Madhya Pradesh High Court allows ASI survey at Bhojshala Temple cum Kamal Maula Mosque complex

The Indore Bench of Madhya Pradesh High Court on Monday directed the Archaeological Survey of India (ASI) to conduct a survey at Bhojshala Temple cum Kamal Maula Mosque complex in Dhar district [Hindu Front for Justice v Union of India and Ors.].Justices SA Dharmadhikari and Devnarayan Mishra observed that the nature and character of the monument need to be 'demystified and freed from the shackles of confusion.'"The detailed arguments at the bar by all the contesting parties fortifies the Court’s belief and assumption that the nature and character of the whole monument admittedly maintained by the Central Government needs to be demystified and freed from the shackles of confusion," the Court order stated..The Court was hearing an interlocutory application in a writ petition seeking to reclaim the Bhojshala complex for Hindus and prohibit Muslims from offering namaaz in its premises. The interlocutory application sought a scientific survey at the complex to ascertain its 'true character'..As per the petitioners, ASI should have conducted the survey at the inception of the confusion about the true character of the complex. Under Section 16 read with Section 21 of the Ancient Monuments and Archaeological Sites and Remains Act, determining and entertaining the true character of any ancient monument is a starting point for the ASI to discharge its statutory duty, it was contended.The petitioners also highlighted some structures within the complex as well as some documents suggesting that a temple pre-dated the mosque, which was purportedly built by dismantling the temple. .One of the respondents, Maulana Kamaluddin, challenged the maintainability of the suit, citing the principle of res judiciata. He highlighted that a similar writ petition was dismissed by the High Court's principal bench in 2003. He further contended that the State government and ASI were under influence of the government of the day and the Court must not support a partisan stand in favour of the existence of Bhojshala Vagdevi Temple against the interests of Muslims, who have been praying on the situs and offering namaaz for years.Additional Solicitor General (ASG) Himanshu Joshi for the ASI contended that an order passed in 2003 by the Director General of ASI, which allowed Muslims to offer namaaz at the complex, did not consider previously prepared report in the year 1902 -03 under the aegis of then existing expert body. This report, he said, clearly pointed out the pre-existence of Bhojshala Temple of Vagdevi and stated the same to be the important gurukul & temple of vedic learning and studies. As such, he supported a fresh survey to 'clear the entire dust around the whole status of complex as a noon day'..The State government said that revenue records till 1935-36 described the complex as a temple. Further, it contended that the land belonged to the State government and ASI even before independence and hence could not have been declared Wakf property at all. The State also, therefore, supported the survey. .The Court said that undoubtedly, under section 16 of the Monument Act, it is ASI's statutory duty to ascertain the nature, character and original form of the place of worship. "It is only thereafter that the protection of the said place of worship from misuse, pollution or desecration can happen at the instance of ASI," the Court said..Responding to the argument that the ASI and State were under influence by the Central government, the Court said that it weighed all the more in favour of the necessity of ASI to perform its statutory duty and conduct a survey..When ASG Joshi could not answer whether a survey under section 16 had been conducted before the order allowing namaaz in the complex was passed, the Court determined that it was passed without a survey. Therefore, it held that the order was prima facie in the teeth of and contrary to the mandate of Section 16 the Monument Act..On the petitioner invoking the principle of res judicata, the Court pointed out that the plea dismissed by the principal bench did not contain a specific prayer to conduct a survey. .The Court said that once a survey is conducted scientifically, it can safely place reliance on the report."Ascertainment of the nature and character of the site would also lend credibility to the existence of juristic person/entity of deity of the Vaagdevi/ Saraswati with a temple (if found to exist)," it added. .The petitioner had also invoked their fundamental rights under articles 25 (freedom of religion) and 29 (protection of interests of minorities) of the Indian Constitution. The Court concurred, stating that every Government has the constitutional obligation to ensure preservation and protection of not only the ancient monuments but also of sanctum sanctorum as well as the deity of spiritual importance."There is a constitutional duty even to sanction funds for providing basic amenities to pilgrims, proper arrangements for shelter places, maintenance of law and order and the preservation of purity and pristine character of the deity," it added. Therefore, the Court concluded that it was a 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..The petitioners were represented by advocates Vishnu Shankar Jain and Vinay Joshi.Madhya Pradesh government was represented by government advocate Vaibhav Bhagwat.ASG Himanshu Joshi appeared for the ASI. Maulana Kamaluddin was represented by Senior Advocate Ajay Bagadia and advocate Devansh Awal. .[Read Order]