The Allahabad High Court on Monday observed that there is strong prima facie (meaning "on first impression") evidence to indicate that Hindu prayers were being offered in the southern cellar (Vyas Tehkhana) of the Gyanvapi mosque building since 1551 until they were stopped in 1993.A bench of Justice Rohit Ranjan Agarwal further observed that prima facie, it was illegal on the part of the Uttar Pradesh government to stop these Hindu prayers by way of an oral order in 1993."... a strong case for trial has been made out, but also the balance of convenience tilts in favour of the plaintiff (Hindu side). The worship and rituals which continued to be performed in the cellar by Vyas family till 1993 was stopped by illegal action of State without there being any order in writing," the Court said.
The Court relied on the 1937 civil court judgment in the Din Mohammad case to note that the court, at the time, had accepted a map submitted by the State which indicated the prayers were being offered in the cellar by the Vyas family.
The High Court added that a Commissioner's report from 1996 also referred to a lock put on a gate in the Gyanvapi compound by Hindus. This also indicated that Hindus had possession over the cellar in question ("Vyas Tekhana"), the Court said.
"The existence of Vyas tehkhana (cellar) owned by Vyas family in the year 1937 is a prima facie proof of the continues possession claimed by the plaintiff till the year 1993 (sic)," the High Court opined.
While so, the Court opined that the Muslim side had failed to make out any prima facie case that they had possession over the cellar, at least from 1937 till 1993.
"Appellant (Muslim party) having not claimed the cellar at any point of time from Vyas family after 1937 till December 1993 leads to adverse inference against them as to possession over the cellar. Plaintiff has been successful in prima facie establishing their possession through Vyas family since 1551," the Court said.
In view of this, the High Court concluded that there was no prejudice caused to the Muslim side in the passage of an interim order permitting Hindu prayers in the southern cellar of the mosque.
"Failure of appellant (Muslim side) to establish prima facie possession over the disputed property, and plaintiff (Hindu side) succeeding in building up a strong prima facie case negating the stand of appellant, leads to undeniable situation that stopping worship and performance of rituals by the devotees in the cellar would be against their interest. Prima facie I find that act of the State Government since year 1993 restraining Vyas family from performing religious worship and rituals and also by the devotees was a continues wrong being perpetuated (sic)," the Court said.
Prima facie I find that act of the State Government since year 1993 restraining Vyas family from performing religious worship and rituals and also by the devotees was a continuous wrong being perpetuated
Allahabad High Court
A citizen's right to freedom of religion guaranteed under Article 25 of the Constitution cannot be taken away by an arbitrary action of the State, the Court added.
The Court made the observation while rejecting a challenge by the Muslim side against a January 31 Varanasi trial court order permitting the offering of Hindu prayers and puja in the southern cellar of the Gyanvapi Mosque.
The said trial court order was passed amid an ongoing civil court case involving conflicting claims over the religious character of the Gyanvapi compound.
In the main suit, the Hindu side has claimed that a section of a temple in the Gyanvapi compound was destroyed during the rule of the Mughal emperor Aurangzeb in the 17th century.
On the other hand, the Muslim side has maintained that the mosque predated Aurangzeb's reign and has also asserted that it had endured various alterations over time
Pertinently, the Hindu side claimed that Hindu prayers were earlier offered by the family of one Somnath Vyas in the mosque's cellar until 1993 when the Mulayam Singh Yadav-led government allegedly put an end to it.
The Muslim side opposed this claim and maintained that Muslims have always had possession over the mosque's building.
The High Court has now upheld the trial court's decision to permit Hindu prayers in the cellar, while the main suit is still pending a final verdict.
In doing so, the Court rejected the Muslim side's argument that the January 31 order was passed by wrongly applying Section 152 of the Code of Criminal Procedure (CrPC).
The Court accepted the Hindu side's argument that the January 17 order which preceded the January 31 order had "accidentally" omitted to mention the decision on a prayer already made by the Hindu side in a composite application to (a) appoint a Receiver and (b) permit Hindu prayers in the mosque's cellar.
Such an "accidental" omission can be corrected by invoking Section 152, CrPC, as was done by the trial court, the High Court said.
"The order dated 31.01.2024 stands covered under the powers of Court given in Section 151 and 152 CPC, as it is neither reviewing the order, nor the Court under the guise of invoking Section 152 is granting any further relief after the result of the judgment was rendered earlier," the Court added.
The High Court also rejected the Muslim side's allegation that there was a conflict of interest in appointing a District Magistrate as the Court receiver, who was tasked with arranging for the prayers to be conducted in the cellar.
"Once, the District Magistrate, Varanasi is performing his duties enumerated under the Temple Act, 1983, his appointment as Receiver by the Court who has to act on the direction and supervision of the Court would not lead to any clash of interest ... Moreover, no malice in law or malice in fact, can be or has been imputed to the District Magistrate, Varanasi in the instant case," the Court said.
The Court proceeded to reject the Muslim side's appeal, holding that:
"I find that allowing worship and rituals in the cellar under the supervision of Receiver appointed by the Court below requires no interference by this Court. The possession of cellar was already taken by the Receiver on 24.01.2024 and the worship and rituals have already started from 01.02.2024."
The Court, however, clarified that it has not decided on the contentions regarding whether the Hindu side's suit was barred by limitation or for non-joinder of necessary parties since these issues have not been framed by the trial court.
Senior Advocate SFA Naqvi, and advocates Syed Ahmed Faizan and Zaheer Asghar appeared for the Muslim side.
Advocates Hari Shankar Jain, Vishnu Shankar Jain, Prabhash Pandey, Pradeep Kumar Sharma, Vineet Sankalp appeared for the Hindu side.
TAGS: Allahabad High Court prima facie evidence Hindu prayers Vyas Tehkhana Gyanvapi mosque Uttar Pradesh government
