The Supreme Court on Friday refused to halt the ASI survey which is currently being carried at the Gyanvapi mosque in Varanasi, dismissing a plea filed by the Anjuman Intezamia Masjid Committee against the Allahabad High Court's order allowing it.
A bench of CJI DY Chandrachud and Justices JB Pardiwala and Manoj Mishra allowed a “non-invasive survey” without causing any excavation or destruction of the mosque.
The bench also turned down the Masjid Committee’s request to direct the ASI to submit its report to the district judge in a “sealed cover”.
“The order of the trial judge under order 26 rule 10A CPC cannot prima facie be construed to be without jurisdiction. While recording submissions to the effect that the survey shall not involve any excavation or destruction, we also order and direct for conducting the process by using non-invasive methodology. There shall be no excavation at the site. The report of the ASI shall in terms of provisions of order 26 be remitted to the trial court,” the bench said in its order.
ALSO READ | ASI begins survey of Gyanvapi mosque complex amid tight security
Challenging the High Court's order, senior advocate Huzefa Ahmadi appearing for the masjid committee said that the act of conducting the survey was contrary to the provisions of the Places of Worship Act, 1991. “When you start digging into the past, the process is such that you are uncovering the past. When you order a survey, when you see as to what existed, you’re unravelling the wounds of the past,” Ahmadi said.
On the other hand, senior advocate Madhavi Diwan submitted that the survey was neither prejudicial nor adversarial.
Earlier, an Allahabad HC bench led by Chief Justice Pritinker Diwaker had said the survey is necessary in the interest of justice and noted the ASI's stand that no damage will be caused to the mosque.
“Once the Department of Archaeology and learned Senior Counsel representing the Department have made their stand clear that no damage is going to be caused to the property in question, this Court has no reason to doubt their statements and most importantly, the affidavit filed by the officer of the ASI explaining the circumstances. Further, it is settled proposition of law that issue of a Commission, at this stage, is permissible. 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. The law laid down and discussed above, make it clear that the Court below was justified in passing the impugned order. The present petition lacks substance and is liable to be dismissed,” the HC had said in its order.
Challenging the order, the Masjid Committee in the plea had said that the HC went into the nature of exercise but did not consider the sensitivity of the order passed in 2021. It was also contended that the Supreme Court's order to protect the Wazukhana protected the whole mosque and not just the particular area.
“The impugned order is further liable to be set aside on account of grave risks posed by such an exercise which may have consequences throughout the country, as have been witnessed throughout these proceedings since a survey of the Gyanwapi Mosque was permitted, absolutely against the provisions of the Places of Worship (Special Provisions) Act, 1991,” the plea stated.
