[Gyanvapi Case] Fail To See How Daily Pooja Will Change Mosque’s Character: Allahabad HC Rejects Muslim Side’s Revision Plea Against Maintainability
The Allahabad High Court while upholding the Varanasi Court’s order, has dismissed the revision plea by the Anjuman Intezamia Masjid, objecting to the maintainability of the suit seeking Hindu worshipping rights in the disputed Gyanvapi site. The Court had earlier reserved its judgment in the matter on December 24, 2022.
The Court observed, "This Court fails to see that if the plaintiffs or devotees like them can do pooja and darshan of the Deities on a single day in the year with no threat to the mosque's character, how the making of it a daily or a weekly affair, would lead to a conversion or change of the mosque's character."
The High Court essentially upheld the Varanasi District Court’s order which had rejected the plea questioning the maintainability of the Suit filed by the Hindu side.
“…The other facet of the matter, which leads this Court to think that the bar of limitation would not at all apply, is that it is common ground between parties that prior to the year 1990 or the year 1993, the pooja, darshan of Maa Sringar Gauri, Lord Ganesha, Lord Hanuman and the other Deities in the suit property was a daily affair. The restriction of that right to a single day, in the opinion of this Court, is a continuing wrong within the meaning of Section 22 of the Act of 1963. The right to worship the Deities is not comparable to a right to office or property, wherefrom a person, once ousted, suffers a completed wrong at that point of time, and later on, the continuing effects of the injury. The denial of the right to worship the object of it, that is the Deity, is a continuing wrong, that happens everyday and every minute it is denied”, Justice JJ Munir while recognizing the right observed in the matter.
Senior Advocate Syed Ahmed Faizan appeared for the Majid Committee, and defendant-revisionist, and Advocate Prabhash Pandey appeared for the plaintiffs.
The Masjid Committee in the application under Order 7 Rule 11(d) of CPC, contended that the Gyanvapi Masjid was established on the said plot of land about 600 years back and that Muslims have been offering Namaz and Jumma without any interference. It was contended that the Suit was not maintainable on account of the Places of Worship (Special Provisions) Act, 1991 and since the Shri Kashi Vishwanath Act, 1983 provides that a Board of Trustees will be created which will look after Shri Kashi Vishwanath Mandir and all Gods and Goddesses in its compound.
However, the Hindu side contended that the plea of applicability of the Places of Worship Act has been raised only to prolong the proceedings and that there is no Mosque within the subject plot. It was contended that the entire property in question vests in the deity from time immemorial and that if any person forcibly, without any authority of law, offers Namaz within the property in question or at a particular place, the same cannot be called as Mosque.
"The Hindus are continuously performing pooja of Maa Gauri, Lord Hanuman, Lord Ganesha and other Visible and Invisible deities with rituals and are doing circumambulation (Parikrama) of the temple of Lord Visheshwar. The Hindus continued in the possession of cellar (Tehkhana) towards South and other parts of the demolished Temple with its ruins and Lord Adi Visheshwar is still in existence in its original shape in the western part of the old Temple at the property in question", they had submitted.
Plaintiffs had also put forth that only the averments made in the plaint can be considered under Order 7 Rule 11 and that there are clear averments that deities exist within the suit property since before August 15, 1947, and hence the 1991 Act will not apply. They contended that the Board of Trustees failed to perform its statutory duties by not taking any step for proper Darshan, Pooja, and performance of rituals of the visible and invisible deities in the complex, and hence a worshipper can institute a suit to protect the interest of the deity,
While the Masjid Committee had argued before the court that the claim of the Hindu side that the devotees were restrained from worshipping Shringar Gauri and other deities on the outer wall of Gyanvapi in the year 1993 is an artificial claim and an example of clever drafting, whereby a non-existent cause of action has been portrayed as a real one.
Responding to that contention, the High Court observed,
"Therefore, in the opinion of this Court, if in the year 1990 or 1993, other members of the Hindu community, who possess a like right to worship the Deities, have not brought an action to restore the right to worship all through the year and have been content with a day of worship in the entire year, that is to say, on the 4th day of the Vasantik Navratra in Chaitra, this Court fails to see how the plaintiffs, who seek to enforce a daily right to worship, because they were prevented on the day following the 4th day of the Vasantik Navratra in Chaitra of the calendar year 2021, would face the bar of limitation. No principle or authority has been brought to the notice of this Court on the point, which may dispel or affirm the view that this Court takes", the bench thus observed in the judgment.
On the bar under Section 3 and 4 of the Places of Worship Act, 1991, the bench observed, "The other facet of the matter, of course, is, and one already noticed, that the right being exercised all through the year beyond 15th August, 1947 and as late as in the year 1993, the enforcement of the right that the plaintiffs seek throughout the year does not attract the mischief of Sections 3 and 4 of the Act of 1991. Likewise, the mere asking to enforce a right to worship Maa Sringar Gauri, Lord Ganesha, Lord Hanuman and the other Deities, located in the suit property at their specified place, is not an act that changes the character of the Gyanvapi Mosque into a temple. It is no more than the seeking of a full enforcement of a subsisting right that inheres in the plaintiffs and since long exercised by other devotees like them until a time much after 15th August, 1947. This, at least, is the plaint case which does not, in the least measure, attract the bar under Sections 3 and 4 of the Act of 1991".
On the relief sought to prevent an apprehended demolition of the Deities existing in the north-east corner of the Gyanvapi, the bench was of the opinion that “It is not by altering the existing position of the Deities that the plaintiffs seek to enforce their right to worship. Therefore, this part of the relief would also not fall in the teeth of the bar envisaged under Sections 3 and 4 of the Act of 1991”.
Therefore, on finding no merits in the revision, and agreeing with the conclusions reached by the District Judge, the Court thus held, "This Court fails to see that if the plaintiffs or devotees like them can do pooja and darshan of the Deities on a single day in the year with no threat to the mosque's character, how the making of it a daily or a weekly affair, would lead to a conversion or change of the mosque's character. It may require some arrangements to be made by the local administration, and may be, also by the Government by way of some regulation, but that is not the concern of the law".
District Judge A K Vishvesh, on September 12, 2022, while dismissing the application under Order VII Rule 11 of the Code of Civil Procedure 1908, ordered that it would proceed with the Suit seeking the right to worship in the temple.