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Kashi temple counsel says damage to temple doesn’t change its religious nature

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In the Kashi Vishweshwar Nath Temple-Gyanvapi Masjid dispute hearing going on in the Allahabad High Court, the counsel for the temple said damage to the temple does not change the religious nature of the property.

The single-judge bench of Justice Prakash Padia was hearing the petition filed by the Anjuman Intazamia Masjid Varanasi.

Vijay Shankar Rastogi, counsel on behalf of Lord Vishwanath Temple, said the existence of the disputed Lord Vishweshwar temple has been running since Satyug till now.

Rastogi argued that mere registration of the property in the Waqf Act does not affect the rights of a person who is not a Muslim. He further argued that the Waqf Act is applicable only in disputes arising between Muslims. In support of his argument, he relied upon paragraph 7 of the judgement of the Court passed in the case of Ajodhya Prasad Vs Additional Civil Judge Moradabad and others reported in 1995 All C.J. Page 1159 Paragraph 7 of the aforesaid judgement is quoted below:-

“The very object of the Waqfs Act is to provide for better administration and supervision of waqfs and the Board has been given powers of superintendence over all waqfs which vest in the Board. These provisions seem to have been made in order to avoid prolongation of triangular disputes between the waqfs Board, (the mutawalli and a person interested in the waqf who would be a person of the same community). It could never have been the intention of the legislature to cast a cloud on the right, title or interest, of persons who are not Muslims, That is, if a person who is non-Muslim whether, whether he be a Christian, a Hindu, a Sikh, a Parsi or of any other religious denomination, and if he is in possession of a certain property his right, title and interest cannot be put in jeopardy simply because that property is included in the list published under sub-section (2) of Section 5.”

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Rastogi also argued that the written statement filed in the suit pending before the lower court by the defendant, it is mentioned that this property has been registered in the office of Sunni Central Board of Waqfs Lucknow under Section 30 of the UP Muslim Waqfs Act 1960 while in the written argument in the aforesaid suit, the stand taken by the defendant is that the property has been registered under the Waqf Act, 1954.

It is argued that from perusal of the same, it is clear that the defendant itself is not clear that under which Act and in which year, the property in dispute has been registered as Waqf property.

Vijay Shankar Rastogi said that there is no evidence in this regard given by the defendant before any Court. He further argued that the Waqf Act, 1954 had never been applicable in the State of Uttar Pradesh at any point of time.

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Rastogi further said that, before 1976, Order XIV Rule 2 provided that the court below was duty bound to decide the preliminary issue as first but after amendment in the year 1976, it is not mandatory for the Court to decide the preliminary issue first.

Rastogi also said that it is clear from the averments of the plaint that the property in question, i.e the temple of Lord Vishweshwar has been in existence from ancient time, i.e, Satyug up till now and the Swayambhu Lord Vishweshwar is situated in the disputed structure.

Rastogi stated that if the temple has been destroyed by any means, the religious character never changed, therefore, Section 4 of the Places of Worship (Special Provisions) Act, 1991 is not applicable because the structure of the old temple was built prior to the 15th Century.

The Court has fixed the next hearing of the petition on April 28, 2022.

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