Civil suits seeking right to offer prayers at Gyanvapi mosque complex maintainable: Varanasi district judge

The judge holds that the Places of Worship (Special Provisions) Act, 1991 is not a bar, because the plaintiffs are not claiming ownership over the 'disputed' property.

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EARLIER today, the District Judge, Varanasi, Ajay Krishna Vishvesha, turned down the application filed by Anjuman Intezamia Masajid, which manages the Gyanvapi mosque, challenging the maintainability of the civil suits filed by five plaintiffs, seeking a decree declaring that they are entitled to offer prayers within the mosque complex.

In their suit, the plaintiffs sought a declaration from the court that they are entitled to darshan, pooja and performance of all the rituals of Maa Shringar Gauri, Lord Ganesh, Lord Hanuman and other visible and invisible deities allegedly within the premises, situated at settlement plot no. 9130 in the area of ward and Police Station Dashwamedh in Varanasi district, that is, the Gyanvapi mosque.

The judge fixed September 22 as the date for filing written statements and framing of issues in the suits. He held that the plaintiffs are not barred by the Places of Worship (Special Provisions) Act, 1991, the Waqf Act, 1995, and the Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983.

On the bar under the Places of Worship Act, the judge ruled that the plaintiffs are not seeking a declaration or injunction over the property/land. 

"They have not sought the relief for converting the place of worship from a Mosque to Temple. The plaintiffs are only demanding right to worship Maa Sringar Gauri and other visible and invisible deities which were being worshipped incessantly till 1993 and after 1993 till now once in a year under the regulatory of State of Uttar Pradesh. Therefore, the Places of Worship (Special Provisions) Act, 1991 does not operate as the bar on the suit of plaintiffs. The suit of the plaintiffs is limited and confined to the right of worship as a civil right and fundamental right as well as customary and religious right. I agree with the learned counsel for the plaintiffs", the judge ruled.

The judge further explained that the plaintiffs are claiming only a right to worship at the disputed property. They want to worship Maa Shringar Gauri and other visible and invisible deities with the contention that they worshipped there till the year 1993, and are not claiming ownership over the disputed property, the judge reasoned. They have also not filed the suit for declaration that the disputed property is a temple, he stated.

He also ruled that merely on the basis of entries in the revenue record, no presumption of title can be drawn regarding a mosque or a temple.

The judge opined that the right to worship is a civil right and any interference in it will raise a dispute of civil nature, and under Section 9 of the Civil Procedure Code, a civil court has jurisdiction to decide such a case involving such a dispute.

"In the present case, the plaintiffs are demanding right to worship Maa Sringar Gauri, Lord Ganesh, Lord Hanuman at the disputed property, therefore, Civil Court has jurisdiction to decide this case", the judge opined.

On the issue of whether the suit was barred by the Waqf Act, the judge held that the bar under the Waqf Act did not operate because the plaintiffs are non-Muslims and strangers to the alleged waqf created at the disputed property, and the relief claimed in the suit is not covered under Sections 33, 35, 47, 48, 51, 54, 61, 64, 67, 72 and 73 of the Waqf Act.

On the issue of whether the suit was barred by the Uttar Pradesh Sri Kashi Vishwanath Temple Act, the judge ruled that provisions of the Act do not impose any bar regarding a suit claiming the right to worship idols installed in the endowment within the premises of the temple, or outside. Therefore, there was a failure to prove that the suit of the plaintiffs is barred by the Act.

On May 20, the Supreme Court transferred the suit from a civil judge to the Varanasi district court. It was of the view that given the sensitivity of the matter, it should be heard by a senior and experienced judicial officer of the Uttar Pradesh Higher Judicial Service. It had also extended its interim order directing the protection of the alleged Shivling found within the mosque, and free access of Muslims to the mosque for prayers or any other religious activities. The Supreme Court had said that its interim order would operate till the district judge decides on the maintainability of the suit, and eight weeks thereafter, to enable the aggrieved parties to challenge the same before the appropriate court.

The appeal at the Supreme Court contended that the proceedings being sub judice at the high court, the new suit filed in 2021 is an abuse of the process of law.

It added that "it is a settled law that local inspection or Commission by the court is made only in those cases where on the evidence led by the parties, Court is not able to arrive at a just conclusion either way or where the court feels that there is some ambiguity in the evidence which can be clarified by making local inspection or Commission. It cannot be claimed as a right by any party".

It also argued that the Advocate Commissioner for local inspection could not have been appointed upon the suggested choice of the plaintiffs.

In July, the Supreme Court decided to await the decision of the Varanasi District Judge on the maintainability of the suit which was passed today.

A special bench of the Supreme Court comprising Justices Dr. D.Y. Chandrachud, Surya Kant and P.S. Narasimha accordingly adjourned the matter to October for further consideration.