Gyanvapi land title dispute pending in HC — why Varanasi court’s ASI order is a big surprise

The Gyanvapi management had appealed the HC in 1998 to decide whether a civil suit in the case is barred under a 1991 law. The HC completed hearings only last month.

A file photo of the Allahabad High Court. | Photo: Commons

New Delhi: In a land title suit, a Varanasi civil court has directed the Archaeological Survey of India (ASI) to probe the Kashi Vishwanath Temple-Gyanvapi Mosque complex in Varanasi. But a petition on the maintainability of the civil suit itself is pending before the Allahabad High Court, over two decades after it was filed.

In 1998, the Anjuman Intezamia Masajid, the management of the mosque, had appealed the HC to decide whether a civil suit in this case is barred under the Places of Worship (Special Provisions) Act, 1991.

The law, promulgated by the then P.V. Narasimha Rao government during the peak of the Ram Janmabhoomi movement, prohibited filing of suits or any other legal proceedings with respect to conversion of the religious character of any place of worship as it existed on 15 August 1947.

The Hindu side has claimed in the HC that this civil suit is an exception and the law is not applicable here. It has submitted that within the ambit of “mosque”, referred to in the Act, a mosque is a religious structure constructed on a Waqf property.

But once it is found that the construction of the “mosque” was raised after demolishing a temple, on the land/property already vested in a deity, such construction cannot be a “mosque”, even under the tenets of Islam, it said.

The HC concluded its hearing in the case only on 15 March this year, and reserved its order. However, on 8 April, the Varanasi court went ahead and asked the ASI to “get a comprehensive archaeological physical survey” done.

Lawyers representing the Hindu petitioners in the HC dismissed the criticism that the Varanasi court could not have ordered the survey due to the 1991 law.

According to them, since a Supreme Court order in 2018 lifted the 20-year-old stay on the case, the civil court was within its jurisdiction to proceed with the hearing. But they clarified that the future course of the civil suit trial will be subject to the outcome of the HC order.

Counsel for the Muslim side argued that the trial court should not have ordered such a survey as the HC ruling is pending. According to them the order is also flawed because it amounts to creating extra evidence, which can have far-reaching ramifications in the trial.

Trial court-held suit was barred under the 1991 Act

The Varanasi civil court is seized of four land title suits related to the Gyanvapi mosque complex. The first was instituted way back in 1991, while the remaining three were filed in March this year.

The petitioner in the representative suit of 1991 asserted it was in the interest of a large number of persons, having faith in Hindu religion. To establish the case that a temple was demolished to make way for the mosque, the plaintiff produced a “farman” issued by Mughal ruler Aurangzeb on 18 April 1669 as proof.

Before commencing trial in the case, the civil court framed issues related to the question as to whether the suit is barred by the Places of Worship Act, 1991 and consequently by the Order 7, Rule 11 (d) of the Code of Civil Procedure (CPC), 1908.

The CPC Order provides that the court shall reject a plea where a suit appears to be barred by any law.

On 18 October 1997, the court held that the suit was not maintainable in the backdrop of the 1991 law.

However, on a challenge to this order by the plaintiff, a revision court in September 1998 remanded the matter back with a direction to the civil court to decide the said issue afresh, only after taking evidence of the parties.

The mosque management appealed against this revision court order before the HC.

Proceedings were stayed till an SC order vacated it

In its writ petition filed before the HC on 8 October 1998, the Anjuman Intezamia Masajid challenged the maintainability of the suit under Article 226 of the Constitution. The HC stayed the proceedings in the trial court within five days.

But in the wake of a Supreme Court judgment on 28 March 2018, an application was filed before the civil court in Varanasi to vacate the stay.

In its verdict, the top court had held that all types of stay in the proceedings of any matter subjudice before a court shall be treated as automatically vacated after expiry of six months from the date of grant of stay in the proceedings.

On 4 February 2020, the Varanasi civil court rejected an application filed by the mosque management to continue with the stay. It held that more than six months had passed after the stay order was passed and, therefore, further proceedings could take place in the case.

‘ASI survey can enable the court to complete its journey’

Advocate Vishnu Jain, lawyer for the plaintiffs in the civil suits, explained that in the absence of any stay order the civil court was bound to follow the 1998 revision court’s order, which asked it to decide the maintainability issue afresh.

It was, therefore, necessary for the court to order the ASI survey by an expert agency, he told ThePrint.

The mosque management opposed the application on the ground that the court cannot issue a survey for the purpose of collecting evidence on behalf of the plaintiffs, but only to supplement the evidence already on record.

According to Supreme Court advocate M.R. Shamshad, who argued the case on behalf of Muslim parties in the Ram Janmabhoomi-Babri Masjid case, an ASI survey at a pre-trial stage would mean creating evidence for either of the two parties, which, he said, is not envisaged in the law governing civil suits.

However, according to the civil court’s reasoning, the ASI survey shall be the “best evidence at hand”.

“In this journey of stupefaction to truth, this court finds that at this stage only an expert like ASI can enable this court to complete its journey,” ordered the court.