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NEW DELHI: The Sunni Waqf Board and the Muslim parties faced a big challenge on Wednesday as they sought to convince the Supreme Court to trash the Archaeological Survey of India’s 2003 excavation report, which indicated existence of a massive Hindu structure resembling north Indian temples beneath the demolished Babri Masjid at the disputed site in Ayodhya .

Appearing for the Muslim parties, senior advocate Meenakshi Arora said, “The ASI report cannot be accepted by the court as its conclusions were not signed by anyone. So, no one took responsibility for the correctness of the conclusions, which were way beyond the findings in other nine chapters of the report. This report, being based on conjectures and assumptions, cannot be categorised as expert opinion. The SC, if it takes it into account, must regard it as extremely weak evidence.

“The ASI’s excavation report suffers from glaring inconsistencies and mistakes in identifying periods to which various stages of construction of the massive structure belonged to. The Allahabad High Court erred in accepting the report without considering serious objections raised by Muslim parties.”

The ASI report of August 25, 2003, said, “Viewing in totality and taking into account the archaeological evidence of a massive structure just below the (disputed) structure and evidence of continuity in the structural phases from the 10th century onwards up to the construction of the disputed structure along with the yield of stones and decorated bricks as well as mutilated sculpture of divine couple and carved architectural members including follage patterns, amalaka, kapotapali door-jamb with semi-circular pilaster, broken octagonal shaft of black schist pillar, lotus motif, circular shrine having pranala (water chute) in the north, fifty pillar bases in association of the huge structure, are indicative of remains which are distinctive features found associated with the temples of north India.”

The bench comprising Chief Justice Ranjan Gogoi and Justices S A Bobde, D Y Chandrachud, Ashok Bhushan and S Abdul Nazeer put Arora in a spot by informing her that the ASI report appeared to have been validly accepted by the three-judge bench of the HC after it was forwarded to it by excavation team leader Hari Manjhi , thus making it part of records and giving it the weight of a court commissioner’s report.

When Arora argued that the report went wrong in determining the period to which the layers of the “massive structure” belonged, Justice Bobde said, “Even if we accept that stratification was wrong, how does it impinge the finding that a massive structure existed below the disputed site? What is below the disputed site is attributable to temple, whether it belonged to one period or other is immaterial.”

CJI Gogoi and Justices Bobde, Chandrachud and Bhushan asked her why the Muslim parties did not ask the HC to summon the archaeologists for cross-examination to discredit the ASI report to firmly entrench their argument that the report was legally untenable as a piece of evidence.

Arora said the massive structure beneath could be an Idgah, or prayer hall, given the huge western wall mentioned in the report. Justice Bhushan said, “Is there any pleading by Muslim parties claiming it to be an Idgah?” Arora said Sunni Waqf Board’s suit was filed in 1961 and the claim of temple beneath the disputed structure came only in 1989 through a suit filed on behalf of the deity. “So, the board could not have mentioned about Idgah in its suit as the mosque was standing there at that time,” she said.

Summing up queries of Justices Bobde and Chandrachud, CJI Gogoi said, “As per law, report of a court commissioner becomes evidence on record unless the court is dissatisfied with it or a party calls the maker of the report for cross-examination and succeeds in discrediting it. Waqf Board did not request the HC to summon the ASI excavators and cross-examine them. You did not avail of the right available to you at the stage of trial of suits. At the appeal stage, can it be raised for the first time?” Arora promised to meet the question on Thursday.

