Gyanvapi Case: Varanasi Court ‘Frustrated’ our Right to Appeal, Says Mosque Panel

New Delhi: Expressing satisfaction over the Supreme Court granting it a “breathing time” to approach the Allahabad High Court, the Anjuman Islamia Masjid (AIM) said it approached the apex court for an urgent hearing because the district judge passed an order, directing a “scientific survey” of the Gyanvapi mosque complex by the Archaeological Survey of India (ASI), without allowing it to explore available legal remedies.

“Firstly, the district judge should not have allowed such an application — seeking an ASI survey as the High Court, in 2021, had set aside directions for a similar ASI survey and the Honourable Supreme Court as recently as in May this year had also noted that such directions merit closure scrutiny. Secondly, even if the same was allowed, it should have granted some time to the mosque’s managing committee (AIM) to explore legal remedies,” Fuzail Ahmad Ayyubi, advocate-on-record in the top court, told NewsClick.

He said they petitioned in the top court with the contention that their right to appeal was frustrated.

“Thankfully, our contention has been accepted, and we have been given some breathing time to file our appeal,” he added.

The Supreme Court on July 24 stayed for three days the Varanasi district court’s order. The stay will be effective till 5 pm on July 26.

Meanwhile, the apex court bench comprising Chief Justice of India DY Chandrachud, Justice Manoj Mishra and Justice JB Pardiwala asked the AIM to approach the High Court, challenging the lower court’s order.

The bench also directed the registrar (judicial) of the High Court to ensure that after AIM moves the court, the matter is placed before the roster so that it can be heard before the interim order expires.

“We permit petitioners to move High Court under article 227 challenging order of District judge Varanasi. Having regard to the fact that the order was passed on July 21, 4:30 pm, and the ASI survey is being carried out today. To permit them some breathing time, we direct that the district court order shall not be enforced till July 26, 2023, 5 pm. Should the petitioner move the High Court, the Registrar Judicial shall ensure it is placed before a roster so that it is heard before the status quo order ends,” the court said.

This came after Senior Advocate Huzefa Ahmadi, who was representing the mosque’s managing committee, repeatedly prayed for a stay on the district court’s order — submitting that it was passed on July 28 evening and the ASI’s survey began this morning before the AIM was given any opportunity for an appeal.

He also told the court that the survey order violates the SC’s earlier order, directing to defer the scientific investigation of the disputed structure found in the mosque premises during the court commissioner’s survey.

While the plaintiffs call it a shivalinga, the respondent claims it is a defunct fountain located in the mosque’s wazukhana (place for ablution).

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The committee wondered how brazenly the district court is time and again violating the orders passed by the High Court and the Supreme Court.

“Isn’t it strange that the district judge allowed the petition, praying the ASI survey even though it was earlier stayed by the High Court and there has been a status quo since then?” questioned Ejaz Mohammad Islahi of the AIM.

In compliance with the district court’s order, 30 members of the ASI — divided into four teams — had already descended on the mosque’s complex early on July 24 morning to survey to ascertain whether the mosque was built by demolishing a portion of the existing Kashi Vishwanath temple, which is located next to Gyanvapi.

The AIM boycotted the survey, saying it didn’t receive any notice.

“How could we participate when there was a Supreme Court hearing in the same case today? We had requested postponement of the survey by a day,” the committee’s secretary, Abdul Batin Nomani, told NewsClick.

Reacting to the top court’s order, Advocate Vishnu Shankar Jain, representing the plaintiffs, asked the High Court to decide the matter afresh.

“We will keep our argument in Allahabad High Court. The Anjuman Islamia Masajid misled the SC and said that digging had started there, which is not true,” he said, refusing to speak much.

WHAT HAPPENED IN SC TODAY

After Advocate Ahmadi claimed that excavation of the western walls of the mosque had already begun, CJI Chandrachud asked Solicitor General Tushar Mehta to take instructions from the ASI.

Mehta informed the court that the walls were not broken and only measurement and photography were being carried out. He affirmed that no structural changes would be made to the premises.

However, Ahmadi questioned the “tearing hurry” of the ASI in conducting the survey.

VARANASI COURT TO ASI

Allowing an application filed by four Hindu women petitioners seeking the right to worship Maa Shringar Gauri on the outer wall of the Gyanvapi mosque complex, District and Sessions Judge Dr Ajaya Krishna Vishvesha on July 21 had directed the ASI to “conduct Ground Penetrating Radar (GPR) survey just below the three domes of the building in question and conduct excavation if required” to “find out” whether the “present structure” was “constructed over a pre-existing structure of a Hindu temple.”

The court’s order said the survey would be undertaken “at the property in question, i.e. settlement plot number 9130 (Gyanvapi mosque)”, excluding the wazukhana area — which was sealed last year on Supreme Court orders. The ASI was directed to submit a report to the court before August 4.

The ASI was directed to conduct the probe using excavation, GPR survey, dating method and other modern techniques. It directed the ASI to investigate the age and nature of the construction of the western wall of the building in question through scientific methods.

The ASI was asked to “prepare a list of all the artefacts which are found in the building specifying their contents and carry out a scientific investigation and undertake dating exercises to find out the age and nature of construction”.

The ASI director was asked to ensure that no damage is done to the “structure standing on the disputed land and it remains intact and unharmed.”

The Hindu litigants contend that the mosque was built on the site of the original Kashi Vishwanath temple. The AIM maintains that the mosque was built on Waqf premises and that the Places of Worship (Special Provisions) Act, 1991 barred changing the character of any place of worship as it existed on August 15, 1947.