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Order for ASI Survey: Opening of Pandora’s Box?

Order for ASI Survey: Opening of Pandora’s Box?

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On the Lines Of Babri Masjid – Ramjanm Bhoomi , Now Gyanvapi-Kashi Vishwanath Temple Dispute

Akriti Chaubey, Mohd. Parvez Dabas & Uzmi Jameel Husain

Advocates, Supreme Court of India

The Ramjanambhumi Babri Masjid Dispute is hardly settled down, and then the similar dispute become the headlines. This time the dispute is related to the Gyanvapi Mosque- Kashi Vishwanath Temple, Varanasi. The present controversy has arisen out of the order passed on 08.04.2021 by the Court of Civil Judge Varanasi whereby the Ld. Judge on the application of the plaintiff, directed the Archaeological Survey of India to undertake a survey at the site of Gyanvapi Mosque with the observations that prime purpose of the archaeological survey shall be to find out as to whether the religious structure (i.e. Gyanvapi Mosque) 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 history of this litigation went back to year 1991 when a civil suit was filed on behalf of Ancient Idol of Swambhu Lord Vishweshwar through its next friend in the court of Civil Judge, Varanasi seeking declaration that the structure (Gyanvapi Mosque) standing over and above the collors (Tahkhana) and the adjoining part is the property of Swambhu Lord Vishweshwar and the devotees of lord Vishwashwar i.e. the Hindus at large have every right to use it as place of worship and further relief to renovate and reconstruct their temple adding it with the remaining portion of the temple structure. The plaintiff further sought directions to hand over possession over the said structures to them.

It is the case of the plaintiffs that temple of Swambhu Lord Vishweshwar in Varanasi is ancient temple and it was reconstructed by King Vikramaditya. When the temple got dilapidated, Narayan Bhatta received financial assistance from Raja Todarmal, a courtier of Mughal Emperor Akbar and got the temple reconstructed. It is further said that Mughal Emperor Aurangzeb got the temple demolished and get the mosque constructed at the same place.

It is said that later on Rani Ahilya Bai Holkar of Madhya Pradesh had built the present Kashi Vishwanath Temple. But contrary to it the case of Management Committee of the Mosque, Anjuman Intazamia Masazid, Varanasi, is that the Mosque is built separately and not after demolishing the temple.

During that period the Ramjanambhumi Babri Masjid dispute was in full swing and secular ethos of the country was at peril. In order to save the secular fabric of country and to foreclose any controversy in respect of any place of worship that existed on 15th day of August, 1947, the Central Government enacted the Places of Worship (Special provisions) Act, 1991.

It is considered necessary to provide for the maintenance of the religious character of such place of worship as it existed on the 15th day of August, 1947. As a consequence thereof, all the suits or other proceedings pending as on 11th day of July, 1991 with respect to any of such places of worship, may abate and also further suits or other proceedings may be barred.

A five Judges bench of Hon`ble Supreme Court interpreted the Places of Worship Act, 1991 in M. Siddiq (D) Thr. Lrs. vs Mahant Suresh Das-(2019) SCC OnLine SC 1440 saying that the law has been enacted to fulfill two purposes. First, it prohibits the conversion of any place of worship. In doing so, it speaks to the future by mandating that the character of a place of public worship shall not be altered. Second, the law seeks to impose a positive obligation to maintain the religious character of every place of worship as it existed on 15 August 1947 when India achieved independence from colonial rule.

The Places of Worship Act is intrinsically related to the obligations of a secular state. It reflects the commitment of India to the equality of all religions. Above all, the Places of Worship Act is an affirmation of the solemn duty which was cast upon the State to preserve and protect the equality of all faiths as an essential constitutional value, a norm which has the status of being a basic feature of the Constitution.

Independence was a watershed moment to heal the wounds of the past. Historical wrongs cannot be remedied by the people taking the law in their own hands. In preserving the character of places of public worship, Parliament has mandated in no uncertain terms that history and its wrongs shall not be used as instruments to oppress the present and the future.

One of the party who was defending the Ram temple side filed a Review Petition (Civil) Diary No. 44318 of 2019 challenging the observations made in respect of validity of the Places of Worship (Special provisions) Act 1991 in M. Siddiq (D) Thr. Lrs. vs Mahant Suresh Das (supra)judgment and sought that the observations regarding the Places of Worship (Special provisions) Act 1991- be declared as non binding precedent, however the aforesaid Review Petition was dismissed by the Hon`ble Supreme court vide Order dated 12.12.2019.

Sham litigations are one such menace that not only waste the time of the courts, but also cause unwarranted prejudice and harm to parties arrayed as defendants in such litigations, thereby defeating justice. In order to deal with such a menace, Order VII Rule 11 of Code of Civil Procedure, 1908  provides litigants the option to pursue an independent and special remedy, empowering courts to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting trial, on the basis of the evidence adduced. The Litigants may pursue the option of seeking rejection of a plaint at the threshold, if the suit fails to disclose a valid cause of action; or is barred by any law; or if the reliefs prayed for therein are defective and un-remediable, in line with the aforesaid provisions.

Order VII Rule 11(d) of CPC provides that where a suit appears from the averments in the plaint to be barred by any law, the plaint shall be rejected. Since the aforesaid suit is barred by law i.e. the Places of Worship Act, 1991, therefore the management committee of Gyanvapi Mosque had challenged the maintainability of the said suit by way of filing an application under Order VII Rule 11 CPC, for rejection of plaint. Their application was rejected by the Ld. Civil Court. The aggrieved Management Committee challenged the said order by filing Revision Petition before the Ld. District Judge Court, which was remanded back to the Ld. Trial Court. The Management Committee further challenged the order before the Hon’ble Allahabad High in 1998 in which the further proceedings of suit was stayed.

Recently the Hon’ble Apex Court in Dahiben vs Arvindbhai Kalyanji Bhanusali, Civil Appeal No. 9519 OF 2019 on 9 July, 2020 laid down that under Order VII Rule 11 of CPC, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law.

In exercise of power under this provision, the Court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.

The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clause (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action, or that the suit is barred by any law, the Court has no option, but to reject the plaint.   

Later on in view of the judgment of Hon’ble Apex Court in Asian Resurfacing of Road Agency Pvt. Ltd. and another Vs. Central Bureau of Investigation, reported at 2018 (16) SCC 299 the Ld. Civil Court holding that the stay of proceedings are not subsisting and commenced trial. The Management Committee again approached the Hon’ble Allahabad High Court which stayed the order of Civil Court commencing trial, consequently the proceedings were stayed and heard the petition on the point of maintainability of the suit and kept the judgment reserved.

Meanwhile the Ld. Civil Court on 08.04.2021, while convincing with the contention of the management committee of Mosque that survey by commission can be issued only to supplement the evidences already on record and if the parties have not lead any evidence so far, survey by commission should not be done as a matter of propriety, but treating the suit different from the ordinary suit in view of the nature of dispute, directed to undertake survey of the site by Archeological Survey of India.

Since, the maintainability of the suit is to be decided on the material adduced by the plaintiffs. The purpose of appointment of commission is not to collect evidence which is basically a duty of the party to lead evidence. The Hon’ble Apex Court in Padam Sen And Another vs The State Of Uttar Pradesh AIR 1961 SC 218 settled the law that Commissioner should not be appointed to gather evidence to prove the case of parties, since the parties should prove their case by letting in legally acceptable evidence and the report of the Commissioner can only aid the Court in evaluating the evidence to come to just conclusion.

Making reference of the order passed by the Varanasi Court allowing the ASI survey of Gyanvapi Mosque, another misconceived and frivolous application was filed before a Mathura Court seeking ASI survey at Jama Masjid, Agra to ascertain if idols of Lord Krishna are buried beneath it. It seems if this order is sustained, then it would open the Pandora’s box.

Though the constitutional validity of the Places of Worship (Special Provisions) Act, 1991 has been challenged before the Hon’ble Supreme Court but its operation has been not been stayed. Now everybody is anxiously waiting for the judgment to be delivered by the Hon’ble Allahabad High Court on the maintainability of the suit which will decide whether such controversies are put to rest?

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