Near the Lalita ghat in the heart of Varanasi stands the Kashi Vishwanath Temple. Adjacent to the temple is the Gyanvapi Mosque.
This site has now become the stage of another potentially controversial court case.
The crux of the dispute is whether the Gyanvapi Mosque was built after destroying some parts of the Kashi Vishwanath Temple.
On April 8, the Varanasi Court allowed an Archaeological Survey of India (ASI) study of the Gyanvapi Mosque adjacent to the Kashi Vishwanath Temple.
This order was passed in a suit which was stayed by the Allahabad High Court in 1998. The trial was re-commenced by the Varanasi Court, which held that the stay stood vacated in light of the Supreme Court’s directions in Asian Resurfacing of Road Agency Pvt. Ltd. and another v. Central Bureau of Investigation. The apex court had held in this case that a stay granted by a court will end on expiry of six months from the date of such order unless similar extension is granted.
The suit was filed in 1991 seeking restoration of the ancient temple at the site where the Gyanvapi Mosque currently stands.
The following legal issues were framed by the Court:
- Whether the said proceedings are barred by the Worship of Places Act, 1991 or not?
- Whether the Varanasi court disturbed the ‘Judicial decorum’ by allowing the ASI survey in the proceedings? Was the order legally sound?
Meanwhile, on March 15, the Allahabad High Court reserved its judgment in various pleas which had challenged the maintainability of the suit before the Varanasi trial court on restoration of an ancient temple at the site where the Gyanvapi Mosque at Varanasi now stands.
This piece is an attempt to answer these questions and trace the history of the litigation so far in the Gyanvapi-Kashi Land Dispute.
Section 4 of the Places of Worship (Special Provisions) Act, 1991 Act
Section 4 of the Act states that the religious character of a place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that day.
It means that if any suit/appeal etc. is filed in relation to any such place of worship, then the same shall stand abated. Clause (2) of Section 4 reads:
“If, on the commencement of this Act, any suit, appeal or other proceeding with respect to the conversion of the religious character of any place of worship, existing on the 15th day of August, 1947, is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority.”
Interestingly, the validity of this provision itself is under challenge before the Supreme Court, which has sought the response of the Central government on the same.
A Bench of Chief Justice of India SA Bobde and Justice AS Bopanna issued notice to the Central government on a petition, which was filed by advocate Ashwini Kumar Upadhyay (BJP spokesperson).
The suit filed in 1991
Initially, a suit was filed in 1991 before the trial court in Varanasi (Suit No.610 of 1991) to declare that the structure which was standing over and above the ‘Tahkhana’ (which is part of the Gyanvapi Mosque) is the property of the Temple and that it should be handed over to the Hindus.
The suit was filed on behalf of deities, Shiva, Maa Shringar Gauri, and Ganesh. The individuals who filed the suit have alleged that the Temple was destroyed on orders of Aurangzeb in 1699.
The plaintiff (the Trust of the Temple) contended that the Hindus have every right to use it as place of worship and to renovate and reconstruct their Temple by adding it with the remaining portion of the existing temple structure. Hence, the Muslim parties have no right to the land and it is illegally occupied by the Mosque, the plaintiff contended.
Further, it was also submitted that the defendants should be permanently restrained from interfering in peaceful possession of the plaintiffs over properties and the structures mentioned in Schedule “A” of the plaint. It was contended that they should not be stopped in any way from performing religious ceremonies, re-modelling, repairing, reconstructing, and adding the remaining portion of the Temple of Lord Vishweshwar existing at the spot.
Application filed by the defendants
In March 1991, the defendants filed an application before the court in the same suit under Order VII Rule 11(d) of the Civil Procedure Code, stating that where a suit is barred/limited by any other law, then the court shall reject the same.
It was also submitted that the said trial which was being proceeded by the trial court is barred by Section 9 of the Civil Procedure Code, which lays down that the courts “shall have jurisdiction to try all suits of a civil nature except suits of which their cognizance is either expressly or implied barred.”
It was contended that the arguments raised by the plaintiffs are not sustainable in the eyes of law because the same is barred by Section 4 of the Places of Worship (Special Provisions) Act. Further,
“In view of the provisions contained in The Places of Worship (Special Provisions) Act, 1991 which was came into existence from 18.09.1991 whereby it is declared that religious character of any place of worship as it existed on the 15th day of August, 1947 shall continue to be the same as it existed on that day.”
Trial before the Varanasi Court
In July 1997, the trial court in Varanasi framed preliminary issues pursuant to the contentions raised by the parties. The main issue was whether the suit is barred by Section 4 of the Act.
Accordingly, after hearing the parties at length, the trial court passed an order on October 18, 1997 and directed that the relief sought by the plaintiffs was barred by the provisions of the Places of Worship (Special Provisions) Act, 1991 as well as Order VII Rule 11 of the Civil Procedure Code.
Aggrieved against the aforesaid order, three revision petitions were filed. The plaintiff Trust filed Revision No.286 of 1997, defendant (Anjuman Intezamia) filed Revision No.285 of 1997 and the Uttar Pradesh Sunni Waqf Board filed Revision No.281 of 1997.
All the revisions were clubbed together and decided by a common judgment dated September 23, 1998. The trial court then proceeded further with the matter.
Stay granted by the Allahabad High Court
When the trial court at Varanasi began the proceedings, the same was challenged before the Allahabad High Court.
The petitioners, Anjuman Intezamiya challenged the validity/maintainability of the said suit on the ground that Section 4 of the Places of Worship (Special Provisions) Act, 1991 bars any such suit or proceedings.
On behalf of the respondents, it was contended that original character of the Temple does not change, and even today, the same is continuing. Therefore, the provisions of Act of 1991 do not apply in the said case.
The Court, after considering the contentions of the parties, stayed the proceedings before the trial court by an order dated October 13, 1998.
Order passed by the Allahabad High Court on October 13, 1998
Re-commencement of trial court proceedings
In 2020, the trial court in Varanasi re-commenced the proceedings in the trial which was stayed by the Allahabad High Court in 1998. Aggrieved by the same, Anjuman Intezamia and Sunni Waqf board moved two applications (No. 270-Ga and 274-Ga) before the trial court seeking stay on the proceedings of the suit.
The Court rejected the applications and said that Suit No. 610 of 1991 “falls within the category of “Oldest Cases” speedy disposal of which is the solemn duty of the court.”
Placing reliance on Asian Resurfacing, it held that the interim order dated October 13, 1998, which had stayed the proceedings of the trial court, no longer subsists.
Interestingly, when the proceedings were again challenged before the Allahabad High Court, a Single Judge Bench of Justice Ajay Bhanot stayed the proceedings.
“Till the next date of listing, the effect and operation of the order dated 04.02.2020 passed in Original Suit No. 610 of 1991(annexed as annexure 1 to the petition) shall remain stayed.” (Anjuman Intezamiya Masajid Varanasi v. Ancient Idol of Swayambhu Lord Vishweshwar).”
Arguments before the Allahabad High Court this year
When the matter was taken up by the High Court on February 26 this year, Senior Advocate SFA Naqvi, appearing for the Anjuman Intezamiya Masajid, submitted that the trial court wrongly held that the interim order of 1998 was not subsisting by relying on the judgment in Asian Resurfacing.
Counsel representing the other party did not refute the contentions raised by the petitioners (Anjuman Intezamiya Masajid) on this aspect. The Court, without commenting on the merits of issue, observed:
“…considering the fact that submissions made on behalf of the petitioner may have serious repercussions on a large number of other cases, learned advocates from the Bar at large are also invited to assist the Court in this matter. Matter needs consideration. Shri Ajay Kumar Singh, learned counsel for the respondent could not refute the aforesaid submissions. He has raised some preliminary objections.”
On March 15, 2021, a single-judge, Justice Prakash Padia reserved its order in the matter after hearing all parties at length over the course of a year.
The Allahabad High Court is likely to pronounce upon the following with respect to the suit:
- Whether Section 4 of the Places ofWorship (Special Provisions) Act, 1991 would be applicable in these suits/petitions or not;
- Whether the said trial which was proceeded by the trial court (first in 1998 and then in 2020) is barred by Section 4 of the Act of 1991 or not;
- Whether the suit is barred by Order VII Rule 11(d)of the Civil Procedure Code;
- Whether the impleadment application which was filed on behalf of Goddess Maa Shringar Gauri can be allowed or not.
ASI survey order
Which brings us to the recent order by the Varanasi Court allowing an ASI study of the Gyanvapi Mosque adjacent to the Kashi Vishwanath Temple.
The order was passed by Civil Judge (Senior Division) at Varanasi Civil Court, Ashutosh Tiwari. He was the same judge who had earlier re-commenced the proceedings of the suit which were stayed by the 1998 order of the Allahabad High Court.
While allowing the survey. The Court observed:
“A large number of persons including Indians and Non-Citizens, belonging to two religions are equally in knowing the truth of the cause of action of the plaintiffs as well as of the defence of the defendants…The circumstances in the case in hand are such that none of the parties are in a position to lead direct evidence to prove their assertions and counter assertions, as at presently hardly any person would be alive to come and testify before this court…
…This court is of the view that since the defendants have out rightly denied the factum of demolition of the temple of Lord Vishweshwara in obedience of farman of Badshah Aurangjeb at the disputed site and subsequent conversion of the same into a mosque, hence in these circumstances it is incumbent on the part of this court to find the truth.”
Was the order legally sound?
While allowing the ASI survey of the Gyanvapi Mosque, the Court proceeded with the trial stayed by the Allahabad High Court, opining that the stay had been vacated automatically.
The question is whether a trial court can proceed to examine the records/materials in a proceeding where the High Court had already heard the matter on merits. The High Court had already reserved its judgement on various pleas regarding the maintainability of the said suit.
One more legal hurdle is the applicability of Places of Worship Act, 1991. The provisions of the Act make it clear that all places of worship in the country will remain as they were on August 15, 1947, and cases seeking conversion of a place of worship to that of another religion or faith “shall abate.”
Statement by the Sunni Waqf Board, challenging the ASI survey order
In a press note, the Sunni Waqf Board has said that it will be challenging the said order by the trial court.
“The order of the Civil Judge, Varanasi ordering a survey by the Archaeological Survey of India will be challenged before the Hon’ble High Court. Our understanding is clear that this case is barred by the Places of Worship (Special Provisions) Act, 1991. The Places of Worship Act was upheld by a 5 judge Constitution Bench of the Supreme Court in the Ayodhya judgment. The status of Gyanvapi Masjid is, as such, beyond question. Even otherwise, we can say as per legal advice that the order of survey is questionable because technical evidence can only supplement certain foundational facts,” reads the statement released by Chairman Zufar Ahmad Faruqi.
Repercussions of the order and related suits
If the High Court allows the trial court to proceed with the suit, then it would attract many other suits and writ petitions which have been filed in North India seeking the restoration of ancient temples claimed to have been destroyed at sites on which Islamic structures presently stand.
The following pending suits, among others, will be affected if the proceedings are allowed:
- On September 25, 2020, a suit was filed before the Civil Judge, Senior Division at Mathura on behalf of child deity Bhagwan Shri Krishna Virajman. The said suit had prayed for the removal of the Shahi Idgah Masjid adjacent to the Shri Krishna Temple Complex at Mathura. Six other devotees were also plaintiffs to the suit.
- Another suitwas filed before the Civil Judge, Senior Division at Saket District Court, claiming that the Qutub complex in South Delhi, was originally a complex of twenty-seven “lofty” Hindu and Jain temples before they were destroyed in the 12th century by Qutb-ud-din Aibak. The said suit has been filed through the deities Lord Vishnu and Lord Rishabh Dev, and seeks restoration of the deities within the complex and the right to do puja and darshan of the deities within the complex.