Kashi Vishwanath Gyanvapi Mosque Dispute: "Judge Behaving In Arbitrary Manner, Against The Spirit Of Judicial Discipline": Urgent Application Moved In Allahabad HC

An urgent application has been moved by Anjuman Intezamia Masjid Varanasi before the Allahabad High Court in the title dispute concerning Kashi Vishwanath Temple - Gyanvapi Mosque case stating that the Civil Judge acted in the "most arbitrary manner" while passing the order to allow the Archaeological Survey of India for undertaking a survey at the disputed site.

The application, while praying for staying the effect and operation of the impugned order dated 8th April 2021, states thus:

"That the presiding officer of Sri Ashutosh Tiwari the Civil Judge (S. D.) F. T. C. Varanasi is behaving in the most arbitrary manner and is passing the orders against the spirit of Judicial discipline."

Furthermore, the application reads:

"…It appears the learned civil Judge concerned is more interested to bypass all judicial disciplines and ethics as well as procedures of law and to establish himself as above the judicial hierarchy as defined under the Civil Procedure Code and had assumed himself as the only authority to decide the entire issue without looking into the legal impediment and bars."

The application has been moved by Senior Advocate F Naqvi and Advocate Syed Ahmad Faizan.

While submitting that despite the High Court reserving the judgment in the case and the judge "having full awareness about pendency of the matter before the High Court", the application states that the lower court kept passing orders on the interim applications moved by the opposite party which according to the applicant is "against the spirit of complete justice as well as the challenge to the entire suit proceeding and its authenticity."

"That respondent/plaintiff had moved applications no. 266Ga which is now fixed for disposal on 08.04.2021 despite fully being made aware by present applicant about judgment reserved by this Hon'ble Court. The objections on behalf of the applicant had been filed but for no avail and learned court below arbitrarily and against the orders of this Hon'ble Court are proceeding to pass orders illegally and without jurisdiction." The application reads.

A Civil Court in Varanasi district of UP vide order dated 8th April 2021 allowed the Archaeological Survey of India to undertake a survey at the disputed site of Kashi Vishwanath Temple-Gyanvapi Mosque. The Court also directed the Uttar Pradesh government to bear the cost of the survey.

The Court had issued following directions:

• The Director General, ASI shall get a comprehensive archaeological physical survey of the entire site.

• The prime purpose of the archaeological survey shall be to find out as to whether the religious structure standing at present at the disputed site is a superimposition, alteration or addition or there is structural overlapping of any kind, with or over, any other religious structure.

• The committee shall also trace as to whether any temple belonging to the Hindu community ever existed before the mosque in question was built or superimposed or added upon it at the disputed site.

• If so, then what exactly is the age, size, monumental and architectural design or style of the same, and also, as to which of the Hindu deity or deities the same was devoted to.

• For this purpose, the DG shall constitute a 5-member committee of "imminent persons" who are experts and well versed in the science of archaeology, two out of which should preferably belong to minority community.

• The committee shall be entitled to enter into every portion of the religious structure standing at present at the disputed site; and every artefacts supporting the plaint or defence version shall be properly preserved.

• Before entering into survey work at any point of the time, the Committee shall give advance notice to the parties or their counsels, who shall be entitled to remain present.

• While carrying out the survey, the committee shall ensure that the people belonging to Muslim community is not prevented to offer Namay at the disputed site.

• If due to ongoing survey work, it is not practicable to facilitate the. offering of Namaj to the persons belonging to Muslim community at a particular place, then the committee shall— provide such persons an alternative and suitable place to offer Namaz at any other place within the precincts of the mosque.

• The survey work shall be carried out between 09:00 A.M. to 05:00 P.M.

• The Committee shall prepare a comprehensive documentation along with site map of the disputed site.

• Photography and videography of the entire survey proceeding shall be ensured by the committee as a record of the proceeding.

• The committee is expected be throughout aware of the sensitivity of the matter, hence the committee shall always ensure that stakeholders of both Hindu and Muslim religions shall not be subjected to any partisan or preferential treatment and both shall be equally respected.

• Entire survey work shall be done in camouflaged manner, i.e. entire disputed site shall be camouflaged before the commencement of survey and till the same is finished. No general public or media person shall be allowed to have access to witness the ongoing survey work.

• The DG shall also appoint an imminent and highly experienced person who can be regarded as expert in the science of archaeology to act as the observer for the committee so constituted.