Breaking News Allahabad HC stays district court order allowing ASI survey...

Allahabad HC stays district court order allowing ASI survey of Kashi Vishwanath temple-Gyanvapi Mosque structure

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Allahabad Sept 9 (ILNS) The Allahabad High Court today stayed the survey of the Kashi Vishwanath temple- Gyanvapi mosque complex by the Archaeological Survey of India (ASI), setting aside the April 8 order of a district court.

The Single-Judge bench of Justice Prakash Padia passed the order on a petition filed by UP Sunni Central Waqf Board, challenging the April 8 verdict of a Varanasi fast-track court that ordered a five-member ASI team to conduct a ‘comprehensive physical survey’ of the complex of the two shrines to determine whether any temple was demolished to build the mosque adjacent to the Kashi Vishvanath temple.

The subordinate court had also stipulated that at least two members of the five-member ASI team of eminent archaeologists should be from the minority community.

The court order listed the complaint in the original suit 610 of 1991 (Swayambhu Lord Vishweshwar and others vs Anjuman Intezamiya Masjid Varanasi and others).

The Court said, “It is stated in the plaint that the property in dispute has been divided in two parts. First is, the part and partial of the old temple of Lord Vishweshwar lying in the centre of Gyanvapi Compound, over and above the cellars (Tehkhana) situated on Plot No.9130 Mauza Shahar Khas Pargana Dehat Amanat Tehsil and District Varanasi alleged to be Mosque, Naubatkhana over the Northern Gate of the Gyanvapi compound and the house towards east of the Naubatkhana, which is the Northern Gate.

The Court further observed, “The aforesaid property has been mentioned as Schedule A property. The entire property of the Gyanvapi Compound forming settlement Plot Nos. 9130, 9131 & 9132 situated at Mauza Shahar Khas, Pargana Dehat, Amanat Tahsil & District Varanasi, surrounded by the boundary wall containing ancient temple of Lard Vishweshwar together with four Mandaps and its ruins Gyankoop, Mukti Mandap newly constructed Vyas Gaddi, Idol of Sri Ganeshwar, Ganga Devi, Sri Hanuman Ji, Nandi, Sri Gauri Shanker, Sri Ganesh and several other idols of Hindu Gods and Goddesses visible and non-visible duly consecrated three trees standing over Idols Nandi, Naubatkhana over the Northern Gate and house of servants of temple towards the east of the Northern Gate and Naubatkhana with its boundaries has been mentioned as Schedule “B” property.

From perusal of the plaint it appears that the case of the plaintiffs/respondents is that the temple of Lord Vishweshwar has been in existence from ancient time, i.e., Satyug uptill now and the Swayambhu Jotrilinga is situating in the disputed structure which has never been removed from its place because the aforesaid land in dispute is itself the part and partial of Lord Visheshwar, therefore, the place in dispute is the abode of the Deity Swayambhu Lord Visheshwar and the same cannot be made the place of worship for other religion, the court observed.

The bench said, “It is stated in the plaint that the temple, irrespective of its shape, the ground floor cellar is still in possession of the plaintiff which is the structure of old temple built prior to 15th Century. It is further stated in the plaint that the property in dispute has never been dedicated to the mosque by Emperor Aurangzeb. Aurangzeb was not the owner of the aforesaid property in dispute, he could not create any Waqf in favour of the mosque or Allah, therefore, the said property in dispute is not a mosque. In the circumstances, the alleged mosque cannot be said to be a mosque in true spirit of Muslim law.
The defendant No.2 has illegally and unauthorizedly alleged to have registered the property in dispute as alleged mosque in its register which is illegal and void. It is stated that the Waqf Act is not applicable on plaintiff as well as other Hindus, therefore, the religious character of the aforesaid property in dispute can never be changed and converted into mosque and the same is belong to Swayambhu Lord Visheshwar.
During the pendency of the suit, the Anjuman Intezamia Masjid filed an application being Application No.71/C on 23.02.1995/24.03.1995 under Order VII Rule 11(d) of C.P.C. for rejecting the plaint on the ground that it is barred by the provisions of Places of Worship (Special Provisions) Act, 1991 (Act No.42 of 1991) (hereinafter referred to as “the Act, 1991”). During the pendency of the aforesaid application, the defendant Nos.1 & 2 filed their written statements on November 15, 1996 and February 23, 1995 respectively.

After considering the pleadings of the plaint and written statements, the court framed ten issues vide its July 17, 1997 order.

The High Court had, on August 31, reserved its verdict on pleas against the district court’s order. The order had been challenged by Uttar Pradesh Sunni Central Waqf Board and Varanasi’s Anjuman Intazamia Masjid.

The petitioners’ counsel had earlier contended that the Varanasi court’s order was “not legally tenable” because the very suit on which the lower court gave its order was non-maintainable./ILNS/

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