Nikhil Upadhyay, the son of the renowned PIL man of India, Adv. Ashwini Upadhyay, has filed an application in the Varanasi District Court in the Gyanvapi case. 5th Semester Law student Nikhil has filed an intervention petition requesting the court to hear his arguments contending that the Places of Worship Act, 1991 is applicable only on the principles of personal law or on privately built places.
(SMT. RAKHI SINGH & ORS. VS. STATE OF UTTAR PRADESH & ORS.)
The applicant (Nikhil Upadhyay) is familiar with all the facts, circumstances and history of the case as his family originally belongs to district Jaunpur and relatives reside in Varanasi. Nikhil with his parents regularly come to the Kashi Vishwanath temple for Darshan.
The applicants father, Adv. Ashwini Upadhyay has not only challenged the constitutional validity of the 1991 Act but also filed Impleadment Application (IA) in the Supreme Court in SLP (C) 9388 of 2022 [Committee of Management Anjuman Intezamina Masjid Varanasi v. Rakhi Singh]. Applicant assisted his father in drafting the IA also. Applicant has carried out research on self-incarnation of Adi Shri Vishveshwara Jyotir Linga which is a sacrosanct and most sacred religious place for Hindus.
Applicants right to justice guaranteed under Article 14, right to dignity guaranteed under Article 21, right to religion guaranteed under Article 25, right to restore his places of worship guaranteed under Article 26 and right to culture guaranteed under Article 29 is directly linked with the instant plaint.
The Applicant submits that only those places are protected under 1991 Act, which were constructed in accordance with personal law of the person constructed them and places constructed in derogation of the personal law, cannot be termed as a place of worship. Retrospective cutoff-date cannot be fixed to legalize illegal acts of barbaric invaders as Hindu Law (Temple Character never changes) was Law in force at the commencement of the Constitution by virtue of Article 372(1).
Hindus Jains Buddhists Sikhs have the right to profess, practice and propagate religion as provided in their religious scriptures and Article 13 prohibits from making law which takes away their rights. Moreover, the status of mosque can be given only to such structures which have been constructed according to tenets of Islam and mosques constructed against the provisions contained in Islamic law cannot be termed as Mosque. Therefore, Muslims cannot assert any right in respect of any piece of land claiming to be Mosque unless it has been constructed on legally owned and occupied virgin land. It is necessary to state that property vested in Deity continues to be the Deitys property irrespective of the fact that any person has taken illegal possession and offered namaz.
The petition submits that,
The Place of Worship Act 1991 is a penal Law so it must be interpreted literally not purposively. Temple is a place of worship as God resides therein and thats why temple is always a temple and its religious character never changes. On the other hand, Mosque is simply a place of prayer and thats why, in gulf countries (which is the birthplace of Islam), it is demolished and shifted even for making road, school, hospital and public office. Moreover, Religious Character of temples (places of Worship) and mosques (places of Prayer) is totally different. So, the 1991 Act cant be applied on Mosques.
The 1991 Act was enacted in the garb of Public order, which is a state subject [Schedule-7, List-II, Entry-1] and places of pilgrimages within India is also State subject [Schedule-7, List-II, Entry-7]. So, the Centre cant enact it. Moreover, Article 13(2) prohibits the State to make law to take away fundamental rights but the 1991 Act takes away the rights of Hindus Jains Buddhist Sikhs to restore their places of worship and pilgrimages, destroyed by barbaric invaders. The Act excludes the birthplace of Lord Rama but includes the birthplace of Lord Krishna, though both are incarnations of Lord Vishnu, the Creator and equally worshiped throughout the world, hence it is manifestly arbitrary and violative of Article 14.
The Right to justice, right to judicial remedy, right to dignity are integral parts of Article 21 but the 1991 Act violates them. Likewise, the right to pray and practice propagate Hinduism Jainism Buddhism Sikhism, guaranteed under Article 25, is being blatantly offended by 1991 Act. Similarly, the 1991 Act blatantly offends the rights of Hindus Jains Buddhists Sikhs to restore, manage, maintain and administer places of worship and pilgrimage, guaranteed under Article 26 of the Constitution.
Right to restore/preserve the script and culture of Hinduism Jainism Buddhism Sikhism, guaranteed under Article 29 is being offended by 1991 Act. Moreover, directive principles are nevertheless fundamental in the governance and Article 49 directs the State to protect the places of national importance from disfigurement/destruction.
Centre neither can take away power of Civil Courts to entertain suit for restoration nor can take the power of High Courts and Supreme Court. The Act cannot bar right and remedy against encroachment made on religious places of Hindus Jains Buddhists Sikhs.
Section 4(1) of the Act cannot violate the concept that 'Temple property is never lost even if it is enjoyed by strangers for hundreds of years', even the King cannot deprive temples of their properties. The deity which is embodiment of Supreme God and is a juristic person, represents the Infinite the timeless cannot be confined by the shackles of time.
Places of Worship Act 1991 cannot abate the suit-proceedings without resolution of dispute through the process of law as it is perse unconstitutional and beyond the law-making power of Centre and State. The provisions of 1991 Act cannot be implemented with retrospective effect and the remedy of disputes pending, arisen or arising cannot be barred by the Act. Centre neither can close the doors for aggrieved persons nor can take away the power of District Court, High Court and Supreme Court of India.
the maxim ubi jus ibi remedium cannot be frustrated by the 1991 Act as pending suits and proceeding in respect of which cause of action have arisen and continuing wrong, the remedy of the aggrieved person for resolution of disputes through the Court cannot be abolished as it violates the very concept of natural justice and Rule of law.
The aforesaid Civil Suit, an application invoking the provisions of Section 75 and Order XXVI Rules 9 and 10 read with Section 151 of Code of Civil Procedure for appointment of Advocate Commissioner to make a local inspection of the property in question was also moved for the purported purpose of ascertaining the existence of the images of Deities Maa Shringar Gauri, Lord Ganesha, Lord Hanuman, Nandiji and other Deities, at the premises of Gyanvapi Mosque.
The remains of the erstwhile temple can be seen in the foundation of plinth of so-called Mosque, the columns and at the rear part of the mosque.
The temple construction was undertaken in a big way in 1585 by Raja Todar Mal, the Finance Minister of Akbar the great, the Mughal Emperor who was then Governor of Jaunpur.
It is respectfully submitted to avoid the duplicity; applicant has not annexed the documents placed on record by the plaintiffs. Applicant seeks liberty of the Court to place other documents including the Indian and foreign history books, and religious books like Skanda purana and shiv puran in future. The Applicant will also place on records the judgments of the High Court and Supreme Court of India.
The applicant prays that,
- To allow the instant Application for Impleadment and allow the Applicant to be arrayed as a party Plaintiff to the Civil Suit No 693 of 2021;
- To pass such other order(s) as this Honble Court deem fit and proper to secure fundamental rights of Applicant and for complete justice.
The Court heard the arguments and listed the matter for deliberation on July 04, 2022.
