New Delhi: The Places of Worship Act, 1991, does not impose an “absolute bar” on parties approaching court to seek the declaration of a religious structure’s “character”, the Allahabad High Court said, while dismissing a batch of petitions challenging a representative suit filed in a Varanasi civil court in connection with the Kashi Vishwanath-Gyanvapi Mosque dispute.
With this observation, a single judge bench of Justice Rohit Ranjan Agarwal permitted the civil judge in Varanasi to commence hearing of the representative suit filed by the Hindu side claiming their right over the land where the Gyanvapi mosque stands. The suit was filed in the trial court in October 1991 after the Places of Worship Act was notified.
The high court’s decision was pronounced 15 years after it had stayed the hearing in the trial court when the Anjuman Intezamia Masjid — the management committee of the Gyanvapi mosque — and the UP Sunni Central Board of Waqfs, Lucknow, challenged two orders of the subordinate court. Both the orders — one passed in 1997 and the other in 1998 — rejected their argument that the representative suit was barred under the Places of Worship Act, 1991.
According to the mosque management committee and UP Sunni Central Board of Waqfs, the Act clearly spells out that a place of worship that existed on 15 August, 1947, shall exist and there is a complete prohibition on the conversion of its religious character.
However, Justice Agarwal opined that as “religious character” has not been defined under the Act, it is necessary to find one, of the disputed place, as it existed on 15 August, 1947, which can be determined by documentary as well as oral evidence led by both the parties.
“Unless and until the court adjudicates, the disputed place of worship cannot be called a temple or mosque,” the judge said, observing that in the present case, the character of the religious structure remains unclear in the wake of the two sides making counter-claims on the same.
The bench also noted that sub-section 3 of Section 4 of the 1991 Act enumerates certain cases in which the parties can approach the court for redressal of their grievance. One of the sub-sections — sub-section 3(d) — is one of the exceptions under the Act that allows a court to hear a case where a religious “conversion” has taken place much before the commencement of the Act. If a party has not challenged such a conversion in court before the commencement of the Act, they can still do so in the future.
“The Act of 1991 is not an absolute bar upon the parties approaching the courts after its enforcement seeking their right as to place of worship or defining religious character of any place of worship,” the court said.
The judge felt it was necessary for the trial to happen in the Kashi-Gyanvapi dispute because a place cannot have dual religious character, one of a temple or of a mosque, which, in the court’s opinion, is adverse to each other.
“Either the place is a temple or a mosque,” the court held. Therefore, it said, the evidence of the entire Gyanvapi compound is necessary to be taken while determining the religious character.
The bench directed the trial court to decide the matter as soon as possible, preferably within six months, considering the vital importance of the case.
“The dispute raised in the suit is of vital national importance. It is not a suit between two individual parties. It affects two major communities of the country. Due to the interim order operating since 1998, the suit could not proceed. In the national interest, it is required that the suit must proceed expeditiously and be decided with utmost urgency with the cooperation of both the contesting parties without resorting to any dilatory tactics,” the court ordered.
It further said that the trial court should not grant unnecessary adjournments to either of the parties. In event an adjournment is sought, it would be given with a heavy cost, the court said.
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Tracing the suit
The appeal decided by the HC has arisen from a suit that was filed by the ancient idol of Swayambhu Lord Vishweshwar on 15 October, 1991. The suit made three prayers — it wanted the court to declare that the “the structure standing over and above the cellars (Tahkhana) and the adjoining part of the old temple together with the Naubat Khana (fully detailed in a map) and a house lying to the east of the Naubat Khana is the property of the devotees of Lord Visheshwar and that Hindus at large have every right to use it as place of worship and to renovate and reconstruct their temple, on which the defendants (Muslims) have not right, title or interest.”
The suit also sought a decree of mandatory injunction against the Muslim side, directing them to hand over possession of the disputed structure, and sought a prohibitory injunction against them from interfering in peaceful possession of the Hindus.
It was claimed that the entire area of the temple was built on three plots and in one of them, the Gyanvapi compound was constructed, after the temple was pulled down on an order) by Emperor Aurangzeb in 1669.
On 18 October 1997, the trial court held that two of the three prayers were not barred under the Places of Worship (POW) Act, but the prayer to mandatorily restrain the Muslim side and direct them to hand over possession of the disputed structure to the Hindu side was barred by the 1991 law. The revision court in September 1998 set aside the challenge raised by the Muslim side. Rather, the revision court allowed all the three prayers made by the Hindu side.
Arguments and what HC said
The Muslim side argued that the POW Act clearly spells out that a place of worship that existed on 15 August, 1947, shall exist. It quoted sections of the law that specifically said that on the date of commencement of the Act, any suit, or appeal or proceeding pending before any court, tribunal or any authority, the same shall abate.
The Hindu side, on the contrary, argued that there is no conversion of the place of worship, neither is there a change of religious character. They said that the character of the temple has not changed only by erecting the alleged mosque or the demolition of the temple by invaders and the religious character of Swayambhu Deity cannot be lost.
While giving its decision the HC said: “The question which crops up for consideration is as to what is the religious character of the place in dispute. One finds that religious character cannot be confined in limits of verbal terminology, as the Act has not defined the term ‘religious character’, it could only be decided by facts and circumstances of each and every case.”
From a reading of the POW, the bench said, it is clear that though the legislature had defined place of worship such as temple, mosque, gurudwara, church, monastery etc, but not the religious character, maintaining distance between the two. Therefore, it is the court that has to find out from the facts and circumstances of each case as to the religious character of a place of worship.
It further held that the trial court did not commit any jurisdiction error. The issues placed before the court cannot be decided solely on the basis of possession of one of the parties.
It did not accept the Muslim side’s reliance on a 1937 judgment of the Allahabad High Court, saying the said ruling did not define the religious character of the place, but only permitted the Muslims to offer prayers there.
The Din Mohammad judgment came on a petition filed by a Kashi resident who claimed that he had rights over the mosque and land around it. Dismissing his plea, the HC held that the land, except for the place where the mosque is built, belongs to one Vyas family of Benares (now Varanasi). The Muslim side claims this judgment declared the mosque as Waqf property, which was countered by the Hindu side.
The court also noted that the British sovereign never recognised the legal existence of the alleged mosque, and in their written statement filed in the 1937 case, denied the same. Moreover, the case in which the 1937 verdict was delivered was filed by an individual, while the one before it now is a representative suit, filed by a group.
The court also took into account the observations made in the Supreme court judgment in the Ram Janmabhoomi case to differentiate between a “Swayambhu or self-revealed image” and a “man-made image”. A reference was also made to the lectures given by former Chief Justice of India B.K. Mukherjee to explain this distinction.
According to the Hindu side, the deity in Kashi is Swayambhu and they have been worshipping the entire structure as a temple of the Lord Adi Vishweshwar.
(Edited by Gitanjali Das)
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