Breaking| What Is Frivolous To You Is Faith For Other Side: SC Tells Gyanvapi Mosque Committee While Refusing To Stay ASI Survey

The Supreme Court today, in the Special Leave Petition filed by the Committee of Management Anjuman Intezamia Masajid, refused to interfere with the Allahabad High Court's ruling, which upheld the Varanasi District Court's order directing the Archaeological Survey of India (ASI) to conduct a "detailed scientific survey" to determine if the Gyanvapi mosque was built at a place where a temple existed earlier.

The Apex Court also refused to order that the report of ASI be kept in a sealed cover until Order 7 Rule 11 issue is decided.

The Bench of Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala and Justice Manoj Misra issued notice on the SLP challenging the order under Order 7 Rule 11. The Court in its order noted that the High Court has recorded the statement of the ASI and the ASG who was appearing for the centre that no excavation will be done at the site and that no damage will be caused to the property. The Court noted in the order that it has been clarified by SG Tushar Mehta that the entire survey would be completed without any excavation or destruction. The Court said in the order that the order of the trial judge under Order 26 Rule 10A cannot be constructed to be without jurisdiction.  

The Court said in its order that the report of a commissioner is not conclusive or binding and that the District Judge has exercised discretion by ordering an ASI investigation.  The Court noted that the High Court has introduced certain safeguards for the process. "We are unable to differ with the view of the High Court", the Court said in the order. "The High Court was in our view correct in passing directions to circumscribe the directions issued by the District Judge", the Court noted.  "The entire process shall be concluded by non-invasive methodology that will be adopted by the ASI", the Court said. It also ordered that the report shall be sent to the trial court and will abide by orders of the District Court. 

The Apex Court refused the plea of the Solicitor General to not say "non-invasive" techniques be adopted by the ASI. 

"The learned Chief Justice has recorded the affidavit of ASI and the statement that of Counsel that no excavation will be carried out and that survey will be carried out by techniques other than survey, we will ask the SG if they are standing by the affidavit", the CJI remarked at the outset of the hearing.  Appearing for the State of Uttar Pradesh, Solicitor General Tushar Mehta concurred. 

The Court said that it will hear the plea against the order passed under Order 7 Rule 11 and that the present order is an interim order. "Why should we at this stage interfere", the CJI asked.

Appearing for the Masjid Committee, Senior Advocate Huzefa Ahmadi submitted that by survey, the Places of Worship Act is being violated and the basis on which the survey is ordered indicates the same. He said that the survey impinges upon all principles of fraternity and secularism and the Places of Worship Act. "It is against the spirit of your lordship's judgment", he submitted, adding that these submissions were part of the written submissions and were argued before the High Court. 

We will keep open all issues of evidentiary value etc open. We are not saying it is admissible or that it can be relied upon, the CJI said about the report that the ASI will submit. 

Will your lordship order survey by ASI in a frivolous suit in respect of another structure?, Huzefa Ahmadi asked. "What is frivolous to you is faith for the other side", the CJI replied.

The CJI said that every interlocutory order cannot be opposed on the ground of the Ayodhya judgment which comments about the Places of Worship Act. 9A cannot preclude the court from granting ad-interim relief. "Treat it like any other case", the CJI said. "We will safeguard your concerns by protecting your structure", the CJI said.

Tushar Mehta then read from the affidavit filed by the ASI undertaking not to cause any structural damage. 

"The process itself is such that you are uncovering wounds of past and that is what the Places of Worship Act seeks to injunct", Ahmadi submitted. By an interlocutory order, the wounds will reopen, before issues are framed to know if it is germane, he submitted. 

Tomorrow, if you succeed in getting the plaint rejected, this survey report will be nothing but a piece of paper. What is the prejudice? Let the report be submitted in a sealed cover, Justice Pardiwala suggested. 

Senior Advocate Huzefa Ahmadi persisted and made his submissions against the legality of the order. He submitted that something very unfortunate happened. He said that the Chief Minister of UP made a statement when the matter was sub judice. "You are the state, you are supposed to be non-partisan in the Suit. This is while the appeal is being heard by your lordships", he said while tendering a copy of the statement of the CM. 

Senior Advocate Madhavi Divan appearing for the plaintiff submitted that Survey is not determinative and non is non-invasive and an opinion of a domain expert for the assistance of the Court. As far as the rights of both parties are concerned, we do not know what the survey is going to show. We have the right to file objections and cross-examine. So nothing is closed at this juncture, it is not determinative in any manner. It does not prejudice any rights, Divan submitted.

About the issue being barred by the Places of Worship Act, she submitted that the plaintiffs have pleaded squarely in the plaint that there has been continuity of worship for a long time on a daily basis and that was stopped in the year 1993. "The fundamental principle is you only look at the plaint. They tried to bring in their defence, unsuccessfully so far... There has to be survey since that will make everything clear... It's the ASI's job to protect monuments, they cannot damage. They know better", Divan submitted. 

Senior Advocate Huzefa Ahmadi submitted that the speed at which the ASI is acting raises concern about "overreach". He said that the ASI reached the site at 7.30 am while the matter was pending before the Apex Court. He also said that the Allahabad High Court did not grant even a breathing space for them to approach the Apex Court. 

Huzefa Ahmadi then took the Court through the provisions of the Places of Worship Act. The Court said that the arguments with respect to the Act and the Ayodhya judgment will have to be considered in detail, while saying that it is not inclined to stay the order. "Survey will have the effect of letting the genie out of the bottle", he submitted. "Why are you apprehensive?, The survey could go either way", the CJI responded.  He said that after the survey, the plaintiff may demand the right to worship in other places and that "piece by piece I am deprived of my property".  He then submitted that the entire proceedings, not just the report must be in a sealed cover, or else it will "lead to some mischief".  

The Court then proceeded to pass its order. 

Background 

Yesterday, the Allahabad High Court had in its order stated that the direction of the Varanasi Court to the ASI for conducting a survey is in the interest of justice. The Court held that the District Court, Varanasi, was justified in issuing the directions. "In the opinion of the Court, the scientific survey/investigation proposed to be carried out by the Commission, 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," stated the High Court's order.  

High Court also noted that the Department of Archaeology has made its stand clear that no damage is going to be caused to the property in question. Recently, the Supreme Court had ordered to maintain the status quo on the directions of the Varanasi Court for a scientific survey for the Masjid Committee to move the Allahabad High Court in the exercise of its jurisdiction under Article 227 of the Constitution to challenge the order of District Judge, Varanasi. 

The Anjuman Intezamia Masjid Committee, which manages the mosque, had opposed the direction of the ASI's survey on the grounds that it could disrupt the sanctity of the place and might lead to further controversies. However, the Allahabad Court, after careful consideration, upheld the District Court's order.

Cause Title: Committee of Management Anjuman Intezamia Masajid Varanasi v. Rakhi Singh [Diar No. 31345/2023]