Survey at Gyanvapi can go ahead: Allahabad HC

The Allahabad high court on Thursday cleared the decks for a controversial survey of the Gyanvapi Masjid premises in Varanasi, holding that scientific investigation was necessary in the interest of justice and would benefit both parties in a dispute that has simmered on for decades but snowballed over the past year.

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In a 16-page order, high court chief justice Pritinker Diwaker dismissed the petition filed by the Anjuman Intezamia Masjid Committee, which manages the mosque and which had challenged a Varanasi court judgment that ordered on July 21 a survey by the Archaeological Survey of India (ASI) to determine if the 17th century structure was built over a temple.

“Scientific investigation is necessary in the interest of justice and shall benefit the plaintiffs and defendants alike and come in aid of the trial court to arrive at a just decision,” the verdict said.

Hours later, the mosque management committee rushed to the Supreme Court, pressing for an urgent hearing. A bench, headed by Chief Justice of India Dhananjaya Y Chandrachud, will take up the plea for an immediate stay on the survey on Friday. The survey will begin between 7am and 8am, said Subhash Nandan Chaturvedi, a counsel for the Hindu side. “We are against the survey of the Gyanvapi mosque,” said Anjuman Intezamia Masjid Committee’s joint secretary SM Yasin.

The high court – which started hearing the case on July 25 after the Supreme Court temporarily suspended the survey on July 24 — took on record ASI’s undertaking that the agency will not carry out any excavation or harm the existing structure. The court also asked the district court to expedite proceedings.

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“As the proceeding of the suit has been lingering on for long, it would be appropriate to observe that the court concerned shall make all endeavour to conclude the proceedings expeditiously, without granting unnecessary adjournments to either of the parties by giving short dates,” the high court said.

The district court is hearing a raft of petitions by Hindu groups and individuals who have demanded worshipping rights inside the mosque premises, claiming the presence of Hindu idols and deities within the complex that abuts the Kashi Vishwanath temple. This is the second such controversial exercise to be carried out at the premises. Last year, on the final day of a similar survey ordered by a local court, Hindu groups claimed the discovery of a shivling, a structure the Muslim side said was part of a ritual ablution fountain. The area remains sealed under the orders of the apex court.

The court also rejected the mosque committee’s argument that the suit was barred by the Places of Worship Act 1991, which locks the religious character of shrines as they existed on August 15, 1947, with the exception of the Ram Janmabhoomi-Babri Masjid dispute. “This question is not the subject matter, for the time being, because none of the parties has raised any [such] grievance before the court below while making their submission in support of their application.”

The high court added: The present petition lacks substance and is liable to be dismissed… interim order, if any, stands vacated. The order dated 21.7.2023 passed by the district judge, Varanasi is restored and the parties are to comply with the said order, subject to the observations made by this court hereinabove and the contents of the affidavit filed on behalf of the ASI before this court.”

The order pointed out that ASI officials as well as its counsel have consistently maintained that no demolition of the property will take place, nor would any existing structure be altered, and that the scientific investigation would be carried out beyond the structure and only in open areas.

“Once the department of archaeology and learned senior counsel representing the department have made their stand clear that no damage is going to be caused to the property in question, this court has no reason to doubt their statements,” said justice Diwakar, adding there is also an affidavit before the court that no excavation will take place.

“The entire survey will be conducted by the non-destructive method by using techniques such as GPR survey, GPS survey, the other scientific methods and other modern techniques. It has also been submitted that in case, any further investigation/excavation is required, permission of the honourable court will be sought,” recorded the court in its order.

A GPR survey is a method of gathering data about what’s below the ground using ground-penetrating radar technology that sends electromagnetic energy signals into the subsurface.

Justice Diwakar dismissed all legal objections raised by the mosque management committee, which had argued that survey could not have been ordered without framing the issues in the suit that was filed by five Hindu women in 2021, seeking unhindered right to worship Hindu deities inside the Gyanvapi complex. The committee had also contended that a commission for a survey cannot be allowed to create evidence in favour of a party.

The high court noted that the civil procedure code and a raft of judgments said that the court may, if it thinks it necessary or expedient in the interest of justice to do so, issue a commission for a scientific investigation.

“It is a settled proposition of law that the court will not sit as a mute spectator and can always interfere in such matters to arrive at a particular conclusion...Further, there is no substance in the argument made by the applicant that the applications filed by the plaintiffs, seeking scientific investigation of the structure in question are not tenable in the eyes of law just because the issues have not been framed as yet. The scientific investigation has nothing to do with the other evidence and whatever evidence would be collected, that may be for all the parties and not only for the plaintiffs,” it held.

The Gyanvapi dispute dates back decades, but on July 21, while hearing a petition by four Hindu women, the Varanasi district court directed ASI to conduct a comprehensive survey. On July 24, the mosque committee rushed to the top court against the order, arguing that it was not given adequate time to challenge the order. An apex court bench headed by CJI Chandrachud stayed till 5pm on July 26 the Varanasi district court’s order, observing that some “breathing time” must be granted to the petitioners to move the high court. ASI carried out the survey for about four-and-a-half hours on July 24 before it was stopped by the apex court the same day.

ASI sought assistance from the Varanasi district administration to start the survey from Friday morning. “Order of the high court will be complied with. ASI has sought our (administration’s) cooperation to start the survey from tomorrow (Friday). The administration will provide whatever cooperation and help they (ASI team members) need,” said district magistrate S Rajalingam.

Advocate Sudhir Tripathi welcomed the order and said, “ASI survey is needed to bring out truth of Gyanvapi. We welcome the order of the High Court. Now ASI will conduct the survey in barricaded area of Gyanvapi.”