The Gyanvapi mosque.
Credit: PTI File Photo
Allahabad HC and Varanasi fast track court to hear plea on separate Gyanvapi matters
While Allahabad High Court resumes its hearing on the mosque's south cellar possession, fast track court in Varanasi will begin hearing on plea seeking scientific survey of what the Hindu side had termed as 'shivling', found during a year-old ASI survey.
Find out more about the Varanasi court plea
The plea, filed by one Vijay Shankar Rastogi in the fast track court, contended that it was important to certain if the 'oval' shaped stone structure found in the ASI survey of the Mosque last year was 'shivling' or a 'fountain' as claimed by the Muslim side. The plea also sought a scientific survey of the unsurveyed parts of the Mosque complex stating that many portions of the Mosque were yet to be surveyed through scientific techniques.
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What happened at Allahabad HC's last hearing
The Muslim side presented its argument stating that it is an 'admitted fact' that no puja was held in the cellar after 1993, it also labelled the January 31 order as 'totally bad in law', the senior counsel stated that the arguments of the plaintiff were accepted by the court as 'gospel truth'. The Muslim counsel also argued that after the January 17 application, the judge had become a 'functus officio'.
In its first argument, Hindu side lays down Section 14 of the Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983
Appearing for Sri Kashi Vishwanath Temple board of trustees, Senior Advocate C S Vaidyanathan said, "DM Varanasi is an ex-officio member of the board and he has certain duties as enumerated in this provision."
Section 14 of the Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983.
Credit: X/@LiveLawIndia
Muslims never perfomed namaz in the south cellar, argues Hindu side
Vaidyanathan argues, "there is a Tehkhana (Vyas Tehkhana) in the southern part of the Gyanvapi Mosque wherein Hindu deities were being worshipped by them till 1993. Under Order 40 Rule 1 CPC, the Varanasi Court had appointed a receiver (the DM). It did not affect the rights of Muslims-appellants as they never performed Namaz in the Tehkhana."
Varanasi court's order allowing puja inside Tehkhana 'not improper', argues Hindu counsel
"If the Puja continued till 1993, there is no bar that now Puja can't be performed. Varanasi Court's order appointing DM as the receiver and allowing for Puja inside Vyas Tehkahna is not improper", the counsel said.
Muslim counsel S F A Naqvi begins argument
"Section 151, 152 CPC my friend has also addressed and is not proper to address again. Appointment of DM as receiver. It is actually creating a clash of interests", he argues.
Being a DM and and ex-officio member creates 'clash of interests', argues Naqvi
Crucial error by DJ, should have applied his mind, argues Muslim counsel
"There is a crucial error made by the District judge. He should have applied his mind. Once there is a law separately governing defendant no 2(trust), he should have considered that DM is a part of the board of trustees. He wanted to facilitate certain things, therefore he passed the order", he argues.
No mention of cellar in documents, argues Muslim counsel
Muslim counsel presents will document of Pandit Chandranath Vyas
Placing documents executed by Shailendra Kumar Pathak and Jitendra Kumar Pathak and Kashi Vishwanath Trust, Naqvi argues, "Some description of property is given but not everything".
In the deed executed between the Vyas Family and the Kashi Vishwanath Board of Trustees, description of the property 'confusing', argues Naqvi
"In the deed executed between the Vyas Family and the Kashi Vishwanath Board of Trustees, although the description of the property is given, it is confusing because there are many houses and temples and it is not clear which one was being referred to by them", he argues.
Vyas family transferred the charge to Kashi Vishwanath Board of Trustees, how can they ask file a suit after 32 years, argues Muslim counsel
"Once they have themselves transferred the right, how can they file this suit seeking worshipping right after 32 years. Without taking any recourse of limitation or law", he said.
Property of Vyas family transferred to Kashi Vishwanath Board of trustees, appoint DM creates a clash of interest, argues Naqvi
Muslim counsel questions DM's authority
"The DM being the state authority, can he do these things. If it is permissible, then whether there is a clash of interests? DM as a collector, DM as a receiver and a member of the board of the trust. There is a direct nexus between all the three. In the plaint itself, they are asking to do something at the place through DM by the person appointed by the trust", he said.
Justice Rohit Ranjan Agrawal replies to Muslim counsel
"But under Order 40 Rule 1, he is only appointed as a custodian of the property. You haven't challenged the Kashi Vishwanath trust act", he responded.
DM's duties colliding with each other, argues Naqvi
"All his three duties (DM as collector, member of the board of trustees and receiver) are colliding with each other. And if they are colliding with each other, whether a person can make a proper decision, my submission is that he cannot. He has to give up one of the posts", he said.
DM has to act as per guidance of the board of trustees, argues Naqvi
"He has to act as per the guidance of the Kashi Board of Trustees. Trust is directed to appoint someone who will do puja under the supervision of DM", he said.
DM can't work impartially as a receiver appointed by court, argues Naqvi
"As a receiver, he was to act impartially. The Board of Trustees are claiming different things, how will he resolve the dispute while acting as a receiver appointed by the court? In that situation, he cannot work impartially. If he is not impartial, then it will prejudice the cause of either the plaintiff or defendant", he said.
Vishnu Shankar Jain argues for the plaintiff
"Because arguments were made that the order cannot be passed on the date of retirement, I am passing on judgments of SC and HC, which were passed on the date of retirement of the concerned Judge", he said.
Jain argues that the order passed were 'impartial'
Naqvi responded saying, "someone will win and someone will lose. But this is partial."
Jain argues that in the area where 'Shivalingam' was found, SC appointed DM as the custodian of that area.
DM directed to make arrangements for Wuzu, argues Jain
"The DM has been directed to make arrangements for Wuzu. And I must point out, during the month of Ramzan, they had gone to SC that proper arrangements were not made. The DM was directed again to make proper arrangements", he said.
Naqvi's arguments are on a different footing, Justice Agrawal responds to Jain
"But Mr. Naqvi's arguments are on a different footing, he says that he was granted receiver as being a member of the board of trustees", he said.
Jain replied saying, " I understand, but the DM is taking action according to the directions of the court."
Hindu side in possession of the Tehkhana till date, nobody refuted claim
Muslim side presents TOI copy showing DM performing the duties facilitating darshan in Tehkhana
"One aspect is left. We had filed the amendment application in which we have annexed a copy of Times of India, wherein a news item was published showing DM performing the duties to facilitate darshan in Tehkhana", counsel said.
Judge asks Muslim counsel if he offers namaz in the mosque
"Yes lordship. No issues there", Naqvi responded.