Bhopal: Hearing an interlocutory application, the Indore bench of the Madhya Pradesh High Court Monday ordered the Archaeological Survey of India (ASI) to carry out within six weeks a scientific survey of the Bhojshala temple-Kamal Maula mosque complex in the state’s Dhar district.
This is an ASI-protected 11th-century site claimed by both the Hindu and Muslim communities. The Hindus claim it as a temple of Vagdevi (goddess Saraswati) while the Muslims consider it a mosque. The ASI had on 7 April 2003 given access to the site to both communities, with Hindus allowed to perform puja at the premises every Tuesday, and Muslims allowed to offer namaaz in the complex every Friday.
On occasions when festivals such as Basant Panchami have fallen on Fridays, as in the years 2006, 2013 and 2016, the Hindus were allowed to offer prayers at the site from dawn to noon and then again from 3.30 pm to dusk, while between 1 pm and 3 pm, Muslims were allowed to offer namaaz.
On 2 May 2022, the Hindu Front for Justice, a registered trust, had filed a Public Interest Litigation challenging the 7 April 2003 order of the ASI that restricted the Hindus from worshipping at the site daily. The court, while accepting the petition, had issued notice to the ASI along with the central and state governments, seeking their responses.
On Monday, a bench of Justices S.A. Dharmadhikari and Devnarayan Mishra, while hearing the interlocutary application filed by the Hindu Front for Justice, said: “This court has drawn only one conclusion: that (it is) the constitutional as well as statutory obligation of the ASI to have a scientific survey/study convened at the earliest of the Bhojshala Temple-cum-Kamal Maula Mosque.”
Issuing directions to the director of the ASI, the court ordered a complete scientific investigation, survey and excavation — using the latest methods, techniques and modes of GPR-GPS (Ground Penetrating Radar-Global Positioning System) — of the site, along with the 50-metre peripheral ring area surrounding the circular boundary of complex.
Along with this, the court has sought a detailed investigation via carbon dating to ascertain the age and life of various structures above and beneath the ground, permanent, movable and immovable, constituting the walls, pillar, floors, surfaces, upper tip and sanctum. sanctorum.
The court ordered that a comprehensively documented and drafted report be prepared by an expert committee comprising not less than five senior-most officers of the ASI, headed by the director general or additional director general of the ASI. It is to be submitted to the court within a period of six weeks from the date of receipt of the certified copy of the court order.
The court not only ordered that the expert committee have the senior-most officers of the ASI, but also that efforts should be made to have officers of both the contesting communities (of the said position and rank, if available) represented on the panel. It also asked to photograph and videograph the entire survey proceedings in the presence of two nominated representatives each of both the petitioners and respondents.
While maintaining the application and ordering the survey, the court observed: “All other issues and submissions relating to the relief as claimed by the petitioners or the right to worship and perform rituals in the disputed premises shall be considered and determined only after receipt of the aforementioned report from the expert committee. The issue relating to validity of the wakf created on the disputed complex; that of granting the relief in the writ proceedings or relegating the petitioners to the civil suit for claiming those reliefs will all be determined and adjudicated post the receipt of report from the five-member committee of the ASI as aforementioned.”
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The various arguments
The court’s order came as the petitioners, while putting up the interlocutory application, argued that it was the statutory duty of the ASI to conduct the survey.
The petitioners also submitted documents and photographs to support their claim that there were yantras and Sanskrit shlokas (inscriptions) on the floor, pillars and walls of the complex, which had been “deliberately defaced and scratched by visitors from other communities and religion”.
The documents relied upon by the petitioners said that the mosque had been constructed by destroying and dismantling the ancient structures of previously constructed Hindu temples.
“This construction of the mosque on the pre-existing Bhojshala temple took place during the reign of Alauddin Khilji at the turn of the 13-14th century. Subsequently, the Kamal Maula Mosque was constructed during the regime of Mehmood Khilji (II) sometime in the year 1514. Even the study reports of the ASI prepared from time to time have stated that originally constructed Bhojshala and Vagdevi temple was destroyed/dismantled to install and construct a mosque at the instance of Islamist rulers and forces,” the petitioners argued.
In this backdrop, the petitioners told the court that it was the duty of the ASI under the Ancient Monuments and Archaeological Sites and Remains Act, 1958, to ascertain the true character, nature and form of the premises in question.
Ajay Bagadia, senior counsel appearing for the respondents, objected to the maintainability of the interim application demanding a survey by the ASI.
He contended that a similar issue had been raised earlier in a writ petition that challenged the ASI’s 2003 arrangement for worship at the premises, but the petition was dismissed by a single bench at the principal seat at Jabalpur as “non-maintainable and replete with disputed facts and submissions”.
Bagadia contended that once the said writ petition (filed in 2003) was dismissed by the single bench, another plea against the dismissal is pending before the division bench of the principal seat at Jabalpur, and thus no interference can be made.
Supporting the petitioners, Assistant Solicitor General (ASG) Himanshu Joshi, representing the ASI, contented that the order passed by the ASI director general in 2003 did not take into consideration the report prepared in the year 1902-03 under the aegis of the then existing expert body that “clearly pointed out the pre-existence of a Bhojshala temple of Vagdevi”, an important gurukul and temple of Vedic learning and studies.
According to the counter-affidavit filed by the state government, “revenue records throughout till 1935-1936 bore the description of the premises as Bhojshala & temple, vide survey number 313 old (604 new) of village Dhar”.
Bagadia submitted in court that “the state government and ASI for obvious reasons are taking a particular stand under the influence and pressure of the government of the day, and the court must pierce through the said obvious reasons of such a partisan stand in favour of the existence of Bhojshala Vagdevi temple against the interests of Muslims, who have been praying on the site and offering namaaz for years”.
He also argued that the present proceedings could not be equated with the Ayodhya dispute.
The court, however, allowing the application of the petitioners, ordered a survey and listed the case for hearing on 29 April.
(Edited by Nida Fatima Siddiqui)