Dhar (Madhya Pradesh): Indore bench of Madhya Pradesh High Court’s order on a petition over the Bhojshala issue found mention of Ayodhya and Gyanvapi cases. During the hearing on the petition, one of the respondents Maulana Kamaluddin’s counsel Ajay Bagadia argued in the court that the present proceedings cannot be equated with the Ayodhya (Ramlala temple) dispute, where there was no dispute about the title of the deity, which makes the said case different from the present.
While ordering for carrying out a survey at Bhojshala premises, the division bench of Justice SA Dharmadhikari and Justice Devnarayan Mishra observed that the courts have always been invariably inclined to survey, study and examination of any place of worship or shrine by the expert body only, viz Archeological Survey of India (ASI), whenever questions about the exact nature or character of the same have arisen. “Recent most example and case at hand being the one relating to claims concerning Gyanvapi Mosque cum Shivlinga in Varanasi,” the judges noted.
Petitioners’ stand
Stating that the survey by the ASI is a statutory duty, the petitioners requested the High Court to direct the ASI to discharge its statutory duty in terms of section 16 of the Monuments Act, 1958, towards determining the character and nature of the Bhojshala premises. With submitting documents, the petitioners claimed that there are yantras and Sanskrit shlokas inscribed on floors, pillars, and 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.
This construction of the mosque on the pre-existing Bhojshala temple took place during the reigns of Alaudim Khilji at the turn of the 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 have stated that the originally constructed Bhojshala and Vagdevi temple was destroyed/ dismantled to install and construct a mosque at the instance of Islamist rulers and forces.
Respondents' submission
The respondents' counsel Ajay Bagadia contended that a similar issue was raised earlier in 2003 (Qazi Zakullah and Ors. v State of Madhya Pradesh and Ors.). In the said writ petition also, the very same order dated 07.04.2003 was put to challenge by the petitioners, when a single bench of this court at the principal seat at Jabalpur had dismissed the petition being non-maintainable and replete with disputed facts and submissions.
Bagadia, therefore, contended that once the said petition was dismissed by the single bench against which another petition was pending before the division bench of the principal seat at Jabalpur, no interference could be made. Bagadia further submitted that the state government and the ASI for obvious reasons are taking a particular stand under the influence and pressure of the government of the day and the court must pierce through the said obvious reasons of such a partisan stand in favour of the existence of Bhojshala Vagdevi Temple against the interests of Muslims, who have been praying on the site and offering Namaaz for years.
The ASI’s response
Himanshu Joshi, Ld. ASG representing the ASI, contended that the order passed by the DG, ASI in July 2003 did not take into consideration the previously prepared report in the year 1902-03 under the aegis of then existing expert body and the said report 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. This report also stated that the said temple was razed down and dismantled, defaced by the Islamic invaders, who ruled the country later to construct the mosque therein. However, to separate the grain from the chaff, it is the specific submission & stand of the ASI that a fresh survey would clear the entire dust around the whole status of the complex as noonday.
State government’s side
The government informed the court that the revenue records throughout till 1935-1936 bore the description of premises as Bhojshala & Temple, vide survey number 313 old (604 new) of village Dhar. Since Bhojshala has already been notified as one of the protected monuments under the Monuments Act of 1904 and thereafter again in 1951, therefore it has been managed and controlled entirely by the GOI/ ASI.
There is no mention of 'Jama Masjid' anywhere in the revenue records. It is further contended by the state government that the entire land of the Bhojshala complex belongs to the state government, under the management &control of ASI since the times preceding the independence. Therefore the same could have never been declared as a Waqf property at all. There is no evidence of offering of namaz before the year 1935 and the order issued by Dhar State in the year 1935 is illegal as the whole premises were under the control of ASI, under the ownership of the state. The state also supported the plea of the petitioners that ascertainment of the status of the whole site is necessary to be undertaken to clear the misunderstanding, which has long been the reason for communal strife between both communities.
