New Delhi: A citizen right guaranteed under Article 25 of the constitution (freedom of religion) “cannot be taken away by arbitrary action of state”, noted the Allahabad high court on Monday, February 26, as it ruled in favour of the continuation of Hindu prayers in the basement of the Gyanvapi Masjid in Varanasi.
The court dismissed a plea filed by the caretakers of the mosque challenging a controversial district court order handing over a southern cellar of the Mughal-era Muslim place of worship to Hindus for worship in the midst of pending suits in the Gyanvapi Masjd – Kashi Vishwanath Temple matter in which Hindu plaintiffs are seeking religious rights within the mosque as well as its ultimate possession from Muslims.
The matter eventually boiled down to which party – the mosque management committee or a Hindu plaintiff – could prove possession of the southern cellar before it was locked in 1993. A map from a civil suit in 1936 and an advocate commissioner’s survey report of the mosque in 1996 were judged by the HC to be evidence sufficient to prove that the Hindu plaintiff had prima facie possession of the basement of the mosque till 1993.
The HC held that the Muslim side had failed to establish prima facie possession over the cellar when the property was iron-fenced and barricaded in 1993, on the directions of the Supreme Court following the demolition of the Babri Masjid in Ayodhya. On the other hand, the court ruled that the Uttar Pradesh state government, then run by the Mulayam Singh-led Samajwadi Party, had stopped the worship and Hindu rituals in the cellar of the mosque by the Vyas family, the Hindu plaintiffs, “by illegal action of State without there being any order in writing.”
“Failure of appellant (Muslims) to establish prima facie possession over the disputed property (basement), and plaintiff (Vyas family) succeeding in building up a strong prima facie case negating the stand of appellant, leads to undeniable situation that stopping worship and performance of rituals by the devotees in the cellar would be against their interest,” noted Justice Rohit Ranjan Agarwal.
District judge A. K Vishvesha had on January 31, his last day of work before retirement, directed the district administration to make arrangements for puja and other Hindu activities inside the southern tehkhana of the mosque within seven days. The district court order was passed on an application filed by a local priest Shailendra Kumar Pathak of the Acharya Ved Vyas Peeth temple, who had sought rights to worship the Maa Shringar Gauri and other alleged visible and invisible deities he claimed were in the cellar of the mosque. The caretakers of the mosque had, however, rejected all claims made by Pathak that there were idols kept inside the previously-sealed cellar and that his ancestors used to carry out puja inside the cellar. They challenged the order and its hasty execution by the district administration in the middle of the night on February 1 in the HC and demanded a stay on the puja.
On February 26, Justice Agarwal ruled that there was “a strong prima facie evidence” of possession of the cellar in favour of the Vyas family from the British era till 1993. Justice Agarwal held that allowing worship and rituals in the basement under the supervision of the receiver (district magistrate) appointed by the lower court required no interference.
“Prima facie I find that act of the State Government since year 1993 restraining Vyas family from performing religious worship and rituals and also by the devotees was a continues wrong being perpetuated,” said Justice Agarwal.
The court observed that the Vyas family “who continued performance of religious worship and rituals in the cellar could not be denied access by oral order.”
Justice Agarwal dismissed the appeals filed by the management committee of the mosque, saying that it “had not made out any case for interfering” in the district court orders of January 17 and 31.
The district court had on January 17, on an application by Pathak, appointed the district magistrate as the receiver of the basement and directed him to keep it secure. On January 24, the basement was taken over by the district administration. A week later, the district court amended its order and issued a fresh direction to the district administration to make arrangements for puja and other Hindu activities inside the southern tehkhana of the mosque and conduct the puja and “rag-bhog” of the “idols” inside the tehkhana through a pujari appointed by the Shri Kashi Vishwanath Temple Trust.
The Varanasi court order came days after the Archaeological Survey of India in its survey report claimed that a “large Hindu temple” existed at the site of the Gyanvapi Masjid prior to the construction of the existing structure i.e the mosque and that parts of the temple were modified and used in the construction of the Islamic place of worship.
The HC overruled objections raised by the lawyers of the Gyanvapi Masjid management committee and said there was “no illegality or mistake committed by the” district judge while appointing the district magistrate as the receiver for the basement and issuing directions for arranging worship there. The appointment of the receiver “in no way affects the right or title of any of the party during pendency of the suit as Receiver is appointed to protect the property being a representative of the Court and of all the parties interested in litigation.,” the HC noted.
The masjid management committee lawyer SFA Naqvi argued that the district court could not have passed the January 17 order appointing the receiver and that the order appointing him was in teeth of the directions passed by the Supreme Court in 1993, 1995 and 1997 directing protection of the mosque following the Babri Masjid demolition of December 6, 1992.
The masjid management committee’s reliance on a 1937 lower court order to show possession of the basement seemed to backfire on them, as Justice Agarwal interpreted that the same case had validated the claims made by the Hindu plaintiffs. A map from 1936 and a Commissioner’s report of 1996 together not only negated the foundation of the Masjid management committee’s plea regarding possession of the basement but also “advances prima facie evidence of possession in favour of predecessors of plaintiff,” the court said.
The Committee of Management Anjuman Intezamia, the caretakers of the mosque, had argued in court that the property had been declared a mosque and the courtyard with the land underneath as Hanafi Muslim Waqf by an additional civil judge in 1937 in the Din Mohammad suit case filed in 1936. The Anujuman argued that in view of the 1937 court decision, the Vyas family no longer had any right over the property.
Naqvi said that the Din Mohammad case judgment had already settled the question regarding the mosque and its courtyard with the land underneath, as being Hanafi Waqf land. Once the cellar has been declared as Hanafi Muslim Waqf, the application filed by Pathak could not have been entertained and the receiver could not have been appointed, senior advocate Naqvi argued.
Since the mosque’s position was settled, any claim seeking relief regarding the land underneath it had to be decided in a proper suit and not by interim orders, Naqvi further said, objecting to the manner in which the district court entertained Pathak’s suit after a delay of 31 years without any explanation.
The court, however, said that a map filed in the 1936 Din Mohammad suit by the state (defendant) was admitted by the court against the plaintiff Din Mohammad on May 14, 1937, wherein the basement owned by the Vyas family has been shown. This showed that the court in 1937 admitted the existence of the Vyas family and the cellar owned by them, the court said, “The existence of Vyas tehkhana (cellar) owned by Vyas family in the year 1937 is a prima facie proof of the continued possession claimed by the plaintiff till the year 1993,” Justice Agarwal said.
The 1937 judgment, from which case the masjid committee was deleted from the array of parties, relied upon by the Masjid management committee “actually helps the case of the plaintiff as not only a strong case for trial has been made out, but also the balance of convenience tilts in favour of the plaintiff,” Justice Agarwal also said.
The fact that the Masjid management committee did not claim the basement at any point from the Vyas family after 1937 till December 1993 leads “to adverse inference” against it regarding the possession, Justice Agarwal concluded. On the other hand, the Hindu plaintiff was successful in “prima facie establishing” their possession through the Vyas family since 1551, the court added.
The court also admitted the July 30, 1996 commissioner’s report filed in a civil suit in a local court in Varanasi as proof that demonstrates the “presence of lock” put up on the gate of the basement by the predecessors of Pathak, providing “a strong prima facie evidence of possession.”
The report mentioned that two locks were put on the western side of the basement, one by the district administration and another by Somnath Vyas, Pathak’s grandfather, who was also the one who filed the original suit in the Gyanvapi Masjid matter seeking claim over it.
