# U.P. Sunni Central Waqf Board, Lucknow v. Ancient Idol of Swayambhu Lord Vishweshwar fully

- **Citation:** (2023) 12 ILRA 145
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-19
- **Case number:** Matters Under Article 227 No. 3562 of 2021
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-sunni-central-waqf-board-lucknow-v-ancient-idol-of-swayambhu-lord-49465
- **Pages:** 44

## Headnote

Sri Ajay Kumar Singh, Sri Ajay Kumar
Singh, Sri Ashish Kumar Singh, Sri Hare
Ram, Sri Manoj Kumar Singh, Sri Tejas
Singh, Sri Vineet Pandey, Sri Vineet
Sankalp

A. Civil Law - Constitution of India,1950Article
227
&
Places
of
Worship
Act,1991-Section 4 & Civil Procedure
Code,1908-Order 7 Rule 11-applicability
of section 4-the present suit filed by the
plaintiffs
which
is
not
barred
by
provisions of Section 4 of the Act of
1991, and the plaint cannot be rejected
as the Act does not define "religious
character"-What will be the religious
character of the disputed place can only
be arrived by the competent Court after
the evidences are led by the parties to
the suit-No conclusion can be reached
on the basis of framing of preliminary
issue
of
law-The
Act
only
bars
conversion of place of worship, but it
does not define any procedure for
determining the religious character of
place of worship that existed on 15
August 1947-the order dated 08.04.2021
passed by court below for conducting
scientific survey is modified. (Para 1 to
191)

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,948 of 148,663. This is a partial read: ask again with offset=39948 for what follows._

12 All. U.P. Sunni Central Waqf Board, Lucknow Vs. Ancient Idol of Swayambhu Lord Vishweshwar fully
 consecrated in the Temple situated in the Precincts of Gyanwapi, Varanasi & Ors.
145
that in order to give rise to the fiction of
deemed vacancy under Section 12, a mere
occupation by a person who is not a
member of the landlord's or the tenant's
family, as the case may be, is enough.
Here, the landlord, in relation to the
property in dispute, Balraj Khurana,
permitted it to be occupied by the petitioner
leasing it out to his sister-in-law and then
making a strange kind of disposition in
favour of the petitioner, authorizing him to
take
the
property
in
his ownership
possession, styling it a will. It is on the
basis of these facts that the Revisional
Authority has held that the fiction would
arise on the right of Balraj Khurana, who
was the owner's son, permitted to occupy it
and let it out on rent. We would remark that
it would arise because Balraj Khurana
allowed it during his lifetime to be
occupied by the petitioner, who is not a
member of his family, as defined under the
Act. The conclusions, therefore, drawn by
the Authorities below that a deemed
vacancy came into existence, cannot be
faulted.

35. So far as the last point, that was
argued, is concerned, it is about the age of
the building, and for that reason, the
inapplicability of the Act. While the
petitioner says that he got the building
demolished and reconstructed in the years
1990, 1991 and 1992, the two Authorities
below,
particularly,
the
Revisional
Authority, after a meticulous examination
of evidence on record, have held that no
new
constructions
were
raised.
The
Revisional Authority has looked into the
assessment records, right from the year
1956 to the year 2008 and found that the
existing
construction
that
has
been
assessed, has remained unchanged. There is
no recorded change of construction or
enhancement of the annual value that
would be there in the event of a new
construction. The communication to the
Nagar Palika about the construction being
completed has not been considered
reliable by the Authorities below. The
aforesaid finding is a finding of fact
based on a plausible view of the evidence
on
record,
which
does
not
merit
interference by this Court in the exercise
of our jurisdiction under Article 227 of
the Constitution.

36. In the result, this petition fails and
is dismissed. There shall be no order as to
costs.

37. The interim stay order is hereby
vacated.
----------
(2023) 12 ILRA 145
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2023

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Matters Under Article 227 No. 3562 of 2021
(Civil)
With
Matters Under Article 227 No. 3341 of 2017
With
Matters Under Article 227 No. 1521 of 2020
With
Matters Under Article 227 No. 234 of 2021
With
Matters Under Article 227 No. 3844 of 2021

U.P. Sunni Central Waqf Board, Lucknow
 ...Petitioner
Versus
Ancient
Idol
of
Swayambhu
Lord
Vishweshwar fully consecrated in the
Temple situated in the Precincts of
Gyanwapi, Varanasi & Ors. ...Respondents

Counsel for the Petitioner:
Sri Punit Kumar Gupta
146 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
Sri Ajay Kumar Singh, Sri Ajay Kumar
Singh, Sri Ashish Kumar Singh, Sri Hare
Ram, Sri Manoj Kumar Singh, Sri Tejas
Singh, Sri Vineet Pandey, Sri Vineet
Sankalp

A. Civil Law - Constitution of India,1950Article
227
&
Places
of
Worship
Act,1991-Section 4 & Civil Procedure
Code,1908-Order 7 Rule 11-applicability
of section 4-the present suit filed by the
plaintiffs
which
is
not
barred
by
provisions of Section 4 of the Act of
1991, and the plaint cannot be rejected
as the Act does not define "religious
character"-What will be the religious
character of the disputed place can only
be arrived by the competent Court after
the evidences are led by the parties to
the suit-No conclusion can be reached
on the basis of framing of preliminary
issue
of
law-The
Act
only
bars
conversion of place of worship, but it
does not define any procedure for
determining the religious character of
place of worship that existed on 15
August 1947-the order dated 08.04.2021
passed by court below for conducting
scientific survey is modified. (Para 1 to
191)

The writ petition is dismissed. (E-6)

List of Cases cited:
1. Asian Resurfacing of Road Agency Vs CBI
(2018) 16 SCC 299

2. Din Mohammad & ors. Vs Secy of St. for
India in Council, thru D.M. & Colltr. Banaras
(1942) AIR 29 Alld 353

3. Mohd. Aslam @ Bhure Vs U.O.I. & ors.
(1994) 2 SCC 48

4. Ram Singh & ors. Vs Gram Panchayat Mehal
Kalan & ors. (1986) 4 SCC 364

5. Aimer Kaur & ors. Vs Punj. St. & ors.. (1991)
AIR P&H 12

6. Adul Gafur & ors. Vs St. of U.K. & ors.
(2008) 10 SCC 97

7. Kuldeep Singh Pathania Vs Bikram Singh
Jaryal (2017) 5 SCC 345

8. Bhargavi Cons & anr. Vs Kothakapu
Muthyam Reddy & ors.. (2018) 13 SCC 480

9. Raghwendra Sharan Singh Vs Ram Prasanna
Singh (2019) AIR SC 1430

10. Urvashiben & anr.. Vs Krishnakant
Manuprasad Trivedi (2019) 13 SCC 372

11. Sopan Kukhdeo Sable & ors. Vs Astt.
Charity Commr. & ors. (2004) AIR SC 1801

12. Madanuri Sri Rama Chandra Murthy Vs
Syed Jalal (2017) AIR SC 2653

13. R.K. Roja Vs U.S. Rayudu & anr.. (2016) 14
SCC 275

14. M. Siddiq Vs Mahant Suresh Das & ors.
(2020) 1 SCC 1 Ram Janmabhumi Temple Case
(Ayodhya Case).

15. Venkataramana Devaru & ors. Vs St. of
Mysore & ors. (1958) SCR 895

16. Jayant Verma Vs U.O.I. (2018) 4 SCC 743

17. Career Ins. Edu. Scy. Vs Om Shree Thakurji
Edu. Scy (2023) SCC Online SC 586

18. St. of Guj. Vs Utility Users Welfare
Assn.(2018) 6 SCC 21

19. Ramrameshwari Devi Vs Nirmala Devi
(2011) 8 SCC 249 Vimal Chand Ghevarchand
Jain Vs Ramakant Eknath Jadoo, (2009) 5 SCC
713

20. Sunni Central Waqf Board & ors. Vs Gopal
Singh Visharad & ors. (1991) AIT All 89

21. Sathyanath & ors. Vs Sarojamani (2022) 7
SCC 644

22. Sajjan Sikaria Vs Shakuntala Devi Mishra
(2005) 13 SCC 687
12 All. U.P. Sunni Central Waqf Board, Lucknow Vs. Ancient Idol of Swayambhu Lord Vishweshwar fully
 consecrated in the Temple situated in the Precincts of Gyanwapi, Varanasi & Ors.
147
23. Abdul Gafur & ors. Vs St. of U.K. & ors.
(2008) 10 SCC 97

24. Popat & Kotecha Property Vs SBI Staff
Assn.(2005) 7 SCC 510

25. Fiza Developers & Inter-Trade (P) Ltd. Vs
Amci (I) (P) Ltd., (2009) 17 796

26. Board of Muslim Wakfs Vs Radha
Kishan (1979) AIR SC 289 Ayodhya Prasad
Vs ADJ Moradabad & ors. (1995) ACJ 1159
U.P. Sunni Central Board of Wakfs Vs ADJ
Court No. 3 Muzaffarnagar & anr. (2016) 2
ALJ 209

27. Punjab Wakf Board Vs Sham Singh Harike
(2019) 1 ARC 511 SC

28. Gulam Abbas & ors. Vs St. of U.P. & ors.
(1982) 1 SCC 71

29. Shalini Shyam Shetty Vs Rajendra Shankar
Patil (2010) 8 SCC 329

30. Radhey Shyam & anr. Vs Chhabi Nath & ors.
(2015) 5 SCC 423

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. These connected five cases filed
under Article 227 of Constitution of India
have been nominated to this Court by
orders of Hon'ble The Acting Chief Justice
dated 29.11.2023.

2. Defendant no. 1, Anjuman
Intezamia Masjid filed three cases under
Article 227 No. 3341 of 2017 (Earlier
Writ Petition No. 32565 of 1998)
assailing the revisional order dated
23.09.1998 and order dated 18.10.1997
passed by trial court on application 96/C
filed by plaintiffs, deciding Issue No. 2 in
regard to applicability of Section 4 of
Places of Worship (Special Provisions)
Act, 1991 (hereinafter called as 'Act of
1991').
3. Case No. 3844 of 2021 filed
under Article 227 challenges the order
passed on 08.04.2021 by Civil Judge
(Senior Division), F.T.C., Varanasi on
application, being Paper No. 266-Ga
directing for survey by Archaeological
Survey of India (ASI) in Original Suit No.
610 of 1991.

4. Case No. 1521 of 2020 has been
filed for setting aside the order dated
04.02.2020 passed by Civil Judge (Senior
Division)/F.T.C., Varanasi rejecting the
application 270-Ga of petitioner-defendant
no. 1 and application 274-Ga of defendant
no. 2, wherein a prayer was made for
staying the proceedings of Original Suit
No. 610 of 1991 on the basis of interim
order granted by this Court on 13.10.1998
in Writ Petition No. 3341 of 2017.

5. Defendant No. 2, U.P. Sunni
Central Board of Waqfs, Lucknow had
filed two cases under Article 227 No. 234
of 2021 and 3562 of 2021. Case No. 234 of
2021 (Earlier Writ-C No. 18576 of 1999)
raises challenge to the revisional order
passed on 23.09.1998 and order dated
18.10.1997 passed by trial court on Issue
No. 2 holding that Section 4 of the Act of
1991 was not attracted and the plaint could
not be rejected under Order 7 Rule 11
C.P.C.

6. Case No. 3562 of 2021 assails
the order passed by Civil Judge (Senior
Division) F.T.C., Varanasi directing for the
scientific survey by ASI on the application
moved by plaintiffs being Paper No. 266Ga.

FACTS

7. Plaintiffs-respondent nos. 3 to 6 of
Petition No. 3341 of 2017 filed Original
148 INDIAN LAW REPORTS ALLAHABAD SERIES
Suit No. 610 of 1991, Ancient Idol of
Swayambhu Lord Vishweshwar and others
vs. Anjuman Intezamia Masajid and
another before the court of Civil Judge
(Senior Division), Varanasi on 15.10.1991,
claiming following reliefs:-

"(a) By a decree of this Hon'ble
Court it be declared that the structure
standing over and above the cellars
(Tahkhana) and the adjoining part of the
old temple of plaintiff no. l together with
the Naubat Khana fully detailed and
discribed in Schedule 'A' and shown with
red hatched- lines in the plaint map
towards North of the temple of lord
Visheweshwar and a house lying to the east
of the said Naubat Khana is the property of
the plaintiff no.l and the devotees of lord
Visheshwar i.e. the Hindus at large have
every right to use it as place of worship and
to renovate and reconstruct their temple
adding it with the remaining portion of the
temple structure still in existence in any
manner they decide in which the defendants
have no right, title or interest or any kind
whatsoever
and
the
entire
Muslim
community represented by the defendants
have no right to occupy as their occupation
is illegal.

(b) By a decree of mandatory
injunction the defendants be ordered to
remove its effects from the portion shown
with red hatched lines in the plaint map
fully detailed and described in Schedule
"A" of the plaint by handing over
possession over the said structures to the
plaintiffs.

(c) By decree of prohibitory
injunction the defendants their agents and
servants be permanently restrained from
interfering in peaceful possession of the
plaintiffs over properties and the structures
mentioned in Schedule "A" of the plaint in
any
way
from
performing
religious,
ceremonies, Sewa Puja and Rag Bhog etc.
and re-modeling, repairing, reconstructing
adding with the remaining portion of the
temple of lord Visheshwar existing at
spot."

8. In the plaint, it has been alleged
that part and partial of old temple of Lord
Vishweshwar
is
lying
in
centre
of
Gyanvapi compound, over and above
cellars (Tahkhana) existing in part of
settlement Plot No. 9130, situated at Mauza
Shahar Khas, Paragana- Dehat Amanat,
Tehsil and District- Varanasi, alleged to be
Mosque marked with red hatched line in
the map annexed with the plaint and
Naubatkhana over the northern gate of
Gyanvapi compound and the house towards
east of Naubatkhana i.e. northern gate.

9. Entire property of Gyanvapi
compound forming settlement Plot No.
9130, 9131 and 9132 measuring 1 Bigha, 9
Biswa and 6 Dhoor is surrounded by old
boundary wall containing ancient temple of
Lord Vishweshwar together with four
Mandaps and its ruins Gyankoop, Mukti
Mandap newly constructed, Vyas Gaddi,
Idol of Sri Ganeshwar, Ganga Devi, Sri
Hanuman Ji, Nandi, Sri Gauri Shanker, Sri
Ganesh
Ji,
Sri
Mahakaleshwar,
Sri
Maheshwar, Shringar Gauri and several
other idols of Hindu God and Goddesses
visible and non-visible, duly consecrated,
three trees standing over idol Nandi,
Naubatkhana over the northern gate and
house of servants of the temple towards the
east of northern gate and Naubatkhana with
its boundaries have been described in
Schedule "B" of the plaint.

10. Further, it has been stated that
there exists prior to puranic period
Swayambhu Jyotirlinga of Lord Shiva,
popularly known as Lord Vishweshwar,
12 All. U.P. Sunni Central Waqf Board, Lucknow Vs. Ancient Idol of Swayambhu Lord Vishweshwar fully
 consecrated in the Temple situated in the Precincts of Gyanwapi, Varanasi & Ors.
149
which is in existence, much before the
advent of Muslim Rule in India. Land
pertinent to the temple is mainly used for
parikrama and worship of idol.

11. The importance of pious place of
Gyanvapi idol of Lord Vishweshwar and
idols situated in the precincts have been
elaborately described in Skanda Puran of
Kashi Khand and other Purans. The temple
was constructed by King Vikramaditya
about 2050 years ago and duly consecrated
the idol of Lord Vishweshwar therein. Due
to religious antipathy it was pulled down
several times during Muslim Rule in the
country and ruins of temple exist at the
place and since it was the period of Mughal
Empire, hence, Hindus strictly preserved
the main Linga of Lord Vishweshwar at the
same place and continued worship.

12. During the regime of Emperor
Akbar, the temple was rebuilt after consent
was granted and the construction of temple
was done by Narayan Bhatt with help of his
disciple Raja Todarmal, Finance Minister
of Emperor Akbar.

13. Besides the original temple of
Lord Vishweshwar, there are four mandaps
around the temple known as Mukti
Mandap,
Gyan
Mandap,
Aishwarya
Mandap and Shringar Mandap.

14. Name of idol and temple of Lord
Vishweshwar in Gyanvapi compound is
synonymously known as Lord Vishwanath.
It was on 18.04.1669 A.D., on a wrong
information reaching Emperor Aurangzeb,
he ordered for demolition of such schools
and temples of infidels (kafirs). The
aforesaid event of demolition has been
mentioned in "Ma-Asir-i-Alamgiri" printed
in Arabic in 1871 by Asiatic Society of
Bengal.

15. The place in dispute is abode of
deity Swayambhu Lord Vishweshwar and it
cannot be the building of another faith i.e.
non Hindus. It is further averred that
property in dispute was never dedicated to
alleged Mosque by Emperor Aurangzeb nor
he was the owner of temple of Lord
Vishweshwar, hence, he could not have
created a Waqf in favour of Muslims nor to
Allah nor he did so. Thus, the property in
dispute could never have been a Waqf to
non
Hindus
i.e.
Muslims
and
the
construction could not be appropriated as
alleged Mosque according to true spirit of
Muslim Law.

16. Defendant No. 2 had illegally and
unauthorisedly alleged to have registered
the property as alleged Mosque in its
register which is illegal, unauthorised, void
and not binding upon the plaintiffs and
other Hindus. Moreover, Waqf Act is not
applicable to Hindus. Hence, religious
character of place of worship in dispute
detailed and described in Schedule "A" of
the plaint has never been converted into
Mosque and property in dispute is from
very ancient time i.e. Satyug uptil now and
is
temple
of
Swayambhu
Lord
Vishweshwar.

17. Petitioner-defendant No. 1 filed an
application 71-C on 23.03.1995 under Order
7 Rule 11(d) C.P.C. for rejecting the plaint in
view of bar contained in Act of 1991.
Defendant No. 2, U.P. Sunni Central Board
of Waqf which was initially not impleaded as
defendant in the suit but was later impleaded
on 01.01.1992 as defendant no. 2. They also
filed an application under Order 7 Rule 11(d)
C.P.C. seeking rejection of the plaint in view
of provisions of Act of 1991.

18. However, both defendant no. 1
and 2 filed their separate written statement
150 INDIAN LAW REPORTS ALLAHABAD SERIES
on 15.11.1996 and 23.02.1995. As the
applications were not pressed by respective
defendants, the trial court after perusal of
pleadings of the parties framed 10 issues on
17.07.1997, which are as under:-

"(1) क्या िाद न्युन मूल्ाोंवकत है। और
प्रदि न्याय शुल्क अयाथप्त है।

(2) क्या िाद धारा-4 उपासनास्थल
(विशेष उपबोंध) अवधवनयम 1991 से िवजथत होने के
कारण िाद पत्र आदेश-7 वनयन वनयम 11 सी०प्र०सों०
के अोंतगथत नामन्जूर होने योग्य है?

(3) क्या िादी सोंख्या 1 िाद पत्र की
अनुसूची "क" में िवणथत तहखाना नौितखाना तथा
उन पर स्स्थत वनमाथण और उनके पूरि स्स्थत मकान
िादी सोंख्या -1 की सम्पवि है। तथा सामान्य वहन्दुओ
को इस सम्पवि पर उपासना अवधकार है और
प्रवतिावदयोों को उसमे बाधा डालने का कोई अवधकार
स्वत्व ि वहत नहीों है जैसा वक दािा है ?

(4) िादीगण की िाद पत्र की अनुसूची
"क" लाल स्याही से अनुरेस्खत वििावदत वनमाथण को
आज्ञाप का ब्यादेश के द्वारा हििा पाने तथा उस पर
कब्ज़ा और दख्ल पाने का हक़ है, जैसा वक दािा है ?

(5) क्या िाद धारा 65 - उo प्रo िक्फ
अवधवनयम 1960 के अोंतगथत नोविस न वदये जान से
दूवषत है?

(6) क्या िाद धारा 75 उo प्र o िक्फ
अवधवनयम 1960 से बावधत है ?

(7) क्या िाद काल बावधत है ?

(8) क्या िाद को उपमवत और विविि के
वसद्धानत लागू होते है ?

(9) क्या व्यादेश का िाद पोषणीय नहीों है,
जैसावक प्रवतिाद पत्र 65क /17 की धारा 45 में कहा
गया ?

(10) िादीगण वकस अनुतोष को यवद
कोई हो, पाने का हकदार है। िाद वबोंदु सोंख्या। ि 2
प्रारस्म्भक होगा। 21.8.97 को प्रारस्म्भक िाद वबोंदु
सोंख्या 1 ि 2 पर सुनिायी की जायेगी।"

19. The trial court on the same day
directed that Issue No. 1 and 2 shall be the
preliminary
issues
and
fixed
for
21.08.1997. An application, being Paper
No. 96/C was filed by plaintiffs for
recalling the order dated 17.07.1997 for
treating Issue No. 2 as preliminary issue, as
it required to be adjudicated on merit by
taking evidence of both the parties and was
not an issue of question of law to be
determined as preliminary issue.

20. The trial court on 18.10.1997 held
that relief No. (a) and (c) were not barred
by provisions of Section 4 of the Act of
1991 but relief No. (b) was hit by
provisions of Section 4 and directed
plaintiff to delete relief (b) from the plaint
by moving amendment application and held
that application 96/C was not maintainable
and for disposal of Issue No. 2 evidences
were not necessary.

21.

Against
the
order
dated
18.10.1997, three revisions were filed.
Civil Revision No. 281 of 1997 was filed
by Defendant No. 2, U.P. Sunni Central
Waqf Board, while Civil Revision No. 285
of 1997 was filed by defendant No. 1,
Anjuman Intezamia Masjid and Civil
Revision No. 286 of 1997 was filed by
plaintiffs.

22. By a common judgment and order
dated 23.09.1998, the order passed by trial
court deciding Issue No. 2 was set aside
and trial court was directed to decide Issue
No. 2 along with other issues after taking
evidence.

23. Against the order passed by
revisional
court
dated
23.09.1998,
defendant no. 1 had filed Matter under
Article 227 No. 3341 of 2017 (Earlier No.
32565
of
1998)
wherein
further
proceedings of Suit No. 610 of 1991 was
stayed. Matter under Article 227 No. 234 of
2021 (Old No. 18576 of 1999) was
preferred by defendant no. 2 challenging
12 All. U.P. Sunni Central Waqf Board, Lucknow Vs. Ancient Idol of Swayambhu Lord Vishweshwar fully
 consecrated in the Temple situated in the Precincts of Gyanwapi, Varanasi & Ors.
151
the
revisional
court's
order
dated
23.09.1998 as well as the order of trial
court.

24. It was during the pendency of
these two petitions that plaintiff on
10.12.2019 moved an application before
the trial court being Paper No. 266-Ga
stating that interim order granted by this
Court on 13.10.1998 came to an end after
expiry of six months from passing of the
interim order, in view of decision of Apex
Court in case of Asian Resurfacing of
Road Agency vs. Central Bureau of
Investigation (2018) 16 SCC 299 praying
for the relief that survey of premises in
dispute be conducted by Archaeological
Survey of India. The application was
allowed on 08.04.2021 by court below. The
operative portion of the order is quoted
below:-

"I.
The
Director
General,
Archaeological Survey of India, Darohar
Bhawan, 24 Tilak Marg, New Delhi,
functioning under the Ministry of Culture,
Government of India, is hereby directed to
get
a
comprehensive
archaeological
physical survey be done of the entire
Settlement Plot No.9130 located at Mauja
Shahar Khas, Pargana Dehat Amanat,
Tehsil and District Varanasi including the
Naubat Khana situated at the Northern
Gate of Gyanvapi compound and the house
towards
the
northern
gate
of
the
Naubatkhana, i.e., the Gate (Hereinbefore
termed as disputed site and duly described
in the plaint as Schedule-A.)

II. For above said purpose, the
Director General shall constitute a five
member committee of eminent persons who
are experts and well versed in the science
of archaeology, two out of which should
preferably belong to minority community.

III. The Director General, shall
also appoint an eminent and highly
experienced person who can be regarded
as expert in the science of archaeology to
act as the observer for the committee so
constituted. Such person should preferably
be a scholarly personality and established
academician of any Central University. The
committee so constituted shall report the
observer about the survey work done on a
particular day.

IV. The committee shall prepare a
comprehensive documentation along with
the drawing, plan, elevation, site map with
precise breadth and width of the disputed
site, marked with hatched lines in the plaint
map.

V. The prime purpose of the
archaeological survey shall be to find out
as to whether the religious structure
standing at present at the disputed site is a
superimposition, alteration or addition or
there is structural overlapping of any kind,
with or over, any other religious structure.
If so then what exactly is the age, size
monumental and architectural design or
style of the religious structure standing at
present at the disputed site and what
materials has been used for building the
same. The committee shall also trace as to
whether any temple belonging to the Hindu
community ever existed before the mosque
in question was built or superimposed or
added upon it at the disputed site. If so,
then what exactly is the age, size,
monumental and architectural design or
style of the same, and also, as to which of
Hindu deity or deities the same was
devoted to.

VI.
For
that
purpose
the
committee shall be entitled to enter into
every portion of the religious structure
standing at present at the disputed site. The
committee shall firstly resort to Ground
Penetrating
Radar
(GPR)
or
Geo-
152 INDIAN LAW REPORTS ALLAHABAD SERIES
Radiology system or both, to satisfy itself a
to whether any excavation or extraction
work is needed at any portion of the
religious structure standing at present.
Even if by use of GPR system the committee
feels satisfied that further excavation or
extraction work is needed to be carried out,
the same shall firtly be done by trial trench
method vertically and that too at a very
small scale an not more than four square
feet at a time. Horizontal excavation shall
be done only when the committee is fully
satisfied that there is indeed a certainty of
belief that by such excavation they would
be
able
to
reach
more
concretized
conclusion regarding ascertainment of the
precise archaeological remain below the
ground level.

VII. During the entire survey
proceeding every artefacts supporting the
plaint or defence version shall be properly
preserved. If any artefacts is so deeply
entrenched with the earth or super
structure standing at the disputed site,
removal of which can potentially disturb
the existing super structure, or the
committee otherwise feels that the same
should not be removed due to being bulky
in nature or for any other reasons to be
recorded, then photography, videography
and external measurement, sketching and
drawing (comprehensive documentation of
the architectural remains) of the same shall
only be done and the same shall not be
removed.

VIII. The committee shall also
record its finding to the effect as to whether
true architectural structure traced at the
disputed site (Schedule-A) has any sort of
connection with the temples and artefacts
mentioned in the in the Schedule-B of the
plaint.

IX. While carrying out the survey,
the committee shall ensure that the people
belonging to Muslim community is not
prevented to offer Namaj at the disputed
site. If due to ongoing survey work, it is not
practicable to facilitate the offering of
Namaj to the persons belonging to Muslim
community at a particular place, then the
committee shall provide such persons an
alternative and suitable place to offer
Namaj at any other place within the
precincts of the mosque. The committee is
expected be throughout aware of the
sensitivity of the matter, hence the
committee
shall
always
ensure
that
stakeholders of both Hindu and Muslim
religions shall not be subjected to any
partisan or preferential treatment and both
shall be equally respected.

X. Before entering into survey
work at any point of the time, the committee
shall give advance notice to the parties or
their counsels,. The parties to this suit shall
be entitled to remain present in person or
through their counsels. But no party
appearing through a counsel shall be
entitled to nominate more than one counsel
at a time.

XI. Entire survey work shall be
done in camouflaged manner, i.e., entire
disputed site shall be camouflaged before
the commencement of survey and till the
same is finished. Non general public or
media person shall be allowed to have
access to witness the onging survey work.
Neither the observer nor any of the
members of the committee will ever brief
the media about the status of ongoing
survey work.

XII. No party shall dictate the
committee to interpret this order or act in
particular manner. The committee alone
shall be entitled to do the same.

XIII. Photography (coloured as
well as black and white and slides) and
videography
of
the
entire
survey
proceeding shall be ensured by the
committee as a record of the proceeding.
12 All. U.P. Sunni Central Waqf Board, Lucknow Vs. Ancient Idol of Swayambhu Lord Vishweshwar fully
 consecrated in the Temple situated in the Precincts of Gyanwapi, Varanasi & Ors.
153
Comprehensive
documentation
and
preparation of map stating placement of
necessary artefacts and drawings shall be
done. A report of survey work on routine
basis shall be prepared stating the time of
entering at the disputed site and exist
therefrom.

XIV. To ensure that entire survey
work is not tampered with at the behest of
the either party, the committee shall be
entitled to get necessary security personals
be deputed at the disputed site during the
survey work as well as after tentative
closure thereof.

XV. It shall be the duty of the
district administration to ensure that
complete
peace
and
tranquillity
is
maintained at the disputed site and in
nearby areas during the entire survey
proceeding, and the committee is given due
assistance and co-operation by the district
administration at all point of time till the
survey proceeding is completed so that the
committee could be enabled to discharge
its functions without any fear or favour.

XVI. The survey work shall be
carried out between 09:00 A.M. to 05:00
P.M.

XVII. The committee and parties
participating in the survey proceeding shall
give due adherence to the norms and
guidelines issued time by time by the
Central and State Government with regard
to upsurge second wave of pandemic
Covid-19.

XVIII. After completion of the
survey work, the committee shall submit its
report and the record of the entire survey
proceeding in sealed cover without undue
delay.

XIX.
Keeping
in
mind
the
representative capacity in which the suit is
being prosecuted by the plaintiffs and
contested by the defendants, and the fact
that public at large is interested in the
controversy in hand, it would be unjust to
burden the plaintiffs alone to bear the
expenses and cost of the survey work. It is
therefore, the cost and expenses of the
entire survey proceeding shall be borne by
the Archaeological Survey of India."

25. Aggrieved by order of trial court,
both defendant nos. 1 and 2 filed civil
revision before District Judge, Varanasi.
The defendant nos. 1 and 2 simultaneously
filed Matter under Article 227 No. 3844 of
2021 and 3562 of 2021 before this Court.
On objection being raised by plaintiffs, the
revisions filed before the District Judge
were withdrawn by defendant no. 1 and 2
by making necessary application and an
order was passed on 12.08.2021. In both
the petitions filed by defendant no. 1 and 2,
an amendment was sought which was
allowed by this Court on 09.09.2021 and
further proceedings of Original Suit No.
610 of 1991 was stayed.

26. In the meantime, defendant no. 1
filed application No. 270-Ga in Original
Suit No. 610 of 1991 for staying further
proceedings of Original Suit No. 610 of
1991 in pursuance of interim order dated
13.10.1998. The said application was
dismissed on 04.02.2020 which was
challenged by defendant no. 1 through
Matter under Article 227 No. 1521 of 2020.

27. All these five cases filed under
Article 227 of Constitution of India have
been connected by earlier order of this
Court and have been placed before this
Court for adjudication after nomination of
Hon'ble The Acting Chief Justice dated
29.11.2023.

SUBMISSIONS OF PETITIONER
IN CASE NO. 3341 OF 2017 AND 234
OF 2021
154 INDIAN LAW REPORTS ALLAHABAD SERIES

28. Sri S.F.A. Naqvi, learned Senior
Counsel appearing in Case No. 3341 of
2017 submitted that plaintiffs-respondent
nos. 1 to 5 have got nothing to do with
place of worship in question, they have
every right to offer their prayer in temple in
question and are neither debarred nor
anybody has stopped them to perform
religious rites inside the temple. Committee
running the affairs of temple has no dispute
with the petitioner and both are performing
their religious rites and duties in congenial
and friendly atmosphere. These outsiders
are creating all sorts of hurdle.

29. The Act of 1991 was promulgated
with purpose to foreclose any controversy
in respect of any places of worship. It was
an
Act
made
by
Parliament
under
constitutional mechanism and operates
within the four corners of Constitution of
India.

30. According to him, the suit
involves a legal question which has already
been addressed by the statement of object
and reason of the Act of 1991. It is an Act
to prohibit conversion of any place of
worship and to provide for maintenance of
religious character of any place as existed
on 15th day of 1947.

31. According to him, Section 2(b)
defines "Conversion", which means its
grammatical variations, includes alteration
or change of whatever nature. Section 3
bars conversion of place of worship, while
Section 4 provides declaration as to
religious character of certain places of
worship which existed on 15th day of
August, 1947 and bars jurisdiction of
Court.
According
to
him,
relief
of
declaration, mandatory injunction as well
as prohibitory injunction claimed by
plaintiffs in Suit No. 610 of 1991 cannot be
granted in view of Section 4 of the Act of
1991.

32. According to him, once the Act
was enforced on 11th day of July, 1991,
any suit or other proceeding with respect to
conversion of religious character of any
place of worship existing on 15th August
1947 shall abate.

33. As the Mosque stands on Plot No.
9130 and is being used by Muslims to offer
Namaz since 15th August 1947, religious
character cannot change, and it cannot be
converted into a temple which is against the
provisions of Section 4 of the Act of 1991.

34. To establish that a Mosque exists
at the place of dispute, reliance has been
placed upon the decision rendered by
Additional Civil Judge on 25.08.1937 in
Original Suit No. 62 of 1936 between Din
Mohammad and 2 others vs. The
Secretary of State for India in Council,
through
District
Magistrate
and
Collector, Banaras which was affirmed in
First Appeal No. 466 of 1937 by this Court,
reported in AIR (29) 1942 Allahabad 353.

35. Emphasis has been laid to the fact
that trial court on 25.08.1937 declared that
only Mosque and Graveyard with land
underneath are Hanafi Muslim Waqf and
plaintiffs and other Hanafi Muslims have
right of offering prayer and doing other
religious but legitimate act only in the
Mosque. Once it was settled in 1937 that it
was a Mosque, the suit filed under Order 1
Rule 8 by plaintiffs is clearly barred by
provisions of Section 4 of Act of 1991.

36. He then contended that an
undertaking
was
given
by
State
Government and Union Government before
Apex Court in case of Mohd. Aslam @
12 All. U.P. Sunni Central Waqf Board, Lucknow Vs. Ancient Idol of Swayambhu Lord Vishweshwar fully
 consecrated in the Temple situated in the Precincts of Gyanwapi, Varanasi & Ors.
155
Bhure vs. Union of India and other, 1994
(2) SCC 48 for safeguarding the religious
places
i.e
Gyanvapi
Masjid
and
Vishwanath Temple at Varanasi and
Krishna Temple and Eidgah at Mathura. He
then contended that suit in question is
barred by Section 9 C.P.C. as same is
expressly barred by provisions of Act of
1991. It was the duty of court below to
consider maintainability of suit barred by
operation of law, which in the instant case
is expressly barred.

37. It was next contended that Order 7
Rule 11(d) C.P.C. clearly provides for
rejection of plaint where the suit appears
from statement to be barred by any law. In
the instant case, from perusal of the plaint
specially para nos. 12, 13 and 14, the fact
as to existence of Mosque has been alleged
by plaintiffs. Once it has been accepted that
a Mosque exist on the disputed site which
has also been established by judgment
rendered in Din Mohammad (supra), Suit
No. 610 of 1991 is barred by provisions of
Act of 1991. He then contended that the
court below should have decided the
application filed under Order 7 Rule 11(d)
C.P.C. but it proceeded to decided Issue
No. 2.

38. Learned counsel then invited
attention of the Court to provisions of subRule (2) of Rule 2 of Order 14. According
to him, the court below was required to
decide issue of law where a bar to the suit
created by any law for the time being in
force. According to him, Order 7 Rule 11
(d) and Order 14 Rule 2(2)(b) has to be
read in harmony, while court below failed
to take note of this fact.

39. Reliance has been placed upon
various decisions of Apex Court as well as
this Court rendered on Section 9 C.P.C. and
Order 7 Rule 11(d) C.P.C., which are as
under:-

1. (1986) 4 SCC 364, Ram Singh
and others vs. Gram Panchayat Mehal
Kalan and others 2. AIR 1991 Punjab &
Haryana 12, Aimer Kaur and others vs.
Punjab State and others 3. (2008) 10
SCC 97, Abdul Gafur and others vs.
State of Uttarakhand and others 4.
(2017) 5 SCC 345, Kuldeep Singh
Pathania vs. Bikram Singh Jaryal 5.
(2018)
13
SCC
480,
Bhargavi
Constructions
and
another
vs.
Kothakapu Muthyam Reddy and others
6. AIR 2019 (SC) 1430, Raghwendra
Sharan Singh vs. Ram Prasanna Singh 7.
(2019) 13 SCC 372, Urvashiben and
another vs. Krishnakant Manuprasad
Trivedi 8. AIR 2004 SC 1801, Sopan
Sukhdeo Sable and others vs. Assistant
Charity Commissioner and others 9.
AIR 2017 SC 2653, Madanuri Sri Rama
Chandra Murthy vs. Syed Jalal and 10.
(2016) 14 SCC 275, R.K. Roja vs. U.S.
Rayudu and another.

40. It was next contended that
Original Suit No. 18 of 2022 (Smt. Rakhi
Singh and others vs. State of U.P. and
others) has been filed in respect of same
Plot
No.
9130
claiming
relief
of
declaration and injunction. Defendant
No. 1 is contesting the said suit and had
also filed application under Order 7 Rule
11 C.P.C., stating that it was barred
under
Order
7
Rule
11(d).
The
application was dismissed on 12.09.2022
by trial court, against which Civil
Revision No. 101 of 2022 was preferred
before this Court which was dismissed
on 31.05.2023. Against which, Special
Leave Petition has been filed before
Hon'ble Apex Court and the same is
pending consideration.
156 INDIAN LAW REPORTS ALLAHABAD SERIES

41. Sri Punit Kumar Gupta, learned
counsel appearing for defendant no. 2
submitted
that
State
of
U.P.
had
promulgated Uttar Pradesh Sri Kashi
Vishwanath Temple Act, 1983 (U.P. Act
No. 29 of 1983) for providing proper and
better
administration
of
Sri
Kashi
Vishwanath temple. On the other hand,
Waqf property of a Waqf is governed by
Waqf Act, 1995. Waqf has been defined
under Section 3(r) of Waqf Act. Both
temple and mosque are separate entities
and governed by their respective Act.

42. According to him, an exchange
deed was executed between defendant no. 2
and State of U.P. for giving the land for
establishment of Police Control Room for
security of disputed property. The Waqf
Board in year 1993-94 had given some land
on license to U.P. Government through
S.S.P., Varanasi, where Police Control
Room was established. The land was
exchanged in the year 2021.

43. He then contended that the
Mosque in question is a Waqf as has
already been held in the judgment of Din
Mohammad (supra). Section 4 of the Act
of 1991 clearly bars the suit filed by
plaintiffs under Order 1 Rule 8 C.P.C.

44. Reliance has been placed upon the
decision rendered by Hon'ble Apex Court
in case of M. Siddiq vs. Mahant Suresh
Das and others (2020) 1 SCC 1 also
known as Ram Janmabhumi Temple
Case (Ayodhya Case). Relevant paras 92,
97.2, 99, 100, 101, 102, 103, 104 and 105
are extracted hereasunder:-

"I. Places of Worship Act

92.
Parliament
enacted
the
Places of Worship (Special Provisions) Act,
1991 [ "Places of Worship Act".] .
Sections 3, 6 and 8 of the legislation came
into force at once on the date of enactment
(18-9-1991) while the other provisions are
deemed to have come into force on 11-71991. The long title evinces the intent of
Parliament in enacting the law, for it is:

"An Act to prohibit conversion of
any place of worship and to provide for the
maintenance of the religious character of
any place of worship as it existed on the
15th day of August, 1947, and for matters
connected therewith or incidental thereto."

The law has been enacted to fulfil
two purposes. First, it prohibits the
conversion of any place of worship. In
doing so, it speaks to the future by
mandating that the character of a place of
public worship shall not be altered.
Second, the law seeks to impose a positive
obligation
to
maintain
the
religious
character of every place of worship as it
existed on 15-8-1947 when India achieved
independence from Colonial Rule.

97.2. The law preserves the
religious character of every place of
worship as it existed on 15-8-1947.
Towards achieving this purpose, it provides
for the abatement of suits and legal
proceedings with respect to the conversion
of the religious character of any place of
worship existing on 15-8-1947. Coupled
with this, the Places of Worship Act
imposes a bar on the institution of fresh
suits or legal proceedings. The only
exception is in the case of suits, appeals or
proceedings pending at the commencement
of the law on the ground that conversion of
a place of worship had taken place after
15-8-1947. The proviso to sub-section (2)
of Section 4 saves those suits, appeals and
legal proceedings which are pending on the
date of the commencement of the Act if they
pertain to the conversion of the religious
character of a place of worship after the
cut-off date. Sub-section (3) of Section 4
12 All. U.P. Sunni Central Waqf Board, Lucknow Vs. Ancient Idol of Swayambhu Lord Vishweshwar fully
 consecrated in the Temple situated in the Precincts of Gyanwapi, Varanasi & Ors.
157
however stipulates that the previous two
sub-sections will not apply to:

(a)
Ancient
and
historical
monuments or archaeological sites or
remains governed by Act 24 of 1958 or any
other law;

(b) A suit or legal proceeding
which has been finally decided settled or
disposed of;