COMMITTEE OF MANAGEMENT ANJUMAN INTEZAMIA MASAJID, VARANASIversusRAKHI SINGH AND OTHERS

                  [2023] 11 S.C.R. 108 : 2023 INSC 702



                              CASE DETAILS

   COMMITTEE OF MANAGEMENT ANJUMAN INTEZAMIA
                MASAJID, VARANASI
                                       v.
                     RAKHI SINGH AND OTHERS
         (Special Leave Petition (Civil) Diary No.31345 of 2023)
                             AUGUST 04, 2023
          [DR. DHANANJAYA Y CHANDRACHUD, CJI,
           J. B. PARDIWALA AND MANOJ MISRA, JJ.]

                               HEADNOTES

      Issue under consideration : Order of the High Court dismissing
the appeal against an order of the District Judge directing an archeological
survey of the area in which the Gyanvapi Mosque is situated.
       Code of Civil Procedure, 1908 – Application u/s.75(c) and Or.26,
r.10A of CPC allowed by the District Judge, directing ASI to undertake
a scientific survey of the property – High Court affirmed the said order
subject to certain observations made and affidavit filed by the ASI –
Propriety of:
        Held : The High Court had clarified that while it was affirming
the order dated 21.07.2023 of the District Judge, it was subject to the
observations of the High Court and the contents of the affidavit which was
filed on behalf of ASI – Before the High Court, ASI had clarified on affidavit
that it was neither carrying out any excavation nor would the survey involve
any destruction of the property – It was apparent from the directions of the
District Judge that there would be excavation at the site – However, the
High Court had circumscribed the nature of the order passed by the District
Judge – High Court permitted the proposed survey since the Department
of Archeology had expressly stated that no damage would be caused to the
property in question – Thus, the direction of the High Court is reiterated that
there shall be no excavation at the site or any destruction of the structure – In
addition, it is directed that the entire process to be conducted by any non-
invasive methodology that may be adopted by the ASI. [Paras 9, 16 and 17]

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                  VARANASI v. RAKHI SINGH


      Code of Civil Procedure, 1908 – Or.XXVI, r.10A – Exercise of
discretion by the District Judge:
       Held : 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 Trial Judge under Order XXVI
Rule 10A cannot prima facie be construed to be without jurisdiction –
The High Court also had found no reason to interfere – However, certain
safeguards were introduced by the High Court. [Para 15]

       LIST OF CITATIONS AND OTHER REFERENCES

      M Siddiq (Dead) Through Legal Representatives vs Mahant
Suresh Das and Others (2020) 1 SCC 1 : [2019] 18 SCR 1; Committee of
Management Anjuman Intezamia Masajid, Varanasi vs Rakhi Singh and
Others SLP (C) No 11351 of 2023; Mohd Aslam Alias Bhure vs Union of
India and Others (1994) 2 SCC 48 – referred to.

      OTHER CASE DETAILS INCLUDING IMPUGNED
             ORDER AND APPEARANCES

       EXTRAORDINARY APPELLATE JURISDICTION : Special Leave
Petition (Civil) Diary No.31345 of 2023.
      From the Judgment and Order dated 03.08.2023 of the High Court
of Judicature at Allahabad in MUA227 No.7955 of 2023.
      Appearances:
     Huzefa Ahmadi, Sr. Adv., Fuzail Ahmad Ayyubi, Nizam Pasha, Ms.
Rashmi Singh, Ibad Mushtaq, Ms. Akanksha Rai, Advs. for the Petitioner.
       Tushar Mehta, SG, Sharan Dev Singh Thakur, AAG, Mrs. Madhavi
Divan, Sr. Adv., Ms. Ruchira Goel, Siddharth Thakur, Shantanu Singh,
Ravi Sehgal, Adit Jayeshbhai Shah, Sharanya Sinha, Ms. Keerti Jaya,
Barun Kumar Sinha, Anantha Narayana M.G., Mrs. Pratibha Sinha, Rakesh
Mudgal, Mrs. Beby Devi Bonia, Tarun Gulia, Prabhsimar Singh, Hari
Shankar Jain, Vishnu Shankar Jain, Parth Yadav, Ms. Mani Munjal, Advs.
for the Respondents.
110          SUPREME COURT REPORTS                         [2023] 11 S.C.R.



       JUDGMENT/ORDER OF THE SUPREME COURT

                               JUDGMENT
      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 11. The appeal against the order dismissing the application

1   “CPC”
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VARANASI v. RAKHI SINGH [DR. DHANANJAYA Y CHANDRACHUD, CJI]


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 scientifi c
             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);
112         SUPREME COURT REPORTS                         [2023] 11 S.C.R.


      (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 fi nd 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
            04-08-2023. 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
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VARANASI v. RAKHI SINGH [DR. DHANANJAYA Y CHANDRACHUD, CJI]


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
114          SUPREME COURT REPORTS                         [2023] 11 S.C.R.


           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
   COMMITTEE OF MANAGEMENT ANJUMAN INTEZAMIA MASAJID,       115
VARANASI v. RAKHI SINGH [DR. DHANANJAYA Y CHANDRACHUD, CJI]


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

2   (2020) 1 SCC 1
116            SUPREME COURT REPORTS                         [2023] 11 S.C.R.


            and a ‘fountain’ by the defendants is pending in Committee
            of Management Anjuman Intezamia Masajid, Varanasi vs
            Rakhi Singh and Others 3. 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 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;
       (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;

3   SLP (C) No. 11351 of 2023
4   (1994) 2 SCC 48
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VARANASI v. RAKHI SINGH [DR. DHANANJAYA Y CHANDRACHUD, CJI]


      (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
118          SUPREME COURT REPORTS                         [2023] 11 S.C.R.


      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
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VARANASI v. RAKHI SINGH [DR. DHANANJAYA Y CHANDRACHUD, CJI]


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.
120            SUPREME COURT REPORTS                      [2023] 11 S.C.R.


       19. The Special Leave Petition is accordingly disposed of.
       20. Pending applications, if any, stand disposed of.

Headnotes prepared by:                                        SLP disposed of.
Ankit Gyan