Supreme Court Allows ASI Survey Of Gyanvapi Mosque Without Excavation Or Damage To Structure; Asks ASI To Follow "Non-Invasive" Process

The Supreme Court on Friday refused to stop the Archaeological Survey of India (ASI) to carry out a survey of the Gyanvapi Mosque at Varanasi, except the 'wuzukhana' area where a 'shivling' was claimed to have been found last year. Taking on record an undertaking made on behalf of the ASI that no excavation will be done at the site and no damage will be caused to the structure, the Court allowed the survey to take place.Accordingly, the Court disposed of a petition filed by Anjuman Intezamia Masjid Committee (which manages the Gyanvapi Mosque at Varanasi) challenging yesterday's Allahabad High Court order which permitted the ASI survey."It is clarified on behalf of the ASI by Solicitor General of India Mr. Tushar Mehta that as a matter of fact, the entire survey will be completed without any excavation at the site and without causing any destruction to the structure", recorded the order passed by the bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra. "The order of the learned trial judge passed under Order 26 Rule 10A of the CPC cannot be prima facie at this stage to be said as without jurisdiction", the bench noted in the order. The bench noted that the evidentiary value of the scientific commission is open to be tested in the suit and is open to objections, including cross-examination. Hence, a report of the commissioner, by itself, does not amount to a determination of the matters in dispute."Having regard to the nature and ambit of a Court-appointed commissioners, we are unable to differ with the view of the High Court, particularly in the jurisdiction under Article 136", the bench observed.In addition to the undertaking by the ASI, the Court directed that the ASI survey should be carried out through "non-invasive" processes. The report which will be prepared by the ASI shall be remitted to the trial court and shall thereafter abide by the directions which will be passed by the District Judge.The bench was considering two Special Leave Petitions(SLP) filed by the Masjid Committee -one filed against an order of the High Court dismissing their petition filed under Order 11 Rule 11 CPC to reject the plaint as barred by the Places of Worship; two, petition filed against the order allowing ASI survey of the structure. On the first SLP in respect to the Order 7 Rule 11 issue, the bench issued notice to the Hindu plaintiffs and posted the matter for hearing on a later date. The second SLP was disposed of in terms of the directions mentioned above, recording the undertaking of the ASI.ArgumentsWhen the matter was taken, CJI Chandrachud told the petitioners' counsel Senior Advocate Huzefa Ahmadi that the High Court has taken on record the ASI's affidavit which state that they are not carrying out any excavation.Ahmadi however argued that the very process is barred by the Places of Worship (Special Provisions) Act 1991. "By ordering the survey, and by going back in the history as to what happened 500 years ago, are you not violating the Places of Worship Act?", Ahmadi asked.CJI said that this issue will be considered while hearing the main matter regarding the maintainability of the suit. Ahmadi urged that the survey "totally impinges upon fraternity, secularism, and statements of objects of the Places of Worship Act"."But Mr.Ahmadi, this is an interlocutory order appointing a commissioner. Why should the Supreme Court interfere? We will keep open all issues regarding maintainability, objections to commission evidence. These are matters to be argued in the suit ultimately. You must treat it like any other suit", CJI said."But this has the propensity to...", Ahmadi said."Even in the Ayodhya case, a great deal of argument was made on the evidentiary value of ASI survey. These are issues to be addressed at the final hearing as to what is the evidentiary value of the survey. We will safeguard the structure", CJI said."If tomorrow someone files a frivolous suit and on the first date ask for a survey as to whether there is something underneath, will your lordships ask the Archeological Survey to have a survey as a matter of course?", Ahmadi asked."Mr. Ahmadi, what is frivolous to you is faith to other side. How can we comment?", CJI said."If I make out a case that the suit is not maintainable, where is the question of survey? I am saying don't have the survey when there are serious doubts on the maintainability", Ahmadi argued.CJI however said that the power of a civil court to pass ad-interim orders is not barred merely because maintainability is questioned. He pointed out that two courts have held in favour of the suit's maintainability. "We will safeguard your concerns by protecting the structure", CJI assured.Solicitor General of India Tushar Mehta undertook that no excavation will be carried out and the ASI will follow the stand taken before the High Court."These are sly methods...the process is such that you are reopening the wounds of past. When you start a...

Supreme Court Allows ASI Survey Of Gyanvapi Mosque Without Excavation Or Damage To Structure; Asks ASI To Follow "Non-Invasive" Process

Padmakshi Sharma

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