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TMI Blog2018 (9) TMI 2082X X X X Extracts X X X X X X X X Extracts X X X X ..... Yusuf Hatim Muchhala, Sr. Adv., Mr. Zafaryab Jilani, Adv., Mr. Ejaz Maqbool, AOR, Mr. C. George Thomas, Adv., Ms. Akriti Chaubey, Adv., Ms. Qurratulain, Adv., Ms. Tanya Shree, Adv., Mr. Kunwar Aditya Singh, Adv., Mr. Shakil Ahmed Syed, AOR, Mr. Mohd. Parvez Dabas, Adv., Mr. Uzmi Jameel Husain, Adv., Mr. Pulkit Chandna, Adv., Mr. M. Tayab Khan, Adv., Mr. Mujeebuddin Khan, Adv., Mr. Niaz Ahmed Farooqui, Adv., Mr. Milan Laskar, Adv., Mr. Amit Kumar Srivastava, Adv., Mr. M.R. Shamshad, AOR, Mr. Nizam Pasha, Adv., Mr. Zaki Ahmad Khan, Adv., Mr. Aditya Samaddar, Adv., Ms. Sarah Haque, Adv., Mr. Syed Shahid Hussain Rizvi, AOR, Mr. Syed Mansoor Ali, Adv., Mr. Zeeshan Rizvi, Adv., Mr. M. Tayyab Khan, Adv., Mr. Mujeebur Rehman, Adv., Mr. Prakash Sharma, Adv., Mr. Anuj Saxena, Adv., Ms. Pratibha Jain, AOR, Mr. S.S. Shamshery, Adv., Mr. D. Bharat Kumar, Adv., Mr. Yash Mishra, Adv., Mr. Ankit Raj, Adv., Ms. Indira Bhakhar, Adv., Mr. Rajesh Singh, Adv., Mr. Vineet Pandey, Adv., Mr. Santosh Kumar, Adv., Mr. T. Bhaskar Gowtham, Adv., Ms. Ruchi Kohli, AOR, M/s. Fox Mandal & Co., AOR, Mr. Irshad Ahmad, AOR, Mr. Vishnu Shankar Jain, AOR, Mr. M.C. Dhingra, AOR, Mr. Sanjeev Malhotra, AOR. For the Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., Mr. Gaurav Yadava, Adv., Ms. Veena Bansal, Adv., Mr. B.K. Satija, AOR, Mr. P.V. Yogeswaran, AOR, Mr. Ashish K. Upadhyay, Adv., Mr. V. Susheatha, Adv., Mr. Buvan, Adv., Mr. Sushil Kumar Jain, AOR, Mr. Karunesh Kumar Shukla, Adv., Mr. Yasswyi Mishra, Adv., Ms. Rachna Gandhi, Adv., Mr. Anish Kumar Gupta, AOR, Mr. Chandra Shekhar Suman, Adv., Mr. Avdhesh Kumar Singh, Adv., Ms. Rita Gupta, Adv., Ms. Deepshikha Bharati, Adv., Mr. Rajendra Kr. Singh, Adv., Ms. Harsha, Adv., Mr. Puneet Shoran, Adv., Mr. Nisarg Chaudhary, Adv., Mr. R.K. Rajwanshi, Adv., Ms. Swarupama Chaturvedi, AOR, Mr. Anish Kumar Gupta, Adv., Mr. B.N. Dubey, Adv., Ms. Devika Gulati, Adv., Mr. Kumar Gaurav, Adv., Mr. Robin Khokhar, Adv., Mr. Mukesh Verma, Adv., Mr. Pankaj Kumar Singh, Adv., Mr. Pawan Kumar Shukla, Adv., Mr. Shiv Kumar Tiwari, Adv., Mr. Yash Pal Dhingra, AOR, Mr. Barun Kumar Sinha, Adv., Mrs. Pratibha Sinha, Adv., Mr. Birendra Kumar Choudhary, Adv., Mr. Arun Kumar, Adv., Mr. Aditya Sharma, Adv., Mr. Swatantra Rai, Adv., Mr. B.K. Satija, AOR, Mr. Bhavanishankar V. Gadnis, Adv., Mr. Vishwanath B. Gadnis, Adv., Mr. Amit Pawan, AOR, Mr. Radni V. Gadnis, Adv., Mr. Bhavanishankar V. Gadnis, Adv., Mr. Vishwana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een a place of holy pilgrimage because of its mention in the epic Ramayana as the place of birth of Sri Ram. The structure commonly known as Ram Janma Bhoomi-Babri Masjid was erected as a mosque by one Mir Baqi in Ayodhya in 1528 AD. It is claimed by some Sections that it was built at the site believed to be the birth spot of Sri Ram where a temple had stood earlier. This resulted in a long-standing dispute. 1.2 The controversy entered a new phase with the placing of idols in the disputed structure in December 1949. The premises were attached Under Section 145 of the Code of Criminal Procedure. Civil suits were filed shortly thereafter. Interim orders in these civil suits restrained the parties from removing the idols or interfering with their worship. In effect, therefore, from December 1949 till 6-12-1992 the structure had not been used as a mosque. 6. The movement to construct a Ram Temple at the site of the disputed structure gathered momentum in recent years which became a matter of great controversy and a source of tension. This led to several parleys the details of which are not very material for the present purpose. These parleys involving the Vishwa Hindu Parishad (VHP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the High Court in April 1955. On 1-2-1986, the District Judge ordered the opening of the lock placed on a grill leading to the sanctum sanctorum of the shrine in the disputed structure and permitted puja by the Hindu devotees. In 1959, a suit was filed by the Nirmohi Akhara claiming title to the disputed structure. In 1981, another suit was filed claiming title to the disputed structure by the Sunni Central Wakf Board. In 1989, Deoki Nandan Agarwal, as the next friend of the Deity filed a title suit in respect of the disputed structure. In 1989, the aforementioned suits were transferred to the Allahabad High Court and were ordered to be heard together. On 14-8-1989, the High Court ordered the maintenance of status quo in respect of the disputed structure (Appendix-I to the White Paper). As earlier mentioned, it is stated in para 1.2 of the White Paper that: ... interim orders in these civil suits restrained the parties from removing the idols or interfering with their worship. In effect, therefore, from December 1949 till 6-12-1992 the structure had not been used as a mosque. 5. As a result of the happenings at Ayodhya on 06.12.1992, the President of India issued a proclamatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eantime, we direct that on 67.703 acres of acquired land located in various plots detailed in the Schedule to the Acquisition of Certain Area at Ayodhya Act, 1993, which is vested in the Central Government, no religious activity of any kind by anyone either symbolic or actual including bhumi puja or shila puja, shall be permitted or allowed to take place. 5. Furthermore, no part of the aforesaid land shall be handed over by the Government to anyone and the same shall be retained by the Government till the disposal of this writ petition nor shall any part of this land be permitted to be occupied or used for any religious purpose or in connection therewith. 7. The above writ petition was ultimately decided on 31.03.2003 by a Constitution Bench, which judgment is reported in (2003) 4 SCC 1, Mohd. Aslam alias Bhure v. Union of India and Ors. Before the Constitution Bench, both the parties had placed reliance on Ismail Faruqui's case. This Court disposed of the writ petition directing that order of this Court dated 13.03.2002 as modified on 14.03.2002 should be operative until disposal of the suits in the High Court of Allahabad. The Allahabad High Court after hearing all the sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observations in Paragraphs 78 and 82 as noticed above. Dr. Dhavan further submits that a broad test of essentiality as laid down by Seven Judges Bench in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005 cannot be cut down by a later judgment of lesser strength, which judgments have introduced the test of integrality. He submits that the test of integrality is interchangable with essentiality test. Dr. Dhavan, during his submissions, has taken us to submissions made by various parties before the High Court, where reliance was placed on Ismail Faruqui's case. He has also referred to various grounds taken in these appeals, which grounds rely on the judgment of Ismail Faruqui's case. He submits that the above furnishes ample grounds for Appellants to pray for reconsideration of Ismail Faruqui's case. Dr. Dhavan in his notes 'For reference to a larger Bench' has clarified that questionable aspects as noted above are not the ratio of Ismail Faruqui's case. Dr. Dhavan submits that ratio in Ismail Faruqui's case can be summed up to the following effect: (i) The suits revive in their entir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding on the Appellants on the principle of finality. He submits that in the present case, the submissions made were a reargument of the submissions made in Ismail Faruqui's case as if it were an appeal against the said judgment by canvassing the correctness of the said judgment. He further submits that in addition to being binding on the parties, the judgment operates as a declaration of law Under Article 141 of the Constitution. 13. Shri Parasaran further submits that observations in Ismail Faruqui's case that a mosque is not an essential part of the practice of Islam have to be read in the context of validity of the acquisition of the suit property under the Act, 1993. He submits that this Court has not ruled that offering namaz by Muslims is not an essential religious practice. It only ruled that the right to offer namaz at every mosque that exists is not essential religious practice. But if a place of worship of any religion has a particular significance for that religion, enough to make it an essential or integral part of the religion, then it would stand on a different footing and would have to be treated differently and more reverentially. Mr. Parasaran respectfull ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rld are not essential for practice of Islam. During the submissions, he referred to various texts, sculptures of the religion of Islam. He further submits that the Al-Masjid, Al-Haram i.e. Ka'ba in Mecca is a mosque of particular significance for the reasons that there is Quranic command to offer prayers facing towards Ka'ba and to perform Haj as well as Umra in Ka'ba without which right to practise the religion of Islam is not conceivable. Two other Mosques namely, Al-Masjid Al-Aqsa i.e. Baitul Muqaddas in Jerusalem and Al-Masjid of Nabi at Madina also have particular significances for the reason that besides Ka'ba, pilgrimage to these two mosques have also been commanded by the sacred Hadiths. Shri Mishra in his submission has referred to and relied on various texts and sculptures. He has referred to verses of Holy Quran and Hadiths, which are principal source of religion of Islam, its beliefs, doctrine, tenets and practices. 18. Shri S.K. Jain, learned senior Counsel appearing for Nirmohi Akhada has also refuted the submission of Dr. Dhavan that Ismail Faruqui's case needs to be referred to a larger Bench. 19. Dr. Rajeev Dhavan in his submissions in rejoind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenging the Act, 1993, were transferred. No transfer of the suit having been made in the Supreme Court to be heard alongwith Ismail Faruqui's case, the judgment in Ismail Faruqui's case cannot be said to be judgment in the suits. What constitute an essential practice and how it is to be established is a pure question of law and not amenable to res judicata. It is open to this Court to examine the law relating to determination and application of the essential practices test. The observations on prayer in a Mosque not being essential or concept of particular significance and comparative significance are without foundation. Replying to the submission of Shri Tushar Mehta, Dr. Dhavan submits that State has not taken a non-neutral stance in the present proceedings. He submits that there is no delay on the part of the Appellants in praying for reconsideration of Ismail Faruqui's judgment. He submits that impugned judgment of the High Court is affected by the observations made in the Ismail Faruqui's case. He submits that submission of Shri Tushar Mehta that prayer is not bonafide and has been made only to delay the proceedings are incorrect and deserves to be rejecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words of LORD DENNING in the matter of applying precedents have become locus classicus: Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J.) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. * * * Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it. The above passage has been quoted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Power Co., (1987) 4 SCC 137, it was held: (SCC p. 157, paragraph 20) As often enough pointed out by us, words and expressions used in a judgment are not to be construed in the same manner as statutes or as words and expressions defined in statutes. We do not have any doubt that when the words "adjudication of the merits of the controversy in the suit" were used by this Court in State of U.P. v. Janki Saran Kailash Chandra [1974]1 SCR 31, the words were not used to take in every adjudication which brought to an end the proceeding before the court in whatever manner but were meant to cover only such adjudication as touched upon the real dispute between the parties which gave rise to the action. Objections to adjudication of the disputes between the parties, on whatever ground are in truth not aids to the progress of the suit but hurdles to such progress. Adjudication of such objections cannot be termed as adjudication of the merits of the controversy in the suit. As we said earlier, a broad view has to be taken of the principles involved and narrow and technical interpretation which tends to defeat the object of the legislation must be avoided. 142. In Rajeshwar Prasad Mishra v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and no more should be read into it than what it actually says. In paragraph 8 following has been laid down: 8.... A judgment should be understood in the light of facts of the case and no more should be read into it than what it actually says. It is neither desirable nor permissible to pick out a word or a sentence from the judgment divorced from the context of the question under consideration and treat it to be complete law decided by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. (See Mehboob Dawood Shaikh v. State of Maharashtra, (2004) 2 SCC 362.... 27. In the light of the above principles, we now revert back to the Constitution Bench judgment in Ismail Faruqui. We need to notice the issues which had come up for consideration before the Constitution Bench, the ratio of the judgment and the context of observations. We have noticed above that the Constitution Bench in Ismail Faruqui case decided five transferred cases, two writ petitions filed Under Article 32 and Special Reference No. 1 of 1993. The Special Reference No. 1 of 1993 made by the President of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e competence to enact the same. It was then urged by learned Counsel canvassing the Muslim interest that the legislation is tilted heavily in favour of the Hindu interests and, therefore, suffers from the vice of non-secularism, and discrimination in addition to violation of the right to freedom of religion of the Muslim community..... 30. The challenge to the acquisition of the area in excess of area which is disputed area was on the ground that same was unnecessary, hence, ought to be declared invalid. The challenge to excess area was laid by members of the Hindu community to whom the said plots belonged. One of the grounds of attack was based on secularism. It was contended that Act read as a whole is anti-secular and against the Muslim community. A mosque has immunity from State's power of acquisition. It was contended on behalf of the Muslim community that the defences open to the minority community in the suits filed by other side including that of adverse possession for over 400 years since 1528 AD when the Mosque was constructed have been extinguished by the acquisition. The suits have been abated without the substitution of an alternate dispute resolution mechanism to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing indicates that the discussion and all observations were in the context of immunity from acquisition of a mosque. In paragraph 65 of the judgment a larger question was raised at the hearing that there is no power in the State to acquire any mosque, irrespective of its significance to practice of the religion of Islam. The Court after noticing the above observation has observed that the proposition advanced does appear to be too broad for acceptance. We reproduce paragraph 65 which is to the following effect: 65. A larger question raised at the hearing was that there is no power in the State to acquire any mosque, irrespective of its significance to practice of the religion of Islam. The argument is that a mosque, even if it is of no particular significance to the practice of religion of Islam, cannot be acquired because of the special status of a mosque in Mahomedan Law. This argument was not confined to a mosque of particular significance without which right to practice the religion is not conceivable because it may form an essential and integral part of the practice of Islam. In the view that we have taken of limited vesting in the Central Government as a statutory receiver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agement have no bearing on the sovereign power of the State to acquire property. 37. The Constitution Bench further held that the right to practice, profess and propagate religion guaranteed Under Article 25 of the Constitution does not necessarily include the right to acquire or own or possess property. Similarly, this right does not extend to the right of worship at any and every place of worship. Further, it was held that protection Under Articles 25 and 26 of the Constitution is to religious practice which forms an essential and integral part of the religion. In paragraphs 77 and 78 following has been held: 77. It may be noticed that Article 25 does not contain any reference to property unlike Article 26 of the Constitution. The right to practice, profess and propagate religion guaranteed Under Article 25 of the Constitution does not necessarily include the right to acquire or own or possess property. Similarly this right does not extend to the right of worship at any and every place of worship so that any hindrance to worship at a particular place per se may infringe the religious freedom guaranteed Under Articles 25 and 26 of the Constitution. The protection Under Articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce has a particular significance for that religion so as to form an essential or integral part thereof. The Court itself has drawn a distinction with regard to the place of a particular significance for that religion where offer of prayer or worship may be an essential or integral part of the religion. 40. The Court held that the mosques were subject to the provisions of statute of limitation thereby extinguishing the right of Muslims to offer prayers in a particular mosque. In paragraph 80 following was held: 80. It has been contended that a mosque enjoys a particular position in Muslim Law and once a mosque is established and prayers are offered in such a mosque, the same remains for all time to come a property of Allah and the same never reverts back to the donor or founder of the mosque and any person professing Islamic faith can offer prayer in such a mosque and even if the structure is demolished, the place remains the same where the Namaz can be offered. As indicated hereinbefore, in British India, no such protection was given to a mosque and the mosque was subjected to the provisions of statute of limitation there by extinguishing the right of Muslims to offer prayers i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntegral part of that right. A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open. 43. Dr. Dhavan submits that above observation in Para 82 of the Constitution Bench judgment in Ismail Faruqui's case is the reason for reconsideration of the judgment. He submits that the above statements in paragraph 82 are wrong because it is wrong to say that: (vi) A mosque is not essential to Islam. (vii) The essential practices doctrine does not protect places of worship other than those having particular significance. 44. Elaborating his submission, Dr. Dhavan relies on several judgments of this Court where what are the essential practice of a religion had been elaborated and how the Court should determine the essential practice of a religion has been noticed. The submission is that above observations were made by the Constitution Bench on its ipse dixit without consideration of any material due to which reason the statement is unsustainable. 45. Before we proceed to examine the nature and content of above statement, it is relevant to have an overview of the law laid down by this Court with rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligion itself. In Para 19, following has been laid down: 19. The contention formulated in such broad terms cannot, we think, be supported. In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of Article 26(b). What Article 25(2)(a) contemplates is not Regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Ramanuj Das and Anr. v. State of Orissa and Anr. AIR 1954 SC 400. The Constitution Bench in Sri Venkataramana Devaru and Ors. v. State of Mysore and Ors. AIR 1958 SC 255 had occasion to consider Articles 25 and 26 of the Constitution of India in context of Madras Temple Entry Authorisation Act, 1947 as amended in 1949. Referring to Shirur Mutt case, following was stated in para 16(3): 16(3)....Now, the precise connotation of the expression "matters of religion" came up for consideration by this Court in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282), and it was held therein that it embraced not merely matters of doctrine and belief pertaining to the religion but also the practice of it, or to put it in terms of Hindu theology, not merely its Gnana but also its Bakti and Karma Kandas.... 50. Another judgment, which needs to be noticed is Mohd. Hanif Quareshi and Ors. v. State of Bihar AIR 1958 SC 731. A writ petition Under Article 32 was filed questioning the validity of three legislative enactments banning the slaughter of certain animals passed by the States of Bihar, Uttar Pradesh and Madhya Prades ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what constitutes an essential part of a religion or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion. 52. Next judgment to be noticed is Constitution Bench judgment of Tikayat Shri Govindlalji Maharaj etc. v. State of Rajasthan and Ors. AIR 1963 SC 1638. The validity of Nathdwara Temple Act, 1959 was challenged in the Rajasthan High Court. It was contended by Tilkayat that the idol of Shri Shrinathji in the Nathdwara Temple and all the properties pertaining to it were his private properties and hence, the State Legislature was not competent to pass the Act. It was also contended that if the temple was held to be a public temple, then the Act would be invalid because it contravened the fundamental rights guaranteed to the denomination Under Articles 25 and 26 of the Constitution. Gajendragadkar, J. speaking for the Court in Paragraphs 58 and 59 laid down following: 58. In deciding the question as to whether a given religious practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ractice of religion and to the denomination's right to manage its own affairs in matters of religion. Therefore, whenever a claim is made on behalf of an individual citizen that the impugned statute contravenes his fundamental right to practise religion or a claim is made on behalf of the denomination that the fundamental right guaranteed to it to manage its own affairs in matters of religion is contravened, it is necessary to consider whether the practice in question is religious or the affairs in respect of which the right of management is alleged to have been contravened are affairs in matters of religion. If the practice is a religious practice or the affairs are the affairs in matter of religion, then, of course, the right guaranteed by Article 25(1) and Article 26 (b) cannot be contravened. 53. The above decisions of this Court clearly lay down that the question as to whether particular religious practice is essential or integral part of the religion is a question, which has to be considered by considering the doctrine, tenets and beliefs of the religion. What Dr. Dhavan contends is that Constitution Bench in Ismail Faruqui's case without there being any consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s available for a mosque like any other place of worship of any religion. The right to worship is not at any and every place, so long as it can be practised effectively, unless the right to worship at a particular place is itself an integral part of that right. 56. The Court held that if the place where offering of namaz is a place of particular significance, acquisition of which may lead to the extinction of the right to practice of the religion, only in that condition the acquisition is not permissible and subject to this condition, the power of acquisition is available for a mosque like any other place of worship of any religion. Thus, observation made in paragraph 82 that mosque is not an essential part of the practice of the religion of Islam and namaz even in open can be made was made in reference to the argument of the Petitioners regarding immunity of mosque from acquisition. 57. The submission which was pressed before the Constitution Bench was that there is no power in the State to acquire any mosque, irrespective of its significance to practice of the religion of Islam. The said contention has been noticed in paragraph 65 of the judgment as extracted above. 58. The se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belief that Lord Rama was born there, the mosque was of significance for the Muslim community as an ancient mosque built by Mir Baqi in 1528 A.D. As a mosque, it was a religious place of worship by the Muslims. This indicates the comparative significance of the disputed site to the two communities and also that the impact of acquisition is equally on the right and interest of the Hindu community. Mention of this aspect is made only in the context of the argument that the statute as a whole, not merely Section 7 thereof, is anti-secular being slanted in favour of the Hindus and against the Muslims. 61. Dr. Dhavan has also taken exception to the phrase 'particular significance' as is occurring in the Constitution Bench judgment. He submits that all religions are equal and have to be equally respected by all including the State. All mosques, all churches and all temples are equally significant for the communities practicing and professing such religions. The concept that some places are of particular significance is itself faulty. We have bestowed our consideration to the above aspect of the matter. We have already noticed that the Constitution Bench held that acquisition is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing been upheld, the use of expression "particular significance" has lost all its significance for decision of the suits and the appeals. RES-JUDICATA 63. Shri Parasaran submits that Appellants are precluded from questioning the Ismail Faruqui's judgment. The Petitioner in Ismail Faruqui's case represented the right of the Muslim public, hence, all persons interested in such rights for the purposes of Section 11 be deemed to claim under the persons so litigating and are barred by res-judicata in view of Explanation VI to Section 11, Code of Civil Procedure. He further submits that judgment in Ismail Faruqui's case is part of the judgment in the suit itself, in view of the fact that IA in suits were transferred and decided alongwith petitions Under Article 32. The Appellants are thus clearly bound by the judgment in Ismail Faruqui's case. 64. Dr. Dhavan replying the submissions of Shri Parasaran submits that Ismail Faruqui's case was about a challenge to the Act, 1993, the Presidential reference and further as to whether in the light of Act, 1993 the suits abated due to Section 4(3) of the Act. The cases under appeal are from suits where the issues are entirel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sponsibility of representing all the beneficiaries of the Trust. In such a suit, though all the beneficiaries may not be expressly impleaded, the action is instituted on their behalf and relief is claimed in a representative character. This position immediately attracts the provisions of explanation VI to Section 11 of the Code. Explanation VI provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and Ors. all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. It is clear that Section 11 read with its explanation VI leads to the result that a decree passed in a suit instituted by persons to which explanation VI applies will bar further claims by persons interested in the same right in respect of which the prior suit had been instituted. Explanation VI thus illustrates one aspect of constructive res judicata. Where a representative suit is brought Under Section 92 and a decree is passed in such a suit, law assumes that all persons who have the same interest as the Plaintiffs in the representative suit were represented by the said Plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s judicata should be treated as not admissible or irrelevant in deciding writ petition filed Under Article 32. 68. A Constitution Bench of this Court in Sheodan Singh v. Daryao Kunwar AIR 1966 SC 1332, after elaborately considering the principles underlined Under Section 11 of the Code of Civil Procedure, held that there are five essential conditions which must be satisfied before plea of res judicata can be pressed. In paragraph 9 of the judgment, the conditions have been enumerated which are to the following effect: 9. A plain reading of Section 11 shows that to constitute a matter res judicata, the following conditions must be satisfied, namely -(I) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit; (II) The former suit must have been a suit between the same parties or between parties under whom they or any of them claim; (III) The parties must have litigated under the same title in the former suit; (IV) The court which decided the former suit must be a Court competent to try the subsequent suit or the suit in which such issue is subsequently raised; and (V) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal issue is one that is ancillary to a direct and substantive issue; the former is an auxillary issue and the latter the principal issue. The expression "collaterally or incidentally" in issue implies that there is another matter which is "directly and substantially" in issue(Mulla's Code of Civil Procedure, 15th edn., p. 104). Difficulty in distinguishing whether a matter was directly in issue or collaterally or incidentally in issue and tests laid down in various courts. 70. In Mahila Bajrangi (dead) through L.Rs. v. Badribai w/o Jagannath and Anr. (2003) 2 SCC 464, above principle was reiterated in following words in paragraph 6 which is to the following effect: 6....That apart, it is always the decision on an issue that has been directly and substantially in issue in the former suit between the same parties which has been heard and finally decided that is considered to operate as res judicata and not merely any finding on every incident or collateral question to arrive at such a decision that would constitute res judicata. 71. The impugned judgment has also categorically held that issues, which have been raised in the suits are not the issues, which can be said to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment Under Section 3 shall abate. After the ordinance Plaintiff had applied for amendment of plaints challenging the legality and validity of the Ordinance. High Court in the suits framed the issue namely "whether the suits have abated or survive". Many writ petitions were also filed in the High Court challenging the Ordinance. Writ Petition No. 208 of 1993, Mohd. Aslam v. Union of India and Ors. was also filed Under Article 32 in this Court. The Union of India had filed transfer petitions Under Article 139A for transferring of writ petitions filed in Allahabad High Court. By an Order dated 24.09.1993 passed in Union of India and Ors. v. Dr. M. Ismail Faruqui and Ors. (1994) 1 SCC 265, this Court allowed the transfer application transferring five writ petitions to be heard alongwith the Presidential Reference and writ petitions filed Under Article 32. The preliminary issue which was framed by the High Court in both the suits was stayed. It is useful to extract paragraph 4 and 7 of the order: 4. After the issuance of the Ordinance it appears that in the pending suits renumbered O.O.S. Nos. 3 and 4 of 1989 the Plaintiffs applied for amendment of the plaints challenging the legali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not find any substance in the above submissions raised by Shri Parasaran. Reliance on the judgment of Ismail Faruqui 76. Dr. Dhavan submits that Ismail Faruqui's judgment goes to the core of the issues in these appeals and it permeates throughout the impugned judgment in the suits. He submits that observations concerning comparative significance of the disputed site and the observation that a mosque is not an essential part of the practice of the religion of Islam, have permeated the impugned judgment as the Hindu parties have successfully claimed that the disputed site, which is allegedly the birthplace of Lord Ram is protected by Articles 25 and 26. Dr. Dhavan has referred to various observations of the HIGH Court in the impugned judgment to support his submission. He has also referred to various grounds taken in the appeals filed against the judgment of the High Court. 77. Shri Parasaran and Shri Tushar Mehta refuting the above submission contend that even if the judgment of Ismail Faruqui has been referred to in the submission of the counsel for the parties before the High Court and has been noticed in the impugned judgment, the impugned judgment in no way is affected b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (para 9) and Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi (supra). In order to show what constitutes public order Under Article 25 of the Constitution, he also placed reliance on Dalbir Singh and Ors. v. State of Punjab AIR 1962 SC 1106 (para 8). 3502. Next he submits that applying the doctrine of Eminent Domain, the place in dispute, having special significance for Hindus, cannot be touched at all either by any particular person or even by State and the provisions of even acquisition would not apply to it though with respect to the alleged mosque, it has been already held and observed by the Apex Court that the disputed building could not be shown to be of any special significance to Muslims. He refers to Dr. M. Ismail Faruqui and Ors. v. Union of India and Ors. (1994) 6 SCC 360 (para 65, 72, 75 and 96); Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj and Ors. v. State of Gujarat and Ors. (1975) 1 SCC 11. The relief sought by the Plaintiff (Suit-4) is barred by Section 34 Specific Reliefs Act, 1963 and reliance is placed on Executive Committee of Vaish Degree College, Shamli and Ors. v. Lakshmi Narain and Ors. (1976) 2 SCC 58 (para 20 and 27); American Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment is as follows: 5. In view of the decision of the Apex Court in Dr. M. Ismail Faruqui etc. v. Union of India and Ors. (1994) 6 SCC 360: AIR 1995 SC 605, the area of land in dispute which is to be adjudicated by this Court is now restricted to what has been referred to in para 4 above, i.e. main roofed structure, the inner Courtyard and the outer Courtyard. In fact, the area under the roofed structure and Sahan, for the purpose of convenience shall be referred hereinafter as "inner Courtyard" and rest as the "outer Courtyard". Broadly, the measurement of the disputed area is about 130X80 sq. feet. 82. Dr. Dhavan, in his written submissions, has mentioned details of several other places, where Justice Sudhir Agarwal has referred to Ismail Faruqui's case in the impugned judgment. 83. Justice Dharam Veer Sharma, while giving a dissenting judgment has referred to submission of parties in Ismail Faruqui's case at Paras 3038 and 3039 of Volume III, following observations have been made while considering the Issue No. 19(d): On behalf of Defendants it is contended that the building in question was not a mosque under the Islamic Law. It is not disputed that the stru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1963 on the ground that they have superior fundamental rights. Contentions of Hindus are as under: The Hindus have superior fundamental right than the Muslims under articles 25 & 26 of the Constitution of India for the reasons that performing customary rituals and offering services worship to the lord of universe to acquire merit and to get salvation as such it is integral part of Hindu Dharma & religion in view whereof it is humbly submitted that the instant suit is liable to be dismissed with exemplary cost:" 86. Dr. Dhavan further submits that Justice Sharma has relied on submissions advanced by Shri P.N. Mishra, who had relied on paragraphs 77, 78, 80 and 82 of Ismail Faruqui's case. Dr. Dhavan has also referred to submission of Shri Ravi Shankar Prasad, which was noticed by Justice Sharma that the right of Hindus to worship at the Rama Janam Bhumi, continuing since times immemorial was an integral part of their religious right and faith and was also sanctified by judicial orders since 1949. This right has concretised and has to be protected. 87. Although Dr. Dhavan has referred to various passages from impugned judgment, where reference has been made of Ismail Faruqui& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing effect: 4053. It is in this context that certain facts place on record are mentioned therein but it cannot be said that those facts stood adjudicated by the Apex Court for the reason that those facts neither were in issue before the Court nor actually have been adjudicated. The only one question which has specifically been considered and decided that was necessary in the light of challenge thrown to the power of acquisition of land over which a mosque existing. It appears that pro-mosque parties raised a contention that a mosque cannot be acquired because of special status in Mohammedan Law irrespective of its significance to practice of the religion of Islam. This argument in the context of acquisition of land was considered from para 68 (AIR) and onwards in the judgment. The Court has held that the right to worship of Muslims in a mosque and Hindus in a temple was recognised only as a civil right in British India. Relying on the Full Bench decision of Lahore High Court in Mosque Known as Masjid Shahid Ganj v. Shiromani Gurdwara Prabandhak Committee, Amritsar AIR 1938 Lahore 369 where it was held that a mosque if adversely possessed by non muslims it will loose its sacr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offered anywhere even in open. The Court also held that unless the right to worship at a particular place is itself an integral part of that right, i.e., the place is of a particular significance, its alienability cannot be doubted. The Apex Court having answered the various questions on the validity of the Act 1993 decline to answer the reference and returned the same as such as it is. The suits having been revived due to striking down of Section 4(3) of the Act, this Court trying the original suits has to decide the entire matter on merits unless it can be shown that a particular issue which is engaging attention of this Court in trial of the original suit has already been raised, argued and decided by the Apex Court. The learned Counsels for the parties have not been able to show any such finding in respect to the matters which are involved in various issues before this Court and, therefore, we are not in agreement with the counsels for the parties as argued otherwise. (underlined by us) 91. The High Court has clearly held that an issue can be considered to be decided by a superior Court only when it was raised, argued and decided. Following was held in Paragraph 4054: 4054. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cance" and "comparative significance" as occurring in the judgment in Ismail Faruqui's case has also been noted and explained by us in foregoing paragraphs. The observations of this Court in Ismail Faruqui's case has to be understood as above. The question as to whether in the impugned judgment, reliance on Ismail Faruqui's case affects the ultimate decision of the High Court and needs any clarification or correction is a task, which we have to undertake with the assistance of learned Counsel for the parties in the present appeals. We, thus, conclude that reliance on the judgment of Ismail Faruqui by the High Court in the impugned judgment and reliance by learned Counsel for the Appellants and taking grounds in these appeals on the strength of judgment of Ismail Faruqui's case are all questions, on the merits of the appeals, which need to be addressed in these appeals. Thus, the above submission does not help the Appellant in contending that judgment of Ismail Faruqui's case needs reconsideration. Additional grounds for reference to larger Bench 96. Shri Raju Ramachandran, learned senior Counsel appearing for some of the parties has pressed for the reference t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this Clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion. 99. As per proviso, the reference to a bench of five judges can be made by judges sitting in lesser strength than five judges while hearing an appeal, on fulfilment of following two conditions: (i) The Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution; (ii) The determination of which is necessary for the disposal of the appeal. 100. The proviso to Article 145(3) as noted above, thus, clearly indicate that on fulfilment of both the conditions as noticed above, a bench of smaller strength than five judges can make a reference of a case to be heard by a Bench strength of five judges. This Court in Abdul Rahim Ismail C. Rahimtoola v. State of Bombay AIR 1959 SC 1315 had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion raised involves the interpretation of a provision of the Constitution and therefore the appeal of this Accused will have to be referred to a Bench consisting of not less than 5 Judges. Under Article 145(3) of the Constitution only a case involving a substantial question of law as to the interpretation of the Constitution shall be heard by a bench comprising not less than 5 Judges. This Court held in State of Jammu and Kashmir v. Thakur Ganga Singh AIR 1960 SC 356 that a substantial question of interpretation of a provision of the Constitution cannot arise when the law on the subject has been finally and effectively decided by this Court.... XXXXXXXXXXXXXXXX As the question raised has already been decided by this Court, what remains is only the application of the principle laid down to the facts of the present case. We cannot, therefore, hold that the question raised involves a substantial question of law as to the interpretation of the Constitution within the meaning Article 145(3) of the Constitution. 102. A three Judge Bench in People's Union for Civil Liberties (PUCL) and Anr. v. Union of India and Anr. (2003) 4 SCC 399 had also occasion to consider Article 145(3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come for consideration. Two exceptions were also noticed to the above noted principles in Para 12(3), which is to the following effect: (3) The above Rules are subject to two exceptions: (i) The abovesaid Rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the Rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M.P., 1988 (Supp.) SCC 522 was also a case where correctness of a five Judges decision in Sita Ram Goel v. Municipal Board, Kanpur and Ors. AIR 1958 SC 1036 was doubted. Further, judgments of this Court due to difference of opinion in two judgments or conflict of opinion in judgments insisted reference, which are cases of this Court in Ashwani Kumar and Ors. v. State of Bihar and Ors. (1996) 7 SCC 577 and Balasaria Construction (P) Ltd. v. Hanuman Seva Trust and Ors. (2006) 5 SCC 662, hence these cases also does not support the submission. The judgment of this Court in Acchan Rizvi (I) v. State of U.P. and Ors. (1994) 6 SCC 751 and Acchan Rizvi (II) v. State of U.P. and Ors. (1994) 6 SCC 752 are the cases where interlocutory applications in contempt petitions were filed and decided. No principle regarding reference was noticed, the said judgments have no relevance with regard to issue of reference of larger Bench. Similarly, judgment of this Court in Mohd. Aslam alias Bhure v. Union of India and Ors. (2003) 2 SCC 576 was a case where an interim order was passed by this Court with regard to acquisition of 67.703 acres of land as was noticed in Ismail Faruqui's case. This judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Venkatramiah - Vacation Judge in Ram Jethmalani v. Union of India, (1984) 3 SCC 696. The above order was passed in a Writ Petition (Criminal). Issue in the above case involves release of Sikh leaders detained after Punjab action. One of the issues noticed in the order was that it relates to personal liberty of a sizeable Section of the community. Court was of the view that question involved are too large and complex for the shoulders of a Single Judge. The Court opined that these and other cases of like nature should be heard by a seven Judges Bench of this Court. The above order was passed in the peculiar circumstances as noticed in the judgment and no principle of law has been laid down in context of reference of a case to a Constitution Bench. The above order was, thus, in peculiar facts of the case. 109. In Krishan Kumar v. Union of India and Ors. (1989) 2 SCC 504, the Court noticed that on the issue, there are no decided cases of this Court, hence the Court observed that in the above view, the matter should be referred to a larger Bench. That again was a judgment of two Judge Bench and there was no direction that reference should be made to a larger Bench contemplated in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... monetizing currency notes of Rs. 500/- and Rs. 1000/-. Various aspects of demonetization came for consideration in the writ petition filed Under Article 32 and the transfer petitions, where this Court noticed following in Paragraph 3: 3. Keeping in view the general public importance and the far-reaching implications which the answers to the questions may have, we consider it proper to direct that the matters be placed before the larger Bench of five Judges for an authoritative pronouncement. The Registry shall accordingly place the papers before the Hon'ble the Chief Justice for constituting an appropriate Bench. 111. In the above background, the three Judge Bench has directed the matter to be placed before larger bench of five judges. 112. Present is a case where appeals have been filed against judgment dated 30.09.2010 of Allahabad High Court by which Four Original Suits, which were transferred by the High Court to itself have been decided. Four Civil Suits were filed claiming title to the disputed structure. Parties lead elaborate evidences running in several thousands pages. The Court, after marshalling the evidences before it has decided the Civil Suits giving rise to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a temple. It is our fervent hope that that moderate opinion shall find general expression and that communal brotherhood shall bring to the dispute at Ayodhya an amicable solution long before the courts resolve it. 115. We are also reminded of rich culture and heritage of this ancient country which has always been a matter of great learning and inspiration for the whole world. 116. The great King Asoka in 245 B.C. (Before Christ), had given several messages to the world which are engraved in rock edicts which shows reverence towards faith of others. The Twelfth Rock Edict of the great King Asoka stated: The King, beloved of the Gods, honours every form of religious faith, but considers no gift or honour so much as the increase of the substance of religion; whereof this is the root, to reverence one's own faith and never to revile that of others. Whoever acts differently injures his own religion while he wrong's another's.' 'The texts of all forms of religion shall be followed under my protection. 117. Dr. S. Radhakrishnan, most Learned and respected former President of India, in his celebrated book "The Hindu View of Life" while dealing with the subject of " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for reconsideration. 121. We record our appreciation to the valuable assistance rendered by the learned Counsel for both the parties, especially Shri Ejaz Maqbool and P.V. Yogeswaran who have rendered great assistance to the Court in compiling various volumes in orderly manner which had been of great help to the Court, both, in hearing and deciding the issue. 122. The appeals which are awaiting consideration by this Court for quite a long period, be now listed in week commencing 29th October, 2018 for hearing. S. Abdul Nazeer, J. 123. I have had the privilege of reading the erudite judgment of my learned Brother Justice Ashok Bhushan. My learned Brother has held that the questionable observations made in paragraph 82 of the judgment in Dr. M. Ismail Faruqui and Ors. v. Union of India and Ors. (1994) 6 SCC 360 (for short 'Ismail Faruqui') are not relevant for deciding these appeals. Therefore, His Lordship has concluded that no case has been made out seeking reference of these appeals to a Constitution Bench of this Court. I am unable to accept this view expressed by my learned Brother. However, I am in respectful agreement with his opinion on the question of res judica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... une from acquisition. Among these paragraphs, the observations in paragraphs 77, 78 and 80 are important for the matter in hand and are reproduced as under: 77. It may be noticed that Article 25 does not contain any reference to property unlike Article 26 of the Constitution. The right to practise, profess and propagate religion guaranteed Under Article 25 of the Constitution does not necessarily include the right to acquire or own or possess property. Similarly this right does not extend to the right of worship at any and every place of worship so that any hindrance to worship at a particular place per se may infringe the religious freedom guaranteed Under Articles 25 and 26 of the Constitution. The protection Under Articles 25 and 26 of the Constitution is to religious practice which forms an essential and integral part of the religion. A practice may be a religious practice but not an essential and integral part of practice of that religion. 78. While offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular signif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her religions. Obviously, the acquisition of any religious place is to be made only in unusual and extraordinary situations for a larger national purpose keeping in view that such acquisition should not result in extinction of the right to practise the religion, if the significance of that place be such. Subject to this condition, the power of acquisition is available for a mosque like any other place of worship of any religion. The right to worship is not at any and every place, so long as it can be practised effectively, unless the right to worship at a particular place is itself an integral part of that right. (Emphasis supplied) 129. Dr. Rajeev Dhavan, learned senior Counsel, submits that the observations made in the above mentioned paragraph, reading "A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open." is contrary to law and the Court was obliged to examine the faith to make this statement. He further contends that the observations on the concepts of particular significance and comparative significance are without foundation. Moreover, he contends that what constitutes the essential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ially. It is argued that the fundamental right of Muslim community Under Article 25, to offer namaz is not affected in the present case as the Babri Masjid was not a mosque with particular significance for that religion. 131. We have also heard S/Shri C.S. Vaidyanathan, Raju Ramachandran, S.K. Jain, learned senior Counsel and Shri Tushar Mehta, learned Additional Solicitor General and Shri P.N. Mishra, learned advocate. 132. Learned Counsel for the parties have also produced Islamic religious texts on mosque, relevant excerpts of the holy Quran and illuminating discourses on the holy Quran in support of their respective contentions on whether a mosque is an essential part of the practice of the religion of Islam. 133. It is evident from Ismail Faruqui that the principal submission of the Petitioners was that mosque cannot be acquired because of a special status in Mahomedan Law. The Constitution Bench has discussed this aspect under a separate heading "Mosque - Immunity from Acquisition" from paragraph 65 of the judgment. Specifically in paragraph 74, the Court observed that subject to protection Under Articles 25 and 26 of the Constitution, places of religious worship, like mos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of Article 26(b). What Article 25(2)(a) contemplates is not Regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but Regulation of activities which are economic, commercial or political in their character though they are associated with religious practices. (Emphasis supplied) 135. Further, at pages 1028-1029 it is stated that, Under Article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters. Of course, the scale of expenses to be incurred in connection with these religious observances would be a matter of administration of property belonging to the religious denomination and can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the shrine, its growth and the story of its endowments and their management, it may now be relevant to enquire what is the nature of the tenets and beliefs to which Soofism subscribes. Such an enquiry would serve to assist us in determining whether the Chishtia sect can be regarded as a religious denomination or a Section thereof within Article 26. (Emphasis supplied) 139. In Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay 1962 Supp (2) SCR 496, this Court was considering the validity of the law interfering with the right of religious denominations to ex-communicate its members. In this context Articles 25 and 26 came to be considered. After referring to the various decisions a Constitution Bench of this Court has held as under: The content of Articles 25 and 26 of the Constitution came up for consideration before this Court in the Commissioner, Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt; Mahant Jagannath Ramanuj Das v. The State of Orissa; Sri Venkatamana Devaru v. The State of Mysore; Durgah Committee; Ajmer v. Syed Hussain Ali and several other cases and the main principles underlying these provisions have by these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts religion, because the community may speak with more than one voice and the formula would, therefore, break down. This question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion. It is in the light of this possible complication which may arise in some cases that this Court struck a note of caution in the case of Durgah Committee Ajmer v. Syed Hussain Ali [(1962) 1 SCR 383 at p. 411] and observed that in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 25(1). (Emphasis supplied) 141. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment delivered by Justice D.V. Sharma wherein Ismail Faruqui is quoted have been reproduced as under: ISSUE No. 19 (d): Whether the building in question could not be a mosque under the Islamic Law in view of the admitted position that it did not have minarets? FINDINGS: On behalf of Defendants it is contended that the building in question was not a mosque under the Islamic Law. It is not disputed that the structure has already been demolished on 6.12.1992. According to Dr. M. Ismail Faruqui and Ors. v. Union of India and Ors. case, 1994 (6) SCC 360, the Hon'ble Apex Court held at para 70 that the sacred character of the mosque can also be lost. According to the tenets of Islam, minarets are required to give Azan. There cannot be a public place of worship in mosque in which Provision of Azan is not available, hence the disputed structure cannot be deemed to be a mosque. According to Islamic tenets, there cannot be a mosque without place of Wazoo and surrounded by a graveyard on three sides. Thus, in view of the above discussions, there is a strong circumstance that without any minaret there cannot be any mosque. Issue No. 19(d) is decided accordingly, against the Plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... worship because of the belief of the Hindu based on religious book and religious practice to be birth place of Lord Ram as the temple was constructed in the 12th century. It is expedient to say that prior to 12th century there is evidence that earlier temples were also constructed at the site. Thus, according to Sri H.S. Jain, Advocate there is overwhelming evidence to establish the site of Ram Janambhumi and the Court has to recognize the same. Thus, the suit of the Plaintiffs which causes hindrance for worship of Hindu is liable to be dismissed on this count as no relief can be granted Under Section 42 of the Specific Relief Act, 1877, now Section 34 of the Specific Relief Act, 1963. [Printed volume of the judgment at page Nos. 3392] LORD RAM AS THE AVATAR OF VISHNU HAVING BEEN BORN AT AYODHYA AT THE JANMASTHAN IS ADMITTEDLY THE CORE PART OF HINDU BELIEF AND FAITH WHICH IS IN EXISTENCE AND PRACTICED FOR THE LAST THOUSANDS OF YEARS. THE HINDU SCRIPTURES ALSOS SANCTIFY IT. ARTICLE 25 OF THE CONSTITUTION BEING A FUNDAMENTAL RIGHT ENSUES ITS PRESERVATION AND NO RELIEF CAN BE TAKEN BY THE COURT WHICH SEEKS TO RESTRICT OR ALTOGETHER EXTINGUISH THIS RIGHT. The fact that Ram Janam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Punjab AIR 1962 SC 1106 (para 8). 3502. Next he submits that applying the doctrine of Eminent Domain, the place in dispute, having special significance for Hindus, cannot be touched at all either by any particular person or even by State and the provisions of even acquisition would not apply to it though with respect to the alleged mosque, it has been already held and observed by the Apex Court that the disputed building could not be shown to be of any special significance to Muslims. He refers to Dr. M. Ismail Faruqui and Ors. v. Union of India and Ors., (1994) 6 SCC 360 (para 65, 72, 75 and 96); Acharya Maharajshri Narendra Prasadji Anand prasadji Maharaj and Ors. v. State of Gujarat and Ors., (1975) 1 SCC 11. The relief sought by the Plaintiff (Suit-4) is barred by Section 34 Specific Reliefs Act, 1963 and reliance is placed on Executive Committee of Vaish Degree College, Shamli and Ors. v. Lakshmi Narain and Ors. (1976) 2 SCC 58 (para 20 and 27); American Express Bank Ltd. v. Calcutta Steel Co. and Ors. (1993) 2 SCC 199 (para 22). 147. After considering Ismail Faruqui, Justice Sudhir Agarwal in paragraphs 2722 to 2725 has opined as under: 2722. The Fourth angle: It is a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he religion, stand on a different footing and have to be treated differently and more reverentially. 2724. The above observations show if the religious endowment is of such nature, which is of specific significance or peculiar in nature, could not have been found elsewhere, the acquisition of such property by the Government will have the effect of depriving the worshippers their right of worship Under Article 25 of the Constitution and such an acquisition even under the statutory provision, cannot be permitted. We find sufficient justification to extend this plea to the statute of limitation also, inasmuch as, if the statute pertaining to acquisition cannot be extended to a religious place of special significance which may have the effect of destroying the right of worship at a particular place altogether, otherwise the provision will be ultra vires, the same would apply to the statute of limitation also and that be so, it has to be read that the statute of limitation to this extent may not be availed where the debutter's property is of such a nature that it may have the effect of extinction of the very right of worship on that place which is of peculiar nature and specific s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to destroy or completely negative its right to own and acquire movable and immovable property for even the survival of a religious institution the question may have to be examined in a different light. Para 82 - A mosque is not an essential part of the practice of religion of Islam and Namaz by Muslims can be offered anywhere, even in the open. Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India. Obviously, the acquisition of any religious place is to be made only in unusual and extraordinary situations for a larger national purpose. Keeping in view that such acquisition should not result in extinction of the right to practice the religion if the significance of that place be such. Note (i) Ram Janmasthan in Ayodhya where Ram Lala is Virajman is a place of religious significance as described in the above judgment. If the sovereign authority, under the power of eminent domain, cannot acquire it, can a plea at the instance of Plaintiffs who are private persons in Suit No. 4 be entertained, upholding of which would lead to denial of such sacred place altogether to the Hindus. Note (ii) At page 413, Para 65 of Ismail Faruqui - No argume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y hindrance to worship at a particular place per se may infringe the religious freedom guaranteed Under Articles 25 and 26 of the Constitution of India. The protection Under Articles 25 and 26 is to religious practice which forms integral part of practice of that religion. While offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an essential or integral part thereof. Places of worship of any religion having particular significance of that religion to make it an essential or integral part of the religion stand on a different footing and have to be treated differently and more reverentially. Relying on said judgment it is submitted that Sri Ramjanamsthan has particular significance for the Hinduism as visiting and performing customary rites confer merit and gives salvation it is firm belief of the Hindus based on their sacred Divine Holy Scriptures which belief neither can be scrutinized by any Court of Law nor can be challenged by the persons having no faith in Hinduism a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Hindus and will cause extinction of a most sacred shrine of the Hindus. Relevant paragraph Nos. 80 to 87 of the said judgment read as follows: 80. It has been contended that a mosque enjoys a particular position in Muslim Law and once a mosque is established and prayers are offered in such a mosque, the same remains for all time to come a property of Allah and the same never reverts back to the donor or founder of the mosque and any person professing Islamic faith can offer prayer in such a mosque and even if the structure is demolished, the place remains the same where the namaz can be offered. As indicated hereinbefore, in British India, no such protection was given to a mosque and the mosque was subjected to the provisions of statute of limitation thereby extinguishing the right of Muslims to offer prayers in a particular mosque lost by adverse possession over that property. 81. Section 3(26) of the General Clauses Act comprehends the categories of properties known to Indian Law. Article 367 of the Constitution adopts this secular concept of property for purposes of our Constitution. A temple, church or mosque etc. are essentially immovable properties and subject to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions made in Ismail Faruqui. Further, Ismail Faruqui prima facie leads a different approach regarding the application of essential and/or integral test which also needs to be resolved as a matter of constitutional significance. In my view, Ismail Faruqui needs to be brought in line with the authoritative pronouncements in Shirur Mutt and other decisions referred to in paragraphs 14 to 18 and 20 of this judgment. 150. The importance and seriousness of the matter can be better understood by the observations made by Justice S.U. Khan in the impugned judgment itself, in the following words: Here is a small piece of land (1500 square yards) where angels fear to tread. It is full of innumerable land mines. We are required to clear it. Some very sane elements advised us not to attempt that. We do not propose to rush in like fools lest we are blown. However, we have to take risk. It is said that the greatest risk in life is not daring to take risk when occasion for the same arises. Once angels were made to bow before Man. Sometimes he has to justify the said honour. This is one of those occasions. We have succeeded or failed? No one can be a judge in his own cause. Accordingly, her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; xxx xxx At this juncture, a submission has been advanced at the Bar that keeping in view the importance of the issue, the matter should be placed before the Constitution Bench. Accepting the said submission, it is directed that the matter be placed before Hon'ble the Chief Justice of India for constitution of appropriate Constitution Bench for dwelling upon the issues which may arise for consideration from the writ petitions. (Emphasis supplied) 152. Moreover, a two-Judge Bench of this Court on 6.7.2018 in Jyoti Jagran Mandal v. NDMC and Anr. [Civil Appeal No. 5820 of 2018] has referred the matter in relation to the policy decision permitting Ram Leela and Puja once in a year in public parks to a Constitution Bench holding as under: Application seeking exemption from filing certified copy of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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