The Lucknow Bench of the Allahabad High Court has dismissed a PIL seeking the appointment of a committee headed by a retired judge of the High Court or Supreme Court to study the nature of the structure found in the Gyanvapi campus to ascertain as to whether it is a Shivling.
The Division Bench of Justice Rajesh Singh Chauhan and Justice Subhash Vidyarthi passed this order while hearing a PIL filed by Sudhir Singh and 6 others.
The petition has been filed by 7 persons praying that a direction be issued “to appoint a Committee / Commission headed by a Judge of the High Court or Supreme Court (sitting or retired) to study the nature of structure found in the Gyan Vapi Campus to ascertain as to whether it is Shivlinga, as being claimed by the Hindus or it is a fountain as being claimed by few of the Muslims and to direct the concerned respondents to act accordingly to such report means if it is a Shivlinga then permit the devotees to pray it as per rituals and if it is found fountain then make it functional.”
Abhinav Narayan Trivedi, the Chief Standing Counsel, has raised the following preliminary objections against maintainability of the petition:-
(i) Several suits are pending in the Civil Court at Varanasi regarding the structures existing in Gyanvapi compound, Varanasi and, therefore, the writ petition concerning the same subject matter should not be entertained by the Court.
(ii) As per the orders of the Supreme Court passed in Special Leave Petition, the suits filed at Varanasi concerning the controversy relating to Gyanvapi Compound which were pending in the court of Civil Judge (Senior Division) Varanasi, have been transferred to the Court of District Judge, Varanasi. The aforesaid Special Leave Petition is still pending before the Supreme Court and it is fixed for 21.07.2022 and, therefore, it would not be proper for the Court to entertain a petition while the dispute is pending in the form of various civil suits before the District Judge, Varanasi and it is also engaging the attention of the Supreme Court in the aforesaid pending SLP.
(iii) The subject matter of the writ petition is Gyanvapi compound situated at Varanasi and it falls within the territorial jurisdiction of the High Court sitting at Allahabad. Therefore, the Court sitting at Lucknow has no territorial jurisdiction to entertain the petition and the petition is liable to be dismissed for want of territorial jurisdiction.
(iv) The State Counsel opposed the petition and has submitted that the writ petition does not disclose the credentials of the petitioners and the only thing pleaded in this regard is that the petitioners are the followers of Sanatana Dharma. The petition which has allegedly been filed in public interest, is not maintainable, unless the petitioners disclose their credentials so as to establish that they have actually approached the Court in public interest only. Placing reliance on a decision of the Supreme Court in the case of Ardhendu Kumar Das Versus State of Odisha and others, 2022 SCC OnLine SC 718, the learned State Counsel has submitted that the writ petition filed purportedly in public interest is actually designed to obtain publicity only and, therefore, it is liable to be dismissed at the threshold.
When the Court called upon the counsel for the petitioners to give a reply to the preliminary objections raised by the State Counsel, he categorically stated that he is not bound to reply to each and every submission made by the State Counsel.
However, when the Court put a question to the counsel for the petitioners as to how a Writ Petition can be entertained by the Court in respect of the subject matter which is already the subject matter of suits filed before the Civil Court at Varanasi, the counsel for the petitioners stated that the relief claimed in the Public Interest Litigation has not been claimed in any of the suits and, therefore, pendency of the suit would not be a bar against filing of the Public Interest Litigation.
When called upon to address the Court on the point of maintainability of the petition before the Court sitting at Lucknow when the subject matter of the petition is situated at Varanasi, the counsel for the petitioners submitted that Article 226 of the Constitution empowers every High Court to issue writs to any person or authority without any territorial fetters and in the past, he had filed a writ petition in this Court regarding Ram Setu situated in Tamil Nadu and that petition had been entertained without any objection regarding territorial jurisdiction.
He further submitted that Article 226 of the Constitution does not contain any provision for separate Benches of the High Court.
The territorial jurisdiction of the High Court sitting at Allahabad and at Lucknow has not been divided by the Constitution or by any statute. The Chief Standing Counsel has informed that at least 5 regular suits bearing Regular Suit have been filed in the Court of Civil Judge (Senior Division) at Varanasi.
In this petition, the petitioners have sought a direction to the respondents to appoint a Committee / Commission to study the nature of the structure found in the Gyanvapi Campus.
The structures existing in Gyanvapi compound at Varanasi are already the subject matter of dispute in various civil suits mentioned above and in Civil Suit a declaration has been sought regarding the right to perform all the rituals of “visible and invisible deities” within the temple complex situated at Settlement Plot in the area of Ward and Police Station Dashashwamedh, District Varanasi.
The Court noted,
In Suit a declaration has been sought to the effect that the worshippers of Ma Goddess Shrigar Gauri, Goddess Ma Ganga, Lord Hanuman, Lord Ganeshji, Nandiji along with Lord Adi Vishweshwar are entitled to have Darshan, Pooja and Worship of the deities within the area of Settlement Plot, measuring about 1 Bigha, 9 Biswas and 6 Dhoors situated at Dashashwamedh in the heart of City of Varanasi, Ward and Police Station Dashashwamedh.
A commission for local inspection has already been issued and it has been carried out in Civil Suit under orders passed by the Civil Judge (Senior Division), Varanasi and as per the plaintiffs, a shivling has been found during local inspection of the site by the Commissioner appointed by the Court and this claim is being disputed by the other side and having regard to the complexity of the issues involved, the Supreme Court has directed that the aforesaid Civil Suit shall be transferred to the Court of the District Judge, Varanasi, for trial and all interlocutory and ancillary proceedings in the suit have also been directed to be decided by the District Judge, Varanasi.
Keeping the aforesaid facts in consideration, the Court opined that it is not proper on the part of the petitioners to invoke the jurisdiction of the High Court by filing a PIL seeking a relief regarding the subject matter, which is already the subject matter of the pending suits as also of the aforesaid SLP. For the aforesaid reason, we are not declining to entertain the writ petition.
The Court held,
A perusal of Article 226 of the Constitution of India makes it manifest that it confers power upon every High Court to issue directions, orders or writs throughout the territories in relation to which it exercises jurisdiction. Clause (2) of the Article 226 of the Constitution of India further provides that the power to issue directions, orders or writs may be exercised by any High Court exercising jurisdiction in relation to the territory within which the cause of action wholly or in part arises for exercise of such power, notwithstanding that the seat of the Government, authority or the residence of any person to whom direction, order or writ is to be issued, is not within those territories.
Article 226 of the Constitution of India confers powers on this Court to issue writs to any person or authority throughout the territories in relation to which it exercises jurisdiction, and it can issue writs in relation to the territories within which the cause of action for exercising such power arises. Therefore, the submission of the counsel for the petitioners that Article 226 of the Constitution of India empowers every High Court to issue writs to any person or authority and Article 226 of the Constitution of India does not put any territorial fetters on the powers of the High Court, is without any substance and the same is rejected.
The submission of the counsel for the petitioners is that the Amalgamation Order dated 19.07.1948 lost its efficacy after the Constitution of India came into force on 26.01.1950. His submission is that Article 226 of the Constitution of India contains no provision limiting the territorial jurisdiction of the Court at Lucknow to the areas which were historically known as the ‘Oudh Region’ and this Court’s jurisdiction is not limited to the areas of Oudh and the writ petition filed for the reliefs concerning the subject matter situate at Varanasi can be filed and entertained at Lucknow.
The Court further held that the Court sitting at Lucknow has no territorial jurisdiction to entertain this writ petition filed at Lucknow regarding the subject matter situated at Varanasi.
The Court said that the writ petition has not been filed on the ground of violation of any fundamental right or any statutory right of the public at large, which may warrant the issuance of a writ petition. Existence of a legally enforceable right and denial or violation thereof is a prerequisite for invoking the writ jurisdiction of the Court under Article 226 of the Constitution of India.
“Ardhendu Kumar Das Versus State of Odisha and others, 2022 SCC OnLine SC 718 was a case arising out of a public interest litigation filed in the Orissa High Court challenging the alleged unsanctioned and unauthorized construction activities undertaken within the prohibited area of the Shree Jagannath Temple Complex in contravention of the provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958. The order passed by the High Court in the aforesaid Public Interest Litigation Petition was challenged by a person who was not the petitioner before the High Court, by filing a SLP before the Supreme Court. He had based his claim of locus on the basis of being ‘ardent devotee of Lord Jagannath’. The aforesaid observations of the Supreme Court squarely apply to the present petition, which has although been styled as a ‘Public Interest Litigation’, but which does not contain any mention of any legally enforceable right of the public at large having been infringed or denied and it appears that the petition has been filed merely in order to gain some publicity. The filing of a Public Interest Litigation for the oblique motive of gaining publicity, as held by the Supreme Court, needs to be nipped in the bud by dismissing the same at the admission stage itself,” the Court observed while dismissing the writ petition.