Allahabad High Court stays lower court order directing the ASI to conduct a survey of Gyanvapi mosque complex in Varanasi

The Kashi Vishwanath temple and the adjacent Gyanvapi mosque in Varanasi, a file photograph.

The Allahabad High Court has today imposed a stay on a Varanasi Civil Court order directing the Archaeological Survey of India (ASI) to conduct a comprehensive physical survey of the Gyanvapi mosque complex adjoining the Kashi Vishwanath Temple in Varanasi, Uttar Pradesh.

The High Court bench of Justice Prakash Padia observed that the Varanasi court should not have proceeded on the application filed for an ASI survey of the temple-mosque complex in view of the fact that the verdict in similar petitions was pending before the High Court. The court said it was not appropriate for the Varanasi court to proceed in the matter until the High Court decided on the issue.

The ownership of the land on which the Gyanvapi mosque stood reached the Allahabad High Court in 1998 after the temple trust and some other Hindu community members had petitioned the Varanasi civil court in 1991 to hand over the land on which the mosque stood to the Hindu community. The petitioners had argued that the land on which the Gyanvapi mosque stood belonged to Lord Visveshwar and a grand temple on the said land had been demolished by Aurangzeb in 1664.

The masjid committee, Anjuman Intezamia Masjid, and the Sunni Central Waqf Board had petitioned the Allahabad High Court in 1998 saying the Places of Worship (Special Provisions) Act 1991 barred any change in the status of a place of worship which had come up before August 1947. According to the 1991 Act, any place of worship that had come into existence before 15 August 1947 cannot be converted into another shrine.

The High Court was still deliberating on the matter when the Varanasi Civil Court passed an order on April 8 this year directing the ASI to conduct a survey of the mosque complex to decide whether a temple was destroyed to build the mosque.

The order was issued on a petition by Vijay Shankar Rastogi, who contended that the Gyanvapi mosque was built in 1664 on the ruins of an ancient Shiva temple which was demolished by the Mughal emperor Aurangzeb. He contended that the ruins of the temple were used to build the mosque and that some remains of the old temple can still be seen adjacent to the mosque. He pleaded to the court that since the entire Gyanvapi mosque complex was built over the ruins of an ancient Hindu temple, it should now be handed over to the Hindu community.

The Sunni Central Waqf Board and the Anjuman Intezamia Masjid had pleaded in the High Court (in 1998) for a stay on the lower court proceedings in view of the fact that the temple and mosque had co-existed since time immemorial, that both the communities had been offering prayers in their respective shrines without any hindrance and hence there was no need to revisit the case.

In December 2019, however, emboldened by the Ayodhya verdict, Rastogi filed another petition in a fast-track court requesting for an archaeological survey of the temple-mosque complex to verify the claims of the Hindu community so that the ownership of the place could be settled without a doubt.

Hearing in the case was completed on April 2 and the civil judge Ashutosh Tiwari reserved judgment, which was delivered on April 8. Passing the order Judge Tiwari wrote that a “survey by the ASI alone can bring truth of the matter before this court”. He said this case could not be treated like any other civil case because this was of a representative nature, that is, it had tremendous importance for crores of followers of both the religions and so it needed to be given importance.

The judge ordered the Director General of ASI to constitute a committee which will conduct a comprehensive survey of the area. The committee, the judge said, should have five members who should be eminent experts in the field of archaeology, and two of them should be from the minority community. The judge also directed that the DG, ASI, should appoint an observer, a scholarly person of eminence who should be an expert in archeology and an academic from a Central university, to oversee the entire exercise.

The judge ruled that the committee shall prepare a comprehensive document to find out whether the structure (mosque) standing at the present site was a superimposition, alteration or addition and whether there was any structural overlapping of any kind with or over any other religious structure. If so, then what exactly was the age, size, monumental and architectural design of that religious structure and what material was used to build the same.

The judge also directed the committee to trace whether a temple belonging to the Hindu community ever existed before the mosque in question was built, or superimposed or added upon it at the disputed site. If so, then what was the age, size, monumental/architectural design of that temple and to which deity was it dedicated to.

The masjid committee and Sunni Central Waqf Board had then approached the High Court pleading for a stay on the fast track court order because it was violative of the Places of Worship Act 1991 and the High Court was already seized of the matter.

“The High Court had reserved the verdict on the issue of maintainability of the suit. The court below should not have passed any order in the suit till the issue of maintainability of the suit was decided by the high court,” senior counsel S.F.A. Naqvi said today.

Welcoming the order, S.M. Yasin, general secretary of the masjid committee, said justice had finally prevailed. He said: “It is a welcome order because the High Court has prevented attempts by certain elements to vitiate the atmosphere in Varanasi.”