Supreme Court of India
M.Siddiq (D) Thr. Lrs. vs Mahant Suresh Das on 27 September, 2018
Equivalent citations: AIR 2018 SUPREME COURT 5134, 2019 (1) ALJ 194, AIR 2019 SC (CIV) 1698, (2018) 11 SCALE 667, (2018) 6 KANT LJ 1, (2018) 4 CURCC 182, 2018 (4) KCCR SN 362 (SC), AIRONLINE 2018 SC 300
Author: Ashok Bhushan
Bench: S. Abdul Nazeer, Ashok Bhushan
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.
10866
10867 OF 2010
M. SIDDIQ (D) THR. LRS. … APPELLANT(S)
VERSUS
MAHANT SURESH DAS AND OTHERS ETC. … RESPONDENT(S)
WITH
C.A. No. 47684771/2011, C.A. No. 2636/2011,
C.A. No. 821/2011, C.A. No. 4739/2011, C.A. No. 4905
4908/2011, C.A. No. 2215/2011, C.A. No. 4740/2011, C.A.
No. 2894/2011, C.A. No. 6965/2011, C.A. No. 4192/2011,
C.A. No. 5498/2011, C.A. No. 7226/2011, C.A. No.
8096/2011, C.A.No. ________ of 2018 (@ Diary No.
22744/2017).
J U D G M E N T
ASHOK BHUSHAN, J.(For Self & Dipak Misra, CJI.)
These appeals were fixed for commencement of final
arguments on 05.12.2017, when Dr. Rajeev Dhavan, learned
senior counsel appearing for the appellants (C.A. No.
Signature Not Verified
Digitally signed by
DEEPAK GUGLANI
Date: 2018.09.27
16:02:26 IST
Reason: 1086610867 of 2010 and C.A. No. 2215 of 2011) submitted
that the Constitution Bench Judgment of this Court in
2
Dr. M. Ismail Faruqui and Ors. Vs. Union of India and
Ors., (1994) 6 SCC 360 (hereinafter referred to as
“Ismail Faruqui’s case”) needs reconsideration, hence
the reference be made to a larger Bench. The above
submission of Dr. Dhavan was opposed by learned counsel
appearing for the respondents. After completion of the
pleadings, when matter was again taken on 14.03.2018, we
thought it appropriate that we should hear Dr. Dhavan as
to whether the judgment in Ismail Faruqui’s case
requires reconsideration.
2. We have heard Dr. Rajeev Dhavan, learned senior
counsel for the appellants, Shri K. Parasaran and Shri
C.S. Vaidyanathan, learned senior counsel for the
respondents in Civil Appeal Nos. 47684771 of 2011, Shri
Tushar Mehta, learned Additional Solicitor General has
appeared for the State of U.P. We have also heard Shri
P.N. Mishra, Shri S.K. Jain and several other learned
counsels. Shri Raju Ramachandran, learned senior
counsel has also addressed submissions supporting the
reference to larger Bench. Learned counsel for the
parties have given their notes of submissions.
3. Before we notice the respective submissions of
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learned counsel for the parties, we need to notice few
facts, leading to the Constitution Bench decision in
Ismail Faruqui’s case. The sequence of events which
lead filing of these appeals be also noticed. The
Constitution Bench in Ismail Faruqui’s case has
extracted few facts from White Paper, which was
published by Central Government. In Para 5 and 6 of the
judgment, the Constitution Bench noticed:
“5. The ‘Overview’ at the commencement of the
White Paper in Chapter I states thus:
“1.1 Ayodhya situated in the north
of India is a township in District
Faizabad of Uttar Pradesh. It has
long been 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 BhoomiBabri
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 birthspot of Sri Ram where a
temple had stood earlier. This
resulted in a longstanding 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
4
restrained the parties from removing
the idols or interfering with their
worship. In effect, therefore, from
December 1949 till 6121992 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) and the All
India Babri Masjid Action Committee (AIBMAC),
however, failed to resolve the dispute. A new
dimension was added to the campaign for
construction of the temple with the formation
of the Government in Uttar Pradesh in June
1991 by the Bhartiya Janata Party (BJP) which
declared its commitment to the construction
of the temple and took certain steps like the
acquisition of land adjoining the disputed
structure while leaving out the disputed
structure itself from the acquisition. The
focus of the temple construction movement
from October 1991 was to start construction
of the temple by way of kar sewa on the land
acquired by the Government of Uttar Pradesh
while leaving the disputed structure intact.
This attempt did not succeed and there was
litigation in the Allahabad High Court as
well as in this Court. There was a call for
resumption of kar sewa from 6121992 and the
announcement made by the organisers was for a
symbolic kar sewa without violation of the
court orders including those made in the
proceedings pending in this Court. In spite
of initial reports from Ayodhya on 6121992
indicating an air of normalcy, around midday
a crowd addressed by leaders of BJP, VHP,
etc., climbed the Ram Janma BhumiBabri
Masjid (RJMBM) structure and started
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damaging the domes. Within a short time, the
entire structure was demolished and razed to
the ground. Indeed, it was an act of
“national shame”. What was demolished was not
merely an ancient structure; but the faith of
the minorities in the sense of justice and
fairplay of majority. It shook their faith in
the rule of law and constitutional processes.
A fivehundredyearold structure which was
defenceless and whose safety was a sacred
trust in the hands of the State Government
was demolished.”
4. The Constitution Bench has noticed details of suits,
which were filed in the year 1950 and thereafter, which
suits were ultimately transferred to the Allahabad High
Court to be heard together in the year 1989. In Para 9
of the judgment, following has been noticed:
“9. A brief reference to certain suits in
this connection may now be made. In 1950, two
suits were filed by some Hindus; in one of
these suits in January 1950, the trial court
passed interim orders whereby the idols
remained at the place where they were
installed in December 1949 and their puja by
the Hindus continued. The interim order was
confirmed by the High Court in April 1955. On
121986, 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,
6
the aforementioned suits were transferred to
the Allahabad High Court and were ordered to
be heard together. On 1481989, the High
Court ordered the maintenance of status quo
in respect of the disputed structure
(AppendixI 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
6121992 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 proclamation
under Article 356 of the Constitution of India assuming
to himself all the functions of the Government of Uttar
Pradesh, dissolving the U.P. Vidhan Sabha. As a
consequence of the events at Ayodhya on 06.12.1992, the
Central Government decided to acquire all areas in
dispute in the suits pending in the Allahabad High
Court. It was also decided to acquire suitable adjacent
area, which would be made available to two Trusts for
construction of a Ram Temple and a Mosque respectively.
The Government of India has also decided to request the
President to seek the opinion of the Supreme Court on
the question whether there was a Hindu temple existing
7
on the site where the disputed structure stood. An
ordinance was issued on 07.01.1993 namely “Acquisition
of Certain Area at Ayodhya Ordinance” for acquisition of
67.703 acres of land in the Ram Janam BhumiBabri Masjid
complex. A reference to the Supreme Court under Article
143 of the Constitution was also made on the same day,
i.e. 07.01.1993. The Ordinance No. 8 of 1993 had been
replaced by the Acquisition of Certain Area at Ayodhya
Act, 1993 (No. 33 of 1993) (hereinafter referred to as
“Act, 1993”). A Writ Petition Under Article 32 was
filed in this Court challenging the validity of the Act
No. 33 of 1993. Several writ petitions at Allahabad
High Court were also filed challenging various aspects
of the Act, 1993. This Court exercising its jurisdiction
under Article 139A had transferred the writ petitions,
which were pending in the High Court. The Writ
Petitions under Article 32, transferred cases from High
Court of Allahabad as well as Reference No.1 of 1993
made by President under Article 143 were all heard
together and decided by common judgment dated
24.10.1994, where the Constitution Bench had upheld the
validity of the Act except that of Section 4(3) of the
8
Act, 1993 which was struck down.
6. After the judgment of this Court in the above
Constitution Bench, all the suits, which had been
transferred by the High Court to be heard by a Full
Bench of the High Court stood revived. One Mohd. Aslam,
who was also one of the petitioners in Constitution
Bench Judgment in Ismail Faruqui’s case filed a writ
petition seeking certain reliefs with regard to 67.703
acres of land acquired under the Act, 1993. This Court
on 13.03.2002 passed an interim order. Paras 4 and 5 of
the interim order are as follows:
“4. In the meantime, 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
9
reported in (2003) 4 SCC 1, Mohd. Aslam alias Bhure Vs.
Union of India and Others. 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 suits on
merits decided all the suits vide its judgment dated
30.08.2010. The parties aggrieved both plaintiffs and
defendants in the original suits have filed these
appeals in this Court.
8. Dr. Rajeev Dhavan submits that judgment in Ismail
Faruqui’s case had made observations that 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. The observations made by the
Constitution Bench has influenced the decisions under
the appeal, the law laid down in Ismail Faruqui in
relation to praying in a mosque not being an essential
practice is contrary to both, i.e. the law relating to
essential practice and the process by which essential
10
practice is to be considered. Whether essential practice
can be decided on a mere ipse dixit of the Court or
whether the Court is obliged to examine belief, tenets
and practices, is a pure question of law. The Ismail
Faruqui’s judgment being devoid of any examination on
the above issues, the matter need to go to a larger
Bench.
9. Dr. Dhavan specifically referred to paras 78 and 82
of the judgment in Ismail Faruqui’s case. He
specifically attacked following observations in
Paragraph 78 :
“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 significance for that religion
so as to form an essential or integral part
thereof. Places of worship of any religion
having particular significance for 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.”
10. In Para 82, following observation is specifically
attacked:
“A mosque is not an essential part of the
practice of the religion of Islam and
namaz(prayer) by Muslims can be offered
11
anywhere, even in open.”
11. He submits that essential practice of a religion
requires a detailed examination. He has referred to
various judgments of this Court to support his
submission that wherever this Court had to determine the
essential practice of a religion, detailed examination
was undertaken. He submits that Ismail Faruqui’s case
does not refer to any material nor enters into any
detailed examination before making the 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 Vs. 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,
12
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 entirety.
(ii) The acquisition was legally competent,
traceable to List III and Entry 42 of the
Seventh Schedule of the Constitution.
(iii) The word ‘vest’ has multiple meanings and
implied that the status of the Central
Government was that of a statutory receiver
which would dispense with the land (including
the other areas acquired) in accordance with
the judgment in the suits rather than the
Reference which was declined.
(iv) Status quo as in Section 7(2) of the Act would
be maintained, justified on the basis of
comparative user since 1949.
(v) Secularism is a facet of equality and
represents equal treatment of all religions in
their own terms and with equal respect and
13
concern for all.
12. Shri K. Parasaran, learned senior counsel refuting
the submissions of Dr. Dhavan submitted that the prayer
for reconsideration of the judgment in Ismail Faruqui’s
case is not maintainable at the instance of the
appellants. He submitted that those who were eo nomine
parties to the proceedings in the case in Ismail
Faruqui, litigated bona fide in respect of a public
right viz. the right of the Muslim public, all persons
interested in such right shall, for the purposes of
Section 11 Civil Procedure Code, be deemed to claim
under the persons so litigating and are barred by Res
Judicata in view of Explanation VI to Section 11 C.P.C.
He submits that the interests of Muslim community were
adequately represented before this Court in Ismail
Faruqui’s case. He further submits that the judgment
in Ismail Faruqui’s case is binding on those who are eo
nomine parties thereto. Even apart from the question of
res judicata, the doctrine of representation binds those
whose interests are the same in the subject matter of
Ram Janam BhumiBabri Masjid as those of eonomine
parties. He submitted that the appellants are not
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entitled to request for reconsideration of the said
judgment on the principle of doctrine of representation.
Mr. Parasaran submitted that to reconsider the judgment
in Ismail Faruqui’s case will be an exercise in futility
as the judgment therein is binding on the present
appellants. Assuming without admitting that by a further
reference to a larger bench Ismail Faruqui’s case is
overruled, nevertheless, in so far as “Ayodhya
Janmasthan Babri Masjid” is concerned, the judgment in
Ismail Faruqui’s case will still be binding 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
15
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 respectfully submitted that the thrust of
the reasoning of this Court has to be understood as to
the freedom of religion under Articles 25 and 26 of the
Constitution in the context of the inherent sovereign
power of the State to compulsorily acquire property in
the exercise of its jurisdiction of eminent domain in a
secular democracy.
14. Shri Parasaran further submits that the fundamental
right of the Muslim community under Article 25, to offer
namaz, is not affected because the Babri Masjid was not
a mosque with particular significance for that religion.
The faith/practice to offer namaz is an essential part
16
of Muslim religion and, therefore, it may be performed
in any mosque at Ayodhya. Ayodhya is of particular
significance to the Hindus as a place of pilgrimage
because of the ancient belief that Lord Ram was born
there. He further submits that the impact of
acquisition is equally on the right and interest of both
the communities. Shri Parasaran, during his submissions,
has also tried to distinguish the cases relied by the
appellants to support their submissions in favour of
reference.
15. Shri C.S. Vaidyanathan has submitted that present is
not a case where judgment of Ismail Faruqui’s case need
any reference to a larger Bench. He has adopted the
submissions made by Shri Parasaran.
16. Shri Tushar Mehta, learned Additional Solicitor
General, submits that Constitution Bench judgment of
this Court in Ismail Faruqui’s case is a correct law,
which does not deserves to be disturbed by referring it
to a larger Bench. Shri Mehta further submits that the
prayer made by the appellants for referring to larger
Bench deserves to be rejected on the ground of
inordinate delay. He submits that judgment was rendered
17
in 1994. The judgment came for consideration in Mohd.
Aslam’s case, (2003) 4 SCC 1 where both the parties have
relied on the judgments. Had there been any genuine
grounds, request for reference ought to have been made
at that time. He further submits that a request is not
a bona fide request and has been made with the intent to
delay the proceedings. Shri Tushar Mehta, learned
Additional Solicitor General has reiterated his
submissions that State of U.P. is neutral in so far as
merits of the case of either of the parties is
concerned.
17. Shri Parmeshwar Nath Mishra, learned counsel
appearing for one of the respondents submits that all
Mosques of the World 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 AlMasjid, AlHaram 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
18
Masjid AlAqsa 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 rejoinder
refutes the submission of Shri Parasaran that principle
of res judicata is attracted in the present case. He
submits that Ismail Faruqui’s case was about a challenge
to the Act, 1993 and the Presidential Reference and the
question as to whether in the light of the Act, 1993 the
suits abated due to Section 4(3) of the Act, 1993. The
cases under these appeals are from suits, where the
issues were entirely different. He submits that for
19
constituting a matter res judicata the following
conditions must be satisfied, namely:
1. 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;
2. The former suit must have been a suit between
the same parties or between parties under whom
they or any of them claim;
3. The parties must have litigated under the same
title in the former suit;
4. 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
5. The matter directly and substantially in issue
in the subsequent suit must have been heard and
finally decided by the Court in the first suit.
Further Explanation I shows that it is not the
date on which the suit is filed that matters
but the date on which the suit is decided, so
that even if a suit was filed later, it will be
a former suit if it has been decided earlier.
In order therefore that the decision in the
earlier two appeals dismissed by the High Court
operates as res judicata it will have to be
seen whether all the five conditions mentioned
above have been satisfied.
20
20. He submits that matter, which was directly and
substantially in issue in the suits is entirely
different from the issues, which came for consideration
in the case of Ismail Faruqui. His submission is that
Ismail Faruqui’s case was concerned with the Act, 1993
and the Presidential Reference. He further submits that
issue of essentiality of a Mosque generally was not
before the Court and emerged only in the judgment. He
further submits that pure questions of law are not res
judicata. The ipse dixit of the Court that something
is, or not the essential practice is contrary to law.
He further submits that in the Constitution Bench, the
suits were not transferred rather it was the writ
petitions, which were filed in the High Court
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
21
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 nonneutral
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 rejected. Dr. Dhavan has also referred
to various observations made by judgment in High Court
to support its submissions that judgment of Ismail
Faruqui’s case has influenced the judgment of the High
Court. He has further referred to various submissions
made by the learned counsel for the parties relying on
judgment of Ismail Faruqui’s case before the High Court.
He further submits that in these appeals also, several
22
grounds have been taken by the different learned counsel
relying on Ismail Faruqui’s case.
21. Learned counsel for the parties have referred to and
relied on various judgments of this Court, which shall
be referred to while considering the submissions in
detail.
22. Before we enter into the submissions advanced by
the learned counsel for the parties it is relevant to
notice certain established principle on reading of a
judgment of the Court. The focal point in the present
case being Constitution Bench judgment in Dr. M. Ismail
Faruqui & Ors. vs. Union of India & Ors. reported in
(1994) 6 SCC 360. We have to find out the context of
observations made in the judgment which according to the
appellant are questionable and to decide whether the
said observations furnish any ground for reconsideration
of the Constitution Bench judgment. The most celebrated
principle on reading of a judgment of a Court of law
which has been approved time and again by this Court is
the statement by LORD HALSBURY in Quinn v. Leathem, 1901
AC 495, where following was laid down:
“Before discussing the case of Allen v.
Flood (1898) AC 1 and what was decided
23
therein, there are two observations of a
general character which I wish to make, and
one is to repeat what I have very often said
before, that every judgment must be read as
applicable to the particular facts proved, or
assumed to be proved, since the generality of
the expressions which may be found there are
not intended to be expositions of the whole
law, but are governed and qualified by the
particular facts of the case in which such
expressions are to be found. The other is
that a case is only an authority for what it
actually decides. I entirely deny that it can
be quoted for a proposition that may seem to
follow logically from it. Such a mode of
reasoning assumes that the law is necessarily
a logical code, whereas every lawyer must
acknowledge that the law is not always
logical at all. ”
23. The following 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
24
path of justice clear of obstructions which
could impede it.”
The above passage has been quoted with approval by
this Court in Sarva Shramik Sanghatana (KV), Mumbai vs.
State of Maharashtra and others, (2008) 1 SCC 494.
24. In the Constitution Bench judgment in Islamic
Academy of Education and another v. State of Karnataka
and others, (2003) 6 SCC 697, Chief Justice V.N. Khare
speaking for majority held:
“The ratio decidendi of a Judgment has to be
found out only on reading the entire
Judgment. In fact the ratio of the judgment
is what is set out in the judgment itself.
The answer to the question would necessarily
have to be read in the context of what is set
out in the judgment and not in isolation. In
case of any doubt as regards any
observations, reasons and principles, the
other part of the judgment has to be looked
into. By reading a line here and there from,
the judgment, one cannot find out the entire
ratio decidendi of the judgment. We,
therefore, while giving our clarifications,
are deposed to look into other parts of the
Judgment other than those portions which may
be relied upon.”
25. Justice S.B. Sinha, J. in his concurring opinion has
reiterated the principles of interpretation of a
judgment in paragraphs 139 to 146. Following has been
25
held in paragraphs 139146:
“INTERPRETATION OF A JUDGMENT
139. A judgment, it is trite, is not to
be read as a statute. The ratio decidendi of
a judgment is its reasoning which can be
deciphered only upon reading the same in its
entirety. The ratio decidendi of a case or
the principles and reasons on which it is
based is distinct from the relief finally
granted or the manner adopted for its
disposal.
[See Executive Engineer, Dhenkanal Minor
Irrigation Division v. N.C. Budharaj
[2001]2 SCC 721].
140. In Padma Sundara Rao v. State of
T.N.,(2002) 3 SCC 533, it is stated: (SCC p.
540 paragraph 9)
"There is always peril in treating the
words of a speech or judgment as though they
are words in a legislative enactment, and it
is to be remembered that judicial utterances
are made in the setting of the facts of a
particular case, said Lord Morris in
Herrington v. British Railways Board (1972) 2
WLR 537 [Sub nom British Railways Board v.
Herrington, (1972) 1 All ER 749.
Circumstantial flexibility, one additional or
different fact may make a world of difference
between conclusions in two cases."
[See also Haryana Financial Corporation v.
Jagadamba Oil Mills (2002 3 SCC 496]
141. In General Electric Co. v. Renusagar
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
26
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]1SCR31 , 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. The State
of West, Bengal, AIR 1965 SC 1887, it was
held:
"Article 141 empowers the Supreme Court
to declare the law and enact it. Hence the
observation of the Supreme Court should not
be read as statutory enactments. It is also
well known that ratio of a decision is the
reasons assigned therein."
(See also Amar Nath Om Prakash and Ors. v.
State of Punjab[1985] 1 SCC 345 and Hameed
Joharan v. Abdul Salam, 2001 (7) SCC 573).
143. It will not, therefore, be correct
to contend, as has been contended by Mr.
Nariman, that answers to the questions would
be the ratio to a judgment. The answers to
the questions are merely conclusions. They
have to be interpreted, in a case of doubt or
dispute with the reasons assigned in support
27
thereof in the body of the judgment, where
for, it would be essential to read the other
paragraphs of the judgment also. It is also
permissible for this purpose (albeit only in
certain cases and if there exist strong and
cogent reasons) to look to the pleadings of
the parties.
144. In Keshav Chandra Joshi v. Union of
India, 1992 Supp (1) SCC 272, this Court when
faced with difficulties where specific
guidelines had been laid down for
determination of seniority in Direct Recruits
Class II Engineering Officers' Association v.
State of Maharashtra, (1990) 2 SCC 715, held
that the conclusions have to be read along
with the discussions and the reasons given in
the body of the judgment.
145. It is further trite that a decision
is an authority for what it decides and not
what can be logically deduced therefrom. [See
Union of India v. Chajju Ram, (2003) 5 SCC
568.
146. The judgment of this Court in T.M.A.
Pai Foundations, (2002) 8 SCC 481, will,
therefore, have to be construed or to be
interpreted on the aforementioned principles,
The Court cannot read some sentences from
here and there to find out the intent and
purport of the decision by not only
considering what has been said therein but
the text and context in which it was said.
For the said purpose the Court may also
consider the constitutional or relevant,
statutory provisions visavis its earlier
decisions on which reliance has been placed.”
26. Justice Arijit Pasayat, J. speaking for the Court in
Commissioner of Central Excise, Delhi vs. Allied Air
conditioning Corporation (Regd.), (2006) 7 SCC 735, held
28
that the 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. 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 India under Article 143
29
was respectfully declined to be answered by the
Constitution Bench. The challenge in the writ petitions
under Article 32 and transferred cases was to the Act,
1993. The Act, 1993 was enacted to provide for the
acquisition of certain area at Ayodhya and for matters
connected therewith or incidental thereto. Section 2(a)
defines the area as:
“2(a) “area” means the area (including
all the buildings, structures or other
properties comprised therein) specified in
the Schedule;
28. The Schedule of the Act contained the description of
the area acquired. Apart from the other plots Revenue
Plot Nos.159 and 160 situated in village Kot Ramchandra
wherein structure commonly known as Ram Janam Bhumi
Babri Masjid was situated was also included. Several
other plots including all the building structure on
other properties comprised therein were acquired.
29. The validity of Act, 1993 was challenged on several
grounds. The ground for challenge has been noticed in
paragraph 17 of the judgment which is to the following
effect:
“17. Broadly stated, the focus of
challenge to the statute as a whole is on the
30
grounds of secularism, right to equality and
right to freedom of religion. Challenge to
the acquisition of the area in excess of the
disputed area is in addition on the ground
that the acquisition was unnecessary being
unrelated to the dispute pertaining to the
small disputed area within it. A larger
argument advanced on behalf of some of the
parties who have assailed the Act with
considerable vehemence is that a mosque being
a place of religious worship by the Muslims,
independently of whether the acquisition did
affect the right to practice religion, is
wholly immune from the State's power of
acquisition and the statute is, therefore,
unconstitutional as violative of Articles 25
and 26 of the Constitution of India for this
reason alone. The others, however, limited
this argument of immunity from acquisition
only to places of special significance,
forming an essential and integral part of the
right to practice the religion, the
acquisition of which would result in the
extinction of the right to freedom of
religion itself. It was also contended that
the purpose of acquisition in the present
case does not bring the statute within the
ambit of Entry 42, List III but is referable
to Entry 1, List II and, therefore, the
Parliament did not have the 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 nonsecularism, 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
31
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
antisecular 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 which they
are entitled in the Constitutional scheme.
31. The Constitution Bench held that acquisition of the
properties under the Act affects the rights of both the
communities and not merely those of the Muslim
community. In paragraph 49 following has been noticed:
“49. The narration of facts indicates
that the acquisition of properties under the
Act affects the rights of both the
communities and not merely those of the
Muslim community. The interest claimed by the
Muslims is only over the disputed site where
32
the mosque stood before its demolition. The
objection of the Hindus to this claim has to
be adjudicated. The remaining entire property
acquired under the Act is such over which no
title is claimed by the Muslims. A large part
thereof comprises of properties of Hindus of
which the title is not even in dispute.... ”
32. This Court also noticed that Ayodhya is said to be
of particular significance to the Hindus as a place of
pilgrimage because of the ancient belief that Lord Rama
was born there. The Court also noticed that equally
mosque was of significance for the Muslim community as
an ancient mosque built by Mir Baqi in 1528 AD. In
paragraph 51 of the judgment following has been noticed:
“51. It may also be mentioned that even
as Ayodhya is said to be of particular
significance to the Hindus as a place of
pilgrimage because of the ancient 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 antisecular
being slanted in favour of the Hindus and
against the Muslims.”
33. As noted above, one of the principal submission
33
which was raised by the petitioners before the
Constitution Bench was that mosque cannot be acquired
because of a special status in the Mohammedan Law. The
Constitution Bench in Ismail Faruqui case by a separate
heading “MOSQUE – IMMUNITY FROM ACQUISITION” from
paragraphs 65 to 82 considered the above ground.
34. The discussion from paragraphs 65 to 82 as per above
heading 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 re
produce 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
34
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 of the
disputed area in which the mosque stood, for
the purpose of handing it over to the party
found entitled to it, and requiring it to
maintain status quo therein till then, this
question may not be of any practical
significance since there is no absolute
divesting of the true owner of that property.
We may observe that the proposition advanced
does appear to us to be too broad for
acceptance inasmuch as it would restrict the
sovereign power of acquisition even where
such acquisition is essential for an
undoubted national purpose, if the mosque
happens to be located in the property
acquired as an ordinary place of worship
without any particular significance attached
to it for the practice of Islam as a
religion. It would also lead to the strange
result that in secular India there would be
discrimination against the religions, other
than Islam. In view of the vehemence with
which this argument was advanced by Dr.
Rajeev Dhavan and Shri Abdul Mannan to
contend that the acquisition is invalid for
this reason alone, it is necessary for us to
decide this question. ”
35. Although in paragraph 65 the Court observed that the
proposition is too broad for acceptance but in view of
the vehemence with which argument of the learned counsel
appearing for the petitioners was put the Court
proceeded to decide the issue.
35
36. The contention before the Constitution Bench was
also that acquisition of a mosque violates the right
given under Articles 25 and 26 of the Constitution of
India. After noticing the law in the British India,
prior to 1950, and the law after enforcement of the
Constitution, the Constitution Bench came to the
conclusion that places of religious worship like
mosques, churches, temples etc. can be acquired under
the State's sovereign power of acquisition. Such
acquisition per se does not violates either Article 25
or Article 26 of the Constitution. After noticing the
various decisions following was laid down in paragraph
74:
“74.It appears from various decisions
rendered by this Court, referred later, that
subject to the protection under Articles 25
and 26 of the Constitution, places of
religious worship like mosques, churches,
temples etc. can be acquired under the
State's sovereign power of acquisition. Such
acquisition per se does not violate either
Article 25 or Article 26 of the Constitution.
The decisions relating to taking over of the
management 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
36
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 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 significance for that religion
37
so as to form an essential or integral part
thereof. Places of worship of any religion
having particular significance for 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. ”
38. With the above observation the Constitution Bench
held that offer of prayer or worship is a religious
practice, its offering at every location 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 for 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.
39. From what we have noticed above following are
deducible:
(i) Places of religious worship like mosques,
churches, temples, etc. can be acquired under
the State's sovereign power of acquisition,
which does not violate Articles 25 or 26 of the
Constitution.
38
(ii) The right to practice, profess and propagate
religion guaranteed under Article 25 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.
(iii)The protection under Articles 25 and 26 of the
Constitution is to religious practice which
forms an essential or integral part of the
religion.
(iv) A practice may be a religious practice but not
an essential and integral part of practice of
that religion.
(v) 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.
The Court itself has drawn a distinction with regard
39
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 in a
particular mosque lost by adverse possession
over that property.”
41. The Constitution Bench unequivocally laid down that
every immovable property be a temple, church or mosque
etc. is liable to be acquired and a mosque does not
enjoy any additional protection which is not available
to religious places of worship of other religions.
40
42. Now, we come to paragraph 82 of the judgment which
is the sheet anchor of the submission raised by Dr.
Rajiv Dhavan. Serious objections have been raised by Dr.
Rajiv Dhavan to some observations made in paragraph 82.
Entire paragraph 82 is quoted below:
“82. The correct position may be
summarised thus. Under the Mahomedan Law
applicable in India, title to a mosque can be
lost by adverse possession (See Mulla's
Principles of Mahomedan Law, 19th Edn. by M.
Hidaytullah Section 217; and AIR 1940 PC
116). If that is the position in law, there
can be no reason to hold that a mosque has a
unique or special status, higher than that of
the places of worship of other religions in
secular India to make it immune from
acquisition by exercise of the sovereign or
prerogative power of the State. 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. Accordingly, its acquisition is not
prohibited by the provisions in the
Constitution of India. Irrespective of the
status of a mosque in an Islamic country for
the purpose of immunity from acquisition by
the State in exercise of the sovereign power,
its status and immunity from acquisition in
the secular ethos of India under the
Constitution is the same and equal to that of
the places of worship of the other religions,
namely, church, temple etc. It is neither
more nor less than that of the places of
worship of the other 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
41
practice 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. ”
“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
42
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 regard to
essential practices of a religion. The locus classicus
of the subject is Constitution Bench judgment of this
Court in Commissioner, Hindu Religious Endowments,
Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt, AIR 1954 SC 282. The Mathadipati of Shirur Mutt
filed a writ petition in Madras High Court challenging
various provisions of Madras Hindu Religious and
Charitable Endowments Act, 1951. Challenge to the Act
was on various grounds including the ground that
provisions of the Act violate the fundamental right
guaranteed under Articles 25 and 26 of the Constitution
of India. The High Court had struck down various
provisions of the Act against which appeal was filed by
the Commissioner, Hindu Religious Endowments, Madras.
Justice B.K. Mukherjea speaking for the Constitution
Bench held that it would not be correct to say that a
43
religion is nothing but a doctrine or belief. It was
held that a religion may also lay down a code of ethical
rules for its followers and it might prescribe rituals
and observances, ceremonies and modes of worship which
are regarded as integral parts of religion. In Para 17,
following was held:
“17.....Religion is certainly a matter of
faith with individuals or communities and it
is not necessarily theistic. There are well
known religions in India like Buddhism and
Jainism which do not believe in God or in any
Intelligent First Cause. A religion
undoubtedly has its basis in a system of
beliefs or doctrines which are regarded by
those who profess that religion as conducive
to their spiritual well being, but it would
not be correct to say that religion is
nothing else but a doctrine or belief. A
religion may not only lay down a code of
ethical rules for its followers to accept, it
might prescribe rituals and observances,
ceremonies and modes of worship which are
regarded as integral parts of religion, and
these forms and observances might extend even
to matters of food and dress.”
46. Further, in Para 18, following was laid down:
18. The guarantee under our Constitution not
only protects the freedom of religious
opinion but it protects also acts done in
pursuance of a religion and this is made
clear by the use of the expression “practice
of religion” in Article 25......”
47. The Court further held; what constitutes the
44
essential part of a religion is primarily to be
ascertained with reference to the doctrines of that
religion 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 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......”
48. Two other judgments were delivered in the same year,
45
which had relied and referred to Madras judgment. In
Ratilal Panachand Gandhi and Others Vs. State of Bombay
and Others, AIR 1954 SC 388, in paragraph Nos. 10 and 13
following was held:
“10. Article 25 of the Constitution
guarantees to every person and not merely to
the citizens of India, the freedom of
conscience and the right freely to profess,
practise and propagate religion. This is
subject, in every case, to public order,
health and morality. Further exceptions are
engrafted upon this right by clause (2) of
the article. Subclause (a) of clause (2)
saves the power of the State to make laws
regulating or restricting any economic,
financial, political or other secular
activity which may be associated with
religious practice; and subclause (b)
reserves the State’s power to make laws
providing for social reform and social
welfare even though they might interfere with
religious practices.
Thus, subject to the restrictions which
this article imposes, every person has a
fundamental right under our Constitution not
merely to entertain such religious belief as
may be approved of by his judgment or
conscience but to exhibit his belief and
ideas in such overt acts as are enjoined or
sanctioned by his religion and further to
propagate his religious views for the
edification of others.....
13. Religious practices or performances of
acts in pursuance of religious belief are as
much a part of religion as faith or belief in
particular doctrines. Thus if the tenets of
the Jain or the Parsi religion lay down that
46
certain rites and ceremonies are to be
performed at certain times and in a
particular manner, it cannot be said that
these are secular activities partaking of
commercial or economic character simply
because they involve expenditure of money or
employment of priests or the use of
marketable commodities. No outside authority
has any right to say that these are not
essential parts of religion and it is not
open to the secular authority of the State to
restrict or prohibit them in any manner they
like under the guise of administering the
trust estate.....”
49. Another judgment, which followed the Shirur Mutt
case was Sri Jagannath Ramanuj Das and Another Vs. State
of Orissa and Another, AIR 1954 SC 400. The Constitution
Bench in Sri Venkataramana Devaru and Others Vs. State
of Mysore and Others, 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
47
merely its Gnana but also its Bakti and Karma
Kandas....”
50. Another judgment, which needs to be noticed is Mohd.
Hanif Quareshi and Others Vs. 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 Pradesh
respectively. One of the submissions raised by the
petitioner was that banning of slaughter of cows
infringes fundamental right of petitioner to sacrifice
the cow on BakraId. The Court proceeded to dwell with
essential practice of the religion of Islam in above
context. The Court examined the material placed before
it for determining the essential practice of the
religion and made following observations in paragraph
13:
“What then, we inquire, are the materials
placed before us to substantiate the claim
that the sacrifice of a cow is enjoined or
sanctioned by Islam? The materials before us
are extremely meagre and it is surprising
that on a matter of this description the
allegations in the petition should be so
vague. In the Bihar Petition No. 58 of 1956
are set out the following bald allegations:
Xxxxxxxxxxxxxxx
48
We have, however, no material on the record
before us which will enable us to say, in the
face of the foregoing facts, that the
sacrifice of a cow on that day is an
obligatory overt act for a Mussalman to
exhibit his religious belief and idea. In the
premises, it is not possible for us to uphold
this claim of the petitioners.”
51. Next case to be considered is Sardar Syedna Taher
Saifuddin Saheb Vs. State of Bombay, AIR 1962 SC 853.
The issue raised before this Court in the above case was
regarding validity of law interfering with right of
religious denomination to excommunicate its members.
Articles 25 and 26 came to be considered in the above
context. In paragraph 34 of the judgment, referring to
earlier decisions of this Court, main principles
underlying have been noticed, which is to the following
effect:
“34. The content of Articles 25 and 26 of the
Constitution came up for consideration before
this Court in 1954 SCR 1005 : (AIR 1954 S.C.
282); Ramanuj Das v. State of Orissa, 1954
SCR 1046 : (AIR 1954 SC 400); 1958 SCR 895 :
(AIR 1958 S.C. 255); (Civil Appeal No. 272 of
1969 D/1731961 : (AIR 1961 S.C. 1402) and
several other cases and the main principles
underlying these provisions have by these
decisions been placed beyond controversy. The
first is that the protection of these
articles is not limited to matters of
49
doctrine or belief, they extend also to acts
done in pursuance of religion and therefore
contain a guarantee for rituals and
observances, ceremonies and modes of worship
which are integral parts of religion. The
second is that 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. Vs.
State of Rajasthan and Others, 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:
50
“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
community following the religion or not. This
formula may in some cases present
difficulties in its operation. Take the case
of a practice in relation to food or dress.
If in a given proceeding, one section of the
community claims that while performing
certain rites white dress is an integral part
of the religion itself, whereas another
section contends that yellow dress and not
the white dress is the essential part of the
religion, how is the Court going to decide
the question? Similar disputes may arise in
regard to food. In cases where conflicting
evidence is produced in respect of rival
contentions as to competing religious
practices the Court may not be able to
resolve the dispute by a blind application of
the formula that the community decides which
practice in an intergral part of its
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
Dungah Committee Ajmer v. Syed Hussain Ali &
Ors.18 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
51
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 26.
59. In this connection, it cannot be ignored
that what is protected under Articles 25(1)
and 26(b) respectively are the religious
practices and the right to manage affairs in
matters of religion. If the practice in
question is purely secular or the affair
which is controlled by the statute is
essentially and absolutely secular in
character, it cannot be urged that Article
25(1) or Article 26(b) has been contravened.
The protection is given to the practice 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
52
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 consideration of
essentiality of a religion have made the questionable
observations in paragraph 82 as noticed above.
54. We have to examine the observations made in
paragraph 82 of the Constitution Bench judgment in the
light of the above submission, law and the precedents as
noticed above. The statement “a mosque is not essential
part of the practice of religion…..” is a statement
which has been made by the Constitution Bench in
specific context and reference. The context for making
the above observation was claim of immunity of a mosque
from acquisition. Whether every mosque is the essential
part of the practice of religion of Islam, acquisition
of which ipso facto may violate the rights under
Articles 25 and 26, was the question which had cropped
up for consideration before the Constitution Bench.
Thus, the statement that a mosque is not an essential
part of the practice of religion of Islam is in context
53
of issue as to whether the mosque, which was acquired by
Act, 1993 had immunity from acquisition.
55. The above observation by the Constitution Bench has
been made to emphasise that there is no immunity of the
mosque from the acquisition. We have noticed that
Constitution Bench had held that 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. The above observation made in paragraph 78
has to be read along with observation made in paragraph
82. What Court meant was that unless the place of
offering of prayer has a particular significance so that
any hindrance to worship may violate right under
Articles 25 and 26, any hindrance to offering of prayer
at any place shall not affect right under Articles 25
and 26. The observation as made in paragraph 82 as
quoted above has to be understood with the further
observation made in the same paragraph where this Court
held:
54
“82....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. 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. ”
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
55
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 sentence “A mosque is not essential part of the
practice of the religion of Islam and namaz(prayer) by
Muslims can be offered anywhere, even in open” is
followed immediately by the next sentence that is
“Accordingly, its acquisition is not prohibited by the
provisions in the Constitution of India” which makes it
amply clear that the above sentence was confined to the
question of immunity from acquisition of a mosque which
was canvassed before the Court. First sentence cannot be
read divorced from the second sentence which immediately
followed the first sentence.
59. No arguments having been raised before the
Constitution Bench that Ram Janam BhumiBabri Masjid is
a mosque of a particular significance, acquisition of
which shall extinct the right of practice of the
religion, the Court had come to the conclusion that by
acquisition of mosque rights under Articles 25 and 26
are not infringed. We conclude that observations as
56
made by the Constitution Bench in paragraphs 78 and 82
which have been questioned by the petitioners were
observations made in reference to acquisition of place
of worship and has to confine to the issue of
acquisition of place of worship only. The observation
need not be read broadly to hold that a mosque can never
be an essential part of the practice of the religion of
Islam.
"Comparative significance” & “Particular significance”.
60. Dr. Rajiv Dhavan submits that the Constitution Bench
has entered into the comparative significance of both
the places that is birth place of Ram for Hindus and Ram
Janam BhumiBabri Masjid for Muslims. He submits that
India is a secular country and all religions have to be
treated equal and the Court by entering into comparative
significance concept has lost sight of the secular
principles which are embedded in the Constitution of
India. It is true that the Constitution Bench has used
phrase “comparative significance” but comparative
significance of both the communities were noticed only
to highlight the significance of place which is claimed
by both the parties and to emphasise that the impact of
57
acquisition is equally on the right and interest of the
Hindu community as well as Muslim community. In
paragraph 51 of the judgment following has been noticed:
“51. It may also be mentioned that even
as Ayodhya is said to be of particular
significance to the Hindus as a place of
pilgrimage because of the ancient 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 antisecular
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
58
above aspect of the matter. We have already noticed that
the Constitution Bench held that acquisition is a
sovereign or prerogative power of the State to acquire
property and all religious places, namely, church,
mosque, temple etc. are liable to be acquired in
exercise of right of eminent domain of the State. The
Constitution Bench also observed that acquisition of
place of religious worship like church, mosque etc. per
se does not violate rights under Articles 25 and 26. The
Court, however, has noticed one fetter on such
acquisition. The Constitution Bench held that if a
particular place is of such significance for that
religion that worship at such place is an essential
religious practice and the extinction of such place may
breach their right of Article 25, the acquisition of
such place is not permissible. A place of particular
significance has been noticed by the Constitution Bench
in the above context. When acquisition of such place
results in extinction of the right to practice the
religion, there is violation of Article 25, which was an
exception laid by the Constitution Bench while laying
down general proposition that acquisition of all places
59
of worship is permissible. Thus, no exception can be
taken to the Constitution Bench having used expression
'place of particular significance' for carving out an
exception to the general power of acquisition of the
State of religious places like church, mosque and temple
or gurudwara. The above exception carved out by the
Constitution Bench is to protect the constitutional
right guaranteed under Article 25.
'Particular significance' of place of birth of Lord Rama
62. Dr. Dhavan has taken exception to observation of
Constitution Bench, where, place of birth of Lord Rama,
has been held to be of particular significance. He
submits that the above observation was uncalled for
since there cannot be any comparison between two
religions. We have observed above that phrase
“particular significance” was used by the Constitution
Bench only in context of immunity from acquisition. What
the Court held was that if a religious place has a
particular significance, the acquisition of it ipso
facto violates the right of religion under Articles 25
and 26, hence the said place of worship has immunity
from acquisition. It is another matter that the place
60
of birth of Lord Rama is referred as sacred place for
Hindu community, which has been pleaded throughout. In
any view of the matter acquisition under Act, 1993
having been upheld, the use of expression “particular
significance” has lost all its significance for decision
of the suits and the appeals.
RESJUDICATA
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 resjudicata in view of Explanation VI to
Section 11, CPC. 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
61
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
entirely different. The suits having never been
transferred to be decided with Ismail Faruqui’s case,
the decision rendered in Ismail Faruqui’s case cannot be
said to be part of the judgment in suits. He submits
that the issues which were raised in Ismail Faruqui’s
case were not the issues which are directly and
substantially in issue in the suits. He further submits
that res judicata is not attracted in the present
proceedings.
65. The principle of res judicata as contained in
Section 11 of Civil Procedure Code as well as the
general principles are well settled by several judgments
of this Court. For applicability of the principle of res
judicata there are several essential conditions which
need to be fulfilled. Shri Parasaran, in support of his
submission, states that the parties in Ismail Faruqui’s
case represented the interest of Muslim community and
those petitioners bonafidely litigated in respect of
62
public rights, hence, all persons interested in such
rights be deemed to claim under the person so
lititgating attracting the applicability of Explanation
VI of Section 11, CPC. He placed reliance on judgment of
this Court in Ahmed Adam Sait & others versus
Inayathullah Mekhri & others, 1964 (2) SCR 647. In the
above case, in suit under Section 92, CPC, a scheme had
already been framed by Court of Competent Jurisdiction.
Another suit was instituted under Section 92 of CPC
praying for settling a scheme for proper administration
of the Jumma Masjid. The plea of res judicata was urged.
Upholding the plea of res judicata, following was laid
down:
“... In assessing the validity of this
argument, it is necessary to consider the
basis of the decisions that a decree passed
in a suit under s.92 binds all parties. The
basis of this view is that a suit under s.92
is a representative suit and is brought with
the necessary sanction required by it on
behalf of all the beneficiaries interested in
the Trust. The said section authorises two or
more persons having an interest in the Trust
to file a suit for claiming one or more of
the reliefs specified in clauses (a) to (h)
of subsection (1) after consent in writing
there prescribed has been obtained. Thus,
when a suit is brought under s.92, it is
brought by two or more persons interested in
the Trust who have taken upon themselves the
63
responsibility 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 s.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 others, 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 s.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 s.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 plaintiffs and, therefore, are
constructively barred by res judicata from
reagitating the matters directly and
substantially in issue in the said earlier
suit.”
66. Learned Counsel for both the parties have referred
to and relied on Constitution Bench Judgment of this
Court in Gulabchand Chhotalal Parikh versus State of
Gujarat, AIR 1965 SC 1153. Whether a decision of High
64
Court on merits on certain matters after contest in a
writ petition under Article 226 of the Constitution
operates as res judicata in regular suit with respect to
the same matter between the same party was the issue
considered by this court. This Court after referring to
almost all relevant judgments on the subjects laid down
following in paragraphs 60 and 61:
”60. As a result of the above discussion, we
are of opinion that the provisions of S.11,
C.P.C., are not exhaustive with respect to an
earlier decision operating as res judicata
between the same parties on the same matter
in controversy in a subsequent regular suit
and that on the general principle of res
judicata, any previous decision on a matter
in controversy, decided after full contest or
after affording fair opportunity to the
parties to prove their case by a Court
competent to decide it, will operate as res
judicata in a subsequent regular suit. It is
not necessary that the Court deciding the
matter formerly be competent to decide the
subsequent suit or that the former proceeding
and the subsequent suit have the same
subjectmatter. The nature of the former
proceeding is immaterial.
61. We do not see any good reason to preclude
such decisions on matters in controversy in
writ proceedings under Arts. 226 and 32 of
the Constitution from operating as res
judicata in subsequent regular suits on the
same matters in controversy between the same
parties and thus to give limited effect to
the principle of the finality of decisions
after full contest. We therefore, hold that,
on the general principle of res judicata, the
65
decision of the High Court on a writ petition
under Art.226 on the merits on a matter after
contest will operate as res judicata in a
subsequent regular suit between the same
parties with respect to the same matter.”
67. In Daryao and others versus State of U.P. & others,
AIR 1961 SC 1457, this Court held that on general
consideration of public policy there seems to be no
reason by which the rule of res 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
versus Daryao Kunwar, AIR 1966 SC 1332, after
elaborately considering the principles underlined under
Section 11 of the CPC, 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 S.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
66
formar 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) The
matter directly and substantially in issue in
the subsequent suit must have been heard and
finally decided by the Court in the first
suit. Further Explanation I shows that it is
not the date on which the suit is decided, so
that even if a suit was filed later, it will
be a former suit if it has been decided
earlier. In order therefore that the decision
in the earlier two appeals dismissed by the
High Court operates as res judicata it will
have to be seen whether all the five
conditions mentioned above have been
satisfied.”
69. One of the submissions put on forefront by Dr.
Dhavan is that issues which were involved in Ismail
Faruqui’s case are not issues which are directly and
substantially involved in the suits giving rise to these
appeals, hence, the plea of res judicata should fail on
this ground alone. One of the conditions as enumerated
by this Court in Sheodan Singh’s case(supra) is that
“the matter directly and substantially in issue, in
subsequent suit must have been heard and finally decided
by the Court in the first suit.” Dr. Dhavan elaborating
67
the principle of directly and substatially in issue has
relied on judgment of this court in Sajjadanashin Sayed
vs. Musa Dadabhai Ummer, (2000) 3 SCC 350. This Court
while considering the condition of “directly and
substantially in issue” in reference to Section 11 laid
down following principles in paragraph 12, 13 & 14:
”12. It will be noticed that the words used
in Section 11 CPC are “directly and
substantially in issue”. If the matter was in
issue directly and substantially in a prior
litigation and decided against a party then
the decision would be res judicata in a
subsequent proceeding. Judicial decisions
have however held that if a matter was only
“collaterally or incidentally” in issue and
decided in an earlier proceeding, the finding
therein would not ordinarily be res judicata
in a latter proceeding where the matter is
directly and substantially in issue.
13. As pointed out in Halsbury’s Law of
England(Vol.16, para 1538, 4th edition), the
fundamental rule is that a judgment is not
conclusive if any matter came collaterally in
question[R.v.knaptoft Inhabitants; Heptulla
Bros. v. Thakore WLR at p.297(PC)]; or if any
matter was incidentally cognizable
[Sanders(otherwise Saunders)v. Sanders
(otherwise Saunders) All ER at p.771].
14. A collateral or incidental 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 Civil Procedure Code, 15th
68
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 Lrs. versus
Badribai w/o Jagannath and another, (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 have been noticed and
adjudicated by this court in Ismail Faruqui’s case. The
High Court has clearly held that the authority of the
Superior Court laying down a law is binding on the
courts below provided a matter has been decided by the
court. In Para 4054, following has been held:
69
“4054. The mere fact that some facts have
been noticed by the Government of India in
White Paper and those facts have simply been
noticed by the Apex Court while referring to
the facts mentioned in the White Paper, it
cannot be said that those facts can be
construed as if they have been accepted by
the Apex Court to be correct and stand
adjudicated. The law of precedent is well
known. The authority of the superior Court
laying down a law is binding on the Courts
below provided a matter has been decided by
the Court. An issue can be considered to be
decided by a superior Court when it was
raised, argued and decided and only then it
is a binding precedent for the other courts.”
72. We have noticed above that the issues which were
involved in Ismail Faruqui’s case were validity of Act,
1993. One of the issues which was taken up by Ismail
Faruqui’s case was as to whether by virtue of Section 4
subsection (3) of Act, 1993 suits pending in Allahabad
High Court stands abated. The Presidential Reference
No.1 of 1993 was also heard along with the writ
petitions and transferred cases. The issues which have
been framed in the suits giving rise to these appeals
are different issues which cannot be said to be directly
and substantially in issue in Ismail Faruqui’s case.
Nonfulfilment of this condition itself is sufficient to
reject the plea of res judicata as raised by Shri
70
Parasaran.
73. We may further notice submissions of Shri Parasaran
that IA which was filed in the suit was also taken up
along with the Ismail Faruqui’s case, hence, the
judgment rendered in Ismail Faruqui’s case shall be
treated to be the part of judgment in the suits which
preclude the appellant to reagitate the same issue. For
appreciating the above submissions we need to look into
as to what matters were before this Court in Ismail
Faruqui’s case.
74. The Act, 1993 was preceded by an ordinance which was
issued on 07.01.1993. Section 4(3) of the Ordinance
contemplated that suit, appeal or other proceeding in
respect of right, title or interest having to any
property vested in Central Government 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 versus Union of India & Ors.
71
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 & Others versus Dr. M.Ismail Faruqui and
others, (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 legality and validity of the
Ordinance by which the suits abated. The Full
Bench of the High Court heard the said
applications and passed an order on March 15,
1993. By the said order the High Court framed
the question ‘whether the suit has abated or
survives’ and since the said issue
necessarily touched upon the validity of the
Ordinance, the Court ordered notice to the
Attorney General and listed the case for
hearing of the issue on April 26, 1993.
Although this order was passed in Suit O.O.S.
No. 4 of 1989, it was also to govern the
amendment application in Suit O.O.S. No. 3 of
1989. It also appears that in the meantime as
72
many as five Writ Petition Nos. 552, 925,
1351, 1532 and 1809 of 1993 came to be filed
in the High Court challenging the validity of
the Ordinance, now the Act. Besides these
proceedings in the High Court a Writ Petition
No. 208 of 1993 also came to be filed in this
Court under Article 32 of the Constitution
challenging the legality and validity of the
very same law.
7. In the result, we allow this application
by ordering the withdrawal of the five Writ
Petition Nos. 552, 925, 1351, 1532 and 1809
of 1993 to this Court to be heard along with
the Presidential reference and Writ Petition
No. 208 of 1993 pending in this Court. The
hearing of the preliminary issue framed by
the High Court ‘whether the suit has abated
or survives’ in both the suits will stand
stayed till further orders. In order to
expedite the hearing we direct as under:”
75. From the above, it is clear that suits which were
pending in the High Court were never transferred to be
heard alongwith Presidential Reference and writ petition
filed under Article 32. This Court had only stayed the
hearing of preliminary issue framed by the High Court as
to whether the suits have abated or survive. It is also
relevant to notice that in Special Reference No. 1 of
1993, individual notices were issued to the parties to
the proceeding which stood abated by virtue of Section
4(3) of the Ordinance but mere issuance of notice when
the suits were not transferred by this Court to be heard
73
alongwith Presidential Reference is not sufficient to
conclude that the judgment of Ismail Faruqui should be
treated as part of judgment in suits. We, thus, also do
not accept the submissions of Shri Parasaran that
judgment of Ismail Faruqui is part of the judgment in
the suit itself. We, thus, do 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
74
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 by the observations made
in Ismail Faruqui’s case.
78. It is relevant to notice some of the observations
made by the High Court in the impugned judgment and
certain grounds taken in some of the appeals, which are
before us. Justice S.U.Khan referring to Ismail
Faruqui’s case in his judgment made following
observations:
“A mosque even if its construction remains
as a mosque cannot be treated to be mosque if
no prayers are offered in it and it is in the
possession, occupation and use of nonMuslims
as held by the Privy Council in Mosque known
as Masjid Shahid Ganj Vs. S.G.P.C. Amritsar,
AIR 1940 P.C. 116 approved in Dr. M. Ismail
Farooqi Vs. Union of India, 1994 (6) S.C.C.
360. Accordingly, unless it is proved that
prayers were being offered in the premises in
dispute, or the Hindus had not exclusively
possessed the constructed portion and inner
court yard it cannot be held to be a mosque
75
or a continuing mosque uptil 22nd/ 23rd
December, 1949. The case set up and the
argument of some of the Hindu parties that
till 1855 no prayers (Namaz) were offered in
the mosque is not at all acceptable. If a
mosque is referred to as mosque in several
gazetteers, books etc. and nothing else is
said then it means that it is a mosque in use
as such. A defunct mosque where prayers are
not at all offered, whenever mentioned as
mosque, is bound to be further qualified as
defunct and not in use. If construction of
mosque could not be obstructed, how offering
of prayer in it could be obstructed.
Moreover, there was absolutely no sense in
dividing the premises in dispute by railing
in 1856 or 1857 if Muslims were not offering
Namaz in the constructed portion till then.
In the riot of 1855 seventy Muslims were
killed while taking shelter in the premises
in dispute. After such a huge defeat Namaz
could not be for the first time started
thereat.”
79. Justice Sudhir Agarwal in his judgment has also
noticed Ismail Faruqui’s case. Dr. Dhavan referred to
the submissions made by Shri Ravi Shankar Prasad in
Paras 3501 and 3502 of the impugned judgment:
“3501. Sri Prasad argued that belief of
Hindus that Lord Ram as incarnation of Vishnu
having born at Ayodhya forms an integral part
of Hindu religion which cannot be denied to
be practised, observed and performed by them
and refers to Commissioner of Police and
others v. Acharya Jagadishwarananda Avadhuta
and another, (2004) 12 SCC 770 (para 9) and
Sri Adi Visheshwara of Kashi Vishwanath
Temple, Varanasi (supra). In order to show
76
what constitutes public order under Article
25 of the Constitution, he also placed
reliance on Dalbir Singh and others 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 others v. Union of
India and others, (1994) 6 SCC 360 (para 65,
72, 75 and 96); Acharya Maharajshri Narendra
Prasadji Anandprasadji Maharaj and others v.
State of Gujarat and others, (1975) 1 SCC 11.
The relief sought by the plaintiff (Suit4)
is barred by Section 34 Specific Reliefs Act,
1963 and reliance is placed on Executive
Committee of Vaish Degree College, Shamli and
others v. Lakshmi Narain and others, (1976) 2
SCC 58 (para 20 and 27); American Express
Bank Ltd. v. Calcutta Steel Co. and others,
(1993) 2 SCC 199 (pare 22).”
80. Justice Sudhir Agarwal has noticed Ismail Faruqui’s
case in Para 2723 in following manner:
“2723. In Ismail Farooqui (supra),
Supreme Court has considered the plea of
validity of acquisition of land under Land
Acquisition Act that once a waqf of mosque is
created, the property vests in almighty and
it always remain a waqf hence such a property
cannot be acquired. While negativing this
plea, the Apex Court said that a plea in
regard to general religious purposes cannot
77
be said to be an integral part of religion
which will deprive the worshippers of the
right of worship at any other place and
therefore, such a property can be acquired by
the State. However, the position would be
otherwise if the religious property would
have been of special significance and cannot
be one of several such kind of properties. It
will be useful to reproduce the relevant
observation in this regard:
“78. lt appears from various decisions
rendered by this Court, referred later, that
subject to the protection under Articles 25
and 26 of the Constitution, places of
religious worship like mosques, churches,
temples etc. can be acquired under the
State’s sovereign power of acquisition. Such
acquisition per se does not violate either
Article 25 or Article 26 of the Constitution.
The decisions relating to taking over of the
management have no bearing on the sovereign
power of the State to acquire property.”
“82. 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 for 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.”
81. There are references of judgments of Ismail
Faruqui’s case in various other places in the judgment
of Justice Sudhir Agarwal like Para 5 in the judgment
78
where it has been observed that area of the land in
dispute, which is to be adjudicated by this Court (High
Court) is now restricted to what has been referred to in
Ismail Faruqui’s case. Para 5 of the 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 others, (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
79
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 structure has already been
demolished on 6.12.1992. According to Dr. M.
Ismail Faruqui and others v. Union of India
and others, (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.”
84. Further, Justice Dharam Veer Sharma while noticing
submission of Shri H.S. Jain has observed as follows:
“Shri H.S. Jain, advocate relied upon para
78 of Ismail Faruqui’s judgment to argue that
since birth place of Lord Ram was considered
as a place of worship which was integral part
of religious practice of Hindu from times
immemorial. The deity stood on a different
footing and had to be treated reverentially.”
85. Justice Sharma has observed that, in para 78 of the
Ismail Faruqui’s judgment, the Apex Court held that the
place of birth has a particular significance for Hindus
and should be treated on a different footing. At page
3455, following observations have been made by Justice
Sharma while referring to Ismail Faruqui’s case:
80
“Hon'ble Apex Court upheld the validity of
provisions of Acquisition of Certain Area at
Ayodhya, 1993 in Dr. Ismail Faruqui case
(supra) and held that the Central Government
can acquire any place of worship. At para78
Apex Court held that the place of birth has a
particular significance for Hindus and it
should be treated on different footing, which
reads as under:
“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 significance for that religion
so as to form an essential or integral part
thereof. Places of worship of any religion
having particular significance for 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.”
On behalf of Hindus it is urged that the
plaintiffs are not entitled for the relief
claimed and as such the relief is barred by
the provisions of Section 42 of the Specific
Relief Act, 1877 which is at par with Section
34 of the Specific Relief Act,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:”
81
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’s case but main paragraphs where findings
have been returned in reference to Ismail Faruqui’s case
are Paragraphs 4049 to 4054 (Vol. II) of judgment of
Justice Sudhir Agarwal, as has been pointed out by Shri
Tushar Mehta, learned Additional Solicitor General.
88. Paragraphs 4049 and 4050 are to the following
effect:
“4049. Some of the learned counsel for the
82
parties sought to rely on the Constitution
Bench decision in Dr. M. Ismail Faruqui
(supra) by reading certain passages in a
manner as if the Apex Court has expressed its
opinion on certain aspects which are
contentious issues before this Court in the
suits pending before us and said that the
said observations are binding on this Court
and, therefore, those aspects cannot be
looked into.
4050. Sri Iyer, Senior Advocate sought to
read the aforesaid judgement where the
contents of the White Paper issued by the
Central Government quoted to suggest that
these are the findings of the Government of
India having taken note by the Apex Court
and, therefore, should be treated to be
concluded. It is suggested that the issues,
if any, in those matters should be deemed to
be concluded by the judgement of the Apex
Court.”
89. The above submission was noted and expressly
rejected by the High Court in Paragraph 4051, which is
to the following effect:
“4051. We, however, find no force in the
submission. The Constitution Bench considered
the validity of Ayodhya Act, 1993 whereby
certain land at Ayodhya including the land
which was subject matter in these suits
sought to be acquired by the Government of
India. Further, the Apex Court was
considering the special reference made by the
President of India on 7th January, 1993 under
Article 143 of the Constitution seeking
opinion of the Apex Court on the following
question: "Whether a Hindu temple or any
Hindu religious structure existing prior to
the construction of Ram Janma BhumiBabari
83
Masjid (including the premises of the inner
and outer courtyard of said structure) in the
area on which the structure stood."
90. The High Court has clearly held that mentioning of
certain facts in Ismail Faruqui’s case does not mean
that those facts stood adjudicated by this Court for the
reason that those facts were neither in issue before the
Supreme Court nor had been adjudicated. The relevant
discussion in the above context is contained in
Paragraph 4053, which is to the following 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 promosque
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 judgement. 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 Vs. Shiromani Gurdwara
Prabandhak Committee, Amritsar, AIR 1938
84
Lahore 369 where it was held that a mosque if
adversely possessed by non muslims it will
loose its sacred character as mosque, the
Apex Court held that, "the view that once a
consecrated mosque, it remains always a place
of worship as a mosque was not the Mahomedan
Law of India as approved by Indian Courts."
The Lahore High Court also held that, "a
mosque in India was an immovable property and
the right of worship at a particular place is
lost when the right to property on which it
stands is lost by adverse possession." Both
these views were approved by the Privy
Council and the Apex Court followed the said
view. Besides, independently also the Court
took the view that the sovereign power of the
State empowers it to acquire property. It is
a right inherent in every sovereign to take
an appropriate private property belonging to
individual citizens for public use. This
right is described as eminent domain in
American Law and is like the power of
taxation of offering of political necessity
and is supposed to be based upon an implied
reservation by the Government that private
property acquired by its citizens under its
protection may be taken or its use can be
controlled for public benefit irrespective of
the wishes of the owner. The Court also
considered the right of worship whether a
fundamental right enshrined under Article 25
or 26 of the Constitution and observed,
"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 for that
religion, to make it an essential or integral
part of the religion, stand on a different
footing and have to be treated differently
85
and more reverentially". Ultimately the law
has been laid down by the Constitution Bench
by majority that under the Mohammedan Law
applicable in India title to a mosque can be
lost by adverse possession. If that is the
position in law, there can be no reason to
hold that a mosque as a unique or special
status, higher than that of the places of
worship of other religions in secular India
to make it immune from acquisition by
exercise of the sovereign or prerogative
power of the State. A mosque is not an
essential part of the practice of religion of
Islam and namaz (prayer) by Muslims can be
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
86
it was raised, argued and decided. Following was held
in Paragraph 4054:
“4054. The mere fact that some facts have
been noticed by the Government of India in
White Paper and those facts have simply been
noticed by the Apex Court while referring to
the facts mentioned in the White Paper, it
cannot be said that those facts can be
construed as if they have been accepted by
the Apex Court to be correct and stand
adjudicated. The law of precedence is well
known. The authority of the superior Court
laying down a law is binding on the Courts
below provided a matter has been decided by
the Court. An issue can be considered to be
decided by a superior Court when it was
raised, argued and decided and only then it
is a binding precedent for the other courts.”
92. The above view expressed by majority judgment in
appeal, thus, makes it clear that the High Court has
held that judgment of Ismail Faruqui's case does not
decide any of the issues which are subject matter of the
suit. Whatever observations have been made in the
judgment of Ismail Faruqui are not to govern the
decision in suits and the suits were to be decided on
the basis of the evidence on record. The questionable
observations made in Ismail Faruqui's case have to be
treated as only observations and not for the purpose of
deciding suits and these appeals, they are not to be
87
treated as governing factor or relevant. The said
observations are to be understood solely as observation
made in context of land acquisition and nothing more.
93. It is due to above finding of the High Court that in
several appeals filed against impugned judgment by the
plaintiff of Suit Nos.1 and 5 grounds have been taken
which grounds have been referred to and relied by Dr.
Rajiv Dhavan in his submission as noted above. The
grounds taken in the appeal, to which exception is being
taken by Dr. Dhavan are:
(i) Partition of the site would effectively
extinguish the right of Hindus to worship at
the site protected by Article 25 being a site
which is integral and essential part of Hindu
religion;
(ii) The purported Muslim structure on the area was
never pleaded to be an essential or integral
part of the Islamic religion.
94. The above grounds are yet to be looked into and
considered by this Court in these appeals.
95. We have already dealt with and noticed the extent
and nature of the observations made by this Court in
88
Paragraphs 78 and 82 of Ismail Faruqui’s case. The
expression “particular significance” 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
89
96. Shri Raju Ramachandran, learned senior counsel
appearing for some of the parties has pressed for the
reference to larger Bench for reconsideration of Ismail
Faruqui’s case on some additional grounds in addition to
what has been canvassed by Dr. Rajeev Dhavan. Shri Raju
Ramachandran submits that looking to the importance of
the case the matter should be referred to the
Constitution Bench for reconsideration of Ismail
Faruqui’s judgment. He submits that there are various
instances, where this court had made reference to larger
Bench looking to the importance of the matter. He
submits that High Court vide its order dated 10.07.1989
had withdrawn the suits to be tried by the High Court by
Full Bench looking to the importance of the case. The
case being very important and appeals having been filed
by all the sides, the case is of such magnitude that it
is appropriate that matter may be referred to a Bench of
a larger strength to consider the case. Shri
Ramachandran has referred to and relied on several
judgments of this Court, which shall be noted by us
hereinafter.
97. The submission of Shri Raju Ramachandran has been
90
refuted by Shri K. Parasaran, learned senior counsel and
Shri C.S. Vaidyanathan. They submit that if there are
constitutional principles involved, the matter can be
referred to a larger bench, but present is not a case
where any principle of constitutional interpretation is
involved, hence reference of the case to a larger bench
needs to be refused. Shri Parasaran submits that
present appeals arise out of a suit where for deciding
the issues in a suit, the evidence is to be appreciated,
which need not be done by five judges. He submits that
five judges are to appreciate the evidence only in case
of Presidential Election.
98. Before we enter into submission of learned counsel
for the parties, the constitutional provision regarding
reference of a case for hearing by the Constitution
Bench consisting of five judges need to be looked into.
Article 145(3) of the Constitution provides that minimum
number of judges, who are to sit for purpose of deciding
any case involving a substantial question of law as to
the interpretation of the Constitution or for the
purpose of hearing any reference under article 143 shall
be five. The proviso to Article 145(3) provides:
91
“Provided that, where the Court hearing an
appeal under any of the provisions of this
Chapter other than Article 132 consists of
less than five Judges and in the course of
the hearing of the appeal 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
92
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 Vs. State of Bombay,
AIR 1959 SC 1315 had occasion to consider Article
145(3). In the above case, question pertaining to
Article 19(1)(d), (e) and subsection (5) of Article 19
came for consideration. A five Judge Bench in Ebrahim
Vazir Mavat Vs. State of Bombay and others, AIR 1954 SC
229 had already held that requirement that an Indian
citizen to produce a passport before entering into India
is a proper restriction upon entering India. Before two
judge bench in Abdul Rahim Ismail (supra), challenge was
made to Rule 3 of Passport Rules, 1950, which provided
that no person, proceeding from any place outside India,
shall enter, or attempt to enter, India by water, land
or air unless he is in possession of a valid passport.
Contention raised was that Section 3 of the Act and Rule
3 of the Rules in so far as it purported to relate to an
Indian citizen is ultra vires the Constitution, as they
offended against the provisions of Articles 19(1)(d) and
(e). This Court had held that issue having already been
decided by a five judges Bench no substantial question
93
of law as to the interpretation of the Constitution
arises. In Para 6, following was held:
“6....It was, however, urged that as a
constitutional question has been raised this
matter cannot be decided by Judges less than
five in number. Therefore, the case should be
referred to what is described as the
Constitution Bench. Article 145(3) of the
Constitution states that the minimum number
of Judges who are to sit for the purpose of
deciding any case involving a substantial
question of law as to the interpretation of
the Constitution or for the purpose of
hearing any reference under Article 143 shall
be five. It is clear that no substantial
question of law as to the interpretation of
the Constitution arises in the present case
as the very question raised has been decided
by a Bench of this Court consisting of five
Judges. As the question raised before us has
been already decided by this Court it cannot
be said that any substantial question of law
arises regarding the interpretation of the
Constitution.”
101. In Bhagwan Swarup Lal Bishan Lal Vs. State of
Maharashtra, AIR 1965 SC 682, this Court held 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. In Para 11, following has been laid down:
“11. ....Learned counsel suggests that the
question raised involves the interpretation
of a provision of the Constitution and
94
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 Another Vs. Union of India and
Another, (2003) 4 SCC 399 had also occasion to consider
Article 145(3). Submission was made that a substantial
question of law as to the interpretation of the
Constitution has arisen, hence, the matter may be
referred to a Bench consisting of Five Judges. Three
Judge Bench notices that question raised having already
95
been decided in Union of India Vs. Association for
Democratic Reforms and Another, (2002) 5 SCC 294 – (A
Three Judge Bench Judgment), no other substantial
question of law regarding interpretation of Constitution
survives, following was laid in Paragraph Nos. 28, 32
and 78:
“28. Mr Arun Jaitley, learned Senior Counsel
and Mr Kirit N. Raval, learned Solicitor
General submitted that the question involved
in these petitions is a substantial question
of law as to the interpretation of the
Constitution and, therefore, the matter may
be referred to a Bench consisting of five
Judges.
32. From the judgment rendered by this Court
in Assn. for Democratic Reforms1 it is
apparent that no such contention was raised
by the learned SolicitorGeneral, who
appeared in appeal filed on behalf of the
Union of India that question involved in that
matter was required to be decided by a five
Judge Bench, as provided under Article 145(3)
of the Constitution. The question raised
before us has been finally decided and no
other substantial question of law regarding
the interpretation of the Constitution
survives. Hence, the matter is not required
to be referred to a fiveJudge Bench.
78. What emerges from the above discussion
can be summarised thus:
Xxxxxxxxxxxxxxx
(C) The judgment rendered by this
96
Court in Assn. for Democratic Reforms
has attained finality, therefore,
there is no question of interpreting
constitutional provision which calls
for reference under Article 145(3).”
103. On question of reference to a larger bench, one
more Constitution Bench judgment of this Court needs to
be noticed, i.e. Central Board of Dawoodi Bohra
Community and Another Vs. State of Maharashtra and
Another, (2005) 2 SCC 673. Constitution Bench of this
Court while noticing provisions of Supreme Court Rules,
1966 and Articles 141 and 145(2) noticed in Paragraph 12
of the judgment that the law laid down by this Court in
a decision delivered by a Bench of larger strength is
binding on any subsequent Bench of lesser or coequal
strength. A bench of lesser quorum cannot disagree or
dissent from the view of the law laid down by a Bench of
larger quorum. In case of doubt, 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
97
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 the situation in Raghubir Singh and Ors.
and Hansoli Devi and Ors. (supra). ”
104. In the present case, since the submission of Shri
Raju Ramachandran and Dr. Dhavan is for a reference to a
Constitution Bench to reconsider Ismail Faruqui’s case,
the question needs to be considered in view of the law
laid down by this Court in reference to Article 145(3)
as noticed above. Both Shri Raju Ramachandran and
Dr. Dhavan have placed heavy reliance on order passed by
this Court on 26.03.2018 in W.P. (C) No. 222 of 2018 –
Sameena Begum Vs. Union of India & Ors. Learned counsel
98
submit that reference to the Constitution Bench has been
made by a three Judge Bench of this Court looking to the
importance of the issue. A perusal of the order dated
26.03.2018 indicates that challenge in those writ
petitions pertains to the prevalent practice of polygamy
including Nikah Halala; Nikah Mutah; and Nikah Misyar on
the ground that they are unconstitutional. Referring to
a five Judges Constitution Bench judgment of this Court
in the case of Shayara Bano etc. Vs. Union of India &
Ors. etc., (2017) 9 SCC 1, where this Court declared
that practice of talaqebiddat or triple talaq is not
protected by Article 25 and it is not an essential
religious practice, it was contended that the five
Judges Bench judgment in Shayara Bano (supra) has not
dealt with the aspect of Nikah Halala; Nikah Mutah; and
Nikah Misyar. Thus, the question as to those religious
practices are protected by Article 25 was very much
involved in the Writ Petition before three Judge Bench.
The three Judge Bench also came to the conclusion that
the above noted concepts have not been decided by the
Constitution Bench, hence the reference was made to the
Constitution Bench, looking to the importance of the
99
issue. The reference made by order dated 26.03.2018 was
in the facts as noted above and does not support the
submissions made by Shri Raju Ramachandran in the
present case.
105. Now, we come to those cases, which have been relied
by Shri Raju Ramachandran in support of his submission.
106. The Judgment of this Court in Hyderabad Industries
Ltd. And Another Vs. Union of India And Others, (1995) 5
SCC 338 was a case where a three Judge Bench had doubted
the correctness of an earlier judgment, i.e., Khandelwal
Metal and Engineering Works and Another Vs. Union of
India and Others, (1985) 3 SCC 620. Similarly, S.S.
Rathore Vs. State of M.P., 1988 (Supp.) SCC 522 was also
a case where correctness of a five Judges decision in
Sita Ram Goel Vs. Municipal Board, Kanpur and Others,
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
Others Vs. State of Bihar and Others, (1996) 7 SCC 577
and Balasaria Construction (P) Ltd. Vs. Hanuman Seva
Trust and Others, (2006) 5 SCC 662, hence these cases
100
also does not support the submission. The judgment of
this Court in Acchan Rizvi (I) Vs. State of U.P. and
Others, (1994) 6 SCC 751 and Acchan Rizvi (II) Vs. State
of U.P. and Others, (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 Vs. Union of India and Others, (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 judgment
has no relevance with regard to reference to larger
Bench. Judgment of this Court in Mohd. Aslam alias
Bhure Vs. Union of India and Others, (2003) 4 SCC 1, has
been relied, which was a case decided by a five Judges
Bench. A public interest writ petition under Article 32
was filed with regard to manner in which the adjacent
land, i.e., adjacent land to the disputed structure
should be preserved till the final decision in the suit
pending in the High Court, which was revived consequent
101
to judgment in Ismail Faruqui’s case. The five Judges
Bench noticed various observations and directions passed
in Ismail Faruqui’s case and ultimately had directed
that interim order passed by this Court on 13.03.2002 as
modified on 14.03.2002 should be operative until
disposal of the suits in the High Court of Allahabad not
only to maintain communal harmony but also to fulfil
other objectives of the Act. The Writ Petition was
disposed of accordingly. No principle regarding
reference to larger Bench was laid down in the said
case, which may support the submission of learned
counsel.
107. A two Judge Bench judgment in Vinod Kumar Shantilal
Gosalia Vs. Gangadhar and Others, 1980 (Supp.) SCC 340
has also been relied, in which following order was
passed:
“After having heard counsel for the parties
we reserved judgment. On going through the
judgment of the Judicial Commissioner and the
documents and after a careful consideration
of the arguments of the parties, we find that
these appeals involve a substantial question
of law of great importance which is likely to
govern a number of cases arising out of
mining leases in the present territory of
Goa, Daman & Diu. We, therefore, direct that
this case be placed before a larger Bench.
Let these appeals be placed before the
102
Hon’ble the Chief Justice for orders.”
108. The above order was passed by two Judge Bench,
which had directed the appeal to be placed before Chief
Justice for hearing the matter by a larger Bench due to
the fact that appeal involves a substantial question of
law of great importance. The said matter cannot be read
as an order directing the matter to be placed before a
Constitution Bench nor any proposition regarding
reference to Constitution Bench is decipherable from the
above order, which may help the learned counsel.
Another judgment, which was relied by Shri Ramachandran
is an order passed by Justice E.S. Venkatramiah –
Vacation Judge in Ram Jethmalani Vs. 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
103
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 Vs. Union of India and Others,
(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 order, which might have been a Bench
of three Hon’ble Judges deciding the issue. In Union of
India Vs. M. Gopalakrishnaiah, 1995 Supp. (4) SCC 81, an
earlier Constitution Bench judgment in Delhi Transport
Corporation Vs. D.T.C. Mazdoor Congress and Others, 1991
Supp (1) SCC 600 was noticed and the question as to
whether the reasoning of the decision in the Delhi
Transport Corporation (supra) and Central Inland Water
Transport Corporation Limited and Another Vs. Brojo Nath
104
Ganguly and Another, (1986) 3 SCC 156, which applied to
permanent employees can be extended to the Director on
their fixed tenure in the Scheme should be considered.
Thus, whether the Constitution Bench Judgment applied in
aforesaid case was the question referred, which is again
an order passed in the peculiar facts of the case and
does not contain any ratio pertaining to reference to
larger Bench.
110. Similarly, in Syndicate Bank Vs. Prabha D. Naik and
Another, (2002) 10 SCC 686, a two Judge Bench made a
reference to larger Bench to consider the interpretation
of Article 535 of the Portuguese Civil Code and
applicability of the Limitation Act. The reference was
not to a Constitution Bench and was only to a larger
Bench, which might be to a three Judge Bench. Similarly,
in Charanjeet Singh Vs. Raveendra Kaur, (2008) 17 SCC
650 looking to the importance of the question, a two
Judge Bench had made reference to a larger Bench. Two
Judge Bench reference was not to a Constitution Bench,
hence, does not support the submission. To the similar
effect is the judgment of this Court in Telecom
Regulatory Authority of India Vs. Bharat Sanchar Nigam
105
Limited (2014) 3 SCC 304, where two Judge Bench has made
a reference to a larger Bench. In Securities and
Exchange Board of India Vs. Sahara India Real Estate
Corporation Limited and Others, (2014) 8 SCC 751, an
earlier order passed by three Judge Bench was sought to
be enforced, hence reference was made to a Three Judge
Bench, which again was not a case for reference to a
Constitution Bench of five Judges. Judgment of this
Court in Rajeev Dhavan Vs. Gulshan Kumar Mahajan and
Others, (2014) 12 SCC 618 was a case pertaining to a
contempt petition, which is not relevant for the present
controversy. Last judgment relied by Shri Ramachandran
is Vivek Narayan Sharma Vs. Union of India, (2017) 1 SCC
388. The three Judge Bench was considering the issue of
notification dated 08.11.2016 demonetizing 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 farreaching implications
which the answers to the questions may have,
we consider it proper to direct that the
106
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 these appeals. The issues,
which have arisen in these appeals are no doubt
important issues, which have to be heard and decided in
these appeals. Normally appeals arising out of suits are
placed before a Bench of Two Judges but looking to the
importance of the matter, the present appeals have
already been placed before three Judge Bench. For the
107
aforesaid reasons, we do not agree with the submission
of Shri Raju Ramachandran that these appeals be referred
to Constitution Bench of Five Judges to reconsider the
Constitution Bench judgment in Ismail Faruqui’s case.
113. Before we close we remind us as well as members of
both the major communities of this country, Hindus and
Muslims, the thoughtful message given by Justice S.U.
Khan in his judgment as well as the words of Justice
J.S. Verma, speaking for majority in Ismail Faruqui’s
case. Justice S.U. Khan made following appeal:
'Muslims must also ponder that at present the
entire world wants to know the exact
teaching of Islam in respect of relationship
of Muslims with others. Hostilitypeace
friendshiptoleranceopportunity to impress
others with the Messageopportunity to strike
wherever and whenever possibleor what? In
this regard Muslims in India enjoy a unique
position. They have been rulers here, they
have been ruled and now they are sharers in
power (of course junior partners). They are
not in majority but they are also not
negligible minority (Maximum member of
Muslims are in huge majority which makes them
indifferent to the problem in question or in
negligible minority which makes them
redundant. Indian Muslims have also inherited
huge legacy of religious learning and
knowledge. They are therefore in the best
position to tell the world the correct
position. Let them start with their role in
the resolution of the conflict at hand.”
108
114. Justice J.S. Verma in paragraph 156 of the judgment
expressed great hope into Hinduism which is a tolerant
faith. In paragraph 156 it was observed:
"156.Before we pass final orders, some
observations of a general nature appear to be
in order. Hinduism is a tolerant faith. It is
that tolerance that has enabled Islam,
Christianity, Zoroastrianism, Judaism,
Buddhism, Jainism and Sikhism to find shelter
and support upon this land. We have no doubt
that the moderate Hindu has little taste for
the tearing down of the place of worship of
another to replace it with 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
109
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
“conflict of religion” has expressed great hope with
Hindu view of life. Dr. Radhakrishnan in prophetic words
states:
“That the Hindu solution of the problem
of the conflict of religions is likely to be
accepted in the future seems to me to be
fairly certain. The spirit of democracy with
its immense faith in the freedom to choose
one's ends and direct one's course in the
effort to realize them makes for it. Nothing
is good which is not selfchosen; no
determination is valuable which is not self
determination. The different religions are
slowly learning to hold out hands of
friendship to each other in every part of the
world. The parliaments of religions and
conferences and congresses of liberal
thinkers of all creeds promote mutual
understanding and harmony. The study of
comparative religion is developing a fairer
attitude to other religions. It is impressing
onus the fundamental unity of all religions
by and the need of the hour determine the
emphasis in each religion. We are learning to
think clearly about the interrelations of
religions. We tend to look upon different
religions not as incompatibles but as
110
complementaries, and so indispensable to each
other for the realization of the common end.
Closer contact with other religions has
dispelled the belief that only this or that
religion has produced men of courage and
patience, selfdenying love and creative
energy. Every great religion has cured its
followers of the swell of passion, the thrust
of desire and the blindness of temper. The
crudest religion seems to have its place in
the cosmic scheme, for gorgeous flowers
justify the muddy roots from which they
spring.”
118. We are confident that observations made by Justice
S.U. Khan of Allahabad High Court as quoted above as
well as observations of Justice J.S. Verma made in
paragraph 156 of the judgment are observations which
shall guide both the communities in their thought, deed
and action.
119. To conclude, we again make it clear that
questionable observations made in Ismail Faruqui's case
as noted above were made in context of land acquisition.
Those observations were neither relevant for deciding
the suits nor relevant for deciding these appeals.
120. In view of our foregoing discussions, we are of the
considered opinion that no case has been made out to
refer the Constitution Bench judgment of this Court in
111
Ismail Faruqui case (supra) 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.
..........................CJI.
( DIPAK MISRA )
...........................J.
( ASHOK BHUSHAN )
NEW DELHI,
SEPTEMBER 27, 2018.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 10866-10867 OF 2010
M. SIDDIQ (D) THR. LRS. … APPELLANT(S)
VERSUS
MAHANT SURESH DAS AND ORS. ETC. … RESPONDENT(S)
WITH
CIVIL APPEAL NOS. 4768-4771 OF 2011
CIVIL APPEAL NO. 2636 OF 2011
CIVIL APPEAL NO. 821 OF 2011
CIVIL APPEAL NO. 4739 OF 2011
CIVIL APPEAL NOS. 4905-4908 of 2011
CIVIL APPEAL NO. 2215 of 2011
CIVIL APPEAL NO. 4740 of 2011
CIVIL APPEAL NO. 2894 of 2011
CIVIL APPEAL NO. 6965 of 2011
CIVIL APPEAL NO. 4192 of 2011
CIVIL APPEAL NO. 5498 of 2011
CIVIL APPEAL NO. 7226 of 2011
CIVIL APPEAL NO. 8096 of 2011
DIARY NO. 22744 OF 2017
JUDGMENT
S.ABDUL NAZEER, J.
1. I have had the privilege of reading the erudite Judgment of my learned Brother Justice Ashok Bhushan. My learned Brother has 2 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 judicata contained in paragraphs 63 to 75 of the Judgment and have restricted this judgment to the other issues.
2. Since the facts of the case and the rival contentions of the parties have been set out by my learned Brother in detail, it is not necessary to reiterate them. Therefore, I have stated only certain relevant facts.
3. In Ismail Faruqui, the Court started by elucidating the background of the case leading to the Acquisition of Certain Area at Ayodhya Act, 1993 (No. 33 of 1993) (for short '1993 Act') and the reasons for making Special Reference to this Court by the President of India in exercise of his power in clause (1) of Article 143 of the 3 Constitution of India. Herein the Special Reference mentioned, had the following question for consideration and opinion:
"Whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janma Bhumi-Babri Masjid (including the premises of the inner and outer courtyards of such structure) in the area on which the structure stood?"
4. After narrating the facts, the Court went on to examine the constitutional validity of the 1993 Act. On this issue, the Court concluded that the Parliament has the legislative competence to enact the said legislation and except for Section 4(3), the entire 1993 Act is constitutionally valid. While deciding so, the Court in paragraph 51 went on to discuss the "comparative significance" of the disputed site to the two communities. The following is reproduced as under:
"51. It may also be mentioned that even as Ayodhya is said to be of particular significance to the Hindus as a place of pilgrimage because of the ancient 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 AD. 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 4 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."
5. After the aforementioned conclusion, in paragraphs 65 to 82 the Court examined the question as to whether a mosque is immune 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 5 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 for 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.
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."
(Emphasis supplied)
6. In paragraph 82 this Court summarised the position as under:
"82. The correct position may be summarised thus. Under the Mahomedan Law applicable in India, title to a mosque can be lost by adverse possession (See Mulla's Principles of Mahomedan Law, 19th Edn., by M. 6 Hidayatullah - Section 217; and Shahid Ganj v. Shiromani Gurdwara [AIR 1940 PC 116, 121]. If that is the position in law, there can be no reason to hold that a mosque has a unique or special status, higher than that of the places of worship of other religions in secular India to make it immune from acquisition by exercise of the sovereign or prerogative power of the State. 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. Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India. Irrespective of the status of a mosque in an Islamic country for the purpose of immunity from acquisition by the State in exercise of the sovereign power, its status and immunity from acquisition in the secular ethos of India under the Constitution is the same and equal to that of the places of worship of the other religions, namely, church, temple etc. It is neither more nor less than that of the places of worship of the other 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) 7
7. 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 part of a religion is primarily to be ascertained with reference to the doctrine of that religion itself as has been done by the Seven-Judge Constitution Bench of this Court in, the Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1954 SCR 1005 (for short 'Shirur Mutt'). It has also been submitted that the broad test of "essentiality" in Shirur Mutt cannot be cut down by later Five and Two Judges' decisions.
"Integral" is interchangeable with "essential". The latter cannot be short circuited by the use of the former. This may lie at the root of many mal-understandings and needs to be clarified. Further, it is precisely this error of integrality that Ismail Faruqui uses when it 8 speaks of "particular significance". He also submits that the test used in paragraph 78 of Ismail Faruqui was essential and integral even though the word "or" was used. The Court has failed to examine the tenets of faith and proceeded in its own intuitive understanding to make ipse dixit observations. Learned senior counsel has also relied on certain decisions of this Court in support of his contentions. Ismail Faruqui being devoid of any examination on this issue, the matter needs to go to a larger Bench. Dr. Dhavan further submits that the impugned judgment was affected by the questionable observations in Ismail Faruqui. He has taken us through various paragraphs in the impugned judgment in this regard. Dr. Dhavan has also referred to various observations made in the impugned judgment to support his submission that Ismail Faruqui has influenced the said judgment.
8. On the other hand, Shri Parasaran, learned senior counsel submits that the questionable observations in Ismail Faruqui that a mosque not being an essential part of the practice of Islam have to be read in the context of the validity of the acquisition of the suit property under the 1993 Act. He submits that this Court has not ruled that offering Namaz by Muslims is not an essential religious 9 practice. It only ruled that 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 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. 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.
9. 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.
10. 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.
11. It is evident from Ismail Faruqui that the principal submission of the petitioners was that mosque cannot be acquired 10 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 mosques, churches, temples, etc. can be acquired under the State's sovereign power of acquisition. Such acquisition per se does not violate either Article 25 or Article 26 of the Constitution. Further, the Court in paragraph 77 noted 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 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 place per se may infringe the religious freedom guaranteed under Articles 25 and 26 of the Constitution. Additionally, in paragraph 78, it noted that places of worship of any religion having particular significance for that religion, to make it an essential or integral part of the religion, stand on a different footing and have to be treated 11 differently and more reverentially. While summarizing the position, in paragraph 82, the Court has observed that a mosque is not an essential part of practice of religion of Islam and namaz by Muslims can be offered anywhere even in open.
12. What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrine, tenets and beliefs of that religion itself. This has been laid down at page 1025 in Shirur Mutt :
"……..The learned Attorney-General lays stress upon clause (2)(a) of the article and his contention is that all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to State regulation.
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 12 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 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)
13. 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 controlled by secular authorities in accordance with any law laid down by a competent legislature; for it could not be the injunction of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies."
(Emphasis supplied) 13
14. In Ratilal Panachand Gandhi v. The State of Bombay and Ors. 1954 SCR 1055, a Constitution Bench of this Court has held thus:
"It may be noted that 'religion' is not necessarily theistic and in fact there are well known religions in India like Buddhism and Jainism which do not believe in the existence of God or of any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs and doctrines which are regarded by those who profess that religion to be conducive to their spiritual well being, but it would not be correct to say, as seems to have been suggested by one of the learned Judges of the Bombay High Court, that matters of religion are nothing but matters of religious faith and religious belief.
xxx xxx xxx ….. No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate."
(Emphasis supplied)
15. In Sri Venkataramana Devaru and Ors. v. The State of Mysore and Ors. 1958 SCR 895, a Constitution Bench of this 14 Court had the opportunity to consider Articles 25 and 26 of the Constitution of India in the context of Madras Temple Entry Authorisation Act, 1947 as amended in 1949. After referring to Shirur Mutt, this Court has held as under:
"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 [(1954) SCR 1005] 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 Bhakti and Karma Kandas. …."
16. In The Durgah Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors. (1962) 1 SCR 383, a Constitution Bench of this Court, after considering the historical background of the dispute, has held thus:-
"Having thus reviewed broadly the genesis 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 15 denomination or a section thereof within Art 26."
(Emphasis supplied)
17. 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 Arts. 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 decisions been placed beyond controversy. The first is that the protection of these articles is not limited to matters of doctrine or belief they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion.16
The second is that what constitutes an essential part of a religious 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."
(Emphasis supplied)
18. In Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan and Ors. (1964) 1 SCR 561, a Constitution Bench of this Court was considering the validity of Nathdwara Temple Act, 1959 (No. XIII of 1959). The same was challenged on behalf of the denomination of followers of Vallabha. The case originally involved challenge to the Nathdwara Ordinance, 1959 (No. II of 1959) which was issued on February 6, 1959. Subsequently, this Ordinance was repealed by the Act and the petitioner was allowed to amend his petition. It was contended that if the temple was held to be a public temple then the Act is to be invalid because it contravenes the fundamental rights guaranteed to the denomination under Articles 25 and 26 of the Constitution. After considering the rival contentions, the Court has held as under:
17"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 community following the religion or not. This formula may in some cases present difficulties in its operation. Take the case of a practice in relation to food or dress. If in a given proceeding, one section of the community claims that while performing certain rites white dress is an integral part of the religion itself, whereas another section contends that yellow dress and not the white dress is the essential part of the religion, how is the Court going to decide the question? Similar disputes may arise in regard to food. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice in an integral part of its 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 18 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)
19. It is clear from the aforesaid decisions that the question as to whether a particular religious practice is an essential or integral part of the religion is a question which is to be considered by considering the doctrine, tenets and beliefs of the religion. It is also clear that the examination of what constitutes an essential practice requires detailed examination as reflected in the aforesaid judgments.
20. At this juncture, it is also pertinent to note the observations in Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi and Ors. v. State of U.P. and Ors. (1997) 4 SCC 606, at paragraph 28, where it is stated:
"….The concept of essentiality is not itself a determinative factor. It is one of the circumstances to be considered in adjudging whether the particular matters of religion or religious practices or belief are 19 an integral part of the religion. It must be decided whether the practices or matters are considered integral by the community itself. Though not conclusive, this is also one of the facets to be noticed. The practice in question is religious in character and whether it could be regarded as an integral and essential part of the religion and if the court finds upon evidence adduced before it that it is an integral or essential part of the religion, Article 25 accords protection to it…."
(Emphasis supplied)
21. As mentioned above, parties have produced various texts in Islam in support of their respective contentions. For the present, we are concerned with the approach of the Court in concluding questionable observations without examining the doctrine, tenets and beliefs of the religion. The conclusion in paragraph 82 of Ismail Faruqui that "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" has been arrived at without undertaking comprehensive examination.
22. Now, the question is whether the impugned judgment has been affected by the questionable observations in Ismail Faruqui.
A perusal of the impugned judgment shows that learned advocates 20 appearing for the parties have repeatedly quoted various paragraphs of Ismail Faruqui while arguing the case and have also placed strong reliance on the questionable observations made in Ismail Faruqui.
23. A few paragraphs mentioned at page Nos. 3038-3039, 3061, 3392, 3429 and 3439 of the impugned judgment 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 others v. Union of India and others, 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 21 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 plaintiffs and in favour of the defendants."
[Printed volume of the judgment at page Nos. 3038-3039] "Defendants further claim that the property in suit was not in exclusive possession of Muslims right from 1858. It is further submitted that in view of the possession of Hindus from 1858 and onwards which is evident from Ext. 15, 16, 18, 19, 20, 27 and 31, the outer Courtyard was exclusively in possession of Hindus and the inner Courtyard was not exclusively in possession of Muslims but also in joint possession of Hindus and Muslims till 1934. Muslims were dispossessed from the inner Courtyard also in 1934 and plaintiffs admit that Muslims were dispossessed on 22/23December 1949 from the inner Courtyard. Thus, on the basis of Islamic tenets the Muslims claim that the property shall be construed as a Mosque. In this reference the controversy has already been set at rest by the Privy Council in the decision of Masjid Shahid Ganj v. Shiromani Gurudwara Prabandhak Committee, Amritsar, AIR 1940 PC 116. The aforesaid view has been approved in Dr. M. Ismail Faruqui v. Union Of India, 1994 (6) SCC 360, Para 70 of the ruling is relevant which reads as under……"
[Printed volume of the judgment at page Nos. 3061] 22 "Sri Jain has relied upon para 78 of Dr. M. Ismail Faruqui and others v. Union of India and others 1994(6) SCC 360, which is reproduced as under :
“While offer of prayer or worship is are 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 for 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 move reverentially."
Sri H.S. Jain, Advocate has further argued that since birth place of Lord Ram was considered as a place of worship which was integral part of religious practice of Hindu from times immemorial. It is deity and it stands on a different footing and have to be treated reverentially. Sri Jain has further urged that in view of the constitutional mandate as provided under Article 25 of the Constitution this place which was all the time being worshipped has be treated by this Court as a place of 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 23 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 Janambhumi is an integral part of Hindu Religion and the right to worship there is a fundamental right of the Hindu religion and can be enforced through a suit can be clearly made out through a number of decisions of the Hon'ble Supreme Court."
[Printed volume of the judgment at page Nos. 3429] "THE RELIGIOUS RIGHT OF HINDUS TO WORSHIP RAM LALA AT THE JANMASTHAN BECAME CONCRETISED BEFORE THE 24 CONSTITUTION CAME INTO BEING AND THE SAME REQUIRES TO BE PROTECTED.
It is well-known that the Constitution of India was enacted, i.e. given to ourselves, w.e.f. 26th January, 1950. Before it, the right of Hindus to worship was duly sanctified and recognized by judicial orders.
In fact, the Supreme Court records in the Ismail Faruqui case above the contention in paragraph 1.2 of the White Paper of the Government of India as recorded in Paragraph 9, Page 380, of the said judgment. It reads as follows: "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."
It is further very significant to note that the Muslims for the first time, after 1949, assert their right howsoever unsustainable, only in 18th December, 1961.
Therefore, the right of the Hindus to worship at the Rama Janma Bhumi, continuing since times immemorial as an integral part of their religious right and faith was also sanctified by judicial orders from 1949 continuously. This right has concretised and remains an integral part of Hindu religion and has to be protected."
[Printed volume of the judgment at page Nos. 3439] 25
24. Similarly, in the judgment rendered by Justice Sudhir Agarwal, Ismail Faruqui has been quoted at page No. 2015 in the printed volume of the judgment, which is as under:
"3501. Sri Prasad argued that belief of Hindus that Lord Ram as incarnation of Vishnu having born at Ayodhya forms an integral part of Hindu religion which cannot be denied to be practised, observed and performed by them and refers to Commissioner of Police & others v. Acharya Jagadishwarananda Avadhuta& another, (2004) 12 SCC 770 (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 & others 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 others v. Union of India & others, (1994) 6 SCC 360 (para 65, 72, 75 and
96); Acharya Maharajshri Narendra Prasadji Anand prasadji Maharaj and others v. State of Gujarat & others, (1975) 1 SCC 11. The relief sought by the plaintiff (Suit-4) is barred by Section 34 Specific Reliefs Act, 1963 and 26 reliance is placed on Executive Committee of Vaish Degree College, Shamli and others v.
Lakshmi Narain and others, (1976) 2 SCC 58 (para 20 and 27); American Express Bank Ltd. v. Calcutta Steel Co. and others, (1993) 2 SCC 199(para 22)."
25. After considering Ismail Faruqui, Justice Sudhir Agarwal in paragraphs 2722 to 2725 has opined as under:
"2722. The Fourth angle: It is a deity which has filed the present suit for enforcement of its rights. The religious endowment in the case in hand so far as Hindus are concerned, as they have pleaded in general, is a place of a peculiar and unique significance for them and there cannot be any other place like this. In case this place is allowed to extinguish/extinct by application of a provision of statutes, may be of limitation or otherwise, the fundamental right of practicing religion shall stand denied to the Hindus permanently since the very endowment or the place of religion will disappear for all times to come and this kind of place cannot be created elsewhere. 2723. In Ismail Farooqui (supra), Supreme Court has considered the plea of validity of acquisition of land under Land Acquisition Act that once a waqf of mosque is created, the property vests in almighty and it always remain a waqf hence such a property cannot be acquired. While negativing this plea, the Apex Court said that a plea in regard to general religious purposes cannot be said to be an integral part of religion which will deprive the worshippers of the right of worship at any other place and therefore, such a property can 27 be acquired by the State. However, the position would be otherwise if the religious property would have been of special significance and cannot be one of several such kind of properties. It will be useful to reproduce the relevant observation in this regard:
"78. It appears from various decisions rendered by this Court, referred later, that subject to the protection under Articles 25 and 26 of the Constitution, places of religious worship like mosques, churches, temples etc. can be acquired under the State's sovereign power of acquisition. Such acquisition per se does not violate either Article 25 or Article 26 of the Constitution. The decisions relating to taking over of the management have no bearing on the sovereign power of the State to acquire property."
"82. 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 for 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."
2724. The above observations show if the religious endowment is of such nature, which 28 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 significance. This will be infringing the fundamental right under Article 25 of the Constitution.
2725. In fact this reason could have been available to the plaintiffs (Suit-4) also had it been shown by them that the mosque in question for them was a place of special significance but this has already been observed by the Apex Court in respect to this particular mosque that like others it is one of the several mosques and by acquisition of the place it will not have the effect of depriving such fundamental right of Muslims. It is always open to them to offer prayer at any other place like they could have done here but Hindus are not placed on similar footing.
29According to Hindus, this is a place of birth of lord Rama and that be so, there cannot be any other place for which such belief persists since time immemorial. Once this land is allowed to be lost due to the acts of persons other than Hindus, the very right of this Section of people, as protected by Article 25, shall stand destroyed. This is another reason for not attracting the provisions of limitation in the present case."
26. Similarly, Justice D.V. Sharma has stated thus:
"A SOVEREIGN GOVERNMENT EVEN BY EXERCISING THE POWER OF EMINENT DOMAN CANNOT EXERCISE THE POWER OF ACQUISITION OF LAND OR PROPERTY WHICH EXTINGUISHES THE CORE OF THE FAITH OR THE PLACE OR THE INSTITUTION WHICH IS HELD TO BE SACRED.
What clearly follows is that a sovereign Government cannot extinguish the core of the Hindu religion which is the Ram Janambhumi, let alone the same be extinguished through a suit, by transferring the same to some other party in this case the plaintiff thereby ensuring that the said fundamental right to worship at the Ram Janambhumi is extinguished forever. RELEVANT CASE LAW…
(b) Dr. M. Ismail Faruqui and Others v. Union of India & Others, 1994 (6) SCC Para 76, Page 416 – Acharya Maharajshri Narendra Prasadji Anand Prasadji Maharaj v. State of Gujarat, (1976) 2 SCR 317 at pages 327-328: (AIR 1974 SC 2098 at p. 2103), has held :30
"One thing is, however, clear that Article 26 guarantees inter alia the right to own and acquire movable and immovable property for managing religious affairs. This right, however, cannot take away the right of the State to compulsorily acquire property ......If, on the other hand, acquisition of property of a religious denomination by the State can be proved to be such as 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.
31Note (ii) At page 413, Para 65 of Ismail Faruqui – No argument made about a mosque of special significance which forms an essential part of Islam. Hence, no question raised about Baburi Mosque as integral to Islam and it has not been raised in the plaint here or evidence laid or any contention ever made that the said mosque was of any significance to the practice of Islam as a religion……."
[Printed volume of the judgment at page Nos.3438-3439] "FINDINGS ….. Hon'ble Apex Court upheld the validity of provisions of Acquisition of Certain Area at Ayodhya, 1993 in Dr. Ismail Faruqui case (supra) and held that the Central Government can acquire any place of worship. At para- 78 Apex Court held that the place of birth has a particular significance for Hindus and it should be treated on different footing, which reads as under:-
“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 significance for that religion so as to form an essential or integral part thereof. Places of worship of any religion having particular significance for 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.” 32 On behalf of Hindus it is urged that the plaintiffs are not entitled for the relief claimed and as such the relief is barred by the provisions of Section 42 of the Specific Relief Act, 1877 which is at par with Section 34 of the Specific Relief Act,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 service 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: …
2. In M. Ismail Faruqui (Dr.) v. Union of India, (1994) 6 SCC 360, the Hon’ble Supreme Court has held that the Right to Practise, Profess and Propagate Religion guaranteed under Article 25 of the Constitution 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 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 33 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 as this is conscience of the Hindus having special protection under Article 25 of the Constitution of India. Relevant paragraph 77 and 78 of the said judgment read as follows:
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 34 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 significance for that religion so as to form an essential or integral part thereof. Places of worship of any religion having particular significance for 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.
3. In M. Ismail Faruqui (Dr.) v. Union of India (supra) the Hon’ble Supreme Court held that a mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered any where even in open. 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. Relying on said ratio of law it is submitted that without offering prayer at Sri Ramjanamsthan described as Babri mosque in the plaint it can be practised somewhere else but offering prayer instead of Sri Ramjanamsthan at any other place cannot be practised because the merit which is obtained by worshiping at the birth place of Sri Ram cannot be obtained by doing so at other places and it will be contrary to the holy Divine Sacred Scripture of the Hindus and will cause extinction of a most sacred shrine of the 35 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 protection under Articles 25 and 26. Every immovable property is liable to be acquired. Viewed in the proper perspective, a mosque does not enjoy any additional protection which is not 36 available to religious places of worship of other religions.
82. The correct position may be summarised thus. Under the Mahomedan Law applicable in India, title to a mosque can be lost by adverse possession (See Mulla’s Principles of Mahomedan Law, 19th Edn., by M. Hidayatullah — Section 217; and Shahid Ganj v. Shiromani Gurdwara. If that is the position in law, there can be no reason to hold that a mosque has a unique or special status, higher than that of the places of worship of other religions in secular India to make it immune from acquisition by exercise of the sovereign or prerogative power of the State. 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.
Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India. Irrespective of the status of a mosque in an Islamic country for the purpose of immunity from acquisition by the State in exercise of the sovereign power, its status and immunity from acquisition in the secular ethos of India under the Constitution is the same and equal to that of the places of worship of the other religions, namely, church, temple etc. It is neither more nor less than that of the places of worship of the other religions. Obviously, the acquisition of any religious place is to 37 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…..” [Printed volume of the judgment at page Nos.3454-3458]
27. Hence, it is clear that the questionable observations in Ismail Faruqui have certainly permeated the impugned judgment. Thus, the impugned judgment can be claimed to be both expressly and inherently affected by the questionable observations 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 38 decisions referred to in paragraphs 14 to 18 and 20 of this judgment.
28. 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, herein follows the judgment for which the entire country is waiting with bated breath."
29. It is relevant here to state that by an order dated 26.3.2018 a three-Judge Bench of this Court in Sameena Begum v. Union of India & Ors. [Writ Petition (Civil) No. 222 of 2018] has referred the matter relating to polygamy including Nikah Halala; Nikha Mutah;
and Nikah Misya to a Constitution Bench. The order of reference in the said case reads as under:
39"It is submitted by learned counsel for the petitioners that the challenge in these writ petitions pertains to the prevalent practice of polygamy including Nikah Halala; Nikah Mutah; and Nikah Misyar as they are unconstitutional. Various grounds have been urged in support of the stand as to how these practices, which come within the domain of personal law, are not immune from judicial review under the Constitution. It is urged by them that the majority opinion of the Constitution Bench in the case of Shayara Bano etc. v. Union of India & Ors. etc. (2017) 9 SCC 1 has not dealt with these aspects. They have drawn our attention to various paragraphs of the judgment to buttress the point that the said issues have not been really addressed as there has been no delineation on these aspects.
On a perusal of the judgment, we find the submission of the learned counsel for the parties/petitioners is correct that these concepts have not been decided by the Constitution Bench.
xxx xxx xxx
xxx 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 40 issues which may arise for consideration from the writ petitions."
(Emphasis supplied)
30. Moreover, a two-Judge Bench of this Court on 6.7.2018 in Jyoti Jagran Mandal v. NDMC & 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 the impugned order is allowed.
Appeal admitted.
The order of the National Green Tribunal, Principal Bench, New Delhi has rejected an application made by the appellant to have what is known as “Mata-ki-Chowki” in a public park. The appellant has expressly relied upon earlier orders, including a policy decision, which permits Ram Leela and Puja to be allowed once in a year in such public parks.
The appeal raises a question of great constitutional importance as to whether such activities can be allowed in state owned premises in view of our Constitution being secular in nature. The Hon’ble Chief Justice is, therefore, requested to constitute an appropriate Bench to hear the aforesaid matter."
(Emphasis supplied) 41
31. In Sunita Tiwari v. Union of India & Ors. {Writ Petition (Civil) No. 286 of 2017} a Three-Judge Bench of this Court was considering the question relating to banning the practice of Female Genital Mutilation (FGM) or Khatna or Female Circumcision (FC) or Khafd. It was submitted by the senior counsel appearing for the contesting respondent that the matter should be referred to a larger Bench for an authoritative pronouncement because the practice is an essential and integral practice of the religious sect. Learned Attorney General for India also submitted that it deserves to be referred to a larger Bench. By Order dated 24.09.2018, the matter was referred to a larger Bench, the relevant portion of which is as under:
"Regard being had to the nature of the case, the impact on the religious sect and many other concomitant factors, we think it apposite not to frame questions which shall be addressed to by the larger Bench. We also think it appropriate that the larger Bench may consider the issue in its entirety from all perspectives.
In view of the aforesaid, we are of the view that the matter should be placed before a larger Bench. The Registry is directed to place the papers of the instant matter before the Hon’ble Chief Justice of India for obtaining appropriate directions in this regard."
(Emphasis supplied) 42
32. Considering the Constitutional importance and significance of the issues involved, the following need to be referred to a larger Bench:
(a) Whether in the light of Shirur Mutt and other aforementioned cases, an essential practice can be decided without a detailed examination of the beliefs, tenets and practice of the faith in question?
(b) Whether the test for determining the essential practice is both essentiality and integrality?
(c) Does Article 25, only protect belief and practices of particular significance of a faith or all practices regarded by the faith as essential?
(d) Do Articles 15, 25 and 26 (read with Article 14) allow the comparative significance of faiths to be undertaken?
33. The Registry is directed to place this matter before the Hon'ble Chief Justice of India for appropriate orders.
…….……………………………J. (S. ABDUL NAZEER) New Delhi;
September 27, 2018.