The Supreme Court on Monday refused to stay the 'scientific survey' of Bhojshala complex in Madhya Pradesh's Dhar and said that no action should be taken on outcome of Archaeological Survey of India (ASI) survey.
The bench issued notices returnable in four weeks and said that in the interim, no action should be taken without the leave of this court on the outcome of the ordered impugned survey
"It is meant clear that no physical excavation should be taken which will change the character of the premises in question."
On March 11, the Madhya Pradesh High Court directed the ASI to conduct a scientific survey at the Bhojshala Temple cum Kamal Maula Mosque.
The high court ruled that it is 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 court asked the ASI Director to carry out a complete scientific investigation, survey and excavation, through adoption of latest methods, techniques and modes of GPR-GPS survey of the site in question constituting the disputed Bhojshala Temple cum Kamal Maula Mosque complex, as also the entire 50m of peripheral ring area surrounding/constituting the circular periphery from the boundary of the complex be conducted .
"A detailed scientific investigation be conducted by adopting carbon dating method for ascertaining the age, life of various structures both above and beneath the ground; permanent, movable and immovable structures both beneath as well as above the ground, constituting the walls, pillars, floors, surfaces, upper top, sanctum sanctorum of the entire complex." the court issued directions.
The order further directed that a proper documented comprehensively drafted report prepared by a Expert Committee of not less than five senior most officers of ASI headed by the Director General/Additional Director General of the ASI himself be submitted before the high court within a period of six weeks from the date of receipt of certified copy of this order.
"Efforts should be made to have a representation of Officers of both the contesting communities (if available of the said position & rank) in the said Expert Committee; To photograph and videograph the entire survey proceedings in the presence of two nominated representatives each of both the petitioners as well as respondent no.8 in the present petition; To unlock and open the locked/ sealed rooms, halls of the whole complex and prepare a complete inventory of each and every artifact, idol, deity, or any structure found in the said locked, sealed halls and rooms, and submit the same along with the respective photographs." the high court order siad.
The plea was filed in the high court by Advocate Vishnu Shankar Jain who is also the lawyer in the Gyanvapi mosque case.
The Hindu side contended that survey by the ASI is a statutory duty, which the ASI ought to have performed long back at the inception when the mystery and confusion about the true character of Bhojshala Saraswati Temple (‘Bhojshala Temple’) cum Maulana Kamal Maula Mosque (‘mosque’) arose leading to disputes about its true status.
It was argued that that under Section 16 read with Section 21 of The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (‘the Monuments Act,1958’), determining and entertaining the true character of any ancient monument is a starting point for the ASI to discharge its statutory duty.
The Hindu side has relied upon number of historical documents and research material done by foreign as well as Indian Scholars which have mentioned that Bhojshala complex with the Vagdevi temple pre-existed the Kamal Maula Mosque hundreds of years before it. The documents relied upon by the petitioners side disclose that the mosque had been constructed by destroying and dismantling the ancient structures of previously constructed Hindu temples for construction of the Mosque.
"This construction of the mosque on the pre-existing Bhojshala temple took place during the reigns of Alaudim Khilji at the turn of 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 originally constructed Bhojshala and Vagdevi temple was destroyed / dismantled to install and construct a mosque over at the instance of Islamist rulers and forces." the Hindu side have submitted in the high court.
The dispute reached the high court as the Basant Panchami fell on February 15 which was a Friday. For Hindus, it is the temple of Goddess Saraswati, while Muslims believe it to be Kamal Maula mosque.
The Bhojshala-Kamal Maula mosque is located in Dhar and is protected by the ASI.
ASI allows Hindus to pray on the disputed site on Tuesdays and on Basant Panchami, and Muslims are allowed to offer namaz on Fridays. This year, Basant Panchami fell on a Friday.
Hindus were allowed to offer prayers for Basant Panchami at Bhojshala temple-Kamal Maula mosque from dawn to noon and again from 3.30 PM to dusk. Muslims were asked to offer weekly Jumma Namaz between 1PM and 3PM.
However, the hindu side contended that the site be given to them for the entire day.