Gyanvapi-Kashi Title Dispute | 'Procedural Aberration, Jurisdictional Impropriety': Allahabad HC CJ Specifies Reasons For Withdrawing Cases From Single-Judge

In a significant order, the Chief Justice of the Allahabad High Court has specified the reasons for the withdrawal of the cases concerning the Kashi Vishwanath-Gyanvapi land title dispute (from the bench of Justice Prakash Padia) by stating that the decision was taken by him (CJ) on the administrative side "in the interest of judicial propriety and judicial discipline as well as the transparency in the listing of cases".

Chief Justice Pritinker Diwaker, in his order dated August 28, a copy of which was made available earlier today, has reasoned that non-observance of the procedure in listing the cases, passing of successive orders for reserving the judgment and again listing the cases before the Judge (Justice Prakash Padia) for hearing through he no longer had the jurisdiction as per the master of the roster, had led to the withdrawal of the cases.

"The non-observance of procedure in listing of the cases, passing of successive orders for reserving the judgment and again listing the cases before the learned Judge for hearing, though he no longer had jurisdiction in the matter as per the roster, under the directions received from the chamber of learned Judge, without allowing the parent section in the office to have access to the records of these cases are instances of non-observance of procedure settled for listing and hearing of cases," the order reads.

The order of the Chief Justice, which essentially deals with the objections to the transfer of the cases to his bench, also refers to the administrative order passed by him on August 11, withdrawing the cases from the bench of Justice Prakash Padia. 

For the uninitiated, as reported by LiveLaw on August 25, the Kashi Vishwanath-Gyanvapi Mosque land title dispute cases were transferred to the bench of Chief Justice. This development had come exactly a month after a different bench (comprising Justice Prakash Padia), which had been hearing the matter since August 2021, concluded the hearing and reserved the orders in the matter on July 25.

In the complaint, the primary argument raised by the counsel for one of the parties was that after 35 hearings in the matter, Justice Padia reserved the Judgment in the matter for the first time in March 2021, however, the Judgment was not delivered for 7 months and the matter was again directed to be listed along with other writ petitions in October 2021.

Thereafter, the case was heard for around 12 months and judgment was reserved on November 28, 2022 and the matter was against listed in May 2023 and again the judgment was reserved in July this year.

Further, referring to the Apex Court's Judgment in the case of Umesh Rai vs State of U.P. 2023 Live Law SC 448 wherein it was held that a judgment must be pronounced within a period of six months failing which the matter should be placed before another bench for fresh arguments, the complaint argued that since in the instant matter, the said 6 month period lapsed on May 26, the cases should now be assigned to another bench as the judgment had been reserved in this case thrice and the order of the Apex Court had been violated blatantly.

CJ calls for an explanation of the Registry

While dealing with the aforementioned complaint, a report was called from the office of the registry to explain as to why did it not place the matter before the Chief Justice to pass appropriate orders in terms of the administrative order of December 2013 (regulating the listing of cases before the Judges as per the roster).

The report submitted by the registry before the CJ, among other things, specified that these cases could not have been listed before the Single Judge without obtaining an appropriate nomination from the Chief Justice as per the roster notified on November 22, 2021, and subsequent rosters notified by the Chief Justice, from time to time.

The registry also reported that the records of these cases were never sent to the parent section in the registry for the procedures to be followed for listing the cases in terms of the applicable orders, both on the administrative side and the judicial side.

The registry also stated that all records of leading files along with connected cases remained in the chambers of the Judge and the cases were listed on the instructions of the Bench Secretary and the officials attached to the Single Judge's chambers and as per the registry, the parent section responsible for listing of the cases before the Court had no access to the records of the cases as the files were never sent to the registry.

CJ's passes order, on the administrative side, withdrawing the cases

Taking note of the report of the registry and the circumstances of the case, the CJ, on the administrative side, decided to withdraw the cases from the Single Judge while stressing that the facts of the case posed a more troubled scenario of procedural aberration.

In its order, passed on the administrative side on August 11, withdrawing the case, the Chief Justice had opined that it would be in the interest of judicial propriety and judicial discipline as well as the transparency in the listing of cases, to withdraw the aforestated cases from the Bench (Prakash Padia, J) wherein the judgement is reserved and to nominate afresh. Consequently, on August 25, a bunch of petitions came to be nominated to the present Bench (Chief Justice).

The background of the cases

The pleas before the Court include a challenge to the maintainability of a suit filed before a Varanasi court, seeking the restoration of a temple at the site where the Gyanvapi mosque exists.

Another plea before the bench is of the Anjuman Masjid Committee (which manages the GYANVAPI MOSQUE), challenging a 2021 order of the Varanasi Court to conduct an archaeological survey of the Mosque complex to determine whether a Hindu temple was partially razed to build the Gyanvapi mosque in the 17th century.

It may be noted that the proceedings in the matter pending before the Varanasi Court were stayed by the Allahabad High Court in September 2021, effectively staying the ASI Survey order as well.

The Varanasi Court's order had come in a petition filed by Advocate Vijay Shankar Rastogi on behalf of Swayambhu Jyotirlinga Bhagwan Vishweshwar. The application was filed in a suit filed by the Ancient Idol Of Swayambhu Lord Vishweshwar And 5 Others in the year 1991 claiming the restoration of the land on which the Gyanvapi Mosque stands to Hindus.

The Plaintiffs, in the suit, sought a declaration that the land on which the Mosque is built belongs to the Hindus. As is well known, the land title dispute relates to the Gyanpavi Mosque, allegedly built on the ruins of the Kashi Vishwanath temple. The suit has been challenged before the HC and the said challenge has been clubbed with a bunch of matters concerning the dispute.

Last year, the bench of Justice Prakash Padia had reserved its order in the cases, however, the Court, in May this year sought certain clarifications and hence, the matters were listed at regular intervals.

Case Title - Anjuman Intazamia Masazid Varanasi vs. Ist A.D.J. Varanasi And Others [MATTERS UNDER ARTICLE 227 No. - 3341 of 2017]

Case Citation: 2023 LiveLaw (AB) 321

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