Dr Dhananjaya Y Chandrachud, CJI
1 The proceedings under Article 136 of the Constitution have been initiated to
challenge an order of the High Court of Judicature at Allahabad dated 3 August
2023. The High Court dismissed the appeal against an order of the District Judge
directing an archeological survey of the area in which the Gyanvapi Mosque
[Settlement Plot No. 9130] is situated.
2 The respondent-plaintiffs filed a suit (Civil Suit No. 18 of 2022) seeking a declaration
that they were entitled to perform rituals of deities which are allegedly present within
the premises of the Gyanvapi mosque. The respondents also filed an application
under Section 75 and Order XXVI Rules 9 and 10 read with Section 151 of the Civil
Procedure Code 19081 for the appointment of an Advocate Commissioner for
inspection of the premises. The petitioner-defendant moved an application under
Order 7 Rule 11(d) of the CPC for the dismissal of the suit on the ground that it is
barred by the provisions of the Places of Worship (Special Provision) Act 1991.
3 The application seeking the appointment of the Advocate Commissioner was
allowed by the Civil Judge. The appeal against the order of the Civil Judge was
dismissed by the High Court by an order dated 21 April 2022. The petitioners
instituted proceedings (SLP No. 9388 of 2022) under Article 136 challenging the
order of the High Court. In the meanwhile, the Advocate Commissioner submitted a
report recording that a Shivaling was found in the premises of the mosque. By an
order dated 16 May 2022, the Civil Judge directed the place where the Shivaling
was allegedly found be sealed. This Court by an order dated 17 May 2022 directed
the order of the Civil Judge dated 16 May 2022 shall not restrain the access of
Muslims to the mosque or the use of the mosque for the purpose of performing
Namaz. By another order dated 20 May 2022, this Court directed that the
application filed by the petitioner under Order VII Rule 11 of CPC be decided on
priority.
4 The District Judge dismissed the application of the petitioner under Order VII Rule
1 “CPC”
11. The appeal against the order dismissing the application was dismissed by the
High Court by an order dated 31 May 2023. The Special Leave Petition challenging
the order of the High Court dismissing the Order 7 Rule 11 application of the
petitioner is pending before this Court.
5 Meanwhile, the respondents filed application nos. 327C and 333C under Section
75(c) and Order 26 Rule 10A of the CPC seeking a direction to the Director of the
Archaeological Survey of India (ASI) to undertake a scientific survey of Settlement
Plot No 9130 for the purpose of ascertaining the nature of the construction and the
age of the structure. The District Judge allowed the applications and directed the
ASI to “undertake the scientific investigation/survey/excavation on the property
bearing Settlement Plot No 9130”, excluding certain areas which were sealed by the
orders of this Court dated 17 May 2022, 20 May 2022 and 11 November 2022. The
District Judge while allowing the applications issued the following directions:
“ (a) The Director of ASI is directed to undertake the scientific
investigation/survey/excavation at the property in question i.e. at
Settlement Plot No.9110 in the case excluding the areas scaled by
the Hon'ble Supreme Court vide order dated 17.05.2022,
20.05.2022 as well as vide order dated 11.11.2022 in SLP(C)
No.9388/2022 tilled as Committee of Management Anjuman
lntejamia Masajid Varanasi vs. Rakhi Singh & Ors.;
(b) The Director of ASI is also directed to conduct a detailed scientific
investigation by using GPR Survey, Excavation, Dating method
and other modem techniques of the present structure to find out
as to whether same has been constructed over a pre-existing
structure of Hindu temple;
(c) The Director of ASI is also directed to conduct scientific
investigation in the light of the averment made in this application
after associating the Plaintiffs, Defendants and their respective
counsels and submit report to this Hon'ble Court upto 04-08-2023 and also to photograph and video-graph the entire survey proceedings;
(d) The Director of ASI is also directed to investigate the age and nature of construction of the western wall of the building in question through scientific method(s);
(e) The Director of ASl is also directed to conduct Ground Penetrating Radar (GPR) survey just below the 3 domes of the building in question and conduct excavation, if required;
(f) The Director of ASl is also directed to conduct Ground Penetrating Radar (GPR) survey beneath the western wall of the building and conduct excavation, if required;
(g) The Director or ASI is also directed to conduct Ground Penetrating Radar (GPR) survey beneath the ground of all the cellars and conduct excavation, if required;
(h) The Director of ASI is also directed to prepare a list of all the artefacts which are found in the building specifying their contents and carry out scientific investigation and undertake dating exercise to find out the age and nature of such artefacts;
(i) The Director of ASI is also directed to conduct dating exercise of the pillars and plinth of the building to find out the age and the nature of construction;
(j) The Director of ASI is also directed lo conduct GPR survey, excavation wherever required, dating exercise and other other
scientific methods for determining the age and nature of construction existing at the site in question;
(k) The Director of ASl is also directed to investigate the artefacts and other objects of historical and religious importance existing in different parts of the building and also beneath the structure which may be found during such exercise;
The Director of ASI is also directed to ensure that there should be no damage to the structure standing on the disputed land and it remains intact and unharmed. Report will be submitted up to 0408-2023. Put up on 04-08-2023 for further proceedings."
6 The order of the District Judge was assailed before the High Court of Judicature at
Allahabad in proceedings under Article 227 of the Constitution. By a judgment dated
3 August 2023, the order of the District Judge was affirmed subject to (i) the
observations made by the High Court in the text of its judgment; and (ii) the contents
of the affidavit which was filed by the ASI before the High Court.
7 During the course of the hearing before the High Court, the ASI was called upon to
assist the Court. In pursuance of the direction of the High Court, the Additional
Director General, ASI filed an affidavit setting out the nature of the proposed survey
that would be carried out. Paragraphs 13 to 20 of the affidavit filed by the ASI are
extracted below for convenience of reference:
“13 That it is also submitted that the GPR survey would be conducted
by the renowned experts of the technical institutions such as IIT,
Kanpur.
14 That it is further submitted that the survey team will study the
pillars and architectural members, detail study of western wall,
survey of complex and structure, study of open place/floor, GPR
survey and photo documentations etc.
15 That it is pertinent to mention here that Scientific Archeological
Studies do not damage or remove the structure rather they are
preserved and wherever any structure is exposed that area is left
untouched.
16 That it is further submitted that while Scientific Archeological
Studies would be carried out beyond the structures and in open
areas only.
17 That it is further submitted that no drilling, no cutting, no removal
of brick or stone from the existing structure will be done while
conducting the survey and study.
18 That it is further submitted that archeological sites will be in open
place floor area which will not affect the structure at all.
19 That it is further submitted that no wall/structure would be
damaged and the entire survey will be conducted by the non
destructive method by using techniques such as GPR survey,
GPS survey, the other scientific methods and other modern
techniques.
20 That it is further submitted that the ASI is premier organization to
conduct archeological investigations in the country, and
undertakes that entire survey will be conducted in accordance with
the directions issued by the Hon’ble Courts without using any
destructive method and damage to the structure. In case any
further investigation/excavation is required permission of Hon’ble
Court would not be sought.”
8 Apart from the affidavit, the deponent Shri Alok Tripathi, who is the Additional
Director General of the ASI, appeared before the court in-person. The submissions
which were made by the Additional Director General have been recorded in the
following extract of the judgment of the High Court:
“...he submitted that the ASI will conduct a detail survey in accordance
with law and prepare a list of the antiquities which are found in building
and carry out detail survey and undertake the exercise to find age and
nature of the structure. He further submitted that the ASI will conduct
survey, documentation, photography, detail description, GPR survey and
full studies without harming the existing structures. He also submitted
that all the aforesaid works would be carried without any damage to the
structures. He has submitted that the scientific investigation would be
carried out beyond the structure and in open areas only: no drilling, no
cutting, no removal of brick or stones from the existing structure will be
done while conducting the survey and study. It has been further
submitted that archaeological sites will be in open place floor area which
will not affect the structure at all and no wall/structure would be
damaged and the entire survey will be conducted by the non-destructive
method by using techniques such as GPR survey. GPS survey the other
scientific methods and other modem techniques. It has also been
submitted that in case any further investigation/excavation is required,
permission of the Hon’ble Court would be sought.”
9 The High Court held that the order of the District Judge directing a survey falls within
the ambit of Order XXVI Rule 10A of the Code of Civil Procedure 1908. The High
Court rejected the submission of the petitioners that Order XXVI Rule 10A cannot be
used by the parties to gather evidence in their favour. The Court observed that
where a question arising in a suit involves a scientific investigation which cannot, in
the opinion of the court, be conveniently conducted before the court, it may, if it
thinks necessary or expedient in the interest of justice so to do, issue a commission
for that purpose. In paragraph 21 of its judgment, the High Court has dealt with the
apprehension that the survey would envisage an act of excavation or destruction of
the structure existing at the site. The High Court has recorded the statement of the
Additional Director General, ASI as well as of the Additional Solicitor General who
was appearing for the Union of India, that no excavation whatsoever will take place.
The High Court observed that since the Department of Archeology and counsel
representing the Department had expressly stated that no damage would be caused
to the property in question, the survey which is proposed, may be permitted to be
carried out. In the concluding paragraph of its order, the High Court clarified that
while it was affirming the order dated 21 July 2023 of the District Judge, this was
subject to the observations of the High Court and the contents of the affidavit which
was filed on behalf of ASI.
10 Before we deal with the submissions which have been urged on behalf of the
petitioners by Mr Huzefa A Ahmadi, senior counsel, it needs to be clarified at the
outset that it has been clarified on behalf of ASI by Mr Tushar Mehta, Solicitor
General that the entire survey which is envisaged to be carried out in pursuance of
the order of the District Judge would be completed without any excavation at the site
and without causing any damage to the structure.
11 On behalf of the petitioner, it has been submitted by Mr Huzefa A Ahmadi, senior
counsel that this Court ought to interfere with the order of the High Court because:
(i) The carrying out of a survey is contrary to the provisions of the Places of
Worship (Special Provisions) Act 1991, the genesis of which has been
explained in the judgment of the Constitution Bench in M Siddiq (Dead)
Through Legal Representatives vs Mahant Suresh Das and Others2 [Ram
Janmabhumi Temple Case];
(ii) In the suit of 1991, pursuant to a similar plea, a survey by the ASI was ordered
which has been stayed by the High Court by an order dated 9 September
2021;
(iii) A similar issue pertaining to an order for carbon dating of a structure which is
claimed to be a ‘Shivaling’ by the plaintiffs and a ‘fountain’ by the defendants is
pending in Committee of Management Anjuman Intezamia Masajid,
Varanasi vs Rakhi Singh and Others3. In the course of the proceedings
before this Court, the order for survey was stayed, on the Solicitor General
joining in the submission that the process of carbon dating may partake of an
2 (2020) 1 SCC 1 3 SLP (C) No 11351 of 2023
invasive nature;
(iv) An order of status quo in respect of the property was passed in the judgment
of this Court in Mohd Aslam Alias Bhure vs Union of India and Others4
because of a threat to the property; and
(v) While an order for conducting a scientific investigation or survey under Order
XXVI Rule 9 may be passed at any stage, ordinarily a scientific survey ought
not to be ordered until the court is cognizant of the issues that would arise in
the suit.
12 On the other hand, Ms Madhavi Divan, senior counsel appearing on behalf of the
original plaintiffs in the suit submitted that:
(i) An order under Order XXVI is essentially for the benefit of the court which
requires such a survey to be conducted to assist it in deciding the substance of
the controversy in a suit;
(ii) The order of the trial Judge ordering a survey is neither adversarial nor
prejudicial since it is not determinative of the substance of the rights of the
parties;
(iii) All parties would be entitled to file their objections to the report of the ASI and
to seek cross-examination should the survey be intended to be let into
substantive evidence;
4 (1994) 2 SCC 48
(iv) The issue in terms of the provisions of Section 4(1) of the Places of Worship
(Special Provisions) Act 1991 is as regards the religious character of the place.
The frame of the plaint would indicate that the contention of the plaintiffs is that
both before and after 1947, the religious character of the place is indicative by
acts of continuing worship;
(v) The function of the ASI is to preserve and protect monuments of historical
importance and hence there is no basis for any apprehension that damage
would be caused to the structure; and
(vi) The circumstances pertaining to the earlier suit of 1991 are distinct inasmuch as
in that case the suit was on title in which an application under Order VII Rule
11 CPC was allowed by the Trial Judge. The order of the Trial Judge was set
aside in First Appeal against which proceedings under Article 227 were
instituted by the original defendants before the High Court. In those
proceedings, there was a stay of the proceedings in the suit. In this backdrop,
when the Trial judge allowed an application for a survey by the ASI, the order
was stayed by the High Court during the pendency of the proceedings.
13 Order XXVI Rule 10A stipulates that where any issue in a suit involves any scientific
investigation which cannot in the opinion of the Court be conveniently conducted
before the court, the court may, if it thinks necessary or expedient in the interest of
justice so to do, issue a commission to such person as it thinks fit directing them to
inquire into such question and report thereon to the court. Under sub-rule (2) of Rule
10A, the provisions of Rule 10 of the order shall, as far as may be, apply in relation
to a Commissioner appointed under the rule as they apply to a Commissioner
appointed under Rule 9. Rules 9 and 10 of Order XXVI therefore assume relevance
and are extracted below:
“9. Commissions to make local investigations.—In any suit in which
the Court deems a local investigation to be requisite or proper for the
purpose of elucidating any matter in dispute, or of ascertaining the
market-value of any property, or the amount of any mesne profits or
damages or annual net profits, the Court may issue a commission to
such person as it thinks fit directing him to make such investigation and
to report thereon to the Court:
Provided that, where the State Government has made rules as to the
persons to whom such commission shall be issued, the Court shall be
bound by such rules.
10. Procedure of Commissioner.—(1) The Commissioner, after such
local inspection as he deems necessary and after reducing to writing the
evidence taken by him, shall return such evidence, together with his
report in writing signed by him, to the Court.
(2) Report and depositions to be evidence in suit.—The report of the
Commissioner and the evidence taken by him (but not the evidence
without the report) shall be evidence in the suit and shall form part of the
record; but the Court or, with the permission of the Court, any of the
parties to the suit may examine the Commissioner personally in open
Court touching any of the matters referred to him or mentioned in his
report, or as to his report, or as to the manner in which he has made the
investigation.
(3) Commissioner may be examined in person.—Where the Court is
for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.
10-A. Commission for scientific investigation.—(1) Where any
question arising in a suit involves any scientific investigation which
cannot, in the opinion of the Court, be conveniently conducted before
the Court the Court may, if it thinks it necessary or expedient in the
interests of justice so to do, issue a commission to such person as it
thinks fit, directing him to inquire into such question and report thereon
to the Court.
(2) The provisions of Rule 10 of this Order shall, as far as may be, apply
in relation to a Commissioner appointed under this rule as they apply in
relation to a Commissioner appointed under Rule 9.”
14 In terms of Order XXVI Rule 10, the Commissioner has to submit a report in writing
to the court. The report of the Commissioner and the evidence taken by him
constitute evidence in the suit and form a part of the record. However, the court and,
with its permission, any of the parties may examine the Commissioner personally in
open court touching any of the matters referred to him or mentioned in the report or
as regards the report including the manner in which the investigation has been
made. The court is also empowered to direct such further inquiry if it is dissatisfied
with the proceedings of the Commissioner. The evidentiary value of any report of the
Commissioner is a matter to be tested in the suit and is open to objections including
cross-examination. A report of the Commissioner does not by and of itself amount to
a substantive finding on matters in dispute and is subject to the process of the court
during the course of the trial.
15 At this stage, the court must notice that the District Judge while acting as a trial
Judge in the suit exercised discretion under Order XXVI Rule 10A to direct a
scientific investigation by the ASI. The order of the learned Trial Judge under Order
XXVI Rule 10A cannot prima facie be construed to be without jurisdiction. The High
Court has found no reason to interfere, having set out the legal position which
constrains the nature of the challenge under Article 227 of the Constitution while
dealing with an interlocutory order of this nature. At the same time, the High Court
has introduced certain safeguards which need to be reiterated in the course of the
present judgment of this Court.
16 Having regard to the nature and ambit of a court appointed Commissioner, we are
unable to differ with the view of the High Court, particularly while exercising the
jurisdiction under Article 136 of the Constitution. The High Court has introduced
certain specific directions to circumscribe the nature of the order which was passed
by the District Judge. Reading the directions which have been issued by the District
Judge, it is apparent that they would be amenable to the carrying out of an
excavation at the site. However, during the course of the proceedings before the
High Court, ASI has clarified on affidavit that it was neither carrying out any
excavation nor would the survey involve any destruction of the property.
17 We reiterate the direction of the High Court that there shall be no excavation at the
site which was in accordance with the statement which was made before the High
Court by the Additional Solicitor General and which has been reiterated in the
submissions made by the Solicitor General on behalf of the ASI. We have recorded
the submission of the Solicitor General in the earlier part of this order to the effect
that the survey shall not involve any excavation at the site or any destruction of the
structure. In terms of the statement and the directions of the High Court, we direct
that the entire process shall be concluded by any non-invasive methodology that
may be adopted by the ASI.
18 The report which would be prepared by the ASI shall in terms of the provisions of
Order 26 shall be remitted to the Trial court and shall thereafter abide by the
directions which would be passed by the District Judge at the trial of the suit.
19 The Special Leave Petition is accordingly disposed of.
20 Pending applications, if any, stand disposed of.
[Dr Dhananjaya Y Chandrachud]
[J B Pardiwala]
[Manoj Misra]
New Delhi; August 4, 2023 CKB