'Can't Call Gyanvapi Complex A Temple Or Mosque Unless Varanasi Court Determines Its Religious Character': Allahabad HC Upholds 2021 ASI Survey Order

In a significant observation, the Allahabad High Court today said that the religious character of the Gyanvapi Complex (as it existed on August 15, 1947) is to be determined by the Varanasi Civil Court in light of documentary as well as oral evidence led by both parties and hence, unless and until the court adjudicates upon this issue, the same cannot be called either as a temple or a mosque.

A bench of Justice Rohit Ranjan Agrawal observed thus while holding that a batch of civil suits (primarily year 1991 suit) pending before the Varanasi Civil Court filed by Hindu worshippers and deity seeking the right to worship in the Gyanvapi mosque and the restoration of the temple at the disputed place (Gyanvapi Complex) ARE NOT BARRED by the Places of Worship Act 1991.

With this, the High Court REJECTED the pleas filed by Anjuman Intezamia Masajid Committee challenging primarily year 1991 suit concerning the Gyanvapi title dispute. The Court added that Masjid compound can have either a Mulsim character or a Hindu character and the same can not be decided at the stage of framing issues.

Significantly, regarding the application of the Places of Worship Act 1991 in the Gyanvapi-Kashit title dispute cases, the Court opined that the 1991 Act is not an absolute bar upon the parties approaching the courts after its enforcement seeking their right to the place of worship or defining religious character of any place of worship.

For context, the Places of Worship (Special Provisions) Act 1991 prohibits the conversion of a religious structure from its nature as it stood on the date of independence.

"As 'religious character' has not been defined under the Act, and the place cannot have a dual religious character at the same time, one of a temple or of a mosque, which are adverse to each other. Either the place is a temple or a mosque. 164. The evidence of the entire Gyanvapi compound detailed in Schedule B of the plaint is necessary to be taken while determining religious character. The revisional court had rightly proceeded to hold that Section 4 of the Act of 1991 [Declaration as to the religious character of certain places of worship and bar of jurisdiction of courts, etc] is not applicable in the instant case as the religious character of the place in dispute has to be determined," the Court observed as it emphasised that the relief sought by plaintiffs in the suit is not of converting any place of worship, but a declaration as to the religious character of the structure.

While the defendants (including the Anjuman Intezamia Moque committee), on the strength of the decision rendered in the Din Mohammad (1936) case, emphasised that the religious character of the disputed place already stands settled, and there is no need for a declaration by a competent Court, the Court said that the decision of Din Mohammad does not lay down religious character of the disputed place, and it only permits plaintiffs therein to offer Namaz in the alleged Mosque.

Regarding the challenge to the ASI survey ordered by the Varanasi Court in 2021 [in one of the Suits in question (Suit No.610 of 1991)], which was later stayed by the Allahabad High Court, the Court noted that since the ASI has already surveyed the Complex in a 2022 Suit filed by 5 Hindu women, it would be a futile exercise to direct for conducting the scientific survey by ASI again. However, the Court did not doubt the legality of the Varanasi Court's order. 

In the alternative, the Court directed the ASI to place its report of a scientific survey [done in Original Suit No.18 of 2022 (693 of 2021)], in Suit No.610 of 1991 also, which shall be taken into consideration by the court.

The Court further clarified that in case the Court below finds it necessary for adjudication of the case further survey is required to be conducted, which has been left out in the survey already conducted, then in view of the order of Varanasi Court (dated 08.04.2021), it shall issue necessary direction to ASI to survey the premises.

Against this backdrop, the Court concluded that the 1991 suit filed by plaintiffs was not barred by provisions of Section 4 of the Act of 1991, and the plaint cannot be rejected under Order 7 Rule 11 C.P.C.

The Court further noted that more than 32 years have elapsed since the filing of Original Suit No. 610 of 1991, and only issues have been framed after the filing of a written statement by the defendants and the proceedings of the suit had remained pending for almost 25 years on the strength of interim order granted by the High Court in 1998.

In view of this, stressing that the dispute raised in the suit is of vital national importance as it is not a suit between the two individual parties, and instead, it affects two major communities of the country, in the national interest, the suit proceeds expeditiously within 6 months and be decided with utmost urgency with the cooperation of both the contesting parties without resorting to any dilatory tactics.

Appearances

Counsel for Petitioners: Punit Kumar Gupta, A.P.Sahi,A.K. Rai, D.K.Singh,G.K.Singh,M.A. Qadeer,S.I.Siddiqui,Syed Ahmed Faizan,Tahira Kazmi,V.K. Singh,Vishnu Kumar Singh,Syed Farman Ahmad Naqvi(Senior Adv.),Zaheer Asghar, M.A.Haseen,Ateeq Ahmad Khan

Counsel for Respondents: Ajay Kumar Singh,Hare Ram,Manoj Kumar Singh,Tejas Singh,Vineet Pandey,Vineet Sankalp, C.S.C.,A.P.Srivastava,Ashish Kr.Singh,Bakhteyar Yusuf,Hare Ram,Manoj Kumar Singh,Prabhash Pandey,R.S.Maurya,Rakesh Kumar Singh,V.K.S.Chaudhary

Case title - U.P Sunni Central Waqf Board vs. Ancient Idol Of Swayambhu Lord Vishweshwar And 5 Others along with connected matters

Case Citation: 2023 LiveLaw (AB) 500

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