Demolition Of Bhojshala Saraswati Temple Case: Madhya Pradesh HC Issues Directions To ASI To Inspect Premises Of Maulana Kamal Maula Mosque
The Madhya Pradesh High Court in Bhojshala Saraswati Temple Demolition Case has issued directions to the Archaeological Survey of India (ASI) to inspect the premises of Maulana Kamal Maula Mosque.
A Trust named Hindu Front for Justice had filed a writ petition before the Indore Bench seeking issuance of directions to ASI Director in terms of Sections 75(e) and Order 26 Rule 10A of the Civil Procedure Code (CPC).
A Division Bench comprising Justice S.A. Dharmadhikari and Justice Devnarayan Mishra said, “… this Court has drawn only one conclusion that Constitutional as well as statutory obligation of the ASI to have a scientific survey, study convened at the earliest of the Bhojshala Temple cum Kamal Maula Mosque.”
Advocate Vishnu Shankar Jain appeared for the petitioners while Asstt. Solicitor General Himanshu Joshi, Senior Advocates Ajay Bagadia and A.S. Kutumbale appeared for the respondents.
Factual Background -
The petitioners contended whilst pressing the Interlocutory Application that survey by the ASI is a statutory duty, which the ASI ought to have performed long back at the inception when the mystery and confusion about the true character of Bhojshala Saraswati Temple (‘Bhojshala Temple’) cum Maulana Kamal Maula Mosque (‘mosque’) arose leading to disputes about its true status. It was further contended that under Section 16 read with Section 21 of The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (‘the Monuments Act, 1958’), determining and entertaining the true character of any ancient monument is a starting point for the ASI to discharge its statutory duty and hence, a mandamus can be issued to the ASI for discharging its statutory duty under Section 16, towards determining the character and nature of the premises in question, viz. Whether a Temple or Mosque or to what extent are traits of temple along with the deity present in the temple.
It was also submitted that there are yantras and sanskrit shlokas inscribed on floors, pillars, walls, which have been deliberately defaced and scratched by visitors from other community and religion; there are carved pillars with defaced images of Hindu goddesses and Gods of various buildings standing inside the premises, including images of Sun God and other Hindu Gods with their traditional engravings. Drawing attention of the Court to various structures like walls, sanctum santorum in the disputed complex, it was further argued that there are present mantras inscribed in Sanskrit with recitals of Pali/Prakrit; a large Hawan Kund and other Kunds constructed originally for conducting Yajnas and offering rituals before them. The petitioners also relied upon number of historical documents and research material done by foreign as well as Indian Scholars which have mentioned that Bhojshala complex with the Vagdevi temple pre-existed the Kamal Maula Mosque hundreds of years before it. The documents relied upon by the petitioners’ side disclosed that the mosque was constructed by dismantling, destroying and dismantling the ancient structures of previously constructed Hindu temples for construction of the Mosque.
Such construction of the mosque on the pre-existing Bhojshala temple took place during the reigns of Alaudim Khilji at the turn of 13th-14th century. Subsequently, the Kamal Maula Mosque was constructed during the regime of Mehmood Khilji (II) sometime in the year 1514. Even the study reports of the ASI prepared from time to time stated that originally constructed Bhojshala and Vagdevi temple was destroyed/dismantled to install and construct a mosque over at the instance of Islamist rulers and forces. The petitioners, therefore, prayed that it is the sanguine and bounden duty of the ASI acting under the Ancient Monuments Act, 1958 to ascertain the true character, nature and form of the premises in question.
The High Court in view of the facts and circumstances of the case, issued the following directions:
a) Complete scientific investigation, survey and excavation , through adoption of latest methods, techniques and modes of GPR-GPS survey of the site in question constituting the disputed Bhojshala Temple cum Kamal Maula Mosque complex, as also the entire 50m of peripheral ring area surrounding/constituting the circular periphery from the boundary of the complex be conducted.
b) A detailed scientific investigation be conducted by adopting carbon dating method for ascertaining the age, life of various structures both above and beneath the ground; permanent, movable and immovable structures both beneath as well as above the ground, constituting the walls, pillars, floors, surfaces, upper top, sanctum sanctorum of the entire complex.
c) A proper documented comprehensively drafted report prepared by a Expert Committee of not less than five (5) senior most officers of ASI headed by the Director General/Additional Director General of the ASI himself be submitted before this Court within a period of six weeks from the date of receipt of certified copy of this order. Efforts should be made to have a representation of Officers of both the contesting communities (if available of the said position & rank) in the said Expert Committee.
d) To photograph and videograph the entire survey proceedings in the presence of two (2) nominated representatives each of both the petitioners as well as respondent no.8 in the present petition.
e) To unlock and open the locked/ sealed rooms, halls of the whole complex and prepare a complete inventory of each and every artifact, idol, deity, or any structure found in the said locked, sealed halls and rooms, and submit the same along with the respective photographs. Such artifacts, idols, structures all must be subjected to the very same exercise of scientific investigation, carbon dating and survey as stipulated above vide points (a) to (c) and be included separately in the report to be filed before this Court.
f) Any other study, investigation or inquiry, which the said five (5) member committee of the ASI feels necessary to be undertaken, without destroying, defacing, destructing the original nature of the whole complex be undertaken, towards ascertaining the true nature and character of the Bhojshala Temple cum Kamal Maula Mosque for arriving at the truth.
The Court observed that all other issues and submissions relating to the relief as claimed by the petitioners or the right to worship and perform rituals in the disputed premises shall be considered and determined only after receipt of the report from the Expert Committee.
It concluded that the issue relating to validity of the wakf created on the disputed complex; that of granting the relief in the writ proceedings or relegating the petitioners to the Civil Suit for claiming those reliefs will all be determined and adjudicated post the receipt of report from the Five Member Committee of the ASI.
Accordingly, the High Court listed the case on April 29, 2024.
Cause Title- Hindu Front For Justice (Regd. Trust No. 976) Through Its President Ms. Ranjana Agnihotri and Others v. Union Of India Ministry Of Culture and Others
Appearance:
Petitioners: Advocates Vishnu Shankar Jain and Vinay Joshi.
Respondents: Asstt. Solicitor General Himanshu Joshi, Govt. Advocate Vaibhav Bhagwat, Senior Advocates Ajay Bagadia, A.S. Kutumbale, Advocates Devansh Awal and Baldeep Singh Gandhi.
