The Allahabad High Court has held that a plea filed by a group of Hindu women asserting their right to worship at Gyanvapi mosque was not barred by the provisions of the Waqf Act, 1995, since they claimed to have been doing it since time immemorial.
A single bench of Justice J J Munir, which upheld the Varanasi District Judge's order finding the suit maintainable, also said that the Hindu worshippers of the Deities Maa Sringar Gauri, Lord Ganesha, Lord Hanuman, which includes thenplaintiffs, are sufferers of a continuing wrong in their individual right to worship the Deities.
"Therefore, there is no substance in the plea that the suit on the cause of action disclosed in the plaint is ex facie barred by limitation, by virtue of Article 58 of the Schedule to the Limitation Act of 1963," the bench said.
The court also declared that the suit was not barred under the Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983 and also rejected the contention that the Temple Trustees acknowledged the suit property as waqf property.
"The plaintiffs neither claim title to the suit property nor possession of it. They are not the Board of Trustees of Sri Kashi Vishwanath Temple engaged in some kind of a boundary dispute with the revisionist or a title dispute with the Waqf Board. In fact, this court utterly fails to see how the Act of 1983 would have any bearing on the plaintiffs' right to worship the Deities located in the suit property," the bench said.
The court also rejected the contention that the suit was barred under the Waqf Act, 1995.
"The plaintiffs seek a right to worship the Deities that Hindu devotees like the plaintiffs have since long been doing and much after 15th August, 1947. The District Judge has examined the provisions of the Act of 1995 and opined that the reliefs claimed by the plaintiffs that they should be allowed to worship the Deities of Maa Sringar Gauri and Gods and Goddesses in the suit property, are not matters covered under any of those provisions of the Act of 1995. A fortiori the reliefs claimed by the plaintiffs are not matters which are required to be decided by or under the Act of 1995," it said.
"There is absolutely no relief claimed regarding title or possession with regard to the suit property, claimed to be waqf, so as to bring in the ouster of jurisdiction under Section 85. There is not the remotest of the kind of matter envisaged to be decided by or under the provisions of the Act," the bench said.
The Muslim sides also raised the issue of the applicability of the Places of Worship Act, 1991 which mandates for maintaining character of religious places as prevailed on August 15, 1947.
The bench again rejected this contention.
"This Court fails to see that if the plaintiffs or devotees like them can do pooja and darshan of the Deities on a single day in the year with no threat to the mosque's character, how the making of it a daily or a weekly affair, would lead to a conversion or change of the mosque's character. It may require some arrangements to be made by the local administration, and may be, also by the Government by way of some regulation, but that is not the concern of the law," it said.
The court also noted the plaintiffs say that devotees like them have exercised the right much after 15th August, 1947 on a daily basis uninterruptedly, until the year 1990, then with some trouble between the years 1990 and 1993, and thereafter as an annual feature, restricted to the 4th day of Vasantik Navratra in Chaitra.
"A perusal of the plaint, particularly the relief clause and the material averments, does not show that the existing character of the place of worship as the Gyanvapi Mosque, asserted by the revisionist, is sought to be altered," the court said.
In his arguments, advocate Vishnu Shankar Jain, appearing for Hindu women, contended that the property in question was vesting in the Deity when, under the orders of Aurangzeb, it was partly demolished/ damaged, and, therefore, there could be no waqif competent to dedicate the property to ‘Allah'.
"There has never been a dedication of the suit property by the lawful owner thereof to God so as to constitute it into a waqf. The suit property, once vested in the Deity Sri Adi Vishweshwar, since time immemorial, no waqf could ever be created by anyone out of it. It did not belong to any member of the Muslim community, including the reigning monarch of the day at any point of time, entitling its dedication to a waqf, where a mosque could be erected. It is pleaded that the Muslims have no right to use of the suit property for religious purposes in the absence of creation of a waqf," he said.
The counsel also said the right to worship, apart from being a fundamental right, is a civil right within the meaning of Section 9 of the Civil Procedure Code. A violation of that right guaranteed under Article 25 of the Constitution entitles the person aggrieved to maintain a suit before the Civil Court for its enforcement.
He also asserted that there existed a glorious lofty temple at Adi Vishweshwar Jyotirlinga, near Dashashwamedh Ghat. In the year 1585, Raja Todar Mal, the then Governor of Jaunpur, at the instance of his Guru Narayan Bhatt, reconstructed a magnificent temple of Lord Shiva at the very place where the temple originally existed on a large scale, consisting of a Central Sanctum (Garbagrih)nsurrounded by eight mandaps. Subsequently, Aurangzeb had issued a farman (order) to demolish existing temples at Kashi and Mathura, which were carried out by his army and the fact of demolition of temple was communicated to him.
On September 12, 2022, District Judge A K Vishvesh had declared the court would continue to hear the petition seeking the right to worship in the temple. The Anjuman Intezamia Masjid Committee has questioned the maintainability of the plea by the group of the Hindu women.
