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Gyan Vapi case: Allahabad HC stays ASI survey, proceedings before lower court

HC finds actions of lower court in passing orders even as case was pending before HC, prima facie bad in law

Sabrangindia 09 Sep 2021

Allahabad HC

The Allahabad High Court has stayed a Varanasi Court’s order for the Archeological Survey of India (ASI) to conduct a survey at the disputed site of the Kashi Vishwanath Temple – Gyan Vapi Mosque complex. The HC has also stayed all other proceedings before the lower court.

SabrangIndia had previously reported that the matter pertaining to the wider dispute was pending before the Allahabad High Court, and that Justice Prakash Padia had reserved his order earlier in March this year. However, even as that was pending, Civil Judge (Senior Division) at Varanasi Civil Court, Ashutosh Tiwari on April 8, 2021, passed an order directing the ASI to conduct a survey. This prompted the Sunni Waqf Board and the Anjuman Intezamia Masjid (AIM) which is the mosque management authority to move court against the order.

The court observed, “From perusal of the record, it is clear that the judgment was reserved in all pending petitions by this Court, after hearing the learned counsel for the parties at length on 15.03.2021. The court below has full knowledge to the fact that the judgement has already been reserved on 15.03.2021. In this view of the matter, the court below should not have proceeded and decided the application filed by the plaintiffs in the Original Suit for survey by Archaeological Survey of India. In the opinion of the Court, the Court below should wait for the verdict in the petitions pending before this Court and not to proceed further in the matter till the time a judgement is delivered. The judicial courtesy and decorum warranted such discipline which was expected from the Court below but for the unfathomable reasons, neither of the courses were taken. It is to be regretted that the court below departed from this 21 traditional way in the present case and chose to examine the question himself.”

Reacting to the latest development of the High Court staying the order for an ASI survey, S M Yasin, general secretary of Masjid (AIM), told SabrangIndia, “Insaaf ki jeet hui hai” (Justice has won). He further said, “This judgment has helped in maintaining harmony in this city.”

The Kashi Vishwanath Temple – Gyan Vapi Mosque dispute has already been in the spotlight after the judgment in the Ayodhya dispute case, with right-wing groups pitching it to be the next big case. In fact, when the ASI survey was ordered on the site of the temple-mosque complex, it brought back memories of the Ayodhya case, where a similar survey was ordered.

The entire order of the High Court dated September 9, 2021 may be read here: 

Brief background

For decades, the land dispute between the Kashi Vishwanath temple and the Gyanvapi mosque has been fodder for controversy and hate mongering by right wing supremacist groups, not very unlike the Ayodhya dispute.

It is alleged that Mughal emperor Aurangzeb had razed the temple in 1664 and the mosque was built on its ruins using the temple’s debris. Hostilities simmered over time and the dispute went to court when the title suit was filed in 1991. The two parties in this case were Kashi Vishwanath Mandir Trust (KVMT) and the Anjuman Intazamia Masjid (AIM). But back then, the Allahabad High Court had imposed a temporary stay on hearings in the case via an order dated October 13, 1998.

However, on February 4, 2020, a local court decided to commence hearings in the case stating that the HC’s order had not been extended within six months with a separate order, and that therefore the stay was deemed to have been vacated. In March 2020, the Allahabad High Court had stayed the Varanasi court’s order to commence hearing and ordered that the stay be maintained.

Petitions in the courts in 2021

It may be recalled that on February 18, a suit seeking “restoration of performance of rituals at the principal seat of an Ancient Temple at the Gyanvapi mosque area” was filed before a district court. The suit stated that every citizen has a fundamental right to perform pooja, worship and rituals according to the tenets of his religion within the ambit of Article 25 and any obstacle created before January 26, 1950 has become null and void by virtue of Article 13(1). Therefore, the plea states, “An idol worshipper cannot complete his pooja and gain spiritual advantages without having objects of worship. Any hindrance/ obstacle created in performance of pooja, is denial of right to religion guaranteed under Article 25 of the Constitution of India”. This suit has been filed by ten individuals acting as next friends of deities claimed to be existing in the mosque precincts including Maa Shringar Gauri, Lord Ganesh and Lord Shiva.

It is also noteworthy that on March 11, the court of Civil Judge (Senior Division) Kumud Lata Tripathi had issued notice to Central government, UP government, Varanasi District Magistrate, Senior Superintendent of Police, Varanasi, UP Muslim Personal Law Board, mosque management- Anjuman Intazamia and Board of trustees of Kashi Vishwanath Temple. The court had also fixed April 2 as the date for filing written statements and April 9 for framing of issues.

Meanwhile, on March 13, BJP leader Ashwini Upadhyay filed a petition before the Supreme Court challenging the constitutional validity of the Places of Worship (Special Provisions) Act 1991 as it bars remedies against illegal encroachment on the places of worship and pilgrimages prior to August 15, 1947. The petition asserts that the law has created an arbitrary, irrational retrospective cut-off date and in the process has legalised the illegal acts of invaders who encroached upon religious institutions back in the day. The plea submits that the provisions of the law, particularly, section 2,3 and 4 take away rights of Hindus, Jains, Buddhists, and Sikhs to reclaim their places of worship through Courts. A bench of CJI SA Bode and Justice AS Bopanna issued notice to the Ministry of Home Affairs, Ministry of Law and the Ministry of Culture.

Then on March 18, the court of Civil Judge (Senior Division) Mahendra Kumar Singh admitted a new petition related to the case. The new plea demands that an area of the Adi Vishweshwar temple, that is currently deemed ‘occupied’ by the petitioner, be freed, and that the portion of the temple that was demolished on the instructions of Mughal emperor Aurangzeb, be rebuilt. The court then issued notice to the Union of India, Uttar Pradesh Government, the district administration, Varanasi SSP, UP Sunni Central Waqf Board, Anjuman Intezamia Masjid Committee and Kashi Vishwanath Mandir Trust making them respondents in the case.

The April 8 order permitting the ASI survey was passed by the Varanasi court in connection with a plea filed by local lawyer VS Rastogi, who demanded that the land upon which the mosque was constructed be returned to Hindus. The order permitting the ASI survey was passed by Ashutosh Tiwari, Civil Judge (Senior Division) at Varanasi Civil Court on April 8, 2021.

When the Sunni Waqf Board moved HC, counsel Puneet Kumar Gupta argued that the trial court passed the order illegally and without its jurisdiction as the matter is in the High Court and Justice Prakash Pandia reserved its order on March 15. AIM also moved an application, contending that the Civil Judge acted in the “most arbitrary manner” while passing the order to allow the ASI for undertaking a survey at the disputed site and has acted against the spirit of judicial discipline. The application states that by passing orders despite the High Court reserving judgment in the case, the lower court acted “against the spirit of complete justice as well as the challenge to the entire suit proceeding and its authenticity.”

They had also moved an application before the lower court, but withdrew the application when their appeal wasn’t admitted, even three months after the original order.

Related:

Gyan Vapi case: Varanasi court to hear petition to hold prayers in Shringar Gauri temple
Gyan Vapi case: Allahabad HC reserves judgment on appeal against ASI survey
Gyan Vapi case: Mosque administration to pursue appeal against ASI survey in HC
Gyan Vapi mosque and Kashi Vishwanath temple exchange land
Gyanvapi case: Pleas before Allahabad HC challenging ASI survey order
Years after Ramjanmabhoomi, ASI to survey Gyanvapi-Kashi Vishwanath complex
Gyan Vapi case: New petition admitted, notice issued
Gyan Vapi well becomes part of Kashi-Vishwanath temple
Gyan Vapi mosque case: Suit filed in Varanasi court for restoration of temple

Gyan Vapi case: Allahabad HC stays ASI survey, proceedings before lower court

HC finds actions of lower court in passing orders even as case was pending before HC, prima facie bad in law

Allahabad HC

The Allahabad High Court has stayed a Varanasi Court’s order for the Archeological Survey of India (ASI) to conduct a survey at the disputed site of the Kashi Vishwanath Temple – Gyan Vapi Mosque complex. The HC has also stayed all other proceedings before the lower court.

SabrangIndia had previously reported that the matter pertaining to the wider dispute was pending before the Allahabad High Court, and that Justice Prakash Padia had reserved his order earlier in March this year. However, even as that was pending, Civil Judge (Senior Division) at Varanasi Civil Court, Ashutosh Tiwari on April 8, 2021, passed an order directing the ASI to conduct a survey. This prompted the Sunni Waqf Board and the Anjuman Intezamia Masjid (AIM) which is the mosque management authority to move court against the order.

The court observed, “From perusal of the record, it is clear that the judgment was reserved in all pending petitions by this Court, after hearing the learned counsel for the parties at length on 15.03.2021. The court below has full knowledge to the fact that the judgement has already been reserved on 15.03.2021. In this view of the matter, the court below should not have proceeded and decided the application filed by the plaintiffs in the Original Suit for survey by Archaeological Survey of India. In the opinion of the Court, the Court below should wait for the verdict in the petitions pending before this Court and not to proceed further in the matter till the time a judgement is delivered. The judicial courtesy and decorum warranted such discipline which was expected from the Court below but for the unfathomable reasons, neither of the courses were taken. It is to be regretted that the court below departed from this 21 traditional way in the present case and chose to examine the question himself.”

Reacting to the latest development of the High Court staying the order for an ASI survey, S M Yasin, general secretary of Masjid (AIM), told SabrangIndia, “Insaaf ki jeet hui hai” (Justice has won). He further said, “This judgment has helped in maintaining harmony in this city.”

The Kashi Vishwanath Temple – Gyan Vapi Mosque dispute has already been in the spotlight after the judgment in the Ayodhya dispute case, with right-wing groups pitching it to be the next big case. In fact, when the ASI survey was ordered on the site of the temple-mosque complex, it brought back memories of the Ayodhya case, where a similar survey was ordered.

The entire order of the High Court dated September 9, 2021 may be read here: 

Brief background

For decades, the land dispute between the Kashi Vishwanath temple and the Gyanvapi mosque has been fodder for controversy and hate mongering by right wing supremacist groups, not very unlike the Ayodhya dispute.

It is alleged that Mughal emperor Aurangzeb had razed the temple in 1664 and the mosque was built on its ruins using the temple’s debris. Hostilities simmered over time and the dispute went to court when the title suit was filed in 1991. The two parties in this case were Kashi Vishwanath Mandir Trust (KVMT) and the Anjuman Intazamia Masjid (AIM). But back then, the Allahabad High Court had imposed a temporary stay on hearings in the case via an order dated October 13, 1998.

However, on February 4, 2020, a local court decided to commence hearings in the case stating that the HC’s order had not been extended within six months with a separate order, and that therefore the stay was deemed to have been vacated. In March 2020, the Allahabad High Court had stayed the Varanasi court’s order to commence hearing and ordered that the stay be maintained.

Petitions in the courts in 2021

It may be recalled that on February 18, a suit seeking “restoration of performance of rituals at the principal seat of an Ancient Temple at the Gyanvapi mosque area” was filed before a district court. The suit stated that every citizen has a fundamental right to perform pooja, worship and rituals according to the tenets of his religion within the ambit of Article 25 and any obstacle created before January 26, 1950 has become null and void by virtue of Article 13(1). Therefore, the plea states, “An idol worshipper cannot complete his pooja and gain spiritual advantages without having objects of worship. Any hindrance/ obstacle created in performance of pooja, is denial of right to religion guaranteed under Article 25 of the Constitution of India”. This suit has been filed by ten individuals acting as next friends of deities claimed to be existing in the mosque precincts including Maa Shringar Gauri, Lord Ganesh and Lord Shiva.

It is also noteworthy that on March 11, the court of Civil Judge (Senior Division) Kumud Lata Tripathi had issued notice to Central government, UP government, Varanasi District Magistrate, Senior Superintendent of Police, Varanasi, UP Muslim Personal Law Board, mosque management- Anjuman Intazamia and Board of trustees of Kashi Vishwanath Temple. The court had also fixed April 2 as the date for filing written statements and April 9 for framing of issues.

Meanwhile, on March 13, BJP leader Ashwini Upadhyay filed a petition before the Supreme Court challenging the constitutional validity of the Places of Worship (Special Provisions) Act 1991 as it bars remedies against illegal encroachment on the places of worship and pilgrimages prior to August 15, 1947. The petition asserts that the law has created an arbitrary, irrational retrospective cut-off date and in the process has legalised the illegal acts of invaders who encroached upon religious institutions back in the day. The plea submits that the provisions of the law, particularly, section 2,3 and 4 take away rights of Hindus, Jains, Buddhists, and Sikhs to reclaim their places of worship through Courts. A bench of CJI SA Bode and Justice AS Bopanna issued notice to the Ministry of Home Affairs, Ministry of Law and the Ministry of Culture.

Then on March 18, the court of Civil Judge (Senior Division) Mahendra Kumar Singh admitted a new petition related to the case. The new plea demands that an area of the Adi Vishweshwar temple, that is currently deemed ‘occupied’ by the petitioner, be freed, and that the portion of the temple that was demolished on the instructions of Mughal emperor Aurangzeb, be rebuilt. The court then issued notice to the Union of India, Uttar Pradesh Government, the district administration, Varanasi SSP, UP Sunni Central Waqf Board, Anjuman Intezamia Masjid Committee and Kashi Vishwanath Mandir Trust making them respondents in the case.

The April 8 order permitting the ASI survey was passed by the Varanasi court in connection with a plea filed by local lawyer VS Rastogi, who demanded that the land upon which the mosque was constructed be returned to Hindus. The order permitting the ASI survey was passed by Ashutosh Tiwari, Civil Judge (Senior Division) at Varanasi Civil Court on April 8, 2021.

When the Sunni Waqf Board moved HC, counsel Puneet Kumar Gupta argued that the trial court passed the order illegally and without its jurisdiction as the matter is in the High Court and Justice Prakash Pandia reserved its order on March 15. AIM also moved an application, contending that the Civil Judge acted in the “most arbitrary manner” while passing the order to allow the ASI for undertaking a survey at the disputed site and has acted against the spirit of judicial discipline. The application states that by passing orders despite the High Court reserving judgment in the case, the lower court acted “against the spirit of complete justice as well as the challenge to the entire suit proceeding and its authenticity.”

They had also moved an application before the lower court, but withdrew the application when their appeal wasn’t admitted, even three months after the original order.

Related:

Gyan Vapi case: Varanasi court to hear petition to hold prayers in Shringar Gauri temple
Gyan Vapi case: Allahabad HC reserves judgment on appeal against ASI survey
Gyan Vapi case: Mosque administration to pursue appeal against ASI survey in HC
Gyan Vapi mosque and Kashi Vishwanath temple exchange land
Gyanvapi case: Pleas before Allahabad HC challenging ASI survey order
Years after Ramjanmabhoomi, ASI to survey Gyanvapi-Kashi Vishwanath complex
Gyan Vapi case: New petition admitted, notice issued
Gyan Vapi well becomes part of Kashi-Vishwanath temple
Gyan Vapi mosque case: Suit filed in Varanasi court for restoration of temple

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