HAFIZ MOHAMMAD ISMAIL Vs. MINICIPAL BOARD

JUDGEMENT

(1.) This is an appeal against the judgment and decree dated 15 July 1935 of the Civil Judge of Benares by which the plaintiffs claim for perpetual injunction restraining the defendants from construct, ing a building was dismissed. In the heart of the city of Benares, there was situated in the year 1929 a small cloth market called Naya Chowk which was the property of the Municipal Board of Benares. In the year 1929 the Municipal Board of Benares resolved to demolish the market and to reconstruct in its place a new one. During the course of pulling down of this market, while the work of excavation was going on, on 6 January 1930 an old Hindu idol was found buried under ground and was excavated. Underneath this idol were the ruins of some old building or temple which became visible on excavation but were not actually unearthed. On the discovery of the idol the Hindu public of Benares desired to worship it and to house it in a temple to be constructed on the spot where the idol was discovered. Close to the market at a distance of about 30 feet there is situated a Mahomedan mosque which is in charge of a mutwalli. The mutwalli of the mosque and the Mahomedan public of Benares raised an objection to the idol being worshipped or a temple being constructed close to the mosque and on their opposition a problem arose with regard to the housing of the idol. The Municipal Board at first asked the Archeological Department of the Government to take charge of the idol and the site. But the department having come to the conclusion that the idol and the site was not of any archeological interest declined to take it in its charge. The Municipal Board thereupon stayed its hands and suspended further excavation and building of the market.

(2.) Some time later, the Municipal Board of Benares was superseded by the Government and Mr. Lynch the Additional District Magistrate of Benares in due course was appointed its administrator. In February 1935 Mr. Dible, the Commissioner of Benares, Mr. Jasbir Singh, the Collector of Benares, and Mr. Lynch, the Administrator of the Municipal Board of Benares, came to an agreement to close up the controversy which existed with regard to the idol excavated at Naya Chowk in the circumstances mentioned above. With the concurrence of the Commissioner the Collector suggested certain orders to be passed by Mr. Lynch which Mr. Lynch approved and accepted and on 18 February 1935, Mr. Lynch passed the following order: 1. Read papers regarding a proposal to construct Municipal Shops on Municipal land in the Naya Chowk Market. 2. The area is already congested. It will become very congested if more shops are built as was originally proposed. The proposal to build shops is therefore abandoned. Instead the site will be laid out and maintained as a Municipal park.

(3.) Regarding the idol, which was found when excavation was started in 1929, I recognise that the Hindus cannot be expected to remove it, now after such a period has elapsed. A building will therefore be constructed, out of Municipal funds to house it underground. This building will be constructed in accordance with the plan prepared by the Municipal Engineer as finally amended and approved and will be maintained in future by the Municipal Board. The public will have access to it at all times for the purposes of performing worship of the idol.