Updated: September 10, 2021 11:48:50 am
Underlining that a High Court “can interfere in order to keep the tribunals and Courts subordinate to it ‘within the bounds of their authority’,” the Allahabad High Court Thursday stayed the order of a Varanasi court which had called for a “comprehensive archaeological physical survey” of the disputed Kashi Vishwanath Temple-Gyanvapi Mosque complex.
Justice Prakash Padia ordered a stay on petitions filed by the UP Sunni Waqf Board and Anjuman Intezamia Masjid Varanasi, challenging the April 8 order of the Varanasi court.
The miscellaneous application filed by the Board was part of a writ petition being heard on the dispute before the Allahabad High Court. It had reserved the order on March 15 after arguments in the matter were completed.
“From perusal of the record, it is clear that the judgment was reserved in all pending petitions by this Court, after hearing the learned counsel for the parties at length on 15.03.2021. The court below has full knowledge to the fact that the judgement has already been reserved on 15.03.2021. In view of the matter, the court below should not have proceeded and decided the application filed by the plaintiffs in the Original Suit for survey by Archaeological Survey of India,” the High Court order stated, referring to the Varanasi court order.
“In the opinion of the Court, the Court below should wait for the verdict in the petitions pending before this Court and not to proceed further in the matter till the time a judgement is delivered,” it stated.
Justice Padia said: “The judicial courtesy and decorum warranted such discipline which was expected from the Court below but for unfathomable reasons, neither of the courses were taken. It is to be regretted that the court below departed from this traditional way in the present case and chose to examine the question himself. I have said so with the fond hope that judicial enthusiasm should not obliterate the profound responsibility that is expected from the Court below.”
“Moreover, this Court is of the opinion that the High Court in exercise of its jurisdiction of superintendence can interfere in order to keep the tribunals and Courts subordinate to it, ‘within the bounds of their authority’. The High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. It is also held by the Hon’ble Apex Court that the main objection of Article 227 of the Constitution of India is to keep strict administration of judicial control by the High Court on administration of justice within its territory,” he said.
Earlier, on April 8, Varanasi Fast Track Court Civil Judge (Senior Division) Ashutosh Tiwari, while stating that “the matter in dispute pertains to have connection with our deep history”, ordered the Director General of Archaeological Survey of India to “get a comprehensive archaeological physical survey” done of the Kashi Vishwanath Temple-Gyanvapi Mosque complex and “find out as to whether the religious structure standing at present at the disputed site is a superimposition, alteration or addition or there is a structural overlapping of any kind, with or over, any religious structure”.
This order came less than a month after the Supreme Court sought the Centre’s response on a PIL challenging the constitutional validity of the Places of Worship (Special Provisions) Act, 1991 which mandates that the nature of all places of worship, except the one in Ayodhya that was then under litigation, shall be maintained as it was on August 15, 1947, and that no encroachment of any such place prior to the date can be challenged in courts.
The Act, brought in by the P V Narasimha Rao-led Congress government during the height of the Ram temple movement, also applies to the disputed Kashi Vishwanath Temple-Gyanvapi Mosque complex in Varanasi and the Krishna Janmabhoomi Temple-Shahi Idgah Mosque in Mathura – two places, once part of the temple campaigns, later shielded by the 1991 law. Even the Supreme Court, in its landmarking November 2019 ruling on the Ram Janmabhoomi-Babri Masjid title suit which went in favour of the Hindu parties, had underlined that the Act is “a legislative intervention which preserves non-retrogression as an essential feature of our secular values”.
Ruling on a 2019 application by lawyer-petitioner Vijay Shankar Rastogi — the original suit in 1991 was titled Ancient Idol of Swayambhu Lord Vishweshwar and Others Vs Anjuman Intezamia Masjid and Another — who called it “a representative suit wherein the interest of large number of persons, having faith in Hindu religion, are at stake”, Judge Tiwari rejected the argument of the defendants that since “a mosque has been entered at the disputed site in the revenue records, hence the same is not open for challenge”.
He said “it is well settled that a revenue entry is not conclusive piece of evidence establishing the title of the person whose name has been mutated”.
The 1991 suit sought restoration of the ancient temple at the site where the Gyanvapi Mosque currently stands. UP Sunni Waqf Board’s lawyer SFA Naqvi said petitions were filed in the Allahabad High Court over the maintainability of the suit.
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