opinion."

Advocate Jain also relied upon Ram Janmbhoomi's case (Ayodhya Case) to explain to the bench as to how the process of GPR and excavation will be carried out.

However, the CJ expressed his inability to understand the technicalities and instead asked the ASGI to call an ASI official/expert for the demo today at 4:30 PM. 

Before rising, the bench told Sr. Adv. Naqvi that ASI is not going to touch even the plaster at the site, to which, he responded by saying that he had apprehensions. To this, CJ asked him if the apprehension was regarding the Babari case, he said "Yes, that too and also the legality of this order."

The bench will continue hearing the matter at 4:30 pm today.