The Allahabad High Court, while delivering its verdict in the Gyanvapi compound title maintainability case on December 19, focused on the restrictive provisions of the Places of Worship Act 1991.
A title suit – ‘Swayambhu Lord Vishweshwar and others Vs. Anjuman Intezamia Masjid Varanasi and others’ — was filed in the Varanasi court in 1991 by the friend of the Adi Vishweshwar Mahadev with a prayer that the Gyanvapi mosque and surrounding areas (the old temple of Lord Vishweshwara) or the Gyanvapi compound be declared the property of Lord Vishweshwar and be handed over. The title plea stated that there existed an Adi Vishweshwar Mahadev temple for ages but was demolished by an Aurangzeb regime order in 1669.
The title suit was challenged by the Waqf Board and the Gyanvapi mosque committee, stating that raising the civil suit was barred under the PoW Act 1991. The Allahabad High Court, in 1998, had stayed the proceedings.
While rejecting pleas by the Muslim side, the bench had said yesterday that the primary legal task ahead is the exact definition of the religious nature of the Gyanvapi complex. It is not clear whether the Gyanvapi compound has a Hindu, or a Muslim religious character but it can’t have a dual character at the same time.
The judgment delivered stated that the legal suit filed by the Hindu side is not barred under Section 4 of the PoW Act 1991. The Section 4 of the PoW Act 1991 pertains to the subsistence of the religious character of a place of worship. It states that “the religious character of a place of worship existing on the 15th day of August, 1947, shall continue to be the same as it existed on that day”, with all past legal appeals closed and no future appeals allowed.
The PoW Act 1991, however, comes with some restrictions. The said restriction doesn’t apply to an ancient or historical place of worship, “any place of worship, which is an ancient and historical monument or an archaeological site or remains covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958, or any similar law”.
Additionally, Sub-Section 3(d) imposes another restriction as per the court verdict: “Sub-Section 3 of Section 4 enumerates certain cases in which the parties can approach the court for redressal of their grievance….and Sub-Section (3)(d) is one of those case, where conversion has taken place much before the commencement of the Act and a party had not approached the court, the acquiescence or silence would not bar the action of such party.”
The Archaeological Survey of India (ASI) had submitted a sealed survey report on Gyanvapi complex in the Varanasi court. Next hearing in the case is on December 21. Much depends on the findings of ASI’s scientific survey in the legal fight ahead of the temple’s antiquity and historical timeline and significance. The court is also in favour to enlarge the survey if needed.
The judgment delivered on Tuesday also stated that the PoW Act 1991 does not define the religious character of a place. The bench said, “The Act clearly defines “conversion” and “place of worship” but the “religious character” of “place of worship” has not been defined. The question that now arises — what is the religious character of the place in dispute? One finds that the “religious character” cannot be confined in limits of verbal terminology, as the Act has not defined the term. Therefore, it could only be decided by the facts and circumstances of each and every case.
The entire case of the title suit related to the Gyanvapi mosque has now moved to this basic question.
According to the judgment copy, “plaintiffs have sought relief of declaration in respect of plot numbers 9130, 9131, and 9132, claiming it to be the entire area of the temple of Swayambhu Lord Adi Vishweshwar since Satyug up until now”. The dispute revolves around the area in plot number 9130 in the Gyanvapi compound, which as claimed, historically housed the Kashi Vishwanath temple that was demolished by Aurangzeb.
The bench said, “In the instant case, plaintiffs have sought relief of declaration in respect of plot number 9130, 9131 and 9132 claiming it to be the entire area of temple of Swayambhu Lord Adi Vishweshwar since Satyug uptil now. Dispute is only to the part of entire area, that is, plot number 9130, which is claimed to be the part of the Gyanvapi compound and temple having stood there, which was brought down by Farman of Emperor Aurangzeb in the year 1669”.
The directive given by Aurangzeb is available in a written form that makes it critical in the case. Aurangzeb’s own official records provide such evidence through a book authored by his official, Saqi Mustad Khan. He was tasked by Aurangzeb to create a chronology of his rule — past, present and future. This compilation exists in a Persian book named ‘Maasir-i-Alamgiri’. According to the translated version of this book, Aurangzeb, in 1669, gave orders to destroy all schools and temples in Varanasi and other parts of India. The official entry on September 2, 1669 confirms the demolition of Kashi Vishwanath Temple. The translated version of the book can be accessed through the concerned web link of the Ministry of Culture, Government of India, or from various online and offline retailers.
The judgement copy says, quoting the plaint, “Hindus are worshipping the entire structure as temple of Lord Adi Vishweshwar while Muslims are claiming some part for offering Namaz thus the character of the structure is also under dispute, as one claims it to be a temple while the other claims it to be a mosque”.
The Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983 was implemented in 1983 through which the state government took over the temple management, “with the ownership of temple and its endowments to vest in the Deity of Shri Kashi Vishwanath”.
The HC judgment also states, “The contention raised by the plaintiffs’ side is justified to an extent that the enactment of the Kashi Vishwanath Temple Act is a sovereign Act. After the fall of the Mughal Empire, the property in question came under the control of the British sovereign and subsequently under the constitutional regime of the Republic of India”. This implies that the legal continuity exists between British India and Republic of India regarding private property claims”.
“After Independence, all pre-existing private claims between citizens were not extinguished, they were recognised unless modified or revoked by express Act of the Indian government,” said the judgement, adding that “the rights of the parties, which accrued during the colonial regime can be enforced by the court of the day”.
The judgement copy further said that “the British sovereign never recognised the legal existence of the alleged mosque, and in their written statement filed in case of Din Mohammad (supra), the said fact was denied”.
The Din Mohammad case dates back to 1936 when Mohammad approached the court with a civil suit, demanding that the Secretary of State for India, through the District Magistrate, Benares, and Anjuman Intajamia Masajid, Benares, declare the concerned plot as a Waqf property. In a civil suit filed before a Varanasi court in May 2022, five Hindu women quote the 1936 case. The civil suit was for a court verdict on the five women’s rights to have Darshan and worship all deities on the outer wall of the Gyanvapi mosque. The affidavit states that the 1936 case was filed without impleading anyone from the Hindu community. Therefore, the judgment in their favour was not binding. Additionally, according to the affidavit, then Secretary of State for India in Council mentioned that the temple and idols in the concerned place existed long before the Mohammedan Rule in the country.
As per a PTI report, the affidavit quotes the British government’s response in the 1936 civil suit, stating, “The entire plot of land on which the Mosque, ‘pucca’ courtyard, stray grave, staircase in front of the gate, together with ‘pucca’ enclosures all around and a ‘pipal’ tree stand belongs to the government and has never been dedicated nor could have been dedicated to the Mosque”.
The verdict further said, “The fact whether the Waqf Act of 1936, U.P. Muslim Waqf Act, 1960 or Act of 1995 was complied with by defendant is a matter of fact and can only be adjudicated by trial court when parties lead evidence and the same is considered by court below…. Moreover, there is no material on record to demonstrate the creation of Waqf and construction of Mosque”.
The Allahabad High Court has set a deadline of six months for the Varanasi court to conclude the proceedings in the 1991 title suit and to ascertain the religious character. No unnecessary adjournments given to any party in the case, order to be issued if further scientist survey is needed.
The judgement copy says, “The dispute raised in the suit is of vital national importance. It is not a suit between the two individual parties. It affects two major communities of the country. Due to the interim order operating since 1998, the suit could not proceed. In the national interest, it is required that the suit must proceed expeditiously and be decided with utmost urgency with the cooperation of both the contesting parties without resorting to any dilatory tactics.”
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