In a recent order, Justice Ajay Bhanot of the Allahabad High Court stayed the decision of a trial court to proceed with the hearing of the Kashi Vishwanath Temple-Gyanvapi Mosque dispute.



A trial court in Varansi on February 4, while hearing the original suit filed in 1991, relating to the long standing land title dispute between the Kashi Vishwanath Mandir Trust and the Anjuman Intazamia Masjid, ordered that it will commence hearing forthwith.

The trial court observed that the stay imposed by the Allahabad High Court on proceedings of the dispute was no longer in subsistence and hence, it could proceed with the hearing.

In the backdrop, the Allahabad High Court had vide order dated October 13, 1998, in case titled Anjuman Intezamiya Masajid Varanasi v. Ist Additional District Judge, Varanasi & Ors., WP No. 32565/1998 (now registered as MUA227 No. 3341/2017), imposed an interim stay on the hearing of the dispute in question.

"Untill further orders by this court further proceeding pursuant to order dated 23.09.1998 in suit no. 610 of 1991 pending in the court of 2nd respondent shall remain stayed," the high court had ordered.

Vide the impugned order however the trial court held that the stay order stood vacated in light of the Supreme Court's verdict in Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. v. Central Bureau of Investigation, 2018 (16) SCC 299.

In Asian Resurfacing (supra), the top court had held that "all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended."

The trial court observed that since the stay order passed by the Allahabad High Court in 1998 had not been extended by a separate order within six months, the stay was deemed to be vacated and it could resume hearing of the case.

Impugning this order of the trial court, Anjuman Intazamia Masjid moved the High Court contending that the directions issued by the Supreme Court in Asian Resurfacing (supra) did not fall within the purview of "law" declared by the Supreme Court under Article 141 of the Constitution but it rather fell within the purview of Article 142 of the Constitution and hence, the same was not binding on its subordinate courts.

As per Article 141 of the Constitution, all courts and authorities have to implement the orders of the Supreme Court with deference and in letter and spirit immediately after the judgments are rendered. However, orders under Article 142 of the Constitution of India can be enforced only in the manner prescribed therein.

The Petitioner's counsel argued that the Supreme Court's direction was relatable to Article 142 of the Constitution, enforceable only in the manner prescribed by or under any law made by the Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

He then submitted that since the law made by Parliament or a Presidential order, as contemplated under Article 142 of the Constitution, was not placed before the trial court, it was thus led into error.

Finding substance in that argument while also holding that the Petitioner's submissions may have serious repercussions on a large number of other cases, the court stayed the impugned order and invited members of the Bar to assist the Court.

"Considering the fact that submissions made on behalf of the petitioner may have serious repercussions on a large number of other cases, learned advocates from the Bar at large are also invited to assist the Court in this matter.

Matter needs consideration.

Till the next date of listing, the effect and operation of the order dated 04.02.2020 passed in Original Suit No. 610 of 1991(annexed as annexure 1 to the petition) shall remain stayed," the high court ordered.

The matter has been fixed for consideration on March 17, 2020.

Meanwhile, the court has also called for the records in Anjuman Intezamiya Masajid Varanasi v. Ist Additional District Judge, Varanasi & Ors., WP No. 32565/1998.

The land title dispute relates to the Gyanpavi Mosque, allegedly built on the ruins of Kashi Vishwanath temple. According to the suit filed by the Temple's Trust in 1991, the temple was destroyed by Mughal emperor Aurangzeb in 1664 and the mosque was built using the remains of the temple.

The original suit was stayed by the Allahabad High Court in 1998, on a representation made by the opposite party, Anjuman Intazamia Masji that the dispute could not be adjudicated by a civil court.

In February this year, the trust approached the lower court again with a plea to resume the hearing as the stay order was not extended by the high court.

It is also essential to note that last year in August, the Supreme Court had clarified in Fazalullah Khan v. M. Akbar Contractor (D) By Lrs. & Ors., CA No. 6088/2011, that its decision in Asian Resurfacing (supra) to vacate stay orders in six months was not applicable to the stay orders passed by the Supreme Court and that the trial courts and high courts should keep that aspect in mind.

By implication, it would mean that the decision in Asian Resurfacing (supra) applies to the stay orders passed by all courts other than the Supreme Court, i.e. the High Courts and the trial courts. However, there is no explicit observation to that end.

Case Details:

Case Title: Anjuman Intezamiya Masajid Varanasi v. Ancient Idol Of Swayambhu Lord Vishweshwar & Ors.

Case No.: Matters U/A 227 No. 1521/2020

Quorum: Justice Ajay Bhanot

Appearance: Senior Advocate Syed Farman Ahmad Naqvi and Advocates Syed Ahmed Faizan and Zaheer Asghar (for Petitioner); Advocate Punit Kumar Gupta (for Respondents)