# C/m Anjuman Intezamia Masajid Varanasi v. Smt. Rakhi Singh & Ors

- **Citation:** (2023) 8 ILRA 642
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-03
- **Case number:** Matter under Article 227 No. 7955 of 2023
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-anjuman-intezamia-masajid-varanasi-v-smt-rakhi-singh-ors-50693
- **Pages:** 11

## Headnote

Sri Ajay Mishra, Advocate General, Sri Ashok
Mehta, AAG, Sri M C Chaturvedi, AAG, Sri Kunal
Ravi Singh, CSC, Sri Vijay Shanker Mishra, CSC,
Sri Ishan Mehta, Addl. CSC, Sri Ankit Gaur,
Standing Counsel, Sri Hare Ram Tripathi,
Standing Counsel, Sri Manoj Kumar Mishra,
Standing Counsel, Sri Ishan Dev Giri, for the
State, Sri Shashi Prakash Singh, ASGI, Sri Manoj
Kumar Singh and Sri Purnendu Kumar Singh for
the Union of India, Sri Vishnu Shanker Jain, Sri
Prabhash Pandey and Sri Saurabh Tiwari, for
plaintiffs/opposite parties 1 to 5 and Sri Vineet
Sankalp, for opposite party no.9.

Civil Law -Code of Civil Procedure, 1908 -
Section 75(e), Order XXVI Rule 10 - A -
Application for scientific investigation and
survey of religious site by ASI - Plaintiffs
seeking
directions
for
GPR
survey,
excavation,
and
dating
to
determine
whether present mosque structure stands
over pre - existing Hindu temple - District
Judge allowing application - Challenge to
order dismissed - Held: No bar in law to
appoint Commission even prior to trial for
better adjudication - Order of trial court
within
jurisdiction
-
Scientific
investigation
necessary
to
elucidate
disputed facts - Affidavit of ASI clarifying
no damage to structure would be caused -
Supervisory jurisdiction under Article 227
not
to
be
exercised
in
absence
of
perversity or jurisdictional error - Petition
dismissed.

Held:
There is no legal bar to the appointment of a
Commission for scientific investigation at a pre -
trial stage. The trial court rightly exercised its
jurisdiction under Section 75(e) read with Order
XXVI Rule 10 - A CPC, considering the
seriousness and complexity of the dispute
regarding existence of a pre - existing structure
beneath the Gyanvapi mosque. The ASI has
assured through affidavit that no harm shall
come to the existing structure and the
investigation will be non - invasive. The
petitioner's challenge lacks merit, and the High
Court, in its supervisory jurisdiction under Article
227, cannot act as an appellate body to
reappreciate findings of fact or substitute its
opinion unless there is a manifest error. Petition
dismissed with directions for expeditious trial.

Case Law Discussed:

## Text

642 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 8 ILRA 642
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2023

BEFORE

THE HON'BLE PRITINKER DIWAKER, C.J.

Matter under Article 227 No. 7955 of 2023

C/m Anjuman Intezamia Masajid Varanasi
 ...Petitioner
Versus
Smt. Rakhi Singh & Ors. ...Respondents

Counsel for the Petitioner:
Sri S F A Naqvi, Sr. Advocate, Sri Puneet Kumar
Gupta, Sri Syed Ahmed Faizan, Sri Zaheer
Asghar, Ms Fatma Anjum, Sri Munnaur Hussain,
Sri Mumtaz Ahmad, Sri Akhlaq Ahmad, Sri
Mehmood Alam, Sri Poorva Agarwal, Sri Vipul
Dubey and Sri Devendra Mishra.

Counsel for the Respondents:
Sri Ajay Mishra, Advocate General, Sri Ashok
Mehta, AAG, Sri M C Chaturvedi, AAG, Sri Kunal
Ravi Singh, CSC, Sri Vijay Shanker Mishra, CSC,
Sri Ishan Mehta, Addl. CSC, Sri Ankit Gaur,
Standing Counsel, Sri Hare Ram Tripathi,
Standing Counsel, Sri Manoj Kumar Mishra,
Standing Counsel, Sri Ishan Dev Giri, for the
State, Sri Shashi Prakash Singh, ASGI, Sri Manoj
Kumar Singh and Sri Purnendu Kumar Singh for
the Union of India, Sri Vishnu Shanker Jain, Sri
Prabhash Pandey and Sri Saurabh Tiwari, for
plaintiffs/opposite parties 1 to 5 and Sri Vineet
Sankalp, for opposite party no.9.

Civil Law -Code of Civil Procedure, 1908 -
Section 75(e), Order XXVI Rule 10 - A -
Application for scientific investigation and
survey of religious site by ASI - Plaintiffs
seeking
directions
for
GPR
survey,
excavation,
and
dating
to
determine
whether present mosque structure stands
over pre - existing Hindu temple - District
Judge allowing application - Challenge to
order dismissed - Held: No bar in law to
appoint Commission even prior to trial for
better adjudication - Order of trial court
within
jurisdiction
-
Scientific
investigation
necessary
to
elucidate
disputed facts - Affidavit of ASI clarifying
no damage to structure would be caused -
Supervisory jurisdiction under Article 227
not
to
be
exercised
in
absence
of
perversity or jurisdictional error - Petition
dismissed.

Held:
There is no legal bar to the appointment of a
Commission for scientific investigation at a pre -
trial stage. The trial court rightly exercised its
jurisdiction under Section 75(e) read with Order
XXVI Rule 10 - A CPC, considering the
seriousness and complexity of the dispute
regarding existence of a pre - existing structure
beneath the Gyanvapi mosque. The ASI has
assured through affidavit that no harm shall
come to the existing structure and the
investigation will be non - invasive. The
petitioner's challenge lacks merit, and the High
Court, in its supervisory jurisdiction under Article
227, cannot act as an appellate body to
reappreciate findings of fact or substitute its
opinion unless there is a manifest error. Petition
dismissed with directions for expeditious trial.

Case Law Discussed:

1. Mohd. Yunus Vs Mohd. Mustaqim, AIR 1984
SC 38

2. D.N. Banerji Vs P.R. Mukherjee, AIR 1953 SC
58

3. Nagendra Nath Bora Vs Commissioner of Hills
Division, AIR 1958 SC 398

4. M. Siddiq (Ram Janmbhoomi Temple Case)
Vs Mahant Suresh Das & ors., (2020) 1 SCC 1

5. Rama Avatar Soni Vs Mahanta Laxmidhar
Das, 2018 Legal Eagle (SC) 933

6. Rajib Barooah Vs Purnimati Plantation (P)
Ltd., 2018 (2) Gau LR 204

7. Shanta Devi Vs Pushpa Devi, 2022 Legal
Eagle (Raj) 1594

8. Phoolchand Asra Vs Nagar Palika Nigam Raipur,
WP (227) No.821/2019 (Chhattisgarh HC)
8 All. C/m Anjuman Intezamia Masajid Varanasi Vs. Smt. Rakhi Singh & Ors.
643
9. Smt. Suman Pandagre Vs Madhu Pandagre,
WP No.110376/2017 (MP HC)

(Delivered by Hon'ble Pritinker Diwaker, C.J.)

The present petition has been filed
under Article 227 of the Constitution of
India challenging the order dated 21.7.2023
passed by the District Judge, Varanasi in
Original Suit No.18 of 2022 (693/2021)
(Rakhi Singh & Others vs. State of Uttar
Pradesh & Ors). It has been prayed that this
Court may direct the court below not to
proceed any further in pursuance of the
impugned order dated 21.7.2023.

2. By the order impugned dated
21.7.2023, the Court below allowed the
applications 327C and 330C of the
plaintiffs
and
issued
the
following
directions:

"(a) The Director of ASI is directed to
undertake
the
scientific
investigation/survey/excavation
at
the
property in question i.e. at Settlement Plot
No.9130 in the case excluding the areas
sealed by the Hon'ble Supreme Court vide
order dated 17.05.2022, 20.05.2022 as well
as vide order dated 11.11.2022 in SLP(C)
No.9388/2022 titled as Committee of
Management Anjuman Intejamia Masajid
Varanasi vs. Rakhi Singh & Ors.;

(b) The Director of ASI is also
directed to conduct a detailed scientific
investigation
by
using
GPR
Survey,
Excavation, Dating method and other
modern techniques of the present structure
to find out as to whether same has been
constructed over a pre-existing structure of
Hindu temple;

(c) The Director of ASI is also
directed to conduct scientific investigation
in the light of the averment made in this
application after associating the Plaintiffs,
Defendants and their respective counsels
and submit report to this Hon'ble Court
upto 04-08-2023 and also to photograph
and
video-graph
the
entire
survey
proceedings;

(d) The Director of ASI is also
directed to investigate the age and nature of
construction of the western wall of the
building in question through scientific
method(s);

(e) The Director of ASI is also
directed to conduct Ground Penetrating
Radar (GPR) survey just below the 3
domes of the building in question and
conduct excavation, if required;

(f) The Director of ASI is also directed
to conduct Ground Penetrating Radar
(GPR) survey beneath the western wall of
the building and conduct excavation, if
required;

(g) The Director of ASI is also
directed to conduct Ground Penetrating
Radar (GPR) survey beneath the ground of
all the cellars and conduct excavation, if
required;

(h) The Director of ASI is also
directed to prepare a list of all the artefacts
which are found in the building specifying
their contents and carry out scientific
investigation and undertake dating exercise
to find out the age and nature of such
artefacts;

(i) The Director of ASI is also directed
to conduct dating exercise of the pillars and
plinth of the building to find out the age
and the nature of construction;

(j) The Director of ASI is also directed
to
conduct
GPR
survey,
excavation
wherever required, dating exercise and
other scientific methods for determining the
age and nature of construction existing at
the site in question;

(k) The Director of ASI is also
directed to investigate the artefacts and
other objects of historical and religious
644 INDIAN LAW REPORTS ALLAHABAD SERIES
importance existing in different parts of the
building and also beneath the structure
which may be found during such exercise;

The Director of ASI is also directed to
ensure that there should be no damage to
the structure standing on the disputed land
and it remains intact and unharmed. Report
will be submitted up to 04-08-2023. Put up
on 04-08-2023 for further proceedings."

3. In the aforesaid Suit, bearing O.S.
No.18 of 2022 (Old Regular Civil Suit
No.693 of 2021), filed by the plaintiffs, it
has been prayed to protect their right to
religion guaranteed under Article 25 of the
Constitution of India. They also prayed for
issuance of a mandatory as well as
permanent injunction to the defendants to
the effect that no interference be made in
performance of Darshan, Pooja of Goddess
Maa Shringar Gauri, Lord Ganesha, Lord
Hanuman, Nandiji, visible and invisible
Deities, Mandaps and Shrines, existing
within old temple complex, situated at
settlement Plot No.9130 in the area of
Ward and Police Station Dashaswamedh,
District Varanasi and the images of deities
be not damaged, defaced, destroyed and no
harm be caused to them.

It has been averred in the Suit that
there existed a glorious lofty temple at
Adivisheshwar
Jyotirlinga
near
Dashaswamedh Ghat in the heart of the city
of Varanasi. The Muslim invaders having
hatred towards non-Muslims and idol
worshippers started damaging/destroying
and desecrating Hindu temples right from
1193-94 AD, when Mohd Gori made an
attack on our mother land and demolished,
plundered and looted the Shiva temple at
Kashi
(now
Varanasi).
Thereafter,
a
number of Muslim invaders attacked Kashi,
repeated the barbarous act of Mohd. Gori.
Hindus sustained such attacks and temple
was rebuilt/restored at the very same place.
It has been further averred that it is a matter
of history that in the year 1585, the then
Governor of Jaunpur at the instance of his
Guru Narayan Bhatt, reconstructed a
magnificent temple of Lord Shiva at the
very same place, where the temple
originally existed i.e. at Settlement Plot
No.9130 on large scale consisting of central
sanctum (Garbh Griha) surrounded by eight
Mandaps.

It has been averred in the Suit that
Settlement Plot No.9130 along with five
kosh land already stood vested in the deity
Adivisheshwar lacs of years ago and that
the deity is the dejure owner but despite
this fact, Muslims, without creating any
waqf or having ownership of land, forcibly,
without any authority of law, raised a
construction and termed the same as
Gyanvapi mosque.

4. According to the plaintiffs, the
structure of mosque (Gyanvapi) was a
temple but sometimes in the era of 1193-94
AD, the temple was demolished by the
Muslim Rulers. The plaintiffs have put
forth their claims by pointing out several
facts which according to them, make it
clear that the structure (Gyanvapi) was
nothing but a temple.

5. In the aforesaid Suit, filed by the
plaintiffs on 16.8.2021, for declaration,
permanent and mandatory injunction, an
application (as application paper no.327C
and 330C) was filed by the plaintiffs under
Section 75 (e) and Order XXVI Rule 10A
read with Section 151 of Code of Civil
Procedure (in short 'CPC') for issuance of
the following directions:

•
to
undertake
the
scientific
investigation/survey/excavation
at
the
8 All. C/m Anjuman Intezamia Masajid Varanasi Vs. Smt. Rakhi Singh & Ors.
645
property in question i.e. at Settlement Plot
No.9130 in the case excluding the areas
sealed by the Hon'ble Supreme Court, vide
order dated 17.5.2022, 20.5.2022 as well as
vide order dated 11.11.2022 in SLP (C)
No.9388/2022 titled as Committee of
Management Anjuman Intejamia Masajid
Varanasi vs. Rakhi Singh & Ors.;

• to conduct a detailed scientific
investigation
by
using
GPR
Survey,
Excavation, Dating method and other
modern techniques of the present structure
to find out as to whether same has been
constructed over a pre-existing structure of
Hindu temple;

• to conduct scientific investigation in
the light of the averment made in this
application after associating the Plaintiffs,
Defendants and their respective counsels
and submit report to this Hon'ble Court
within the stipulated time as provided by
the Hon'ble Court and also video-graph the
entire survey proceedings;

• to investigate the age and nature of
construction of the western wall of the
building in question through scientific
method (s);

• to conduct Ground Penetrating Radar
(GPR) survey just below the 3 domes of the
building
in
question
and
conduct
excavation if required;

• to conduct Ground Penetrating Radar
(GPR) survey beneath the western wall of
the building and conduct excavation, if
required;

• to conduct Ground Penetrating
Radar (GPR) survey beneath the ground
of all the cellars and conduct excavation,
if required;

• to prepare a list of all the artefacts
which are found in the building specifying
their contents and carry out scientific
investigation and undertake dating exercise
to find out the age and nature of such
artefacts;

• to conduct dating exercise of the
pillars and plinth of the building to find out
the age and the nature of construction;

• to conduct GPR survey, excavation
wherever required, dating exercise and
other scientific methods for determining the
age and nature of construction existing at
the site in question;

• to investigate the artefacts and other
objects
of
historical
and
religious
importance existing in different parts of the
building and also beneath the structure
which may be found during such exercise;

• Pass such other order as the Hon'ble
Court may deem fit and proper in the
interest of justice."

6. In the application, it was contended
by the plaintiffs that pursuant to the order
passed by the Court below, a Court
Commissioner
was
appointed,
who
submitted his report on 18.5.2022 regarding
proceedings conducted on 6.5.2022 and
7.5.2022 and from the report, it came to the
knowledge of different persons that a
1⁄4f'kofyax1⁄2 'Shivlingam' was found within the
property in question during the survey
made on 16.5.2022 in the presence of the
plaintiffs, defendant and learned counsel
representing various parties.

7. Assailing the order passed by the
Court below directing for appointment of
an Advocate Commissioner, the Committee
of
Management
Anjuman
Intezamia
Masajid preferred a writ petition, being
Matter Under Article 227 No.2946 of 2022,
which was dismissed by this Court, vide
order dated 21.4.2022. The Committee of
Management Anjuman Intezamia Masajid
preferred a SLP No.9388 of 2022 before
the Apex Court, challenging the order dated
21.4.2022 passed by the Allahabad High
Court, upholding the order dated 8.4.2022
passed by the learned Civil Judge (Senior
646 INDIAN LAW REPORTS ALLAHABAD SERIES
Division), Varanasi. However, the Apex
Court, vide order dated 20.5.2022 also
passed an order transferring the Civil Suit
No.693 of 2021 from the Court of Civil
Judge (Senior Division), Varanasi to the
Court of District Judge, Varanasi. The
Apex Court also observed that:

"(i) application filed by the defendant
under Order VII Rule 11 of CPC shall be
decided on priority basis;

(ii) all interlocutory and ancillary
proceedings in the Suit shall be addressed
to and decided by the Court of District
Judge;

(iii) since parties are appearing on
notice, all orders in the suit shall be passed
upon hearing the parties."

8. Further, according to the plaintiffs,
an
ancient
'Shivlingam'
was
found/discovered
by
the
Advocate
Commissioner
on
16.5.2022.
The
'Shivlingam' found/discovered is an object
of worship by Hindu devotees. It is
believed that 'Shivlingam' is existing
within the place in question from the time
immemorial. The plaintiffs further submit
that for proper adjudication of the case,
scientific investigation is necessary based
on which length, width, height, age, make
up and constituents of the 'Shivlingam' can
be ascertained.

9. Learned counsel for the applicant
(defendant no.4) submits that once all the
parties have been asked to maintain status
quo of the property in question, no
interference can be directed by the
Archaeological Survey of India (hereinafter
referred to as 'the ASI'). Learned counsel
submits that the issues are yet to be framed
and list of witnesses has not been disclosed
or exchanged, yet just to create evidence,
application paper nos. 327C and 330C have
been filed. It has been submitted that since
the plaintiffs are assured that they do not
have any admissible evidence, therefore,
false tactics are being applied. Learned
counsel submits that the Ayodhya Case,
i.e. M. Siddiq (Dead) through Legal
Representatives
(Ram
Janambhumi
Temple Case) Vs Mahant Suresh Das &
Others, reported in 2020 (1) SCC 1, has
taught a lesson, not to permit any such
person or public agency to create evidence
in such a manner. It has been argued that
while deciding the applications, the Court
below has not recorded any finding as to
why such scientific investigation without
harming
the
existing
structures,
is
necessary? It has been also submitted that
all the aforesaid works cannot be carried
without damage to the structures. He
submits
that
if
during
scientific
investigation, any excavation is made, it
would damage the structure in question.
Learned counsel submits that scientific
investigation can only be made when, after
adducing evidence, the Court is unable to
decide the dispute. He further submits that
the Suit is barred by Places of Worship
(Special Provisions) Act, 1991, as the
disputed structure has been standing since
prior to 1947. Learned counsel submits that
earlier the plaintiffs have moved an
application under Order XXIV Rule 9 CPC
for
appointment
of
Advocate
Commissioner; the said application was
allowed and the Advocate Commissioner
was appointed, who submitted his report.
The said report is still pending for disposal.
It has been further argued that the ASI is
not a party to the Suit and, therefore, no
direction can be issued to the ASI to
conduct scientific investigation of the
property in question. Though the suit was
filed in the year 2021, but the application
has been filed only in 2023 and for two
years, the plaintiffs remained silent.
8 All. C/m Anjuman Intezamia Masajid Varanasi Vs. Smt. Rakhi Singh & Ors.
647

10. In support of his submissions,
learned counsel for the applicant (defendant
no.4) has placed reliance upon the
following judgments:

(i). Rama Avatar Soni vs. Mahanta
Laxmidhar Das & Ors., 2018 Legal Eagle
(SC) 933, (Paras 4, 5, 8 & 9).

(ii). Rajib Barooah vs. Purnimati
Plantation (P) Ltd., 2018 (2) Guwahati
Law Report, 204 , (Paras 11 & 12);

(iii). Shanta Devi vs. Pushpa Devi &
Ors. 2022 Legal Eagle (RAJ) 1594, (Para
9).

(iv). Mohd. Aslam Alias Bhure vs.
Union of India & Others, (1994) 2 SCC
48;

(v). Sri Kant vs. Mool Chand (Dead)
& Others, 2019 (2) CAR 758 (All.);

(vi). Km. Chandana Mukherji Died
through Smt. Sarla vs. Addl. District
Judge, Special Judge, PC Act Lko &
Another
(Matter
Under
Article
227
No.6654 of 2020);

(vii). Naseeb Deen and Anr. v.
Harnek Singh, AIR 2019 HP 173.

11. Relying upon the judgement in the
case of Sri Kant (supra), learned counsel for
the defendant no.4 has submitted that local
inspection or Commission by Court is made
only in those cases where, on evidence led by
parties, Court is not able to arrive at a just
conclusion either way or where Court feels
that there is some ambiguity in evidence
which can be clarified by making local
inspection or commission.

A reliance has also been placed in the
case of Naseeb Deen (supra) to submit that
the plaintiffs are trying to create evidence
in their favour at this stage, which is not
permissible in law and even appointment of
Commissioner, before framing of issues, is
erroneous.

Also, relying upon the judgments in
the cases of Km. Chandana Mukherji
(supra) and Rajib Barooah (supra), it has
been submitted that the applications cannot
be allowed merely for the purposes of
facilitating the case of one or the other
party and it is not the business of the courts
to discharge the burden of evidence of
either party. Onus is upon the plaintiffs to
place whatever facts they wanted to prove
their
case
by
adducing oral
and/or
documentary evidence during trial and the
same cannot be permitted by way of getting
the Commission appointed.

Placing reliance in the case of Rama
Avatar Soni (supra), it has been submitted
that if scientific investigation of document
in question facilitates ascertaining of truth,
in the interest of justice, naturally it has to
be ordered.

Further relying upon the judgement in
the case of Shanta Devi (supra), it has been
submitted that provisions of Order XXVI,
Rule 10-A of CPC cannot be permitted to
be used as a tool by the parties concerned
to create evidence in their favour.

12. Per contra, learned counsel
appearing for the plaintiffs argued that the
scientific investigation, as prayed for by
plaintiffs, is not going to cause any injury
to any of the party, rather it would facilitate
and crystallise each and every issue, so as
to reach to a conclusion with the help of
available evidence on record. Learned
counsel
further
submits
that
the
Archaeological
Survey
of
India
has
mechanism and all facilities to find out the
age, composition, nature and other relevant
things relating to any monument, relic,
artefact etc. Learned counsel for the
plaintiffs has also argued that the ASI is
authorized to fulfil the objects of the
648 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions
contained
in
the
Ancient
Monuments and Archaeological Sites and
Remains Act, 1958. The ASI, under
Section 22 of the said Act, has the power to
excavate any area, other than the protected
areas, if it has reason to believe that the
area contains ruins or relics of historical
and archaeological importance.

While placing reliance upon the
Ayodhya Case (supra), it has been argued
that the law laid down by the Supreme
Court is fully applicable. He referred to the
following paragraphs of the said judgment:

"679. Archaeology as a science draws
on multi-disciplinary or trans-disciplinary
approaches. In considering the nature of
archaeological evidence, it is important to
remember that archaeology as a branch of
knowledge draws sustenance from the
science of learning, the wisdom of
experience and the vision which underlies
the
process
of
interpretation.
As
a
discipline, it nurtures a trained mind. It
relies on a cross-fertilization with other
disciplines such as history, sociology and
anthropology. This is not a weakness but a
strength.
Archaeology
combines
both
science and art. As a science, it is based on
the principle of objective evaluation. As an
art, it relies on a vision which is realised
through years of commitment to the pursuit
of knowledge based on the histories of eras.
Archaeology as a discipline cannot be
belittled as unreliable. The value of
archaeology cannot be diluted in the
manner which has been suggested by
laying a claim to its being a weak form of
evidence.

682. In his book titled ―The Logic of
Scientific
Discovery,
Karl
Popper
distinguishes the work of a scientist with
that of a philosopher. Popper quotes Lord
Acton when he states:

"there is nothing more necessary to the
man of science than its history and the
logic of discovery.... the way error is
detected,
the
use
of
hypothesis,
of
imagination, the mode of testing.

683. The supposed distinction between
science as embodying absolute truth and
archaeology as unguided subjectivity is one
of degree not of universes. Yet as in other
disciplines of its genre, archaeology is as
much a matter of process as it is of
deduction. The archaeologist must deal
with recoveries as much as the finds from
them. Interpretation is its heart, if not its
soul. Interpretations do vary and experts
disagree. When the law perceives an
exercise of interpretation it must recognize
margins of error and differences of opinion.
Archaeological findings are susceptible of
multiple interpretations. This may in part be
a function of the archaeologist's perception of
the past and what about the past the
archaeologist seeks to decipher. Tradition
based archaeology may seek facts about the
past. An archaeologist, on the other hand may
set about to validate a belief about the past.
An archaeologist may approach the task with
an open mind to unravel features that are
unknown.
Guided
by
the
underlying
approach to the discipline, the archaeologist
will bring to bear on the task at hand the
purpose underlying its own origin. So long as
we understand the limits and boundaries of
the discipline, we can eschew extreme
positions and search for the often elusive
median."

13. In support of his submissions,
learned counsel for the plaintiffs has also
placed
reliance
upon
the
following
judgements:

(i). Sri Shadaksharappa vs. Kumari
Vijayalaxmi, W.P. No.201274/2022 (GMCPC) (Karnataka High Court) (Paras 9-14);
8 All. C/m Anjuman Intezamia Masajid Varanasi Vs. Smt. Rakhi Singh & Ors.
649

(ii). Phoolchand Asra v Nagar
Palika Nigam, Raipur, Writ Petition (227)
No.821 of 2019 (Chhattisgarh High Court)
(Para 10);

(iii). Anurag Jaiswal v Collector,
Khandwa & Ors., 2018 SCC Online (MP)
699 (Paras 7 and 12);

(iv). Rajesh Kumar Gautam v Maha
Mandleshwar
Vedabayasanad
Geeta
Ashram, 2003 SCC Online Utt. 9; (Para 6)

(v).
Narasimhaiah
v
Smt.
Sakammanamma & Anr., 2000 SCC
Online Kar. 564 (Paras 5 and 7)

(vi). Smt Suman Pandagre v Madhu
Pandagre, W.P. No.110376 of 2017
(Madhya Pradesh) (Para 8).

(vii). Filmistan Pvt. Ltd. Bombay vs.
Bhagwandas Santprakash, AIR 1971 SC
61.

14. Relying upon the judgement of
Phoolchand Asra (supra), counsel for
the plaintiffs submits that in paragraph 10
of the judgement, it has been clearly laid
down that in any Suit in which the court
deems a local investigation to be a
requisite or proper for the purpose of
elucidating any matter in dispute, or of
ascertaining the marked value of any
property, or the amount of any mesne
profits or damages or annual net profits,
the Court may issue a commission to such
person, as it thinks fit, directing him to
make such investigation and to report
thereon to the Court.

Further, relying upon the judgment of
Smt. Suman Pandagre (supra), which
finds support of many cases mentioned
therein, including that of Maroli Achuthan
(supra), it has been submitted that it is open
to the Court to pass an ex parte order for
the issue of a Commission for investigation
even before the defendant has entered
appearance.

15. During the course of arguments,
considering
the
peculiar
facts
and
circumstances as well as seriousness of the
issue involved in the present petition, the
Court felt it necessary to seek expert's
opinion in the matter from Government
Agencies having expertise in such field.
Therefore, a responsible Officer of ASI was
called upon to assist the Court and, in turn,
Sri Alok Tripathi, Additional Director
General, ASI, New Delhi has appeared, to
assist the Court and by means of an
affidavit, he submitted that the ASI will
conduct a detail survey in accordance with
law and prepare a list of the antiquities
which are found in building and carry out
detail survey and undertake the exercise to
find age and nature of the structure. He
further submitted that the ASI will conduct
survey, documentation, photography, detail
description, GPR survey and full studies
without harming the existing structures. He
also submitted that all the aforesaid works
would be carried without any damage to the
structures. He has submitted that the scientific
investigation would be carried out beyond the
structure and in open areas only; no drilling,
no cutting, no removal of brick or stones
from the existing structure will be done while
conducting the survey and study. It has been
further submitted that archaeological sites
will be in open place floor area which will
not affect the structure at all, and no
wall/structure would be damaged and the
entire survey will be conducted by the nondestructive method by using techniques such
as GPR survey, GPS survey, the other
scientific
methods
and
other
modern
techniques. It has also been submitted that in
case any further investigation/excavation is
required, permission of the Hon'ble Court
would be sought.

16. I find no substance in the
submission made by learned counsel for the
650 INDIAN LAW REPORTS ALLAHABAD SERIES
applicant/defendant
no.4
that
local
inspection or Commission by the Court is
made only in those cases, where on
evidence led by parties, Court is not able to
arrive at a just conclusion either way or
where Court feels that there is some
ambiguity in evidence, which can be
clarified by making local inspection or
Commission. It is settled position of law
that the purpose of Order XXVI of the
Code, is to secure evidence in dispute and
the Commission's report and evidence
taken
by
the
Commission
becomes
admissible evidence. As such, there is no
bar in law to appoint a Commission for the
better adjudication of dispute. Hence, a
Commission may be appointed even prior
to the trial, if required. The Court itself can
exercise the power to elucidate the disputed
fact. A plain reading of the provision says
that the power can be exercised at any stage
and procedural law is to advance the cause
of justice and not to strangulate the litigant
on hyper technical grounds. Thus, the
judgement relied upon by learned counsel
for applicant/defendant no.4 in the case of
Sri Kant (supra) is of no help to him.

17. I find no substance in the
arguments that it is not the business of
courts to discharge burden of evidence of
either party or the provisions of Order
XXVI Rule 10-A cannot be permitted to be
used as a tool by the parties concerned to
create evidence in their favour. Where any
question arising in a Suit involves any
scientific investigation which cannot, in the
opinion of the court, be conveniently
conducted before the Court, the Court may,
if it thinks it necessary or expedient in the
interest of justice so to do, issue a
commission to such person as it thinks fit,
directing him to inquire into such question
and report thereon to the Court. To such an
investigation, sub-rule (2) of Rule 10-A
stipulates that the provisions of Rule 10
shall apply, as far as may be, as they apply
in relation to a Commissioner appointed
under Rule 9. It is settled proposition of
law that the Court will not sit as a mute
spectator and can always interfere in such
matters to arrive at a particular conclusion.
Thus, judgements relied upon in the cases
of Naseeb Deen (supra), Km. Chandana
Mukherji (supra), Rama Avatar Soni
(supra) and Shanta Devi (supra) are of no
help to the applicant/defendant no.4.

18. So far as the submission of the
applicant/defendant no.4 that the Suit is
barred by the Places of Worship (Special
Provisions) Act, 1991, this question is not
the subject matter, for the time being,
because none of the parties has raised any
grievance before the Court below while
making their submission in support of their
applications.

19. I find no substance in the
argument of the applicant/defendant no.4
that if during scientific investigation, any
excavation is made, that would damage the
structure
in
question
and
scientific
investigation can only be made when, after
adducing evidence, the Court is unable to
decide the dispute. During the course of
hearing, an affidavit has been filed on
behalf of the ASI mentioning therein that
they will not carry out any excavation. The
officer present in the Court on behalf of the
ASI has also categorically stated as to what
sort of invasive tests are to be done for
making an attempt to get the reality of the
matter just inside the wall of the property in
question. This Court has repeatedly asked
the officer present in the Court and learned
counsel appearing for the ASI that as to
what procedure would be adopted at the
time of scientific investigation, and they
have reiterated that no demolition of the
8 All. C/m Anjuman Intezamia Masajid Varanasi Vs. Smt. Rakhi Singh & Ors.
651
property will take place by any one, nor
any existing structure would be altered.

20. I further find no substance in the
argument of applicant/defendant no.4 that
because the ASI has not been joined as a
party to the Suit, it cannot be directed to do
any technical investigation. Whenever, the
report of the ASI would be utilized by the
parties,
they
can
submit
their
proposition/objection, if any.

21. I also find no substance in the
argument of the applicant/defendant no.4
that without digging any wall, things
cannot be finalized by the ASI. In this
advance stage of time, many new things
have been developed and now with the help
of new technology and able guidance of
responsible officers of ASI, the scientific
investigation can be made. The officer
present in the Court together with learned
Additional Solicitor General of India has
made submission in the form of an affidavit
that no excavation whatsoever will take
place.

22. Further, there is no substance in
the
argument
made
by
the
applicant/defendant
no.4
that
the
applications filed by the plaintiffs, seeking
scientific investigation of the structure in
question are not tenable in the eyes of law
just because the issues have not been
framed as yet. The scientific investigation
has nothing to do with the other evidence
and whatever evidence would be collected,
that may be for all the parties and not only
for the plaintiffs.

23. Even otherwise the petition is
under Article 227 of the Constitution of
India and the scope of interference by the
supervisory Court on the decisions of the
fact finding forum is limited and also, it is
not the case of the applicant/defendant no.4
that the order impugned is perverse and
beyond jurisdiction of the Court below.
This Court, while exercising the power of
the supervisory Court under Article 227 of
the Constitution, cannot act as an appellate
body and is not supposed to re-appreciate
the facts. All, that has to be seen as to
whether the Court below has proceeded
within the legal provisions of law. In the
present case, the Court below has not acted
beyond jurisdiction and the order is
inconsonance with the provisions of
Section 75 (e) read with Order XXVI Rule
10A of CPC.

As per the law laid down by the Apex
Court
in
Mohd.
Yunus
v.
Mohd.
Mustaqim, AIR 1984 SC 38, wherein it
has been held that even the errors of law
cannot be corrected in exercise of power of
judicial review under Article 227 of the
Constitution and the power can be used
sparingly when it comes to the conclusion
that the Authority/Tribunal has exceeded its
jurisdiction or proceeded under erroneous
presumption of jurisdiction.

The
High
Court
cannot
assume
unlimited prerogative to correct all species
of hardship or wrong decision. For
interference, there must be a case of
flagrant abuse of fundamental principle of
law or where order of the Tribunal etc. has
resulted
in
grave
injustice.
(Ref.
Constitution Bench judgments of the Apex
Court in D N Banerji v. P R Mukherjee,
AIR 1953 SC 58 and Nagendra Nath Bora
v. Commissioner of Hills Division &
Appeals, AIR 1958 SC 398.)

For interference under Article 227 of
the India, the finding of facts recorded by
the Authority should be found to be
perverse or patently erroneous and de hors
the factual and legal position on record.
(Ref. Laxmikant Revchand Bhajwani v.
652 INDIAN LAW REPORTS ALLAHABAD SERIES
Pratapsing Mohansing Pardeshi, (1995)
6 SCC 576; Reliance Industries Ltd. v.
Pravinbhai Jasbhai Patel, (1997) 7 SCC
300; Pepsi Food Ltd. v. Special Judicial
Magistrate, (1998) 5 SCC 749 and
Virendra Kashinath v. Vinayak N. Joshi,
AIR 1999 SC 162.

24.

Once
the
Department
of
Archaeology and learned Senior Counsel
representing the Department have made
their stand clear that no damage is going to
be caused to the property in question, this
Court has no reason to doubt their
statements and most importantly, the
affidavit filed by the officer of the ASI
explaining the circumstances. Further, it is
settled proposition of law that issue of a
Commission, at this stage, is permissible.
In the opinion of the Court, the scientific
survey/investigation proposed to be carried
out by the Commission, is necessary in the
interest of justice and shall benefit the
plaintiffs and defendants alike and come in
aid of the trial court to arrive at a just
decision. The law laid down and discussed
above, make it clear that the Court below
was justified in passing the impugned
order. The present petition lacks substance
and is liable to be dismissed.

25. The petition is, accordingly,
dismissed. Interim order, if any, stands
vacated. The order dated 21.7.2023 passed by
the District Judge, Varanasi is restored and the
parties are to comply the said order, subject to
the
observations
made
by
this
Court
hereinabove and the contents of the affidavit
filed on behalf of the ASI before this Court.

26. However, dismissal of this writ
petition does not affect the right of the
parties to the Suit to remain present at the
time of scientific investigation to be made
by the ASI.

27. As the proceeding of Suit has
been lingering on for long, it would be
appropriate to observe that the Court
concerned shall make all endeavour to
conclude the proceedings expeditiously,
without granting unnecessary adjournments
to either of the parties by giving short
dates, keeping in view of the provisions
contained in Order XVII Rule 1 of CPC.
----------
(2023) 8 ILRA 652
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.08.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application u/s 482 No. 7251 of 2023

Alka Ray ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Pranjal Krishna

Counsel for the Opp. Party:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power
-
Section
227
-
discharge
application , Section 228 - framing of
Charge , Indian Penal Code, 1860 -
Sections 419, 420, 467, 468 , 471, 120-B,
177
and
506,

the
Criminal
Law
(Amendment) Act, 1932 - Section 7 , while
considering an application for discharge of
the accused under Section 227 of the
Code, the Court has to form a definite
opinion, upon consideration of the record
of the case and the documents submitted
therewith, that there is not sufficient
ground for proceeding against the accused
- Once the facts and ingredients of the
Section exist, the court would presume
that there is ground to proceed against
the
accused
and
frame
the
charge
accordingly and the Court would not