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In the Court of Civil Sr. Div. Judge

Regular Civil Suit No. Of 2021 (Twenty Twenty One)

(1) Goddess Maa Shringar Gauri through next friend and devotee Ranjana Agnihotri D/o. Late Rajendra Kant Agnihotri, R/o.512/695, (Five Hundred Twelve / Six Hundred Ninety Five) Balda Road, Nishatganj, Lucknow, - 226007 (Two Two Six Zero Zero Seven).

(2) Asthan Lord Adi Visheshwar, in the radius of 5 (Five) Kos (Krosh), situated in the City and District Varanasi through next friend and devotee Jitender Singh “Vishen” S/o. Sri Yaduraj Singh, R/o Gulab Singh Purwa, Veerpur Vishen, Thesil & District-Gonda, Uttar Pradesh-271123 (Two Seven One One Two Three).

(3) Ranjana Agnihotri (Advocate) D/o. Late Rajendra Kant Agnihotri, R/o.512/695, (Five Hundred Twelve / Six Hundred Ninety Five) Balda Road, Nishatganj, Lucknow, Uttar Pradesh-226007 (Two Two Six Zero Zero Seven).

(4) Jitender Singh “Vishen” S/o. Sri Yaduraj Singh, R/o Gulab Singh Purwa, Veerpur Vishen, Thesil & District- Gonda, Uttar Pradesh-271123 (Two Seven One One Two Three).

(5) Ankur Sharma (Advocate) S/o Chander Kumar, R/o Ward No.19 (Nineteen) Shivnagar Behind Sheep Husbandry Kathua, Jammu and Kashmir-184101 (One Eight Four One Zero One).

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(6) Dr. Ram Prasad Singh S/o. Late Tulsi Ram Singh, R/o. No- 4/35, (Four/ Thirty Five) C-80 (Eighty), Mahamana Nagar, Sunderpur, Varansi-221005 (Two Two One Zero Zero Five), U.P. retired from BHU in 2017 (Two Thousand Seventeen), a Journalist Editor of Vande Matram.

(7) Shishir Chaturvedi (Advocate) S/o. Late Jugal Kishore Chaturvedi R/o.215/460 (Two Hundred Fifteen/ Four Hundred Sixty) Ichha Bawan, Sabji Madi, Charbagh

Lucknow, Uttar Pradesh-226001 (Two Two Six Zero Zero One).

(8) Neeraj Shankar Saxena S/o. Late Bhawani Shankar Saxena, Resident of 25/51 (Twenty Five/ Fifty One) Ji Marg,

Lucknow, Uttar Pradesh-226001(Two Two Six Zero Zero One).

(9) Rakesh Kumar Agarwal S/o Late Shri Nivas Agarwal, R/o.S- 10 (Ten)/8 (Eight)-4 (Four) B Maqbool Alam Road Varanasi, Uttar Pradesh- 221002 (Two Two One Zero Zero Two).

(10) Jan Udghosh Sewa Sansthan, the Society registered under Societies Registration Act 1860 (Eighteen Sixty) at Lucknow having Registration No.184 (One Hundred Eighty Four) dated 25.04.2017, (Twenty Fifth April Two Thousand Seventeen) office at E-3 (Three) /568 (Five Hundred Sixty Eight) Sector J Aliganj Lucknow, through its President Kuldeep Tiwari S/o Girish Chandra Tiwari, R/o.4/285 (Four/ Two Hundred Eighty Four) Viram Khand Gomti Nagar

Lucknow Uttar Pradesh-226010 (Two Two Six Zero One Zero)

……….. Plaintiffs

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VERSUS

1. Union of

Through its Secretary,

Ministry of Home Affairs

Government of India

North Block New -110001 (One One Zero Zero Zero One)

Email Address: [email protected]

2. The Government of Uttar Pradesh

Through Principal Secretary Home,

Lal Bahadur Shastri Bhawan (Annexy Building)

Sarojni Naidu Marg, Lucknow

Uttar Pradesh, Pin-226001 (Two Two Six Zero Zero One).

Email Address:- [email protected]

3. The State of Uttar Pradesh

Through Chief Secretary,

Government of Uttar Pradesh,

101 (One Hundred One),

Lok Bhawan, U.P. Civil Secretariat,

Vidhan Sabha Marg, Lucknow,

Uttar Pradesh, Pin-226001 (Two Two Six Zero Zero One). Email Address: [email protected]

4. District Magistrate, Varanasi.

Collectorate Compound, Hamrautia,

Varanasi, Uttar Pradesh-221102 (Two Two One One Zero

Two), Email Address: [email protected]

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5. Senior Superintendent of Police, District Varanasi.

Collectorate Compound, Hamrautia, Varanasi, Uttar Pradesh-221002 (Two Two One One Zero Two), Email Address: [email protected]

6. U.P. Sunni Central Waqf Board, Through Chairperson, 3(Three)-A, Mal Avenue, Lucknow, Uttar Pradesh Pin: 226001 (Two Two Six Zero Zero One).

Email Address: [email protected]

7. Committee of Management Anjuman Intazamia Masajid, through its Secretary, alleged Gyanvapi Masjid, office at Pilli Kothi Varanasi Uttar Pradesh Pin 221001 (Two Two One Zero Zero One).

8. Board of Trustees of Shri Kashi Vishwanath Through Chief Executive Officer/ Secretary, office at Shri , CK 37/40 (Thirty Seven/ Forty), 42 (Forty Two) Bans Phatak, Varanasi-Uttar Pradesh Pin 221001 (Two Two One Zero Zero One)

Email Id:- [email protected],

……… Defendants

Cause of Action: Accruing continuously and also on 10th February 2021(10th February Two Thousand Twenty One) Place of cause of Ancient Kashi Vishwanath Temple at Action:- Dashashwamedh

Ward : Dashashwamedh Police Station Dashashwamedh Valuation of Suit: Rs. 15,00,000 /- (Fifteen Lakhs) Total Court Fee paid Rs. 1400/- (One Thousand Four Hundred)

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Suit for Declaration, Permanent and Mandatory Injunction The Plaintiffs named above most respectfully beg to submit as under:- 1. That the present suit is being filed for restoration of Darshan, Pooja, Aarti, and performance of rituals at the principle seat of Asthan of Lord Adi Visheshwar and of Goddess Maa Shringar Gauri, the Ardhangni and devotee of Lord Adi Visheshwar, along with Lord Ganesh, Nandiji and other deities within the precincts of temple complex known as “Ancient Temple” existing at Settlement Plot No.9130 (Nine Thousand One Hundred Thirty), measuring about 1 (One) Bhiga, 9 (Nine) Biswas and 6 (Six) Dhoors within the area of Dasaswamedh, the heart of city of Varanasi, hereinafter referred to, as “the property in question” and to preserve the cultural and religious heritage of India. A sketch map of the old temple published in the book ‘Benares Illustrated in A series of Drawing’ by James Prinsep is annexed hereto and marked as ANNEXURE No. A to the suit.

A. INTRODUCTORY:-

2. That every Citizen has fundamental right to perform pooja, worship and rituals according to the tenets of his religion within the ambit of Article 25 (Twenty Five) of the Constitution of India and any obstacle created before 26.01.1950 (Twenty Six January, Nineteen Fifty) has become null and void by virtue of Article 13(1) (Thirteen (one) of the Constitution of India. An idol worshipper cannot complete his pooja and gain spiritual advantages without having objects of worship. Any hindrance/ obstacle created in performance of pooja, is denial of right to religion guaranteed under Article 25 (Twenty Five) of the Constitution of India.

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3. That the Jyotirlingam was desecrated/damaged in 1669 (Sixteen Sixty Nine) under the orders and command of , one of the most cruel Rulers of India, but Maa Shringar Gauri, Lord Ganesh and other subsidiary deities continued to exist within the ancient temple, which is claimed by Muslims to be part of so called Gyanvapi .

4. That this suit is being field by devotees and worshippers as next friend of plaintiff Deities. The devotee plaintiffs are Sanatani Hindu, idol worshipper and are worshipper of Lord Shiva the Lord of Universe. They practice, profess and propagate, Vedic Sanatan Hindu and are competent to bring this suit in the interest of deities and for the benefit of devotees.

5. That Plaintiffs and the devotees of Lord Shiva along with subsidiary deities are entitled to perform Pooja, Darshan, Aarti, Bhog etc within the entire area of five Kos (Krosh) in exercise of right guaranteed by Article 25 (Twenty Five) of Constitution of India and no person has right to interfere and create hindrance in the performance of Pooja/ worship of deities by the Plaintiffs, and other devotees.

B. DESCRIPTION OF PLAINTIFFS AND DEFENDANTS: 6. That plaintiffs in the suit are:-

(i) Plaintiff No.1 (One) - Maa Shringar Gauri is ‘Swayambhu’ deity, revealed near Adi Visheshwar Shivlingam being worshiped from time immemorial, within ancient temple, is filling this suit through next friend and devotee, as there is no Shebait or any person to render service to her and bring the cause before the court for the redressal of the grievances being raised through this suit.

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(ii) Plaintiff No.2 (Two) - Asthan Lord Adi Visheshwar, Jyotirlinga is Swayambhu deity, in existence in the radius of 5 (Five) Kos (Krosh), Avimukteshwar area situated in the City and District Varanasi. The place in the radius of 5 (Five) Kos (Krosh) is sacred for and devotees being Avimukt Khetra (area) having been recognized by scriptures and , Sastras and Purans including Shiv Puran and Skand Puran. This place is known as Avimukt Khetra and is being worshiped by devotees from the time immemorial. This suit is being field by deity through devotee asserting the right to be worshiped and for removal of encroachment from the place in question and also for the religious benefit of devotees.

(iii) All other Plaintiffs are devotees of Lord Adi Visheshwar, Goddess Maa Shringar Gauri and are worshipers of Asthan Lord Adi Visheshwar, Jyotirlingam and other subsidiary deities. They are filling this suit in the capacity of worshippers and devotees of Lord Shiva asserting their right to worship, Dharshan, Pooja and for performing the rituals at the principal seat of deity Lord Adi Visheshwar in the ancient temple complex and for restoration and construction of temple at the original place and for that reliefs being prayed for in this suit.

7. That Defendants in the suit are:-

(i) Union of India, Defendant No.1 (One) – as the question of validity of the provisions of the Places of Worship (Special Provisions) Act 1991 (Nineteen Ninety One), may arise for determination. In Civil Suit No.62 (Sixty Two) of 1936 (Nineteen Thirty Six) the Secretary of State for India

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in Council through District Magistrate, Benares was defendant and had filed written statement.

(ii) Government of Uttar Pradesh Defendant No.2 (Two) and Chief Secretary of State of Uttar Pradesh Defendant No. 3 (Three) - as they are under legal obligation for proper implementation of the provisions contained in Shri Kashi Vishwanath Temple Act 1983 and for the implementation

of the decree which may be ultimately passed in the suit.

(iii) District Magistrate, Varanasi Defendant No.4 (Four) and Senior Superintendent of Police, District Varanasi Defendant No.5 (Five) – have been arrayed being the law enforcing agencies responsible to maintain law and order situation and to carry out the order passed by the State Government and also for proper implementation of the decree which may be ultimately passed in the suit.

(iv) Sunni Central Waqf Board Defendant No.6 (Six) – has been arrayed as it is alleged that the Board has registered the property in question as Waqf property and such inclusion is being questioned in the suit.

(v) Committee of Management Anjuman Intazamia Masajid, Defendant No.7 (Seven) – has been arrayed as it is alleged that the committee is illegally and unauthorizedly managing the affairs of the property in question.

(vi) Board of Trustees of Shri Kashi Vishwanath Temple, Defendant No.8 (Eight) – has been arrayed as it has been established by the Act of legislature and is under legal obligation to manage the entire area of temple complex including ancient temple but no action has been taken by

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the trust to take over the ‘property in question’ under its control.

C. NATURE OF : 8. That the relief in the suit is being prayed,

(a) For declaring that the worshippers and devotees of Goddess Maa Shringar Gauri, Goddess Maa , Lord , Lord Ganeshji, Nandiji alongwith Lord Adi Visheshwar are entitled to have Darshan, Pooja and Worship of deities within the area in question,

(b) For declaring that the entire Avimukteshwar area belongs to plaintiff deity Asthan Lord Adi Visheshwar in the radius of 5 (Five) Kos (Krosh) from the principal seat of Asthan Adi Visheshwar,

(c) For perpetual injunction against defendants prohibiting them from interfering with, or raising any objection or obstruction in the construction of New Temple building consisting of Goddess Maa Shringar Gauri along with Lord Ganesh, Ji and other subsidiary deities at Principle seat of Asthan Adi Visheshwar after demolishing and removing the existing buildings and structures etc, situate there at, in so far as it may be necessary or expedient to do so for the said purpose

(d) For Mandatory Injunction directing defendant No.2 (Two) the Government of Uttar Pradesh and Defendant No.7 (Seven) the Board of trustees of Kashi Vishwanath Temple, created under Shri Kashi Vishwanath Temple Act, 1983 (Nineteen Eighty Three) to restore pooja and worship of Goddess Gauri Shringarji, Goddess Maa Ganga, Lord Hanuman, Lord Ganeshji, Nandiji alongwith Lord Adi Visheshwar and make appropriate

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arrangement for Darshan and Pooja by worshippers and to maintain law and order situation.

D. ABOUT KASHI:- 9. That Varanasi or Kashi is a Pouranik Ancient Religious Holy city in existence before Vedic Era, Lord Shiva as Adi Visheshwar revealed on earth and established Jyotirlingam at Varanasi along with Ganga Ji. There is mention of Kashi in “Rigved” and other ancient scriptures. At the present there are thousands of ancient in Kashi.

10. That from the time immemorial pooja and rituals of Lord Adi Visheshwar is being performed with fresh water of Ganga Ji existing in the North of Shivlingam. The place has special religious significance for Hindu Devotees as it is one out of 12 (Twelve) Jyotirlingam worshiped in different parts of India. In Hindu there is provision for performance of Jalabhishek with Ganga Jal of Lord Adi Visheshwar to acquire merit of salvation and get solution of miseries of worldly life.

11. That Kashi has faced a number of attacks from invaders and the temple of Adi Visheshwar was attacked, looted and demolished by the enemy of idol worshippers right from 1193 (Eleven Ninety three) AD till the year 1669 (Sixteen Sixty Nine).

12. That ‘Adi Visheshwar Jyotirling’ at Kashi is Swyambhu Deity and is most ancient out of 12 (Twelve) Jyotirlings established in different parts of ‘Tapo Bhoomi’ “Bharatvarsh”. The Jyotirlings have great position under and its importance have been described in Vedas, Purans, Upnishads and Shastras followed by devotees and worshippers of Santan Vedic Hindu Dharma. ‘Adi Visheshwar Jyotirling’ at Kashi is the Ancient place of Lord Shiva and Goddess . Adi Jyotirling

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of Avimukteshwar in Avimukta Kshetra of Kashi is considered as 1st (First) Jyotirling Linga under Vedic Sanatan Dharma.

13. That ‘Avimuta Khestra’ of Kashi have the Linga of Lord Adi Visheshwar, is located to the north of the sacred well, Gyan Vapi while encircling the temple of Avimukteshwara, the shrines of Dandapani, Taraka and Mahakaal all of which are also erected near the Gyan Vapi and Lord Visheshwar temple.

14. That as described in various scriptures and Skand Puran, the Jyotirlinga was established by Lord Shiva himself at Kashi creating Avimukteshwara Kshetra in the radius of 5 (Five) Kos (Krosh).

15. That it is historically proved that in 1585 (Fifteen Eighty five) Raja , the finance Minister of , who was Governor of Jaunpur, had re-established and reconstructed a magnificent Lord Shiva Temple at its original place consisting of a central sanctum sanctorum (Garbh Griha) surrounded by Eight mandaps and pavilions, which is known as old temple.

E. ASTHAN LORD ADI VISHESHWAR, THE SWAYAMBHU DEITY: 16. That Adi Visheshwar, “Lord of the Universe” is one on the most exalted titles of SHIVA and his connection with Benares is quaintly depicted in the following sentiment of Purans as mentioned by “James Prinsep”:-

“The Vedas and Shastras all testify that VISHVESHVUR is the first of Devas, Kashi the first of the cities, Ganga the first of rivers and Charity the first of Virtues”

17. That Vedas, Purans and Shastras, the sources of , specifically define the importance and diameter/dimension of 5

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(Five) Kos (Krosh) of Shri Aadi Visheshwar at Kashi, which is considered one of the five Swayambhu Jyotirlingams. In this regard some verses (Shloks) from Shri Skand Puran and Shri Shiv Purans are being reproduced below:-

E/1. EXTRACT FROM SHREE SKAND PURAN:

(i) अािनमुेािणकाशीाकरािणच। काशींा िवमुेतनाथातीथकोिटिभ:।। Skand-Chapter 6 (Six), Pg.58(Fifty Eight), Verse No.71 (Seventy One).

Translated in English:-

All other forsaken (Avimukta) places are procured through Kashi. Nirvana (to get rid of from the cycle of death and rebirth) is achieved only after getting Kashi. The benefit of Nirvana is not achieved by any other means even by residing in any other religious place.

(ii) अिवमुंमहें पंचोशपरीिमतम्। ोितलंगदेकंिह ेयंिवेरािभधम्॥

Skand-Chapter 7,(Seven) Pg. 250(Two hundred Fifty), Verse-131 (One hundred thirty one)

Translated in English:-

The Avimukta (forsaken) area is in circle of 5 (five) Kos (Krosh). At this place there is Visheshwar Shivling which is Jyotirling

(iii) साश:कृित:ोासपुमानीरःपरः। ताारममाणाांतेते्रेघटोव॥२५॥

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(iv) परमानपाां परमानिपिण। पोशपरीमाणे पादतलिनिमते॥२६॥

(v) मुने! लयकालेऽिप न तेंकदाचन। िवमुं िह िशवाां यदिवमुंततोिवदुः।।२७॥

(vi) न यदा भूिमवलयं न यदाऽपां समुव । तदा िवहतुमीशेन ेमेतििनिमतम्॥२८॥

(vii) इदं रह े वेदकोऽिप न कुज। नाकाय न बंकदािचमचुषे॥२९॥

(viii) ालवे िवनीताय िकालानचुषे। िशवभायशााय वमुमुवे॥३० ॥

Skand, Chapter 16 (Sixteenth Pg.242 (Two hundred Forty two), Verses 25 (Twenty)- 30 (Thirty).

Translated in English:-

Goddess () is nature and is creator (Shiva). They have made this universe under their feet. They have created 5 (Five) Kos (Krosh) area for their pleasure which cannot be extinct during Pralayandam (the last day of universe), and so it is called Avimukta area. When there was no land, no water, the God created this area for His abode. Hey Kumabhaj, nobody has knowledge about the secret this place. . Do not say this to an atheist, it is right to say this only to Dharmadarshi, devotees, Vineet, Trikala,, Shiv Bhakt, shant and Mumukchu.

(ix) इितगौरीरतंुाुवाचिपनाकधृक्। पोशपरीमाणेेेुसिन ।॥९॥

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Skand, Chapter 99 (Ninety nine) Pg.923 (Nine hundred twenty three), Verse-9 (Nine)

Translated in English:-

O Goddess! There is not even a smallest area without influence of Linga in 5 (Five) Kos (Krosh) circle of Avimukt area.

There is book titled as ‘Kashi Rahasyam’ written by Dr. Jagdish Narayan Dubey on Kashi containing several Verses in . Some of the verses are reproduced below:-

(i) िलंगपधर:शुहदयािहरागत:। महतींवृमासा पंचोशाकोऽभवत्॥

Kashi Rahasya Chapter 2 (Two) page 23 (Twenty three) Verse) -107 (One hundred and seven) .

Translated in English:-

Lord told saints that in the beginning of establishing universe the lingam was established for the benefit of all in three loks that:-

“we remembered Shambhu and he came out in the form of Lingam from our heart and went on lingering upto 5 (five) Kos (Krosh).”

E/2. EXTRACT FROM SIVA MAHAPURAN:

The there is Siva Mahapurana in Sanskrit. This has been translated in English by Shanti Lal Nagar. Chapter No. 22

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(Twenty Two) -23(Twenty Three) are related to Kashi. Relevant Shlokas with English translation are quoted herein under:-

(i) Chapter 22(Twenty Two)-page 590 (Five hundred Ninety), Shlok 21(Twenty one)

अिवमुं यं िलं थािपतं परमाना।

न कदािचया ािमदंें ममांशकम् ॥ २१॥

Lord Shiva, the supreme soul, there, had been consecrated as a Sivalinga known by the name of Avimukta and spoke. “You have been formed of my amsa as Jyotirlinga and therefore, you never leave this place.”

(ii) Chapter 22 (Twenty Two) - page 591(Five hundred Ninety one), Shlok 27 (Twenty Seven)

येषां ािप गिता तेषां वाराणसी पुरी।

पोशी महापुा हाकोिटिवनािशनी॥ २७॥

Those who cannot get redeemed elsewhere, they also get redeemed at Kasi. The region of PancaKos (Krosh)i, bestows enormous merits, therefore it redeems one of the crores of the killings.

(iii) Chapter 23 (Twenty Three)- Page 594(Five hundred Ninety four), Shlok 22(Twenty two)

महेिमदं तादिवमुिमित ृतम्।

सवो नैिमषािदः परं मोदं मृते॥ २२॥

The great region is called Avimukta. Even after death, this region is better than Naimisaranya and others.

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(iv) Chapter 23 (Twenty three)- Page 594 (Five hundred Ninety Four), Shlok 34(Thirty Five)

पोशं चतुिदु ेमेतकीिततम्। समाच तथा जोमृितकालेऽमृतदम् ॥ ३४॥ This region is spread up to five Kos (Krosh) as in all the directions. One who dies in this region, he achieves nectar.

18. That the Hon’ble Apex Court while upholding the constitutional validity Act of Shri Kashi Vishwanath Temple Act, 1983 (Nineteen Eighty Three) in case of Shri Adi Visheshwar of Kashi Vishwanath Temple vs. State of U.P. reported in 1997 (Nineteen Ninety Seven) (4) (Four) SCC Pg.606 (Six hundred Six) has also discussed the importance of Adi Visheshwar given in scriptures. The narration of facts given in para 1 (one) of the judgment are reproduced herein below:-

“…The Linga of Lord Visheshwar appears to have been located to north of the sacred well, Jnana Vapi while encircling the Temple of Avimukteshwara, the shrines of Dandapani, Taraka and Mahakaal all of which are also erected near the Jnana Vapi and Lord Visheshwara Temple. According to Puranic Mahatmya and Kashi Khanda of the Skanda Purana, the Jyotirlinga was established by Lord Shiva himself when he went into exile to the Mount Mandara during the reign of the legendary King Divodasa. Since Lord Shiva himself disguised the Linga, according to Mahatmya Lord Shiva never really left the sacrosanct and sacred temple. Hence, it became “Avimukta” (Never Forsaken). This was also stated by Vaachaspati Mishra in his famous

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Puranic work “ Chintamani” in 1460 (Fourteen Sixty) wherein he had stated that “Visheshwara” and “Avimukteshwara” were merely two names for the same Jyotirlinga. Narayan Bhatta had similarly mentioned it to be so in 16th (Sixteenth) century in his work “Tirthalisetu”

F. GODDESS SHRINGAR GAURI, THE SWAYAMBHU DEITY: 19. That Maa Shringar Gauri emerged as ‘Swayambhu Deity ‘adjacent to the Jyotirlingam in the old temple complex because she is ‘Ardhangni’ of Lord Shiva and without her the worship of Shivaling is incomplete. It is relevant to mention that Maa Shringar Gauri is also worshiped as ‘Anpurna ’.

20. That Gauri Shringar temple is situated in Ishan Kon at the back of Old temple. The Image of Shringar Gauri is kept covered by red cloth. This image is Swyambhu (Vigrah) of the Goddess. It is believed that married women get Ashirwad of Shrividhi.

F/1 EXTRACT FROM SKANDH PURAN: 21. That in Skand Puran in Chapter 99-100 (Ninety Nine-Hundred), it is has been emphasized that the devotee should have Darshan and pooja of Maa Shringar Gauri to complete worship of Lord Adi Visheshwar. In regard to the provision relating to Shriangar Mandap and Maa Shringar Gauri the provisions contained in Skandpuran are reproduced below:-

i. समार ितपदंयावृा चतुदशी। एतमेण कताेतदायतनािन वै॥६१॥

ii. इमां याांनरः कृानभूयोऽिभजायते। अा याा कतैकादशायतनोवा॥६२॥

18 iii. आीधकुे सुातः पेदाीमीरम्। उवशीशं ततो गेतु नकुलीरम् ॥६ ३ ॥ iv. आषाढीशं ततो ा भारभूतेरं ततः। लालीशथालो ततुिपुराकम्। ॥६४ ॥ v. ततोमनः कामेशं ीितकेशमथो जेत्| मदालसेरं तािलपणरं ततः ॥६५॥ vi. याैकादशिलानामेषा काया यतः।

इमां याां कुवाणो ं ाुयारः।॥६६॥ vii. अतः परं वािम गौरीयाामनुमाम्। शुपेतृतीयायांयायाािवगृदा॥६७॥ viii. गोेतीथ सुाय मुखिनमािलकां जेत्। ेावाां नरः ाा ेां गौरीं समचयेत्॥६८॥ ix. सौभागौरी सूाानवाांकृतोदकैः। ततः ारगौरीैवच कृतोदकः।॥६९॥ x. ाा िवशालगायां िवशालाीं ततो जेत्। सुातो लिलतातीथ लिलतामचयेतः॥७ ०॥

Skand, Chapter 100, (Hundred) Page 1007 (One Thousand and seven), Verses 61-70 (Sixty One-Seventy)

Translation of Verses 61 (Sixty one) to 70 (Seventy)

One should have to start its daily journey from Pratipada to Chaturdashi, Ekadasayetnodhav is another journey is duty of human being, after having bath him Agnindhedhra Kund 11(Eleven) Lingas as

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Agnindheshwar, Urvasishwar, Nakuleshwar, Aasadishwar, Bharbhuteshwar, Langlishwar, Tripurantkeshwar, Manhaprakameshwar, Madalseshwar and Tilparneshwar, be worshiped accordingly, one should acquire merit of getting Rudratva. Now Anupamgauri starts from the day of Shukla Paksha Tretiya provides extreme wealth. One should after having bath in Gopreksha Teerth and have darshan of Sukhniwarnika Devi. Performing worship of Jeshtha Gauri one should have take bath with water of Gyanvapi worshipped Shringar Gauri after completing worship of Shaubhagya Gauri. Thereafter, taking bath on Vishal on Gangaji have darshan and pooja of Maa Vishalakshi and have darshan and worship of Lalita Devi after having bath on Lalita Teerth Ghat.

22. That Kashi Khand-Chapter 100 (One hundred) has prescribed Gauri Yatra (religious tour of Gauri Temples). This yatra is to be undertaken on Tritieya after Amavasya. (Third day after amavasya)

23. That Puranik Law, usage and custom as recognized by Skand Puran provide that to complete the worship and for fulfillment of worldly and spiritual desire it is important to perform pooja of Maa Shringar Gauri who is seated under the Shringar Mandap. As per Shashtrik command contained in Skandpuran a devotee is required to undertake Anupam Gauri yatra from Krishna Paksha Pratipada to Chaturdashi to get happiness and wealth. There is provision for performing pooja of Jestha Gauri before performing pooja of Saubhagya Gauri and before completion of journey the pooja of Shringar Gauri is to be performed which is symbol of Saubhagya.

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24. That according to Puranik ordains, the Pooja and Worship of Goddess Shringar Gauri is compulsory to achieve the fruit of Worship of Lord Vishwanath.

25. That image of Maa Shringar Gauri exists within the property in question at the back side of Gyan Vapi in Ishan Kon (North East Corner). The devotees had been worshipping daily Pooja and Worship at this place but in 1990 (Nineteen Ninety) during movement the Government of Uttar Pradesh to appease Muslims, put some restrictions in the daily by devotees. Since 1993 (Nineteen Ninety three) the State Government imposed some more hard conditions for devotees in worshipping Goddess Shringar Gauri and other subsidiary deities.

26. That now Goddess Maa Shringar Gauri temple opens once in a year on the fourth day of Vasantik Navratri by the administration for devotees to worship. On this day thousands of devotees come to temple to worship and have Darshan of Goddess Shringar Gauri. It is believed that devotees who worship Goddess Shringar Gauri get all sorts of happiness and prosperity in life. The Government has no right to restrict the entry of devotees on other days. The devotees have right to worship and perform rituals of Shringar Gauri daily.

G. DEMOLITION OF ADI VISHESHWAR TEMPLE IN 1669 (SIXTEEN SIXTY NINE)

27. That barbarian and cruel period of history started in India with the attack of Muhammad-bin-Kasim in 712 (Seven Hundred Twelve) century. Thereafter, with the attack of Mohammad Gaznavi India continuously witnessed the most cruel and barbarian attitude of followers of , who in the name of religion not only looted and plundered the properties but also massacred a number of Hindus, the women were forcibly taken away and they also demolished,

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destroyed, dismantled and damaged a number of temples and trampled Hindu culture and forcibly converted a large number of Hindus to Islam. The story of Islamic barbarism and terror continued unabated during all the regimes of Muslim rulers and came to a halt with the death of Aurangzeb in 1707 (Seventeen Zero Seven) but in another form the said tendency continued by subsequent rulers and same were also copied by Britishers during their rule till India became free.

28. That Aurangzeb one of the cruelest Islamic ruler was the champion in destruction of Hindu temples. He had issued ‘Farmaans’ in the year 1669 (Sixteen Sixty Nine) to destroy many temples including Kashi and , which were prominently worshipped by Hindus. The administration complied with the order and demolished a portion of temple of the Adi Visheshwar at Varanasi and later on a construction was raised which they alleged ‘’ but they could not change the religious charter of as the idol of Goddess Shringar Gauri, Lord Ganesh and other associate deities continued in the same building complex

29. That on 18.04.1669 (Eighteen April Sixteen Sixty Nine) Aurangzeb had issued farmaan for demolishing the temple of Lord Shiva i.e. Adi Visheshwar at Benaras. Historians Sir H.M. Elliot and John Dowson in his book “The History of India” as told by its own historians has mentioned that :-

“18.04.1669 (Eighteen April Sixteen Sixty Nine), it reached the ear of His Majesty, the protector of the faith, that in the provinces of Thatta, Multan, and Benares, but especially in the latter, foolish were in the habit of expounding frivolous books in their schools, and that students and learners, Musalmans as well as Hindus, went

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there, even from long distances, led by a desire to become acquainted with the wicked sciences they taught. The “director of the Faith” consequently issued orders to al the governors of provinces to infidels; and they were strictly enjoined to put an entire stop to the teaching and practicing of idolatrous forms of worship. On the 15th (Fifteenth) Rabi-ul-Akhir (02.09.1669) (Two Nine Sixteen Sixty Nine) it was reported to his religious Majesty, leader of the Unitarians, that in obedience to order, the Government officer had destroyed the temple of Bishnath at Benares.”

30. That the fact of demolition of Shri Adi Visheshwar temple under the command of Aurangzeb was also mentioned in ‘Maasir-I- Alamgiri,’ a writer of the time of Aurangzeb, which has been translated by Sir at page 55 (Fifty five) confirming the facts mentioned in the preceding paragraph.

31. That in fact the original temple was partly demolished and utilizing the remaining structure and the materials a construction was raised and named alleged ‘Gyan Vapi Mosque’ whereas the deities continued in visible and invisible form within the premises of old temple. A large portion of the building and a portion of Tahkhana remained in the control of Hindus.

32. That the historians have confirmed that Islamic ruler Aurangzeb had issued an order on 09.04.1669 (Nine Four Sixteen Sixty Nine) directing his Administration to demolish the temple of Lord Adi Visheshwar at Varanasi. There is nothing on record to establish that the then ruler or any subsequent ruler has passed any order to create a Waqf over the land in question or for handing over the land to any Muslim or body of Muslims. The

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copy of farmaan/ order issued by Aurangzeb is reported to be maintained by Asiatic library Kolkata.

33. That the administration could partly demolish the temple structure. The western side of the temple is continuing in its original shape. The upper portion of the western side of the Mandap is still there. The Varanda 16 (Sixteen) X 10 (Ten) around central hall of the temple is still there. The northern and southern walls of the temple structure have been used without any change in the construction raised during the regime of Aurangzeb.

H. PERIOD AFTER 1669 (Sixteen Sixty nine) 34. That after partial demolition of ancient temple of Lord Adi Visheshwar, a new construction alleged to be ‘Gyan Vapi Mosque’ was raised thereat. There is a book written under the title ‘History of Benares’ by Dr. A. S. Altekar the Professor and Head of the Department of Ancient History and Culture of , wherein he has described the nature of construction raised by Muslims at the place of ancient temple which reveals that:-

(i) The eastern portion of the open platform of the alleged Mosque is formed by covering with stones slabs on extensive Hindu Mandap about 125 (One hundred Twenty five) Feet X 18 (Eighteen) Feet in dimension a part of which is at present in the possession of Hindus.

(ii) A portion of Mandap of Hindu temple exists in the courtyard of alleged Gyan Vapi Mosque, still in possession of Hindus.

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(iii) The Construction raised in the regime of Aurangzeb by and large is on the existing columns and remains of ancient temple.

(iv) At the back of the western wall of alleged Gyan Vapi Mosque there is image of Goddess Shringar Gauri existing since time immemorial and being worshiped continuously.

(v) Hindus have continued to worship in the western side of the alleged mosque of ‘Gupt’ i.e. invisible deity. Hindus still continued to worship the place in the dilapidated wall of the ruins to the west of the alleged mosque as the abode of Gauri and her son Lord Ganesh. They also pay homage to Panch Mandap.

(vi) In fact the ancient temple of Lord Visheshwar was itself converted into the structure in the present form by the engineers of Aurangzeb. They retained much part of old temple as could be possible.

(vii) The western hall of the temple was merely pull down along with adjoining subsidiary shrines. They utilized useful building material, level up to the debris and allowed to remain in that ugly condition which is still there.

(viii) A portion of the super structure of the western Mandap can still be seen in ruins today.

(ix) After demolishing the Mandap and adjoining shrines, the architect of Aurangzeb closed upto the western door of the sanctuary of the Vishwanath, as also of each of the Mandaps on its south and North in order to form the

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western wall of their alleged mosque. The three doors filled up can still be very easily detected in the mosque wall at its back. The western wall of the temple remains till the point where the spires commenced.

(x) The Muslim engineers utilized structurally the central shrine of Vishwanath and the adjoining halls to its north and south they converted the sanctuary of Vishwanath which was of 32 (Thirty two) Square feet, into the central hall of the new construction. This hall too is of the same dimension. Adjoining the central sanctuary antechambers are 16 (Sixteen) Feet X 10 (Ten) feet in dimension. They were retained in the new structure and can be still seen round the hall of the alleged mosque.

(xi) The Mandaps to the south and the north of the shrine of Lord Visheshwar were converted into the side halls of the alleged mosque. Being only 16 (Sixteen) feet X 16 (Sixteen) feet in dimension they were too small for the purpose. They were, therefore, enlarged into square halls 20 (Twenty) Feet in dimension, by including in them the adjoining antechambers towards the central hall, which were 8 (Eight) feet in breadth and by reducing the breadth of the wall towards the east and west by 4 (four) feet each way.

(xii) The eastern portion of the ancient temple could not be structurally utilized, so it was demolished. Part of the area was utilized for constructing and extensive verandah in front of the three halls of the alleged mosque. Pillars utilized for this verandah, however,

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belong to the old temple and show the Hindu louts motifs upon them.

(xiii) The northern, western and southern boundaries of the alleged mosque are coterminous with those of the temple built by Raja Todarmal. On the eastern side its courtyard covers up the entire Rangamandapa on the east belonging to 15th (Fifteenth) centaury temple.

(xiv) A portion of Tahkhana is still in possession of Hindus.

35. That in between 1777 (Seventeen hundred Seventy Seven)- 80 (Eighty) Queen of Indor Ahilya Bai constructed a new Sri Vishwanath temple adjacent to the old temple of Adi Visheshwar. In this case the original temple will be referred to as ‘ancient’ temple and the temple constructed by Ahilya Bai Holkar as ‘new temple’.

36. That on 1809 (Eighteen hundred zero Nine) Hindus recaptured the old temple. On 30th (Thirtieth) December 1810 (Eighteen Hundred Ten) the then District Magistrate Mr. Watson sent letter to president council suggesting to hand over Gyan Vapi area to Hindus forever.

37. That the remnants of the Hindu temple can be seen on the walls of the alleged Gyan Vapi Mosque which is standing on the destroyed original Kashi Vishwanath Temple. The temple structure which exists prior to the construction of the alleged Gyan Vapi Mosque was built by Raja Man Singh.

38. That a temple structure can be seen at the alleged mosque’s rear wall, long believed to the remnant of the original Kashi Vishwanath temple. In 1822 (Eighteen Twenty Two), James

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Prinsep captioned an illustration of the rear wall as “Temple of Vishveshvur” in his Benaras Illustrated that:-

‘The Hindus worshiped the plinth of the mosque as the plinth of the old Kashi Vishwanath temple.’ M.A. Sherring (1868) (Eighteen Sixty Eight) wrote that the “extensive remains” of the temple destroyed by Aurangzeb were still visible, forming “a large portion of the western wall” of the mosque. He mentioned that the remnant structure also had Jain and Buddhist elements besides the Hindu ones.’

39. That historical fact reveals that in 1698 (Sixteen Ninety Eight), , the ruler of Amber, launched an initiative to build the Vishwanath temple. His agents surveyed the surrounding land, and detailed various claims and controversies on the topic. His Court purchased the land around the Gyanvapi precinct, but was unable to rebuild the temple.

40. That the building in question contains the image of Swayambhu deity Goddess Shringar Gauri and images of number of God and Goddess, a number of object of worship and Hindu religious facets within the structure from the time immemorial. The religious character of the building complex as Hindu place of worship is continuing till date despite the construction illegally raised by Muslims.

41. That the worshippers of Lord Shiva and Hindus in general are continuously worshipping the Lord Adi Visheshwar, Goddess Shringar Gauri and other deities existing within the property in question. Circumambulation around the deity is integral part of worship recognized by Hindu law. The devotees in thousands circumambulate through Parikaram Marg and perform other

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rituals and on festive days they assemble in lakhs to perform pooja thereat.

42. That the deity Adi Visheshwar is continuing as De-Jure owner of the entire land of Settlement Plot No.9130 (Nine Thousand One Hundred Thirty), 9131 (Nine Thousand One Hundred Thirty One) and 9132 (Nine Thousand One Hundred Thirty Two) in Mauza Shahar Khas, Tahsil and District Varanasi.

43. That Aurangzeb passed the order for demolishing the temple in the capacity of a sovereign. The land does not belong to any Muslim, body of Muslim or Waqf board.

I-. CIVIL SUIT NO.62 (Sixty Two) OF 1936(Nineteen Thirty Six) & JUDGMENT IN FIRST APPEAL NO.466 (Four Hundred Sixty Six/ 1937(Nineteen Thirty Seven) BY HON’BLE HIGH COURT REPORTED IN 1942 (Nineteen Forty Two) SCC ONLINE ALLAHABAD PAGE-56(Fifty six) 44. That one Deen Mohd filed Civil Suit No.62 (Sixty Two) of 1936 (Nineteen hundred Thirty Six) without impleading any member of Hindu community but impleading only the Secretary of State for India through District Magistrate, Benares and Anjuman Intajamia Masajid, Benares through Secretary for granting declaration that the land bearing No.9130 (Nine Thousand One hundred Sixty) situated in the city and District Benaras measuring 1 (One) Bhigha 9 (Nine) Biswa and 6 (Six) Dhurs together with enclosure all round described in the plaint was Waqf in possession of that plaintiff and other Musalmans had right to say their prayers specially Alvida prayers and to exercise other religious and legal rights as the need and occasion arise.

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45. That it is submitted that the Muslims had filed above mentioned suit only for declaration without seeking any consequential relief. This suit was filed even without impleading any person from Hindu community. Therefore, the judgment passed in the suit is not binding upon any member of Hindu community but any document, map, evidence or statement of any witness can be referred to or relied upon by the members of Hindu community.

46. That in Civil Suit No. 62 (Sixty Two) of 1936 (Nineteen Thirty Six) on behalf of the Secretary of State for India in Council the written statement was filed stating that :-

In paragraph 2 (Two) it has been stated that “The entire plot of land on which the Mosque, ‘pacucca’ courtyard stray grave, staircase in front of gate, together with ‘pucca’ enclosures all around and a ‘pipal’ tree stand belongs to Government and has never been dedicated nor could have been dedicated to the Mosque.”

In paragraph 11 (Eleven) it has been stated that:- …..The idols and the temple which stand there exist since long before the advent of the Mohammadan Rule in India. The other allegations made in the said paragraph are denied. It is submitted that the non-Muslims have been using the land for their religious purposes as a matter of right and have got a right of way over it. The allegation that they were permitted by persons in-charge of the Mosque is unfounded and baseless.

In Paragraph 12 (Twelve) it has been stated that:- ………The land in question was ever stamped with the character of ‘Waqf’ land. It was never dedicated to God, nor could it have been dedicated and God has no proprietary interest. ………… further that -

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The Mohammadans of that time or for the matter of that Aurangzeb himself was not the owner of the site in which the old temple of Vishwanath existed and which was demolished by Aurangzeb owing to the religious antipathy, hence it could not have been dedicated according to the true spirit of the Mohammadan faith”

47. That in R.S. No. 62 (Sixty Two) of 1936 (Nineteen Thirty Six) on behalf of defendant no. 2 (Two) i.e. The Secretary of State for India examined a number of witnesses namely (i) Gauri Shankar, (ii) B. Mangala Prasad, (iii) Pandit Madho Ram Saud, (iv) Prasad Mehta, (v) Dawrka Das, (vi) Dass, (vii) B. Madho Prasad, (viii) Vinay Nand Tewari, (ix) Ramesh Chandra De, (x) Ram Mohan Bhatia, (xi) M. Chandu Lal, (xii) Raghunandan Upadhya, (xiii) Dr. Parmatma Saran, (xiv) Dr. A.S. Altekar, (xv) Hari Prasad Das. From the statement of witnesses it is clear that:-

(i) The worship of Goddess Shringar Gauri and other deities were being performed in the precincts of old temple.

(ii) Avi Mukteshwar was being worshiped by its place. He was in invisible form there. of Avi Mukteshwar was being undertaken by the devotees.

(iii) Sringar Gauri was situated near Punch Mandap and was being worshiped there. There were Gyan Madap, Mukit Mandap, Varoj Manap, Shobha Mandap and Sringar Mandap.

(iv) Markeshewar is underground and in invisible form and is worshiped by devotees.

(v) Hindus are owners of whole land and entire land inside the boundary wall is in the possession of Hindus.

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(vi) Panch Kosi Parikrima was being undertaken by devotees.

(vii) Pooja and worship of deities was going on within the old temple complex and entire area had the character of Hindu place of Worship.

(viii) Hindus have been worshipping the Asthan and also invisible deities according to Shastrik provisions.

(ix) Despite the fact that old temple could be partly demolished and in haphazard manner a construction had been raised during the regime of Aurangzeb but in fact no Mosque was constructed and the place in question could not be a Waqf property and the construction raised by Muslims by no stretch of imagination could be termed as Mosque.

48. That the statement made by witnesses relating to the Asthan Adi Visheshwar and Goddess Sringar Gauri was not challenged from the Muslim side. Therefore, from the evidence it is clear that Goddess Sringar Gauri is existing from the time immemorial within the campus of ancient temple and is being worshipped throughout. It is also proved that the Asthan Adi Visheshwar is being worshiped continuously by devotees.

49. That Ld. Civil Judge in the judgment has held that:- “It appears from the orders that the shrine of Gauri Ji has been recognized to the West since long, that there was the deity of Bir Bhadeshwar to the North East in 1843 (Eighteen hundred Forty Three), that there is the place of Abhi Mukteshwar to the North recognized in 1899 (Eighteen Ninety Nine)…..”

50. That Deen Mohammed aggrieved with the judgment of the Trial Court filed First Appeal No.466 (Four hundred Sixty Six) of

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1937 (Nineteen Thirty Seven) which was dismissed by Hon’ble , reported in 1942 (Nineteen Forty Two) SCC ONLINE ALLAHABAD PAGE-56 (Fifty Six).

J. SOVEREIGN ACT- KASHI VISHWANATH ACT: 51. That demolition of the temple in the year 1669 (Sixteen hundred Sixty Nine) was a Sovereign act. However Lord Adi Visheshwar, the deity alongwith other deities is continuing as De-Jure owner of the property in question. After the fall of the property in question came under the control of New British Sovereign and after 1950 (Nineteen Fifty) it came within the sovereign jurisdiction of the State of Uttar Pradesh in accordance with Article 294 (Two hundred Ninety Four) of the Constitution of India.

52. That the subsequent sovereign i.e. the British Government did not recognize the legal existence of the alleged Mosque in question and denied the rights of Muslims over the property in question as is evident from the written statement filed on behalf of Secretary of State for India in Council in Civil Suit No. 62 (Sixty Two) of 1936 (Nineteen Thirty Six) in Court.

53. That the State of Uttar Pradesh exercising its sovereign power passed U.P. Act No.29 (Twenty Nine) of 1983 (Nineteen Eighty Three), known as the Uttar Pradesh Kashi Vishwanath Temple Act,1983 (Nineteen Eighty Three) thereby defining the temple as:-

Section 4 (Four) (9) (Nine) “Temple” means the Temple of Adi Visheshwar, popularly known as Sri Kashi Vishwanath Temple, situated in the City of Varanasi which is used as a place of public religious worship, and dedicated to or for the benefit of or used as of right by the Hindus, as a place of public religious worship of the Jyotirlinga and includes all

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subordinate temples, shrines, sub-shrines and the Asthan of all other images and deities, mandaps, wells, tanks and other necessary structures and land appurtenant thereto and additions which may be made thereto after the appointed date;

54. That the U.P. State Legislature has recognized the deity ‘Adi Visheshwar’ Jyotirling in its original form alongwith subsidiary deities existing from the time immemorial within old temple complex and the right of devotees to worship there. The entire property including “property in question” i.e. old temple complex vested in deity Adi Visheshwar is to be managed by Board of Trustees. It is the duty of the State Government and the Board of Trustees to recover the entire property belonging to and dedicated to ‘Adi Visheshwar’ and the ‘Asthan’ which has been usurped and encroached upon by Anjumn Intazamia Masaajid Committee and its supporters and followers.

55. That the property in question vests in the Board of Trustees constituted under U.P. Kashi Vishwanath Temple Act,1983 (Nineteen Eighty Three). The Board is under obligation to manage the property in question. It is obligatory for the Waqf Board to hand over possession of the property to the temple trust.

56. That the worship of Lord Shiva, Goddess Shringar Gauri, Lord Ganesh and other deities is continuing within the property in question. The administration imposed hard conditions for the worshippers in the year 1993 (Nineteen Ninety Three) with a view to appease Muslim community. In the year 2000-01 (Two Thousand-One) the administration in the name of maintaining law and order situation permit Hindus to perform pooja only during fourth day of Vasantik Navratras.

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57. That the Asthan of lingam vest in Adi Visheshwar upto 5 (Five) Kos (Krosh) Parikrama Marg i.e. in a circle around the lingam. No person has right to raise any construction adverse to the interest of deity Adi Visheshwar and therefore, the construction raised is liable to be removed and the worship of deity is liable to be restored within the property in question.

58. That under Hindu law which is applied in India from much before BC Era, it is well recognized that once the property has vested in deity the same will continue to be His property in perpetuity and deity can never be divested from its property. As mentioned in the preceding paragraphs there are idols and object of worship within the property in question and the temple has not lost its religious character at any point of time.

59. That Muslims never got proprietary right over the property in question. None of the Muslim has so far dedicated the land to the God for the simple reason that the property belongs to deity. The deity will not lose its rights only for the reason that during foreign rule the temple was substantially damaged as the right of the deity over the property is never lost and the right of worshippers to perform pooja of the deity and the Asthan is protected under Hindu Law.

K. IF WAQF EVER CREATED: 60. That the property in question does not belong to any Waqf. The property had already vested in deity Adi Visheshwar lakhs of years before the start of British Calendar year and is continuing to be the property of deity. No Waqf can be created on the land already vesting in a deity. In the historical books written during the Mughal regime and thereafter even Muslim historians have not claimed that Aurangzeb after demolishing the temple structure of Adi Visheshwar had created any Waqf or thereafter

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any member of Muslim community or Ruler was dedicated such property to Waqf.

61. That the Waqf Board has no power or jurisdiction to register any part of the property in question as Waqf property and such registration cannot change the nature of the property from Hindu Temple into a Mosque and notification if any, issued by Waqf board registering the property in question as Waqf property is ultra vires, null and void.

62. That a Mosque can be constructed over the property dedicated by waqif, who should be the owner of the property. A construction raised under the orders of any Muslim ruler or by any Muslim over the land of a temple cannot be construed as Mosque. A Waqf can be created only on the land dedicated to Waqf by wakif who is owner of the land. In the instant case it is clear that from the time memorial the land and property belong to the deity and therefore there can be no Mosque thereat.

63. That from the on 15th (Fifteenth) August 1947 (Nineteen Forty Seven) the character of the property in question was of Hindu Temple as the images of plaintiff deities and along with other associate deities was there and they were being worshiped.

64. That if any super structure has been created over the Temple land, by Muslims, same will be only a structure and cannot acquire the status of a Mosque for the reason that over a Hindu Temple already vested in the deity, no construction can be raised and such construction cannot change the nature of Temple property.

L. Hindu and Mohammedan Law L/1 Hindu Law:- 65. That the juristic personality of the deity under Hindu law has been explained by the apex Court in famous Ayodhya Case

36 reported in 2019 (Twenty Nineteen) (15) (fifteen) Scale page 1 (One). Some paras from judgment are being extracted below-

Para 115 (One hundred fifteen) “A Hindu may make an endowment for a religious purpose. There is a public interest in protecting the properties endowed and ensuring that the original pious purpose of the dedicator is fulfilled. The law confers legal personality on this pious purpose. However, as Chief Justice B.K. Mukherjea notes, it is the idol, as the material manifestation of the juristic person which is “looked upon” as the centre in which the property vests. The idol as an embodiment of a pious or benevolent purpose is recognized by the law as a juristic entity. The State will therefore protect property which stands vested in the idol even absent the establishment of a specific or express trust. The pious purpose or “benevolent idea” is elevated to the status of a juristic person and the idol forms the material expression of the pious purpose through which legal relations are affected. It is the pious purpose at the heart of the dedication which is the basis of conferring legal personality on the idol and which is the subject of rights and duties. The need to confer juristic personality arises out of the need for legal certainty as to who owns the dedicated property, as well as the need to protect the original intention of the dedicator and the future interests of the devotees. It was open for courts to even confer the personality on the community of devotees in certain situations, but the idol is chosen as a centre for legal relations as the physical manifestation of the pious purpose.”

Para 116 (One hundred Sixteen)

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“……………The idol constitutes the embodiment or expression of the pious purpose upon which legal personality is conferred. The destruction of the idol does not result in the termination of the pious purpose and consequently the endowment. Even where the idol is destroyed, or the presence of the idol itself is intermittent or entirely absent, the legal personality created by the endowment continues to subsist. In our country, idols are routinely submerged in water as a matter of religious practice. It cannot be said that the pious purpose is also extinguished due to such submersion. The establishment of the image of the idol is the manner in which the pious purpose is fulfilled. A conferral of legal personality on the idol is, in effect, a recognition of the pious purpose itself and not the method through which that pious purpose is usually personified. The pious purpose may also be fulfilled where the presence of the idol is intermittent or there exists a temple absent an idol depending on the deed of dedication. In all such cases the pious purpose on which legal personality is conferred continues to subsist.”

L/2 MUSLIM LAW:- 66. The principles of Mohammedan Law have been compiled by Sir Dinshaw Fardunji Mulla wherein the provisions of Islamic have been enumerated. In the 21st (Twenty First) edition of the book the subject AUQAF relating to provisions for creating Waqf has been given. The followings paragraphs relevant for the propose are being reproduce below:-

173. Waqf as defined in the Waf Act:- Waqf means the permanent (174) (One hundred Seventy Four) dedication by a person professing the Musalman

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faith of any property (175) (One hundred Seventy Five)- 177) (One hundred Seventy Seven) for any purpose recognized by the Musalman law as religious, pious or charitable (178) (One hundred Seventy eight).

176. Subject of Waqf must belong to waqif:- The property dedicated by way of Waqf must belong to the waqif (dedicator) at the time of dedication. A person who is in fact the owner of the property but is under the belied that he is only a mutawalli thereof is competent to make a valid Waqf of the property. What is to be seen in such cases is whether or not that person had a power of disposition over the property.

188. Waqf by immemorial user:- If land has been used from time immemorial for a religious purpose, e.g., for a mosque, or a burial ground or for the maintenance of a Mosque, then the land is Waqf by user although there is no evidence of an express dedication.

67. That a Waqf can be created only on the land dedicated by a waqif who is owner of the land. It is apparent that entire land vested in the deity Lord Adi Visheshwar and He is the owner of the property in question which was usurped by Aurangzeb in the capacity of a ruler. The property did not belong to him. In any case there is no evidence that the property was dedicated to the almighty.

68. That the alleged GayanVapi Mosque is only a structure and same cannot be regarded as Mosque. The another aspect is that the disputed construction has not been erected over any Waqf property. The principle Waqf by user cannot be applicable as the alleged Gyan Vapi Mosque was constructed after demolishing a

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Hindu temple after 1669 (Sixteen Sixty Nine) at the same very place and the date of construction of alleged Mosque is well known.

M. PLACES OF WORSHIP (Special Provisions) Act, 1991 (Nineteen Ninety One) 69. That Parliament passed an Act known as Places of Worship Act, 1991 (Nineteen Ninety One) (hereinafter referred to as P.W. Act). Section 2 (Two), 3 (Three) and 4 (Four) of the Act, are being reproduced below:- “2. Definitions.—In this Act, unless the context otherwise requires,—

(a) “commencement of this Act” means the commencement of this Act on the 11th (Eleventh) day of July, 1991 (Nineteen Ninety One);

(b) “conversion”, with its grammatical variations, includes alteration or change of whatever nature;

(c) “place of worship” means a temple, mosque, gurudwara, church, monastery or any other place of public religious worship of any religious denomination or any section thereof, by whatever name called.

3. Bar of conversion of places of worship.—

No person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof.

4. Declaration as to the religious character of certain places of worship and bar of jurisdiction of courts, etc.—

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(1) It is hereby declared that the religious character of a place of worship existing on the 15th (Fifteenth) day of August, 1947 (Nineteen Forty Seven) shall continue to be the same as it existed on that day.

(2) If, on the commencement of this Act, any suit, appeal or other proceeding with respect to the conversion of the religious character of any place of worship, existing on the 15th (Fifteenth) day of August, 1947 (Nineteen Forty Seven), is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority: Provided that if any suit, appeal or other proceeding, instituted or filed on the ground that conversion has taken place in the religious character of any such place after the 15th (Fifteenth) day of August, 1947 (Nineteen Forty Seven), is pending on the commencement of this Act, such suit, appeal or other proceeding shall be disposed of in accordance with the provisions of sub-section (1) (One).

(3) Nothing contained in sub-section (1) (One) and sub-section (2) (Two) shall apply to,—

(a) any place of worship referred to in the said sub-sections which is an ancient and historical monument or an archaeological site or remains covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (Nineteen Fifty Eight) or any other law for the time being in force;

(b) any suit, appeal or other proceeding, with respect to any matter referred to in sub-section (2) (Two), finally decided, settled or disposed of by a court, tribunal or other authority before the commencement of this Act;

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(c) any dispute with respect to any such matter settled by the parties amongst themselves before such commencement;

(d) any conversion of any such place effected before such commencement by acquiescence;

(e) any conversion of any such place effected before such commencement which is not liable to be challenged in any court, tribunal or other authority being barred by limitation under any law for the time being in force.”

70. That in view of the provisions contained in the Act the Court has to visualize as to what was the religious character of the place in question on 15.08.1947 (Fifteen Eight Nineteen Forty Seven) and whether it was a place of Hindu or Muslim worship or putting a super structure can convert a temple into a mosque or vice versa.

71. That to find out the religious character of the property in question, one has to take into consideration the historical and religious background of the entire Avimukt Area and also the nature of construction raised by Muslims thereat and the fact that deities continued to exist within the building complex were being worshiped by devotees and the sentimental attachment of the devotees with the deities and the Asthan and fact that worshippers have been undertaking Panch Koshi Parikrama daily around the entire building complex performing all the rituals.

72. That in Section 4 (Four) of the P.W. Act the Parliament has purposely used the word “religious character”, to mean that the Temple, Mosque, Church , Gurudwara etc. should have been constructed according to tenets of the religion without encroaching upon the land of another faith.

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73. That Section 4(4) (Four) (Four) of the P.W. Act provides that the religious character of a place of a worship existing on 15.08.1947 (Fifteenth Eight Ninety Forty Seven) shall continue to be the same as existed on that day.

N – Religious Character of the Place of Worship in question

74. That from the narration of the facts and available evidences it is clear that Asthan of Adi Visheshwar Jyotirlingam is being worshiped in a radius of 5 (Five) Kos (Krosh) and the entire area is sacred for the devotees of Lord Visheshwar and the entire 5 (Five) Kos (Krosh) area is essential and integral part of worship over which the deity exists from the time immemorial.

75. That if any portion of a temple is demolished under the orders of a ruler i.e. the sovereign of the time and a super structure is put thereon, the same will not change the religious character of the shrine.

76. That in this case it is historically proved that Aurangzeb, the ruler in the series of Moughal invaders, got demolished upper portion of temple of Adi Visheshwar at the property in question in 1669 (Sixteen Sixty Nine) and thereafter a construction was raised on the first floor in the madness of power, which Muslims call ‘Gyan Vapi Mosque” but pooja and worship in other part of the temple complex including of the deity Goddess Maa Shringar Gauri, Lord Ganesh, Lord Sun and other God and Goddess continued within the old temple premises and throughout in the entire Shivlinagm area of 5 (Five) Kos (Krosh).

77. That the evidence recorded in Civil Suit no. 62 (Sixty Two) of 1936 (Nineteen Thirty Six) reflects that the entire area of 5

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(Five) Kos (Krosh) was having religious character of Sanatan Dharma.

78. That it has been proved by the witnesses that worship of Gauri Shankar, Tarkeshwar, Nand Kesheswar, Mahaoleshwar beneath the “Pipal tree”at south east corner over the chabutra, then Gyan Vyapi well, Ganesh Ji known as Madadi Panch Vinayak then Maheshwar under third pipal tree then Mukteshwar in a hidden place and the south west corner then worship of Sringar Gauri in the western chabutra in the wall of the Khandhar then panch Mandap near Shringar Gauri then Ganesh ji image imbedded in the wall then Chandreshwar in the corner i.e. north west corner and thereafter worship of Avimukteshwar in hidden form at the northern gate over the chabutra was undertaken by devotees.

79. That it has also been proved by the witnesses that after worshiping the deities in visible and invisible form the devotees were circumambulating five Kos (Krosh) Parikarma Marg.

80. That the building during the regime of Aurangzeb was constructed over the pillar existing in the old temple. One of the witness in former suit has deposed that ‘over the pillars there are still images of Trishul, Chandrama and other Hindu symbols. In the ceiling stones there are bell mark, ‘Churi’marks and too.’

81. That in the former suit witnesses have also deposed that ‘there are special forms of idol and also in hidden form, hidden form means that the idol is inside the ground. There is Gyan Mandap, Mukti Mandap, Varoj Mandap, Sobha Mandap, Sringar Mandap all these five together is called Panch Mandap. The Panch Mandap exists within Khandhar.’

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82. That Avi Mukteshwar is worshiped there as Asthan. Markendeshwar is also hidden underground since ancient times. According to Khashi Khand there are hidden deities at the place in question. In Khandhar area there is image of Lord Ganesh.

83. That the witnesses have also deposed in Suit No. 62 (Sixty Two) of 1936 (Nineteen Thirty Six) regarding the manner in which devotees were performing pooja and observing rituals within the old temple compound and outside and within the area of five Kos (Krosh) Parikrama Marg. It is has been stated that devotees undertake Ant Grahi Parikrama, and also Panch Kos (Krosh)i Parikrama. The witness Gauri Shankar has stated that Panch Kos (Krosh)i Parikrama commences in the following manner:-

(i) “First they bathe at Manikanika. Then they go to Vishwanathji Annuprurna, Dhundhraj Ganesh and then go to Gyan Vapi, and there they rest in Vishram Mandap, and there they take the ‘Sankalapa’ and then they take vow of silence and start on the Panch Kosi (Krosh) Parikaram. There is Vyas Gaddi inside the ‘Baradari’ near the well and there the pilgrim rests and takes the vow. Thus Panch Kosi (Krosh) Commences from this place. After the ‘Sankalpa’ they go round the ‘mandap’, i.e. the ‘baradari’ and then go over the floor to the Shringar Gauri Panch Mandap etc., and then by the same eastern gate they go to the Mankanika side aand there drink water thrice and give up the vow of silence and they go by the bank and then after five day’s walk round Benares they again reach Mankanika and from there they go to Viswanathji.”

(ii) The other witnesses whose names have been mentioned above have also stated the same facts as was stated by Gauri Shankar. All witnesses have confirmed the ongoing pooja of

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the Asthan, Goddess Sringar Gauri, Lord Ganesh and of existing visible and non visible deities and about the Parikram being undertaken of the entire place by the devotees.

(iii) In the said statement it has also come in the evidence that ‘Thahkahana’ in the southern side was in possession of Hindus and managed by collector.

(iv) In the said suit it is also come in the evidence that there were shops at the northern gate of the compound. There is ‘Naubat Khana’ of the old temple above it. Generally Naubat Khanas are on the gates of temples and its doors open in three sides.

(v) It has also come in the statement of witnesses that in the old temple area Hindus go there for worship throughout the day from 3:00 (Three) Am to 12:00 (Twelve) Hours in the Night.

(vi) In substance the witnesses have confirmed that:-

‘The worship is done all over the compound. The deities Goddess Sringar Gauri, Lord Ganesh Lord Sun, Nandiji and Gyanvyapi including Gangeshwar, Shiva Parvati, Tarkeshwar, Badri Narayan, Panch Mandapa and invisible were being worshiped within the old temple complex. Many places are worshiped because Gods existed there and of some gods the marks are in the walls. The wall in which the marks of the Gods is to the west.’ For the old Vishwanath also the Gyan Vapi well is worshiped.

(vii) The witnesses have also stated that land of old temple belongs to the Government. The western Khandahar belongs to Government.

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(viii) To the south of the alleged Gyan Vapi Mosque there is underground cell which is in possession of Hindus.

(ix) In the said suit Dr. A.S. Altekar who was head of Department of Ancient Indian History and Culture in Benaras Hindu University also appeared as witness. He stated has that ‘Hindu used to visit these ruins and to pay their obeisance to the empty sanctuaried of Vishwanath and other gods there. They followed the theory of ‘Sthan mahapuraj’ sanctity of the place and were satisfied with this procedure.

(x) Dr. A. S. Altekar has firmly deposed that :-

“The photo of Singar Gauri is Exhibit 20. (Twenty) Photo of Exhibit 21 (Twenty One) is of what at present is worshiped as Panch Mandap. At present Panch Vinayks are worshiped near the Gyan Vapi.”

(xi) In Substance the witnesses have confirmed that around 1937 (Nineteen Thirty Seven) the place in question had Hindu religious character. The same position of the place in question continued upto 1947 (Nineteen Forty Seven) and thereafter and it was and is having the religious character of Hindu place of Worship.

84. That on the basis of un-rebutted oral evidence recorded in Civil Suit No. 62 (Sixty Two) of 1936 (Nineteen Thirty Six) and other evidences it is clear that on 15.08.1947 (Fifteen Eight Nineteen Forty Seven) and till date the property in question has Hindu religious place of worship. Even if Muslims have encroached upon the land and raised a super structure over a small area of the temple complex, the same will not change the religious character of temple. It may be pointed out that encroacher can

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never take advantage of its illegal action. The illegality cannot be allowed to perpetuate.

85. That it is pertinent to mention that in Civil Suit No. 637 (Six Hundred Thirty Seven) of 1996 (Nineteen Ninety Six), which was dismissed in default on 06.12.2014 (Six Twelve Twenty Fourteen), by an order passed by Civil Judge Varanasi, an advocate commissioner appointed by the Ld. Civil Judge had made spot inspection on 30.07.1996 (Thirty Seven Nineteen Ninety Six), and had submitted its report in the Court. He has confirmed that the remains of demolished structure were visible. In western side after closing three doors and over the debris of demolished structure another structure like mosque have been raised. In the western side in the shape of chabutra the materials of demolished structure are present. Towards the western side it was told and apparent pooja of lord Ganesh, Sringar Gauri and other deities was being performed. The Parikarama Path (circumambulation) road was there in the southern side there was Tahakhana beneath the big Chabutara in front of which Gyanvyapi Koop (Well), Nandiji, Gauri Shankar, Maheshwar after Parikrama Path where there. In the Southern side there was cellar (Tahkhana) and there was small gate for entering into it. One key of Tahkhana was with plaintiff no. 2 (Two) (Som Vyas) who opened the lock. There was another lock put by the administration and they refused to open the lock for want of the direction. The Parikrama path was there and due to new barricading hindrance was being created towards southern side.

86. That from the facts stated in the preceding paragraphs it is abundantly clear that the property in question has uninterruptedly continues the character of Hindu place of

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worship. Therefore, section 4 (Four) of the Places of Worship Act can be applied in favor of temple and devotees.

87. That the old temple and Asthan is dedicated to Lord Shiva and the entire temple complex vest in the deity from ancient times i.e. from thousands of years much before the Islamic rule. It is well established principle of Hindu law that property vested in the deity shall continue to be the property of deity and even no ruler can take possession of such property. In case, if any person or Ruler showing the might of power or muscle power has usurped the property of deity, the same will not confer any right to him and the ownership will revert back to the deity as soon as such cloud is vanished.

88. That the property in question is not a Waqf property for the simple reason that as per Hindu Law the property vested in the deity shall continue the deity property. A mosque can be constructed only on a Waqf property. Waqf can be created by a waqif who is the owner of the property. In this case Aurangzeb, did not create any Waqf and did not bequeath the property in question to the God. Therefore, the construction in question cannot be even presumed to be a mosque.

89. That in view of the facts of this case, the property in question continues to be a Hindu place of worship.

O – Ownership of the property in question

90. That the entire property in the radius of 5 (five) Kos (Krosh) vest in the Asthan Adi Visheshwar from the time immemorial and deity is the owner of entire land and property. Deity continues to be De-Jure owner of the property in question

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despite the fact that during the regime of Aurangzeb a portion of the temple complex was demolished and a super structure was raised thereat which is claimed to be a Mosque by Muslims. The action of taking forcible possession of a religious place cannot change the nature of property and also the ownership rights of the existing deity.

91. That it is apparent that Kashi Vishwanath Act has recognized the right of deity over the property and after the enforcement of the Act it is the duty of the State Government and the Trust Board to restore the deities in the old temple complex with all honor and dignity.

92. That at present no Shebait is working to look after and manage the property of deity in the old temple complex and the Trust Board as well as U.P. Government have not taken steps to implement the provisions of Kashi Vishwanath Act and now it is the duty of the devotees and worshippers to take appropriate remedy by filling the suit for the reliefs claimed in this suit.

P. THE VALIDITY OF PLACES OF WORSHIP (SPECIAL PROVISIONS) ACT, 1991 (NINETEEN NINETY ONE) 93. That Parliament has no power to make any law which takes away or abridges the rights conferred by Article 25 (Twenty Five) of the Constitution of India. Section 4 (Four) of the Act infringes the right to religion of Hindus as their right to remedy to approach the court has been taken away by PW Act and therefore, Section 4 (four) of the Act is ultra vires and void.

94. That it is submitted that section 4 (Four) of the Act, 1991 (Nineteen Ninety One) is ultra vires as it infringes the rights of Hindu community guaranteed under Article 14 (Fourteen), 15 (Fifteen), 25 (Twenty Five) and 29 (Twenty Nine) of the

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Constitution of India. Section 4 (Four) of the Act is ultra vires and is not enforceable due to the following reasons:-

(i) The provisions of Section 4 (Four) of the Act are against the basic concept of secularism. Secular state means that state will not show any favor or inclination towards any community and there will be equal standard for all.

(ii) It is the duty of the State that every atrocities committed in pre-independence era should be remedied according to the procedure established by law and illegal actions, damage of religious property and distortion of cultural heritage be not legalized and such legalization would be negation of the principles of a secular state.

(iii) A sovereign republic governed by rule of law is not supposed to bent before a religious community due to fear or favor and such an action is disastrous for the governance of the country affecting the sentiments of present and future generation leading to haunt the mind of the subjects of the country to understand that still we are slaves of those who had trampled our culture and we are helpless to restore our cultural heritage.

(iv) Section 4 (Four) is irrational, illogical, discriminatory and violates Article 14 (Fourteen) of the Constitution of India.

(v) Section 4 (Four) validates the barbaric, merciless, cruel, illegal, immoral, unethical, inhuman actions of invaders and same is against the concept of constitutional morality as interpreted by the apex court.

(vi) Encroachment of land, desecration of Temples, Mutts and Trust property are continuing wrong and same cannot be

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legalized and the basic right of the citizen to approach the court cannot be taken away.

(vii) Right to worship in the temple and maintenance of religious property flows from Articles 25 (Twenty Five) and 26 (Twenty Six) of the Constitution of India.

(viii) Parliament has no legislative power to enact any law closing the doors for judicial review.

(ix) By enacting section 4 (Four), Parliament having no power or jurisdiction has barred right and remedy of Hindus against encroachment made on their religious places exercising might of power by followers of another faith.

(x) The right to seek judicial remedy against a wrong or illegal action is the very facet of rule of law within the ambit of Article 14 (Fourteen) of the Constitution of India. The Parliament by making provision in Section 4 (Four) of the impugned Act has transgressed its legislative power in barring remedy of judicial review, which is the basic feature of the Constitution, available to an aggrieved person against the wrong committed by encroachers.

(xi) Hindu law is a ‘law in force’ within the meaning of Article 372 (Three hundred Seventy Two) (1) (One) of the Constitution of India at the commencement of the Constitution.

(xii) Section 4 (Four) of the impugned Act is ultra virus to Article 14 (Fourteen), 15 (Fifteen) (1) (One), 25 (Twenty Five), 26 (Twenty Six) and 29 (Twenty Nine) of the Constitution of India and same is void under Article 13 (Thirteen) (2) (Two) of the Constitution of India.

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(xiii) Any order, Rule, Regulation, Custom and Usage having the force of law running counter to Article 25 (Twenty Five) and 26 (Twenty Six) of the Constitution of India at the commencement of the Constitution of India have become void by virtue of Article 13 (Thirteen) (1) (One) of the Constitution of India.

(xiv) The construction of any religious structure at the religious place of deity under any order oral or written passed by any Ruler before 15th August 1947 (Fifteen August, Ninety Forty Seven) has become void and nonest by virtue of the injunction embodied in Article 13 (Thirteen) (1) (One) of the Constitution of India.

(xv) The right to religion guaranteed under Article 25 (Twenty Five) of the Constitution of India protects the right of Hindus which was existing in pre independent era but usurped exercising might of power and possession obtained of any place of worship by illegal means becomes nonest and such religious places have to be restored.

(xvi) Hindu law that deity is immortal and never dies and property once vested in the deity continues to the deity property is protected by Article 25 (Twenty Five) of the Constitution of India.

(xvii) Parliament has no power or jurisdiction to negate Hindu Law protected by Article 25 (Twenty Five) of the Constitution of India and cannot interfere with rights of Hindus as enshrined in Vedas, Shartras, Upnishads, Smrities and other scripture having the force of law.

(xviii) The citizens of country have fundamental right and duty as well to protect religious and cultural heritage.

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(xix) Section 4 of impugned Act violates the fundamental rights of Hindus conferred by Article 14 (Fourteen), 15 (Fifteen) (1) (One), 25 (Twenty Five), 26 (Twenty Six) and 29 (Twenty Nine) (1) (One) of the Constitution of India.

(xx) Impugned Act curtails the right of Hindus to claim possession of their religious and cultural properties whereas for waqf properties there is no law of limitation for claiming possession.

(xxi) The impugned Act is discriminatory in so for the was excluded from the ambit of the Act and there is no intelligible criteria to keep out other religious property from judicial purview.

(xxii) By the impugned Act Hindus have been discriminated before law in violation of provisions contained in Article 14 (Fourteen) and 15 (Fifteenth) (1) (One) of the Constitution of India.

(xxiii) Impugned Act violates the principle of secularism as same has been made to curb right of Hindus for liberation of cultural and religious places damaged/ destroyed before 15th August 1947 (Fifteenth August, Ninety Forty Seven) even through process of Court.

(xxiv) Act 1991 (Nineteen Ninety One) discriminates citizens on the basis of religion and curtails the right of Hindus to seek judicial remedy for restoration of their religious places and temples whereas section 40 (Forty) of Waqf Act 1995 (Nineteen Ninety Five) empowers the Waqf Board to collect information and believing any property even belonging to trust and society as Waqf Property make a declaration to that effect.

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(xxv) Waqf Act has not imposed any condition or period of limitation for exercising the powers by the Waqf Board u/s 40 (Forty) of the Act. The result is that Waqf Board is empowered to declare any property even after lapse of Hundred of years to be Waqf property and can obtain possession of such property in accordance with the provisions contained u/s 52 (Fifty Two), 54 (Fifty Four) and 55 (Fifty Five) of the said Act.

(xxvi) It is astonishing that section 107 (One Hundred Seven) of the Waqf Act provides that the provisions contained in The Limitation Act, 1963 (Nineteen Sixty Three) for filling suits for possession of immovable properties will not be applicable to property comprised in any Waqf. The result is that any property declared as Waqf property is immune from the law of Limitation whereas same benefit is not available to followers of non Islamic religion.

(xxvii) Section 107 (One Hundred Seven) of the Waqf Act is discriminatory and is hit by Article 14 (Fourteen) and 15 (Fifteen) (1) (One) of the Constitution of India and is void abinitio.

Q. Article 13 (Thirteenth) (1) (One) and Article 25 (Twenty Five) of the Constitution of India 95. That Article 13 (1) (Thirteen) (One) of the Constitution of India declares that:-

“All laws in force in the territory of India immediately before the commencement of this constitution insofar as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.”

Article 13 (Thirteen) (2) (Two) declares that:--

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“The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”

Article 13 (Thirteen) (3) (Three) (a) provides that:-

“Law” includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.

96. That in view of the provisions contained in Article 13 (1) (Thirteen) (One) of the Constitution of India the order and action of former ruler for demolishing the temple existing at the place in question and taking possession forcibly of such religious place has become void and inoperative.

97. That Parliament cannot legalize the illegal action of invader which infringes religious rights of the citizens guaranteed under Article 25 (Twenty Five) of the Constitution of India.

98. That the right to religion is exercisable as conferred by Article 25 (Twenty Five) of the Constitution is subject to the condition that it should not be hampering morality, public order or health. These concepts have to be interpreted in reverse form also, which means, that the State or any citizen cannot be permitted to promote anything which is immoral, against public order or affects the sentiments or health of the public due to any nefarious or other evils perpetuating or promoting a public wrong to continue affecting the sentiments of the public, religious ethos and supporting the immoral, cruel, barbarian and other inhuman activities committed in the past during slave period from which the citizens of the country wanted to get rid off after the enforcement of the Constitution to which the

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citizens have given themselves on the solemn declaration made in the preamble of the Constitution with the pious hope that they will not to have face the tyranny of invaders in a sovereign republic governed through democratic norms.

99. That it is duty of the State to maintain public order and not to allow anything to happen which may create public disorder. The State and its machinery due to political reasons for the lust of power to woo a section of the society cannot support the continuance of heart burning issues committed in the past affecting the religious and cultural sentiments of the original subjects of the country at the hands of invaders. Such an action is bound to create dissatisfaction, chaos and disorder in the minds of the suppressed class and the constitutional goal of conferring right of equality, freedom of professing religion and other ornamental rights enumerated in part-III to be illusory.

100. That it is matter of history that Hindus had to face wrath of Islamic intolerance right from 1192 (Eleven Ninety Two) to 1707 (Seventeen Zero Seven) and thereafter, followed by Britishers. Benares is abode of Lord Shiva where the Lord himself appeared as Swyambhu deity and created 5 (Five) Kos (Krosh) avimukteshwar area and jyotirlingam was established. This place is sacred for Hindus from the time immemorial. The Temple existing thereat was demolished by Muslim invaders. It is submitted that Hindus cannot be compelled to suffer mental and spiritual, shock continuously and same is bound to affect the worldly and spiritual life of the masses for swallowing the tyrannical, wicked and cruel act of invaders.

101. That in fact the Constitution of India by enacting Article 13 (Thirteen) (1) (One) of the Constitution has nullified all illegal actions of invaders committed during 700 (Seven hundred) years

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of slavery. The intention is that subjects of the country must realize that black days of history have gone. Therefore, the cultural and religious places have to be restored.

102. That in view of the fact that the Plaintiffs and the devotees of Lord Adi Visheshwar have fundamental right of religion guaranteed by Article 25 (Twenty Five) of the Constitution and same cannot be hampered by State or any person, every order or action having the force of law violating such right is void under Article 13(Thirteen) (1) (One) of the Constitution of India. Therefore, the Plaintiffs are entitled for liberation of the Adi Visheshwar shrine and restoration of religious rights over the place in question.

103. That Indian Constitution is transformative and very purpose of enacting Article 13(1) (Thirteen) (One) of the Constitution is that the illegal, inhuman and barbaric orders, usages, practices and any command issued by previous sovereigns which runs counter to any provision of the Constitution including Article 25 (Twenty Five) be not continued as same have become void and non-est. Parliament or State Legislature cannot legalize such laws which curtails or infringes the fundamental rights of the citizens. As such section 4 (Four) of the Act is void abnitio.

104. That the right to religion is spiritual right. The religion cannot be divorced from life. It is inherent right. There is no embargo or limitation for exercising such right. The right to religion accurse everyday and every moment.

R. STATUTORY NOTICES:- R/1. Notice to the Central and State Government: 105. That a notice under Section 80 (Eighty) of CPC to Government of India and Government of Uttar Pradesh was sent through

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speed post on 19.11.2020 (Nineteen Eleven Twenty Twenty) which was delivered to them on 23.11.2020 (Twenty Third Eleven Twenty Twenty). A notice was sent to the Chief Secretary of the Government of Uttar Pradesh through Speed Post on 20.11.2020 (Twenty Eleven Twenty Twenty) which was delivered him to on 23.11.2020(Twenty Three Eleven, Twenty Twenty). A Notice was sent 03,12.2020 (Three Twelve Twenty Twenty) to Government of India, Chief Secretary Uttar Pradesh, Government of Uttar Pradesh, District Magistrate and Senior Superintendent Police Varanasi Which was delivered on 07.12.2020 (Seven Twelve, Twenty Twenty) and 10.10.2020 (Ten Ten Twenty Twenty). No reply of the notice has been given by concerned Defendants and they have not taken any steps in pursuance of the notice.

R/2 Notice to the Waqf Board: 106. That a notice under Section 89 (Eighty Nine) of Waqf Act,1995 (Nineteen Ninety Five) was sent to U.P. Sunni Waqf Board through speed post on 19.11.2020 (Nineteen Eleven Twenty Twenty) and 3.12.2020 (Three Twelve Twenty Twenty) which have been delivered on 23.11.2020 (Twenty Three Eleven, Twenty Twenty) and 07.12.2020 (Seven Twelve, Twenty Twenty) respectively to the addressee. No reply of the notice has been given by concerned Defendant and they have not taken any steps in pursuance of the notice.

S. Cause of Action: 107. That there is continuous wrong being committed by Defendants No.5 (five) and 6 (Six). The State has not taken any steps to restore the religious rights of the Plaintiffs. As such the cause of action for filling the suit is continuing and also arose on 23.01.2021 (Twenty Three One Twenty Twenty One),

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7.02.2021(Seven Two Twenty Twenty One) and 10.02.2021 (Ten Two Twenty Twenty One) when two months time elapsed and defendants failed to take action in the matter to redress the grievance of the plaintiffs.

T. Court Fee: 108. That the property in suit is being used for religious purposes on which no municipal tax is payable. The property in suit cannot be valued in terms of Money. The suit is being field for decree of Declaration and Injunction. The valuation of the suit is fixed at Rs. 15,00,000 /- (Fifteen Lakhs) for the purposes of court fee and pecuniary Jurisdiction of the Court. The description of payment of court fee is being given herein below:-

Srl No. Nature of relief Valuation Court fee paid 1 For declaration Relief No. 1 Rs. 15,00,000 Rs. 200/- /- (Fifteen (Two Hundred) Lakhs) 2 For declaration Relief No. 2 Rs. 15,00,000 Rs.200/ /- (Fifteen (Two Hundred) Lakhs) 3 For Perpetual Injunction Rs. 15,00,000 Rs.500/ Relief No. 3 /- (Fifteen (Five hundred) Lakhs) 4 For Mandatory Injunction to Rs. 15,00,000 Rs.500/- State Government and the /- (Fifteen (Five hundred) Board of Trustees Lakhs) 5. Total Court Fee paid - Rs.1400/- (One Thousand Four Hundred Only )

PRAYER

It is therefore, respectfully prayed that Hon’ble Court may pleased to:-

A. Pass a decree in the nature of declaration declaring that the worshippers of Maa Goddess Shringar Gauri, Goddess Maa Ganga, Lord Hanuman, Lord Ganeshji, Nandiji alongwith Lord Adi Visheshwar are entitled to have Darshan, Pooja and Worship

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of deities within the area of Settlement Plot No.9130 (Nine Thousand One Hundred Thirty), measuring about 1(One) Bhiga, 9 (Nine) Biswas and 6 (Six) Dhoors situated at Dashashwamedh in the heart of City of Varanasi, Ward and Police Station Dashashwamedh;

B. Pass a decree in the nature of declaration declaring that the entire Avimukteshwar area belongs to plaintiff deity Asthan Lord Adi Visheshwar in the radius of 5 (Five) Kos (Krosh) from the principal seat at Settlement Plot No.9130 (Nine Thousand One Hundred Thirty), measuring about 1(One) Bhiga, 9 (Nine) Biswas and 6 (Six) Dhoors situated at Dashashwamedh in the heart of City of Varanasi, Ward and Police Station Dashashwamedh.

C. Pass a decree in the nature of perpetual injunction against defendants prohibiting them, and their workers, agents, officers, officials and every person acting under them from interfering with, or raising any objection or obstruction in the construction of New Temple building consisting of Goddess Maa Shringar Gauri along with Lord Ganesh, Nandi Ji and other subsidiary deities at Principle seat of Asthan Adi Visheshwar at Settlement Plot No.9130 (Nine Thousand One Hundred Thirty), measuring about 1(One) Bhiga, 9 (Nine) Biswas and 6 (Six) Dhoors situated at Dashashwamedh in the heart of City of Varanasi, Ward and Police Station Dashashwamedh after demolishing and removing the existing buildings and structures etc, situated thereat, in so far as it may be necessary are expedient to do so for the said purpose.

D. Decree the suit of plaintiffs issuing Mandatory Injunction directing defendant No.2 (Two) the Government of Uttar Pradesh and Defendant No.7 (Seven) the Board of trustees of Kashi Vishwanath Temple, created under Shri Kashi Vishwasnath Temple Act, 1983 (Nineteen Eighty Three) to restore pooja and

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worship of Goddess Gauri Shringarji, Goddess Maa Ganga, Lord Hanuman, Lord Ganeshji, Nandiji alongwith Lord Adi Visheswar and make appropriate arrangement for Darshan and Pooja by worshippers and maintain law and order situation;

E. Pass such other decree in favor of plaintiffs for which they are found entitled to and deemed fit and proper by the Hon’ble Court in the interest of justice; and

F. Decree the suit with cost in the favor of the plaintiffs against the defendants.

Drafted By HARI SHANKAR JAIN, Advocate

Place: Varanasi Dated: 17.02.2021 (Seventeen Two Twenty Twenty One) PLAINTIFFS

1. Ranjana Agnihotri as Next friend of plaintiff No. 1

2. Jitender Singh “Vishen” as Next friend of plaintiff No. 2

3. Ranajan Agnihotri

4. Jitender Singh “Vishen”

5. Ankur Sharma

6. Dr. Ram Prasad Singh

7. Shishir Chaturvedi

8. Neeraj Shankar Saxena

9. Rakesh Kumar Agarwal

10. Kuldeep Tiwari as President Jan Udgosh Sewa Sansthan

Through Advocates Hari Shankar Jain,

Pankaj Kumar Verma

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Verification

I, Ms. Ranjana Agnihotri next friend of Plaintiff No.1 (One) and also Plaintiff No. 3 do hereby verify that the contents of paragraph Nos. 1, 2, 4, 5, 6 with sub paras, 7 with sub paras, 8 with sub paras, 40 to 43, 57, 58, 62, 63, 64, 67, 68, 74, 75, 76, 89 to 92, 100, 101, 102, 104 to 108 of this plaint are true to my knowledge and those of paragraph Nos. 3, 44 to 46, 47 with sub paras, 48 to 50, 77 to 82, 83 with sub paras, 84 to 86 are true based on record and those of paragraph Nos. 9 to 16, 17 with sub paras, 19 to 33, 34 with sub paras, 35 to 39, 59, 60, 87, 88 are believed to be true and those of paragraph Nos 18, 51 to 56, 61, 65, 66, 69 to 73, 93 to 99, 103 are believed to be true on the basis of legal advice. Nothing has been concealed. Signed and verified this 17th (Seventeenth) day of February, 2021 (Two Thousand and Twenty One) within Civil Court Compound Varanasi, Uttar Pradesh.

Plaintiff

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