On Friday, 4th August 2023, the Supreme Court dismissed the plea of the Anjuman Intezamia Masjid Committee (AIMC) challenging the ASI survey of the disputed structure at the Gyanvapi complex in Varanasi. A team from the Archaeological Survey of India (ASI) on Friday morning arrived at the Gyanvapi structure premises adjacent to Kashi Vishwanath Temple in Uttar Pradesh’s Varanasi and started a scientific survey of the complex amid tight security. Notably, the Allahabad High Court on Thursday, 3rd August 2023, allowed the Archaeological Survey of India to conduct a survey of the Allahabad High Court dismissed Anjuman Intezamia Masjid Committee’s plea, challenging the Archaeological Survey of India (ASI) survey of the disputed structure.
Senior advocate Huzefa Ahmadi represented the AIMC while Solicitor General Tushar Mehta represented the state. In its order, the bench of chief justice of India DY Chandrachud and Justice Pardiwala said, “An order was passed by District Judge Varanasi. While allowing the applications the district judge directed the ASI to undertake a scientific investigation/survey/excavation on Gyanvapi excluding some areas which were sealed by this court. District judge while allowing it issued the following directions. The order of the district judge was assailed before the HC under article 227. By Aug 3 judgment the order of the district judge has been affirmed subject to 1. observations made by HC and 2. contents of an affidavit by the ASI. During the hearing before the HC, ASI was called upon to assist in pursuance of directions of HC and ASI filed an affidavit setting out the nature of the proposed survey.”
ORDER
— Bar & Bench (@barandbench) August 4, 2023
CJI: An order was passed by District Judge Varanasi. While allowing the applications the district judge directed the ASI undertake a scientific investigation/survey/excavation on #GyanvapiMosque excluding some areas which were sealed by this court. District judge while…
The court further said, “The ASI affidavit extracted below for convenience. Apart from the affidavit, the deponent Shri Alok Tripathi who is the additional director general of ASI appeared in person… the HC held that the order of the district judge directing the survey falls within the fold of CPC and hence when the question in a suit involves scientific investigation then the court may in the interest of justice issue a commission for that purpose. In Para 21 HC has dealt with the apprehension that the survey would envisage an act of excavation or destruction of the structure. HC has recorded the statement of ASI and ASG for the Central govt that no excavation whatsoever will take place. it was in this backdrop HC clarified while the district judge’s order was upheld it was subject to ASI affidavit and statements made.”
CJI: The ASI affidavit extracted below for convenience. Apart from the affidavit, the deponent Shri Alok Tripathi who is the additional director general of ASI appeared in person… the HC held that order of district judge directing the survey falls within the fold of CPC and…
— Bar & Bench (@barandbench) August 4, 2023
The bench added, “It has been clarified by SG Tushar Mehta that as a matter of fact.. the entire survey which was to be carried out… will be completed without any excavation or causing any destruction to the structure. On behalf of the Sr Adv Ahmadi, it is argued that the act of conducting the survey is contrary to the Places of Worship Act 1991. Mr Ahmadi argued that the survey ought not to be directed unless the pending issues are decided by the court. Sr Adv Divan submitted that an order under Order 26 is for the benefit of the court and that all parties can file replies to the ASI survey which will form substantive evidence.”
CJI: Mr Ahmadi argued that survey ought not be directed unless the pending issues are decided by the court. Sr Adv Divan submitted that an order under Order 26 is for the benefit of the court and that all parties can file replies to the ASI survey which will form substantive…
— Bar & Bench (@barandbench) August 4, 2023
The apex court ruled, “The frame of the plaint indicates that as per the plaintiff both before and after 1947 there was continuous religious worship and that ASI’s job was to maintain such properties and thus there shall be no such damage. The order of the trial judge was set aside in the first appeal. It was argued that such an ASI survey order was set aside by HC on appeal. The order of the trial judge under Order 26 Rule 9 cannot be at this stage construed to be without jurisdiction. The provision states that when a matter requires scientific investigation. The court may issue a commission to such a person to look into it and report to the court as per rule 10 the commissioner has to submit a rule in writing to the court. the report of the commissioner and the evidence by him constitutes evidence in the suit and forms part of the record and any party may examine the commission report to see how the investigation is made. If the court is dissatisfied further enquiry can be ordered. The evidentiary value of the commissioner report is a matter to be tested in a suit and is open to cross-examination. hence report of the commissioner does not by itself does not offer substantive findings in such cases.”
CJI: The order of the trial judge under order 26 Rule 9 cannot be at this stage construed to be without jurisdiction. The provision states that when a matter requires scientific investigation…the court may issue a commission to such a person to look into it and report to the…
— Bar & Bench (@barandbench) August 4, 2023
The 2-justice bench opined, “The district judge has ordered a scientific investigation by ASI. HC has found no reason to interfere having set out the legal position while dealing with an interlocutory order of this nature. HC has introduced certain safeguards. Having regard to the nature and ambit of the court-appointed commission we are unable to differ from the HC. The limitation which governs HC under 227 must govern this court as well when it considers appeal under Article 137. HC was correct in our view to introduce some directions to circumscribe the order of the district judge. The ASI has clarified that there is neither excavation nor there would be destruction of property.”
CJI: The district judge has ordered scientific investigation by ASI. HC has found no reason to interfere having set out the legal position while dealing with an interlocutory order of this nature. HC has introduced certain safeguards. Having regard to nature and ambit of court…
— Bar & Bench (@barandbench) August 4, 2023
Allowing the ASI survey, the court finally said, “We order and direct that the entire ASI survey shall be completed by the non-invasive methodology adopted by the ASI. We reiterate HC’s order that there shall be no excavation at the site. The ASI survey report shall be remitted back to the HC and be taken up for trial in the suit. We have used non-invasive since the HC order says invasive.. but that must be a typing error or a printer’s devil. that is why we clarified.”
CJI: We order and direct that entire ASI survey shall be completed by non invasive methodology adopted by the ASI. We reiterate HC order that there shall be no excavation at the site. The ASI survey report shall be remitted back to the HC and be taken up for trial in the suit.…
— Bar & Bench (@barandbench) August 4, 2023
On July 21, Varanasi district judge AK Vishvesha ordered the ASI survey of the Gyanvapi complex on an application moved by four Hindu women on May 16, 2023.
The order of the district judge, however, excluded the Wuzu Khana (ablution pond area) of the complex, which has been sealed on the order of the top court.
Earlier, the Allahabad High Court asked the ASI to not start the survey of Gyanvapi mosque in Varanasi as the hearing on the matter was underway after Supreme Court put on hold till 5 pm July 26 a detailed scientific survey by the ASI to determine if the mosque located next to the Kashi Vishwanath temple in Varanasi was built upon a temple.
