Constitution of India, 1950 – Article 227 – Gyanwapi Survey – Challenge to order – Survey to find out as to whether same has been constructed over a pre-existing structure of Hindu temple – Held: Once the Department of Archaeology and learned Senior Counsel representing the Department have made their stand clear that no damage is going to be caused to the property in question, this Court has no reason to doubt their statements and most importantly, the affidavit filed by the officer of the ASI explaining the circumstances. Further, it is settled proposition of law that issue of a Commission, at this stage, is permissible. In the opinion of the Court, the scientific survey/investigation proposed to be carried out by the Commission, is necessary in the interest of justice and shall benefit the plaintiffs and defendants alike and come in aid of the trial court to arrive at a just decision. Petition fails.(Para 24)
I find no substance in the submission made by learned counsel for the applicant/defendant no.4 that local inspection or Commission by the Court is made only in those cases, where on evidence led by parties, Court is not able to arrive at a just conclusion either way or where Court feels that there is some ambiguity in evidence, which can be clarified by making local inspection or Commission. It is settled position of law that the purpose of Order XXVI of the Code, is to secure evidence in dispute and the Commission’s report and evidence taken by the Commission becomes admissible evidence. As such, there is no bar in law to appoint a Commission for the better adjudication of dispute. Hence, a Commission may be appointed even prior to the trial, if required. (Para 16)
I further find no substance in the argument of applicant/defendant no.4 that because the ASI has not been joined as a party to the Suit, it cannot be directed to do any technical investigation. Whenever, the report of the ASI would be utilized by the parties, they can submit their proposition/objection, if any. (Para 20)
There is no substance in the argument made by the applicant/defendant no.4 that the applications filed by the plaintiffs, seeking scientific investigation of the structure in question are not tenable in the eyes of law just because the issues have not been framed as yet. The scientific investigation has nothing to do with the other evidence and whatever evidence would be collected, that may be for all the parties and not only for the plaintiffs. (Para 22)
ALLAHABAD HIGH COURT
Citation: 2023 STPL(Web) 7 Allahabad
Neutral Citation No. – 2023:AHC:155726
C/M Anjuman Intezamia Masajid Varanasi Vs. Smt. Rakhi Singh and 8 others
Matters Under Article 227 No.7955 of 2023-Decided on 3-8-2023
https://stpllaw.in/wp-content/uploads/2023/08/2023-STPLWeb-7-ALL-1.pdf
