Allahabad High Court: In a revision plea filed by Anjuman Intezamia Masajid (‘Masajid’), challenging the Varanasi Court (District Judge) order dated 12-09-2022, wherein the Court rejected an application by the Masajid under Order VII Rule 11 Code of Civil Procedure, 1908 (‘CPC’) against the suit filed by Hindu worshippers seeking worshipping rights inside the Gyanvapi Mosque complex, the Single Judge Bench of J.J. Munir,J. upheld the impugned order passed by the District Judge, thereby dismissing the revision filed by the Masajid against the maintainability of suit filed by Hindu worshippers.
In this case, the Hindu worshippers claimed that the present Mosque was once a Hindu temple, demolished by the Mughal Ruler Aurangzeb. They claim that they have the right to worship Goddess Maa Sringar Gauri at the Asthan of Lord Adi Vishwesehwar along with Lord Ganesha, Lord Hanuman, Nandiji and other visible and invisible deities within the old temple complex, situated in Settlement Plot in the city of Varanasi. As per them, there has never been a dedication of the suit property by the lawful owner to God, 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. Thus, the Hindu worshippers pleaded that the Muslims have no right to use of the suit property for religious purposes in the absence of creation of a waqf.
Thus, they filed a suit claiming a relief to the effect that their right to do pooja of the deities on the said complex be declared and further that the defendants (in original suit) be restrained from interfering in the exercise of their right to do pooja, aarti, bhog of the deities, nor demolish or destroy any part of images of those deities. Further, it was argued that the State Government, without any authority of law and without passing any written order, had directed the District Administration of Varanasi to restrict entry of the devotees of Lord Shiva within the old temple complex.
The Masajid filed an application under Order VII Rule 11 CPC and alleged that the suit is barred by the Places of Worship (Special Provisions) Act, 1991 (‘Act, 1991’). The Masajid objected this on the basis that, in complex there exists the Gyanvapi Mosque from the past 600 years and is still in existence, where Muslims from the city of Varanasi and its neighbourhood offer namaz five times a day without any hindrance. Under the Act, 1991, the religious character of a place of worship, as existing on 15-08-1947, shall continue as it was, with no change to it. Therefore, the statutory bar pleaded is that, by the relief claimed in the suit, the Hindu worshippers want to alter the character of the Gyanvapi Mosque. As per the Masajid, the suit was also barred by the Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983. Another statute, under which the suit is said to be barred, is the Waqf Act, 1995.
The District Judge held that the suit was not barred by the Places of Worship (Special Provisions) Act, 1991, The Waqf Act, 1995, (‘Act, 1995’) and the U.P. Shri Kashi Vishwanath Temple Act, 1983 (‘Act, 1983’).
The Court after examining the plaint , said that it is evident that the Hindu worshippers have not brought the suit as a class action, seeking to represent as relators, the right of Hindus in general, or a particular class, who are the devotees of Lord Shiva, Maa Sringar Gauri, Lord Ganesha, Lord Hanuman, to do pooja or darshan of the deities in the suit property. They have asserted that there has been such a right since time immemorial, amongst the devotees of Lord Shiva, Maa Sringar Gauri, Lord Ganesha, Lord Hanuman, which has been exercised in one form or the other. What they seek to exercise is their individual right to worship the deities.
Order VII Rule 11 Application
After perusing the impugned order, the Court said that the District Judge was oppressed by parties pleading facts, law and evidence, running into tomes, well beyond the settled parameters of judging a plea under Order VII Rule 11 of the Code. The parties seem to have endeavored almost to persuade the District Judge into holding a trial ahead of schedule in the garb of the application under Order VII Rule 11 of CPC.
The Court noted that the District Judge, though took note of all that was argued beyond the brief by the parties, stuck course and decided within the permissible parameters of the motion under Order VII Rule 11 of CPC. The District Judge has fundamentally considered the bar to the suit pleaded by the Masajid under the Act of 1991, the Act of 1983 and the Act of 1995.
The Court noted that the suit has been instituted by the Hindu worshippers to secure their right to darshan and pooja of deities virajman within the premises of the old temple of Lord Adi Vishweshwar.
The Court placed reliance on P.V. Guru Raj Reddy v. P. Neeradha Reddy, (2015) 8 SCC 331, wherein it was observed that it is the averments in the plaint that have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. The stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading the suit appears to be barred under any law, the plaint can be rejected. In all other situations, the claims will have to be adjudicated during the trial”. Thus, the Court said that this revision is about the suit being triable or not based on averments in the plaint and nothing more. All that the defendants (in original suit) can show is that the suit is not triable according to the averments in the plaint.
The Court noted that the Act, 1991 places an express bar on the right to convert a place of worship of one religious’ denomination to that of another. However, the Court said that in the plaint, there is no case or relief seeking to convert the Gyanvapi Mosque into a Hindu temple or other place of worship. The suit is confined to enforcement of the Hindu worshippers right to worship, according to the established tradition. How far that right can be established is relevant for the purpose of the present suit and that must await trial.
Further, the Court remarked that it fails to see that if the Hindu worshippers 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 maybe also by the Government by way of some regulation, but that is not the concern of the law.
The Court also said that mere asking to enforce a right to worship Hindu deities, located in the suit property at their specified place, is not an act that changes the character of the Gyanvapi Mosque into a temple. It is no more than the seeking of a full enforcement of a subsisting right that inheres in the Hindu worshippers and since long exercised by other devotees like them until a time much after 15-08-1947. Thus, it will not attract the bar under Sections 3 and 4 of the Act of 1991.
The Court noted that the other reliefs that Hindu worshippers seek to prevent, such as prevention of an apprehended demolition of the deities existing in the north-east corner of the Gyanvapi is to preserve a position about the existence of the deities. It is not by altering the existing position of the deities that they seek to enforce their right to worship. Therefore, it said that this part of the relief would also not fall in the teeth of the bar envisaged under Sections 3 and 4 of the Act of 1991.
The Court said that the District Judge has, more or less for the same reasons, held that the suit is not barred by the Act of 1991, thus, the Court found no ground to interfere.
Plea of limitation
The Court in view of Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, 1959 Supp (2) SCR 476, said that the Hindu worshippers of the deities Maa Sringar Gauri, Lord Ganesha, Lord Hanuman 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 Act of 1963.
Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983
The Court said that neither Section 4(9) of the Act of 1983 nor the transaction relating to exchange of land between the Waqf Board and the State of U.P. have any relevance to the present suit, which is about the Hindu worshippers right to worship the deities situated in the suit property. The Hindu worshippers neither claimed title to the suit property nor possession of it. They are not the Board of Trustees of Sri Kashi Vishwanath Temple engaged in a boundary dispute with the Masajid or a title dispute with the Waqf Board. Thus, the Court said that the suit is not barred by the Act of 1983.
The Waqf Act, 1995
The Court noted that Section 85 of the Act of 1995 envisages a bar to the jurisdiction of the Civil Court and said that the reference to the ‘Tribunal’ in Section 85 is to the Waqf Tribunal, as defined under Section 3(q) of the Act, which in turn would bear reference to Section 83(1).
The Court concurred with the opinion of the District Judge that the reliefs claimed by the Hindu worshippers that they should be allowed to worship the deities in the suit property, are not matters covered under any of those provisions of the Act of 1995. Thus, the reliefs claimed by them are not matters which are required to be decided by or under the Act of 1995. Further, the Act, 1995 does not operate in case of non-Muslims and strangers to the waqf in the matter of determination of their rights to property.
Thus, the Court said that there is no relief claimed by the Hindu worshippers which is required by or under the Act of 1995 to be decided by a Tribunal within the meaning of Section 85. There is no relief claimed regarding title or possession regarding the suit property, claimed to be waqf, to bring in the ouster of jurisdiction under Section 85. Thus, there is no matter envisaged to be decided by or under the provisions of the Act of 1995 by a Tribunal, involved in the nature of the relief that the Hindu worshippers claim.
[Committee of Management, Anjuman Intezamia Masajid v Rakhi Singh, 2023 SCC OnLine All 208, Order dated 31-05-2023]
Judgment Authored by: Justice J.J. Munir
Advocates who appeared in this case :
Counsel for Revisionist: Senior Advocate Syed Ahmed Faizan, Advocate Zaheer Asghar;
Counsel for Opposite Party: Advocate Prabhash Pandey, Advocate Arya Suman Pandey, Advocate Saurabh Tiwari, Advocate Vishnu Shankar Jain, Advocate Vineet Sankalp.