Committee of Management Anjuman Intezamia Masajid, Varanasi   (Petitioner)  Vs.  Rakhi Singh and Others (Respondents)

Special Leave Petition of 2023 [Diary No 31345 of 2023]

(3JB, Dr DY Chandrachud, J B Pardiwala and Manoj Misra JJ., delivered by Dr DY Chandrachud C.J.I.)

Facts: The proceedings under Article 136 of the Constitution have been initiated to challenge an order of the High Court of Judicature at Allahabad dated 3 August 2023. The High Court dismissed the appeal against an order of the District Judge directing an archeological survey of the area in which the Gyanvapi Mosque [Settlement Plot No. 9130] is situated.

Issue: Whether the dismissal of appeal by the high court against district judge’s order deserves interference of this court?

Arguments on behalf of counsel for petitioner: Mr Huzefa A Ahmadi

It is submitted that the carrying out of a survey is contrary to the provisions of the Places of Worship (Special Provisions) Act 1991, the genesis of which has been explained in the judgment of the Constitution Bench in M Siddiq (Dead) Through Legal Representatives vs Mahant Suresh Das and Others [Ram Janmabhumi Temple Case]. Further, In the suit of 1991, pursuant to a similar plea, a survey by the ASI was ordered which has been stayed by the High Court by an order dated 9 September 2021. A similar issue pertaining to an order for carbon dating of a structure which is claimed to be a ‘Shivaling’ by the plaintiffs and a ‘fountain’ by the defendants is pending in Committee of Management Anjuman Intezamia Masajid, Varanasi vs Rakhi Singh and Others. In the course of the proceedings before this Court, the order for survey was stayed, on the Solicitor General joining in the submission that the process of carbon dating may partake of an invasive nature. An order of status quo in respect of the property was passed in the judgment of this Court in Mohd Aslam Alias Bhure vs Union of India and Others because of a threat to the property. While an order for conducting a scientific investigation or survey under Order XXVI Rule 9 may be passed at any stage, ordinarily a scientific survey ought not to be ordered until the court is cognizant of the issues that would arise in the suit.

Arguments on behalf of counsel for respondents: Ms Madhavi Divan

It is submitted that an order under Order XXVI is essentially for the benefit of the court which requires such a survey to be conducted to assist it in deciding the substance of the controversy in a suit. The order of the trial Judge ordering a survey is neither adversarial nor prejudicial since it is not determinative of the substance of the rights of the parties. All parties would be entitled to file their objections to the report of the ASI and to seek cross-examination should the survey be intended to be let into substantive evidence. The issue in terms of the provisions of Section 4(1) of the Places of Worship (Special Provisions) Act 1991 is as regards the religious character of the place. The frame of the plaint would indicate that the contention of the plaintiffs is that both before and after 1947, the religious character of the place is indicative by acts of continuing worship. The function of the ASI is to preserve and protect monuments of historical importance and hence there is no basis for any apprehension that damage would be caused to the structure. The circumstances pertaining to the earlier suit of 1991 are distinct inasmuch as in that case the suit was on title in which an application under Order VII Rule 11 CPC was allowed by the Trial Judge.

Held: The court disposed off the present SLP by reiterating the direction of the High Court that there shall be no excavation at the site which was in accordance with the statement which was made before the High Court by the Additional Solicitor General and which has been reiterated in the submissions made by the Solicitor General on behalf of the ASI and the court recorded the submission of the Solicitor General in the earlier part of the order to the effect that the survey shall not involve any excavation at the site or any destruction of the structure, thereby directing that the entire process shall be concluded by any non-invasive methodology that may be adopted by the ASI.