Supreme Court upholds Allahabad HC nod to ASI survey of Gyanvapi

New Delhi: The Supreme Court on Friday refused to stay the Allahabad High Court’s recent order allowing the ASI to survey the premises of Gyanvapi mosque in Varanasi, except for ‘wuzu khana’.

A bench, headed by CJI D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Mishra recorded the undertaking given by the Archaeological Survey of India that it will not make any excavation at the site during the survey.

It further directed that ASI will complete the survey process using non-invasive methodology without causing any damage to the existing structure.

The bench refused to entertain the request made by senior advocate Huzefa Ahmadi, appearing for the mosque management committee, that the ASI report be kept in a sealed cover until another pending plea pertaining to maintainability is decided by the Supreme Court.

The Supreme Court on Thursday agreed to hear today the plea filed by the Anjuman Intezamia Masjid Committee after the matter was mentioned for urgent listing.

The Allahabad High Court on Thursday had dismissed the plea moved by the Anjuman Intezamia Masjid Committee challenging the order passed by Varanasi district court directing the ASI to survey the barricaded area of the mosque premises, barring the sealed area.

A bench headed by Chief Justice Pritinkar Diwakar of the high court brushed aside the Mosque Committee’s apprehensions that the survey may result in damage to the structure. “The survey is required to do justice. Survey needs to be done with few conditions. Do survey, but without dredging,” it had said. Earlier, the high court had directed the ASI not to carry out the survey until hearing in the case is completed. The Mosque Committee had told the high court that the historic structure may fall during the ASI survey. On the other hand, the ASI had maintained that radar mapping will not affect the structure of the mosque.

In an interim relief passed on July 24, the Supreme Court ordered that Varanasi court’s direction allowing an extensive survey of the Gyanvapi Masjid by the ASI will not be enforced till 5 p.m. on July 26. It asked the Masjid Committee to move the Allahabad High Court to challenge the order passed by the Varanasi district court. On July 21, the district court directed the ASI to ascertain whether the mosque was built over a pre-existing Hindu temple, holding that the scientific investigation is “necessary” for the “true facts” to come out.

The Varanasi court order sought a report from ASI up to August 4 when the matter was to be taken up next. The court, however, ordered the exclusion of the section which had remained sealed since the Supreme Court order in May 2022. The area under seal is where Hindus insist a Shivling has been found, while Muslims claim it is part of a fountain.

The district court order came on applications moved by four of the five Hindu plaintiffs who filed a suit in August 2021, demanding the right of unhindered worship at the Maa Shringar Gauri Sthal. The mosque management committee, in its reply, refuted that the mosque was built over a temple, maintaining the structure at the spot was always a mosque. It opposed the survey, saying such an exercise cannot be ordered to collect evidence.

In another plea filed under Article 136 of the Constitution, the Anjuman Intezamia Masjid Committee has challenged the order of the Allahabad High Court upholding maintainability of Hindu worshipper’s suit filed before the Varanasi court.

The Supreme Court recently restored this plea, which was inadvertently disposed of while an order staying survey of the Gyanvapi Masjid till 5 PM on July 26 was passed. It directed for revival of the pending appeal after Solicitor General Tushar Mehta also acknowledged the inadvertent error.

In its order passed on May 31, the High Court had dismissed the revision application filed against rejection of application under Order VII Rule 11 of the Code of Civil Procedure (CPC) by the District Judge. The district court had held that the suit seeking relief of the right to worship the deities located in the disputed property is maintainable and is not barred under the Places of Worship Act, 1991, Waqf Act, 1995, or the Uttar Pradesh Sri Kashi Vishwanath Temple Act.