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KARNATAKA LAND REFORMS ARTICLE PUBLISHED ON 20-12-2010 BY VIJAY KARNATAKA

Vijaya Karnataka Article on Land Reforms 20-12-2010

Filing petition with fabricated documents is condemned by High court of Karnataka in serious words.

In Cyril D'Souza vs Ponkra Mugera And Others 1998 (1) KarLJ 659, Justice H N Tilhari “This writ petition has got no merits and it, in my opinion should be dismissed with a note of caution to the members of the Bar and the Counsel of the petitioner as well, that in future, the Counsels should be very cautious in drafting, filing the petitions, affidavit etc. and see that the parties do not file writ petitions etc. with purged and forged documents, otherwise, they may have to face the serious consequences. Instead, this petition appears to be an attempt of the petitioner to procure some order from the Court on the basis of an agreement which prima facie appears to be an ante-dated document prepared after that date and it prima facie shows that a false document has been filed with false allegations, because if petitioner would have been in possession, penalty would have been realised from him, the allegations in the petition that the petitioner had been in possession and the date of grant also appears to be false. Filing a false affidavit and filing forged document, as per law laid down by the Supreme Court is nothing but an act illegal, interfering with the proper administration of justice and it prima facie makes out a case for contempt.”

RAM JANMA BHOOMI BABRI MASJID CONTROVERSY AND CASE LAW AND OBSERVATIONS OF SUPREME COURT OF INDIA

RAM JANMA BHOOMI BABRI MASJID CONTROVERSY AND CASE LAW AND OBSERVATIONS OF SUPREME COURT OF INDIA

ISMAIL FARUQUI VS UNION OF INDIA ON 24 OCTOBER, AIR 1995 SC 605, 1994 SCC (6) 360,

BENCH:- JUSTICE VERMA, JAGDISH SARAN (J), VENKATACHALLIAH, M.N.(CJ), AHMADI, A.M. (J), RAY, G.N. (J), BHARUCHA S.P. (J), :-

(PER MAJORITY) (BY J.S. VERMA, J. FOR HIMSELF M.N. VENKATACHALIAH, C.J., G.N. RAY. J.) 

The Judgement started with the words of Jonathan Swift and Swami Vivekananda. Jonathan Swift said:- "We have just enough religion to make us hate, but not enough to make us love one another." Swami Vivekananda said:- "Religion is not in doctrines, in dogmas, nor in intellectual argumentation; it is being and becoming, it is realisation." This thought comes to mind as we contemplate the roots of this controversy. Genesis of this dispute is traceable to erosion of some fundamental values of the plural commitments of our polity. The constitutional validity of the Acquisition of Certain Area at Ayodhya Act, 1993 (No. 33 of 1993) (hereinafter referred to as 'Act No. 33 of 1993' or 'the Act') and the maintainability of Special Reference No. 1 of 1993 (hereinafter referred to as "the Special Reference") made by the President of India under Article 143(1) of the Constitution of India are the questions for decision in this case.

White Paper on Ayodhya, February 1993, issued by the Government of India:-

HISTORY AS PER WHITE PAPER:- 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 Bhoomi-Babri Masjid was erected as a mosque by one Mir Baqi in Ayodhya in 1528 AD. It is claimed by some sections that it was built at the site believed to be the birthspot of Sri Ram where a temple had stood earlier. This resulted in a long-standing dispute. The controversy entered a new phase with the placing of idols in the disputed structure in December 1949. The premises were attached under Section 145 of the Code of Criminal Procedure. Civil suits were filed shortly thereafter. Interim orders in these civil suits restrained the parties from removing the idols or interfering with their worship. In effect, therefore, from December 1949 till 6- 12-1992 the structure had not been used as a mosque.


SHAME FULL ACT AS PER WHITE PAPER:- 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 6-12-1992 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 6-12-1992 indicating an air of normalcy, around midday a crowd addressed by leaders of BJP, VHP, etc., climbed the Ram Janma Bhumi-Babri Masjid (RJM-BM) structure and started 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 five-hundred-year-old structure which was defenceless and whose safety was a sacred trust in the hands of the State Government was demolished.


CONCLUSION OF WHITE PAPER:- The demolition of the Ram Janma Bhoomi- Babri Masjid structure at Ayodhya on 6-12-1992 was a most reprehensible act. The perpetrators of this deed struck not only against a place of worship, but also at the principles of secularism, democracy and the rule of law enshrined in our Constitution. In a move as sudden as it was shameful, a few thousand people managed to outrage the sentiments of millions of Indians of all communities who have reacted to this incident with anguish and dismay. What happened on 6-12-1992 was not a failure of the system as a whole, nor of the wisdom inherent in India's Constitution, nor yet of the power of tolerance, brotherhood and compassion that has so vividly informed the life of independent India. It was, the Supreme Court observed on that day, 'a great pity that a constitutionally elected Government could not discharge its duties in a matter of this sensitiveness and magnitude'. Commitments to the Court and Constitution, pledges to Parliament and the people, were simply cast aside. Therein lay the failure, therein the betrayal. Today India seeks to heal, and not reopen its wounds; to look forward with hope, and not backwards with fear; to reconcile reason with faith. Above all, India is determined to press ahead with the National Agenda, undeterred by aberrations."

NATURE OF DISPUTE:- It may be mentioned that a structure called the Ram Chabutra stood on the disputed site within the courtyard of the disputed structure. This structure also was demolished on 6-12-1992 (Appendix-V to the White Paper). Worship of the idols installed on the Ram Chabutra by Hindu devotees in general, it appears, had been performed for a considerable period of time without any objection by the Muslims to its worship at that place, prior to the shifting of the idols from the Ram Chabutra to the disputed structure in December 1949. As a result of demolition of Ram Chabutra also on 6- 12-1992, the worship by Hindus in general even at that place was interrupted. Thereafter, the worship of idols is being performed only by a priest nominated for the purpose without access to the public.

LITIGATION HISTORY AS DISCLOSED IN WHITE PAPER:- 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 1-2-1986, the District Judge ordered the opening of the lock placed on a grill leading to the sanctum sanctorum of the shrine in the disputed structure and permitted puja by the Hindu devotees. In 1959, a suit was filed by the Nirmohi Akhara claiming title to the disputed structure. In 1981, another suit was filed claiming title to the disputed structure by the Sunni Central Wakf Board. In 1989, Deoki Nandan Agarwal, as the next friend of the Deity filed a title suit in respect of the disputed structure. In 1989, the aforementioned suits were transferred to the Allahabad High Court and were ordered to be heard together. On 14-8-1989, the High Court ordered the maintenance of status quo in respect of the disputed structure (Appendix-1 to the White Paper).

MUTUAL CLAIMS AND DISPUTES:-
1. "....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."

2. Prior to December 1949 when the idols were shifted into the disputed structure from the Ram Chabutra, worship by Hindu devotees at the Ram Chabutra for a long time without any objection from Muslims is also beyond controversy.

3. A controversy, however, is raised about use of the disputed structure as a mosque from 1934 to December 1949. One version is that after some disturbance in 1934, the use of the disputed structure as a mosque had been stopped from 1934 itself and not merely from December 1949.

4. The other side disputes the alleged disuse of the mosque for prayers prior to December 1949.

5. The stand of the Uttar Pradesh Government in the suits was that the place was used as a mosque till 1949.

6. At the centre of the RJB-BM dispute is the demand voiced by Vishwa Hindu Parishad (VHP) and its allied organisations for the restoration of a site said to be the birthplace of Sri Ram in Ayodhya.

7. Till 6-12- 1992 this site was occupied by the structure erected in 1528 by 'Mir Baqi' who claimed to have built it on orders of the first Mughal Emperor Babar. This structure has been described in the old government records as Masjid Janmasthan. It is now commonly referred to as Ram Janma Bhumi-Babri Masjid.

8. The VHP and its allied organisations base their demand on the assertion that this site is the birthplace of Sri Ram and a Hindu temple commemorating this site stood here till it was destroyed on Babar's command and a Masjid was erected in its place. The demand of the VHP has found support from the Bhartiya Janata Party (BJP).

9. The construction of a Ram temple at the disputed site, after removal or relocation of the existing structure, was a major plank in BJP's campaign during elections held in 1989 and 1991.

10. Other major political parties, however, had generally opposed this demand and had taken the stand that while a temple should be built, the issues in dispute should be resolved either by negotiations or by orders of the Court.

11. During the negotiations aimed at finding an amicable solution to the dispute, one issue which came to the fore was whether a Hindu temple had existed on the site occupied by the disputed structure and whether it was demolished on Babar's orders for the construction of the Masjid. It was stated on behalf of the Muslim organisations, as well as by certain eminent historians, that there was no evidence in favour of either of these two assertions. It was also stated by certain Muslim leaders that if these assertions were proved, the Muslims would voluntarily handover the disputed shrine to the Hindus. Naturally, this became the central issue in the negotiations between the VHP and AIBMAC.

12. It is tragic and ironical that the Ram Chabutra and Kaushalya Rasoi, which continued as places of worship during periods of Muslim and British rule have disappeared along with the RJB-BM structure at the hands of people professing to be 'devotees' of Lord Ram.


HOW THE ACT IS CHALLENGED AS OPPOSED TO SECULARISM:-

1. The argument is that the Act read as a whole is anti-secular being slanted in favour of the Hindu community and against the Muslim minority since it seeks to perpetuate demolition of the mosque which stood on the disputed site instead of providing for the logical just action of rebuilding it, appropriate in the circumstances.

2. It is urged that Section 4(3) provides for abatement of all pending suits and legal proceedings depriving the Muslim community of its defences including that of adverse possession for over 400 years since 1528 AD when the mosque was constructed on that site by Mir Baqi, without providing for an alternate dispute- resolution mechanism, and thereby it deprives the Muslim community of the judicial remedy to which it is entitled in the constitutional scheme under the rule of law.

3. It is urged that the Special Reference under Section 143(1) of the Constitution to this Court by the President of India is not of the core question, the answer to which would automatically resolve the dispute but only of a vague and hypothetical issue, the answer to which would not help in the resolution of the dispute as a legal issue.

4. It is also urged that Section 6 enables transfer of the acquired property including the disputed area to any authority, body or trust by the Central Government without reference to the real title over the disputed site.

5. It is further contended that Section 7 perpetuates the mischief of the demolition of the mosque by directing maintenance of the status quo as on 7-1-1993 which enables the Hindus to exercise the right of worship of some kind in the disputed site keeping the Muslims totally excluded from that area and this discrimination can be perpetuated to any length of time by the Central Government.

6. The provision in Section 7, it is urged, has the potential of perpetuating this mischief. Reference was also made to Section 8 to suggest that it is meaningless since the question of ownership over the disputed site remains to be decided and with the abatement of all pending suits and legal proceedings, there is no mechanism by which it can be adjudicated.

7. The objection to Section 8 is obviously in the context of the disputed area over which the title is in dispute and not to the remaining area specified in the Schedule to the Act, ownership of which is not disputed.


SECULARISM IN INDIA AS OBSERVED BY COURT:-

1. The polity assured to the people of India by the Constitution is described in the Preamble wherein the word 'secular' was added by the 42nd Amendment. It highlights the fundamental rights guaranteed in Articles 25 to 29 that the State shall have no religion of its own and all persons shall be equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion of their own choice. In brief, this is the concept of secularism as a basic feature of the Constitution of India and the way of life adopted by the people of India as their abiding faith and creed.

2. M.C. Setalvad stated thus: " (a) The coming of the partition emphasised the great importance of secularism. Notwithstanding the partition, a large Muslim minority, constituting a tenth of the population, continued to be the citizens of independent India. There were also other important minority groups of citizens. In the circumstances, a secular Constitution for independent India, under which all religions could enjoy equal freedom and all citizens equal rights, and which could weld together into one nation the different religious communities, became inevitable……………………..(b) The ideal, therefore, of a secular State in the sense of a State which treats all religions alike and displays a benevolent neutrality towards them is in a way more suited to the Indian environment and climate than that of truly secular State……………… (c) Secularism, in the Indian context, must be given the widest possible content. It should connote the eradication of all attitudes and practices derived from or connected with religion which impede our development and retard our growth into an integrated nation. (d) A concerted and earnest endeavour, both by the State and citizen, towards secularisation in accordance with this wide concept alone lead to the stabilisation of our democratic State and the establishment of a true and cohesive Indian nationhood."

3. Dr Shanker Dayal Sharma stated thus:- "We in India, however, understand secularism to denote 'Sarva Dharma Samabhaav': an approach of tolerance and understanding of the equality of all religions. This philosophical approach of understanding, coexistence and tolerance is the very spirit of our ancient thought. The Yajur Veda states: 'May all beings look on me with the eyes of a friend; May I look on all beings with the eyes of a friend. May we look on one another with the eyes of a friend.' A very significant manifestation of secular outlook is contained in the Prithvi Sukta in the Atharva Veda: This Earth, which accommodates peoples of different persuasions and languages, as in a peaceful home may it benefit all of us. 'Oh, Mother Earth, give to us, as your children the capacity to interact harmoniously; may we speak sweetly with one another.' And the Rig Veda emphatically declares: 'All human beings are of one race.' Thus a philosophical and ethnological composite is provided by ancient Indian thought for developing Sarva Dharma Samabhaav or secular thought and outlook. This enlightenment is the true nucleus of what is now known as Hinduism."

4. Proceeding further, referring to the impact of other religions on the Indian ethos, Dr Shanker Dayal Sharma said: "Two aspects in this regard are noteworthy. First, the initial appearance of Christianity or Islam or Zoroastrianism in India and their establishment on the mainland did not occur as a result of military conquest or threat of conquest. These religions were given a place by virtue of the attitude of accommodation and coexistence displayed by local authorities including the main religious authorities. The second aspect is even more important : Christianity, Islam and Zoroastrianism brought with them spiritual and humanistic thought harmonious and, in fact, identical to the core ideas of the established religious thought in India as exemplified by the basic beliefs of Vedic, Vedantic, Buddhist and Jain philosophy."

5. Dr Shanker Dayal Sharma stated thus:- There was natural interest, therefore, in Islam as a revealed religion brought forth by a Prophet of profound charisma who had faced adversities, and in Christianity, which spread the light of Jesus Christ who had suffered a terrible crucifixion for humanity's sake.

6. Dr Shanker Dayal Sharma stated thus:- Ummul Quran or the essence of the Quran refers to 'Allah' as Rab-ul-Alamin or Lord of the entire universe. It does not confine him to Muslims alone. The Second Surah in the Quran, titled 'Al-Baqurah' gives a warning, which is repeated throughout the Quran, that it is not mere professing of one's creed, but righteous conduct, that is true religion.

7. Dr Sharma also adverted to the contribution made to growth of secularism by Akbar who founded 'Din-e-Ilahi' and the support he was given by Abdul Rahim Khane Khana in addition to the secularism of Dara Shikoh. Impact of Muslim mysticism on Hinduism and contribution of Kabir to the Indian ethos has been lasting.

8. Secular ideals led to formation of the Sikh faith and the Gurus have made a lasting contribution to it. Dr Sharma said: "Guru Gobind Singh further magnified the secular ideal of the Sikh faith. The following lines composed by Guru Govind Singh come to mind. 'Mandir or Mosque, Puja or Namaz, Puran or Quran have no difference. All human beings are equal.’

9. Dr Zakir Hussain words: 'We want peace between the individual and groups within nations. These are all vitally interdependent. If the spirit of the Sermon on the Mount, Buddha's philosophy of compassion, the Hindu concept of Ahimsa, and the passion of Islam for obedience to the will of God can combine, then we would succeed in generating the most potent influence for world peace.'

10. In S.R. Bommai v. Union of India [(1994) 3 SCC 1], a nine-Judge Bench of Supreme Court referred to the concept of 'secularism' in the Indian context. "As stated above, religious tolerance and equal treatment of all religious groups and protection of their life and property and of the places of their worship are an essential part of secularism enshrined in our Constitution. We have accepted the said goal not only because it is our historical legacy and a need of our national unity and integrity but also as a creed of universal brotherhood and humanism. It is our cardinal faith. Any profession and action which go counter to the aforesaid creed are a prima facie proof of the conduct in defiance of the provisions of our Constitution."

11. K. Ramaswamy, J. in the same decision In S.R. Bommai v. Union of India [(1994) 3 SCC 1], stated: “The concept of secularism of which religious freedom is the foremost appears to visualise not only of the subject of God but also an understanding between man and man. Secularism in the Constitution is not anti-God and it is sometimes believed to be a stay in a free society. Matters which are purely religious are left personal to the individual and the secular part is taken charge by the State on grounds of public interest, order and general welfare. The State guarantee individual and corporate religious freedom and dealt with an individual as citizen irrespective of his faith and religious belief and does not promote any particular religion nor prefers one against another. The concept of the secular State is, therefore, essential for successful working of the democratic form of Government. There can be no democracy if anti-secular forces are allowed to work dividing followers of different religious faith flaying at each other's throats. The secular Government should negate the attempt and bring order in the society. Religion in the positive sense, is an active instrument to allow the citizen full development of his person, not merely in the physical and material but in the non- material and non-secular life." ………….. "It would thus be clear that Constitution made demarcation between religious part personal to the individual and secular part thereof. The State does not extend patronage to any particular religion, State is neither pro particular religion nor anti-particular religion. It stands aloof, in other words maintains neutrality in matters of religion and provides equal protection to all religions subject to regulation and actively acts on secular part."

12. B.P. Jeevan Reddy, J. in the same context in the decision stated thus: "While the citizens of this country are free to profess, practice and propagate such religion, faith or belief as they choose, so far as the State is concerned, i.e., from the point of view of the State, the religion, faith or belief of a person is immaterial. To it, all are equal and all are entitled to be treated equally. How is this equal treatment possible, if the State were to prefer or promote a particular religion, race or caste, which necessarily means a less favourable treatment of all other religions, races and castes. How are the constitutional promises of social justice, liberty of belief, faith or worship and equality of status and of opportunity to be attained unless the State eschews the religion, faith or belief of a person from its consideration altogether while dealing with him, his rights, his duties and his entitlements? Secularism is thus more than a passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions. This attitude is described by some as one of neutrality towards religion or as one of benevolent neutrality. This may be a concept evolved by western liberal thought or it may be, as some say, an abiding faith with the Indian people at all points of time. That is not material. What is material is that it is a constitutional goal and a basic feature of the Constitution as affirmed in Kesavananda Bharati (1973) 4 SCC 225 and Indira Nehru Gandhi v. Raj Narain 1975 Supp SCC 1. Any step inconsistent with this constitutional policy is, in plain words, unconstitutional. This does not mean that the State has no say whatsoever in matters of religion. Laws can be made regulating the secular affairs of temples, mosques and other places of worships and maths.

13. Ahmadi, J. stated thus: "Notwithstanding the fact that the words 'Socialist' and 'Secular' were added in the Preamble of the Constitution in 1976 by the 42nd Amendment, the concept of Secularism was very much embedded in our constitutional philosophy. The term 'Secular' has advisedly not been defined presumably because it is a very elastic term not capable of a precise definition and perhaps best left undefined. By this amendment what was implicit was made explicit."

14. "Law in a Pluralist Society" by M.N. Venkatachaliah, J., says;- "The purpose of law in plural societies is not the progressive assimilation of the minorities in the majoritarian milieu. This would not solve the problem; but would vainly seek to dissolve it. 'The purpose of the law must be not to extinguish the groups which make the society but to devise political, social and legal means of preventing them from falling apart and so destroying the plural society of which they are members.' In a pluralist, secular polity law is perhaps the greatest integrating force. A cultivated respect for law and its institutions and symbols; a pride in the country's heritage and achievements; faith that people live under the protection of an adequate legal system are indispensable for sustaining unity in pluralist diversity…………………. To those that live in fear and insecurity all the joys and bright colours of life are etched away. There is need to provide a reassurance and a sense of belonging. It is not enough to say: 'Look here .... I never promised you a rose garden. I never promised you perfect justice.' But perfect justice may be an unattainable goal. At least it must be a tolerable accommodation of the conflicting interests of society. Though there may really be 'royal road to attain such accommodations concretely'.


REASONS FOR DECISION

1. 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 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. The justification given for acquisition of the larger area including the property respecting which title is not disputed is that the same is necessary to ensure that the final outcome of adjudication should not be rendered meaningless by the existence of properties belonging to Hindus in the vicinity of the disputed structure in case the Muslims are found entitled to the disputed site. This obviously means that in the event of the Muslims succeeding in the adjudication of the dispute requiring the disputed structure to be handed over to the Muslim community, their success should not be thwarted by denial of proper access to, and enjoyment of rights in, the disputed area by exercise of rights of ownership of Hindu owners of the adjacent properties. Obviously, it is for this reason that the adjacent area has also been acquired to make available to the successful party, that part of it which is considered necessary, for proper enjoyment of the fruits of success on the final outcome to the adjudication. It is clear that one of the purposes of the acquisition of the adjacent properties is the ensurement of the effective enjoyment of the disputed site by the Muslim community in the event of its success in the litigation; and acquisition of the adjacent area is incidental to the main purpose and cannot be termed unreasonable. The "Manas Bhawan" and "Sita ki Rasoi", both belonging to the Hindus, are buildings which closely overlook the disputed site and are acquired because they are strategic in location in relation to the disputed area. The necessity of acquiring adjacent temples or religious buildings in view of their proximity to the disputed structure area, which forms a unique class by itself, is permissible.

2. 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 community.

3. Maintenance of status quo as on 7-1-1993 does not, therefore, confer or have the effect of granting to the Hindu community any further benefit thereby. It is also pertinent to bear in mind that the persons responsible for demolition of the mosque on 6-12- 1992 were some miscreants who cannot be identified and equated with the entire Hindu community and, therefore, the act of vandalism so perpetrated by the miscreants cannot be treated as an act of the entire Hindu community for the purpose of adjudging the constitutionality of the enactment. Strong reaction against, and condemnation by the Hindus of the demolition of the structure in general bears eloquent testimony to this fact. Rejection of Bhartiya Janata Party at the hustings in the subsequent elections in Uttar Pradesh is another circumstance to that effect. The miscreants who demolished the mosque had no religion, caste or creed except the character of a criminal and the mere incident of birth of such a person in any particular community cannot attach the stigma of his crime to the community in which he was born.

4. It is difficult to visualise how Section 7(2) can be construed as a slant in favour of the Hindu community and, therefore, anti-secular. The provision does not curtail practice of right of worship of the Muslim community in the disputed area, there having been de facto no exercise of the practice or worship by them there at least since December 1949; and it maintains status quo by the freeze to the reduced right of worship by the Hindus as in existence on 7-1-1993. However, confining exercise of the right of worship of the Hindu community to its reduced form within the disputed area as on 7-1-1993, lesser than that exercised till the demolition on 6-12-1992, by the freeze enacted in Section 7(2) appears to be reasonable and just in view of the fact that the miscreants who demolished the mosque are suspected to be persons professing to practise the Hindu religion. The Hindu community must, therefore, bear the cross on its chest, for the misdeed of the miscreants reasonably suspected to belong to their religious fold.

5. Acquisition of the adjacent undisputed area belonging to Hindus has been attacked on the ground that it was unnecessary since ownership of the same is undisputed. Reason for acquisition of the larger area adjacent to the disputed area has been indicated. It is, therefore, not unrelated to the resolution of the dispute which is the reason for the entire acquisition. Even though, prima facie, the acquisition of the adjacent area in respect of which there is no dispute of title and which belongs to Hindus may appear to be a slant against the Hindus, yet on closer scrutiny it is not so since it is for the larger national purpose of maintaining and promoting communal harmony and in consonance with the creed of secularism. Once it is found that it is permissible to acquire an area in excess of the disputed area alone, adjacent to it, to effectuate the purpose of acquisition of the disputed area and to implement the outcome of the final adjudication between the parties to ensure that in the event of success of the Muslim community in the dispute their success remains meaningful, the extent of adjacent area considered necessary is in the domain of policy and not a matter for judicial scrutiny or a ground for testing the constitutional validity of the enactment, as earlier indicated. However, it is with the caveat of the Central Government's duty to restore it to its owner, as indicated earlier, if it is found later to be unnecessary; and reservation of liberty to the owner to challenge the needless acquisition when the total need has been determined.

6. Sub-section (3) of Section 4 provides for abatement of all pending suits and legal proceedings in respect of the right, title and interest relating to any property which has vested in the Central Government under Section 3. The rival claims to the disputed area which were to be adjudicated in the pending suits can no longer be determined therein as a result of the abatement of the suits. This also results in extinction of the several defences raised by the Muslim community including that of adverse possession of the disputed area for over 400 years since construction of the mosque there in 1528 AD by Mir Baqi. ……………… For this reason, it was urged, that the abatement of pending suits amounts to denial of the judicial remedy available to the Muslim community for resolution of the dispute and grant of the relief on that basis in accordance with the scheme of redress under the rule of law envisaged by the Constitution. The validity of sub-section (3) of Section 4 is assailed on this ground……. We accordingly declare sub-section (3) of Section 4 to be unconstitutional.

7. The disputed area being taken over by the Central Government only as a statutory receiver, there is no question of payment of compensation for the same as it is meant to be handed over to the successful party in the suits, in terms of the ultimate judicial verdict therein, for the faithful implementation of the judicial decision.

STATUS OF MOSQUE UNDER MOHAMMEDAN LAW:-

A larger question raised at the hearing was that there is no power in the State to acquire any mosque, irrespective of its significance to practice of the religion of Islam. The argument is that a mosque, even if it is of no particular significance to the practice of religion of Islam, cannot be acquired because of the special status of a mosque in Mahomedan Law. This argument was not confined to a mosque of particular significance without which right to practise 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. It has been contended that acquisition of a mosque violates the right given under Articles 25 and 26 of the Constitution of India.

This requires reference to the status of a mosque under the Mahomedan Law.

1. Even prior to the Constitution, places of worship had enjoyed a special sanctity in India. In order to give special protection to places of worship and to prevent hurting the religious sentiments of followers of different religions in British India, Chapter XV of the Indian Penal Code, 1860 was enacted. This Chapter exclusively deals with the offences relating to religion in Sections 295, 295-A, 296, 297 and 298 of the Indian Penal Code.

2. In British India, the right to worship of Muslims in a mosque and Hindus in a temple had always been recognised as a civil right. Prior to 1950, the Indian courts in British India had maintained the balance between the different communities or sects in respect of their right of worship.

3. Even prior to the guarantee of freedom of religion in the Constitution of India, Chief Justice Turner in Muthialu Chetti v. Bapun Saib ILR (1880) 2 Mad 140, 217 had held that during the British administration all religions were to be treated equally with the State maintaining neutrality having regard to public welfare.

4. In Sundram Chetti v. Queen ILR (1883) 6 Mad 203: approving Muthialu Chetti v. Bapun Saib ILR (1880) 2 Mad 140, 217 , Chief Justice Turner said : "But with reference to these and to other privileges claimed on the ground of caste or creed, I may observe that they had their origin in times when a State religion influence the public and private law of the country, and are hardly compatible with the principles which regulate British administration, the equal rights of all citizens and the complete neutrality of the State in matters of religion. ... When anarchy or absolutism yield place to well-ordered liberty, change there must be, but change in a direction which should command the assent of the intelligence of the country."

5. In Mosque known as Masjid Shahid Ganj v. Shromani Gurdwara Parbandhak Committee, Amritsar AIR 1938 Lah 369 :, it was held there that where a mosque has been adversely possessed by non- Muslims, it lost its sacred character as mosque. Hence, 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. It was further held by the majority 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. The conclusion reached in the minority judgment of Din Mohd., J. is not the Mahomedan Law of British India. The majority view expressed by the learned Chief Justice of Lahore High Court was approved by the Privy Council in Mosque known as Masjid Shahid Ganj v. Shiromani Gurdwara Parbandhak Committee, Amritsar AIR 1940 PC 116,121 : in the appeal against the said decision of the Lahore High Court. The Privy Council held : "It is impossible to read into the modem Limitation Acts any exception for property made wakf for the purposes of a mosque whether the purpose be merely to provide money for the upkeep and conduct of a mosque or to provide a site and building for the purpose. While their Lordships have every sympathy with the religious sentiment which would ascribe sanctity and inviolability to a place of worship, they cannot under the Limitation Act accept the contentions that such a building cannot be possessed adversely to the wakf, or that it is not so possessed so long as it is referred to as 'mosque' or unless the building is razed to the ground or loses the appearance which reveals its original purpose."

6. The Supreme Court from the beginning has consistently upheld the sovereign power of the State to acquire property. B.K. Mukherjee, J. (as he then was) held in Chiranjit Lal Chowdhuri v. Union of India as under : AIR 1951 SC 41 "It is a right inherent in every sovereign to take and appropriate private property belonging to individual citizens for public use. This right, which is described as eminent domain in American law, is like the power of taxation, an offspring of political necessity, and it is supposed to be based upon an implied reservation by Government that private property acquired by its citizens under its protection may be taken or its use controlled for public benefit irrespective of the wishes of the owner."

7. 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.

8. Khajamian Wakf Estates v. State of Madras (1970) 3 SCC 894 has held : "It was next urged that by acquiring the properties belonging to religious denominations the legislature violated Article 26(c) and (d) which provide that religious denominations shall have the right to own and acquire movable and immovable property and administer such property in accordance with law. These provisions do not take away the right of the State to acquire property belonging to religious denominations. Those denominations can own or acquire properties and administer them in accordance with law. That does not mean that the property owned by them cannot be acquired. As a result of acquisition they cease to own that property. Thereafter their right to administer that property ceases because it is no longer their property. Article 26 does not interfere with the right of the State to acquire property."

9. Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj v. State of Gujarat 1975 1 SCC 11 held that: "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. "

10. 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…………. 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.

11. A five-Judge Full Bench of the Allahabad High Court, in Raja Suryapalsingh v. U. P Govt. AIR 1951 All 674,690:, held: "Arguments have been advanced by learned counsel on behalf of certain waqfs and Hindu religious institutions based on Articles 25(1) & 26, clause (c) of the Constitution. ... It is said that a mutawalli's right to profess his religion is infringed if the waqf property is compulsorily acquired, but the acquisition of that property under Article 31 (to which the right conferred by Article 25 is expressly subject) has nothing to do with such rights and in no way interferes with this exercise."

12. 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.

13. 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 available to religious places of worship of other religions.

14. The correct position may be summarised thus.
1) Under the Mahomedan Law applicable in India, title to a mosque can be lost by adverse possession
2) 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.
3) 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.
4) Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India.
5) 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.
6) 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.

DIRECTIONS:- The Central Government would be bound to take all necessary steps to implement the decision in the suits and other legal proceedings and to hand over the disputed area to the party found entitled to the same on the final adjudication made in the suits. The parties to the suits would be entitled to amend their pleadings suitably in the light of our decision.

SOME GREAT GENERAL HEARTY REMARKS OF COURT;- We must place on record our appreciation and gratitude to the learned members of the Bar who assisted us at the hearing of this matter of extraordinary and unusual importance to the national ethos. The learned Attorney General, the learned Solicitor General, the learned Advocate General of Madhya Pradesh, the learned Advocate General of Rajasthan, Shri F.S. Nariman, Shri Soli J. Sorabjee, Late Shri R.K. Garg, Dr Rajeev Dhavan, Shri Anil B. Divan, Shri Satish Chandra, Shri PR Rao, Shri Abdul Mannan, Shri O.P. Sharma, Shri S.N. Mehta, Shri RN. Duda, Shri V.M. Tarkunde, Shri Ashok H. Desai, Shri Shakil Ahmed Syed, Ms N. Bhagwat and the other learned counsel who assisted them rendered their valuable assistance with great zeal after considerable industry in the highest traditions of the Bar. ………………. It was particularly heartening to find that the cause of the Muslim community was forcefully advocated essentially by the members of the Bar belonging to other communities. Their commitment to the cause is evident from the fact that Shri Abdul Mannan who appeared for the Sunni Central Wakf Board endorsed the arguments on behalf of the Muslim community. The reciprocal gesture of Shri Mannan was equally heartening and indicative of mutual trust. The congenial atmosphere in which the entire hearing took place was a true manifestation of secularism in practice. Unless a solution is found which leaves everyone happy, that cannot be the beginning for continued harmony between "we the people of India".


In 1893 World's Parliament of Religions was held in Chicago, the Chairman of Parliament John Henry Barrows indicated its object and observed : "It was felt to be wise and advantageous that the religions of the world, which are competing at so many points in all the continents, should be brought together not for contention but for loving conference, in one room." In Parliament, Swami Vivekananda spoke of "Hinduism as the religion that has taught the world both tolerance and universal acceptance" and described the diversity of religions as "the same light coming through different colours". The assembly recited the Lord's Prayer as a universal prayer and Rabbi Emil Hirsch proclaimed : "The day of national religions is past. The God of the universe speaks of all mankind." At the closing session, Chicago lawyer Charles Bonney, one of Parliament's Chief visionaries, declared : "Henceforth the religions of the world will make war, not on each other, but on the giant evils that afflict mankind." Have we, during the last century, moved towards the professed goal? "As 1993 began, communal violence returned to India, sparked by the controversy over a 16th century mosque said to stand on the ruins of an ancient Hindu temple honouring Lord Rama." It may be said that "fundamentalism and pluralism pose the two challenges that people of all religious traditions face;" and " to the fundamentalists, the borders of religious certainty are tightly guarded; to the pluralist, the borders are good fences where one meets the neighbour. To many fundamentalists, secularism, seen as the denial of religious claims, is the enemy; to pluralists, secularism, seen as the separation of Government from the domination of a single religion, is the essential concomitant of religious diversity and the protection of religious freedom."

We conclude with the fervent hope that communal harmony, peace and tranquillity would soon descend in the land of Mahatma Gandhi, Father of the Nation, whose favourite bhajan (hymn) was- "Ishwar and Allah are both your names. Oh God! Grant this wisdom to all." ….. We do hope that the people of India would remember the gospel he preached and practised, and live up to his ideals. "Better late than never."


DISSENTING JUDGEMENT BY BHARUCHA S.P. (J) & AHMADI, A.M. (J), :- 

WHITE PAPER OBSERVES:- The disputed structure was used by the Muslims for offering prayers until the night of 22-12-1949/23-12-1949, when "Hindu idols were placed under the central dome of the main portion of the disputed structure. Worship of these idols was started on a big scale from the next morning. As this was likely to disturb the public peace the civil administration attached the premises under the provisions of Section 145 of the Criminal Procedure Code. This was the starting point of a whole chain of events which ultimately led to the demolition of the structure………. 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. The 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 December 1992 the structure had not been used as a mosque… The demolition ... was a most reprehensible act. The perpetrators of this deed struck not only against a place of worship but also at the principles of secularism, democracy and the rule of law...... At 6.45 p.m. on that day the idols were replaced where the disputed structure had stood and by 7.30 p.m. work had started on the construction of a temporary structure for them….. At about 9.10 p.m. the President of India issued a proclamation under the provisions of Article 356 assuming to himself all the functions of the Government of Uttar Pradesh and dissolving its Vidhan Sabha……. A structure called the Ram Chabutra stood on the disputed site, within the courtyard of the disputed structure. This structure was also demolished on 6-12-1992 . As a result, worship by the Hindus thereat,which, it appears, had been going on for a considerable period of time without objection by the Muslims, came to an end. ……. After the imposition of President's rule, the Central Government took, inter alia, the following decisions: "The Government will see to it that the demolished structure is rebuilt; and appropriate steps will be taken regarding new Ram temple."…….. On 27-12-1992, the aforesaid decisions taken on 7-12- 1992, "to rebuild the demolished structure and to take appropriate steps regarding new Ram temple" were elaborated as follows: "The Government has decided to acquire all areas in dispute in the suits pending in the Allahabad High Court. It has also been decided to acquire suitable adjacent area. The acquired area excluding the area on which the disputed structure stood would be made available to two trusts which would be set up for construction of a Ram temple and a mosque respectively and for planned development of the area. 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 on the site where the disputed structure stood. The Government has also decided to abide by the opinion of the Supreme Court and to take appropriate steps to enforce the Court's opinion. Notwithstanding the acquisition of the disputed area, the Government would ensure that the position existing prior to the promulgation of the Ordinance is maintained until such time as the Supreme Court gives its opinion in the matter. Thereafter the rights of the parties shall be determined in the light of the Court's opinion."

TERMS OF REFERENCE

1. "Whereas a dispute has arisen whether a Hindu temple or any Hindu religious structure existed prior to the construction of the structure (including the premises of the inner and outer courtyards of such structure), commonly known as the Ram Janma Bhumi-Babri Masjid, in the area in which the structure stood in Village Kot Ramchandra in Ayodhya, in Pargana Haveli Avadh, in Tehsil Faizabad Sadar, in the district of Faizabad of the State of Uttar Pradesh.

2. And whereas the said area is located in Revenue Plot Nos. 159 and 160 in the said Village Kot Ramchandra;

3. And whereas the said dispute has affected the maintenance of public order and harmony between different communities in the country;

4. And whereas the aforesaid area vests in the Central Government by virtue of the Acquisition of Certain Area at Ayodhya Ordinance, 1993;

5. And whereas notwithstanding the vesting of the aforesaid area in the Central Government under the said Ordinance the Central Government proposes to settle the said dispute after obtaining the opinion of the Supreme Court of India and in terms of the said opinion;

6. And whereas in view of what has been hereinbefore stated it appears to me that the question hereinafter set out has arisen and is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court of India thereon;

7. Now, therefore, in exercise of the powers conferred upon me by clause (1) of Article 143 of the Constitution of India, 1, Shanker Dayal Sharma, President of India, hereby refer the following question to the Supreme Court of India for consideration and opinion thereon, namely,

8. 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?"

To avoid ambiguity, the learned Solicitor General was asked to take instructions and put in writing the Central Government's position in this behalf: If the answer to the question posed by the Reference was that no Hindu temple or religious structure had stood on the disputed site prior to the construction of the disputed structure, would the disputed structure be rebuilt? On 14-9- 1994, the -learned Solicitor General made the following statement in response: "Government stands by the policy of secularism and of even-handed treatment of all religious communities. The Acquisition of Certain Area at Ayodhya Act, 1993, as well as the Presidential Reference, have the objective of maintaining public order and promoting communal harmony and the spirit of common brotherhood amongst the people of India. Government is committed to the construction of a Ram temple and a mosque, but their actual location will be determined only after the Supreme Court renders its opinion in the Presidential Reference. Government will treat the finding of the Supreme Court on the question of fact referred under Article 143 of the Constitution as a verdict which is final and binding. In the light of the Supreme Court's opinion and consistent with it,Government will make efforts to resolve the cotroversy the controversy by a process of negotiations. Government is confident that the opinion of the Supreme Court will have a salutary effect on the attitudes of the communities and they will no longer take conflicting positions on the factual issue settled by the Supreme Court. If efforts at a negotiated settlement as aforesaid do not succeed, Government is committed to enforce a solution in the light of the Supreme Court's opinion and consistent with it, Government's action in this regard will be even-handed in respect of both the communities.

If the question refer-red is answered in the affirmative, namely, that a Hindu temple/structure did exist prior to the construction of the demolished structure, Government action will be in support of the wishes of the Hindu community. If, on the other hand, the question is answered in the negative, namely, that no such Hindu temple/structure existed at the relevant time, then Government action will be in support of the wishes of the Muslim community.

The learned Solicitor General was asked to clarify whether the Central Government proposed to act in support of either community's wishes as presently known or as ascertained after the answer to the Reference was given and negotiations had failed. The learned Solicitor General was unable to get instructions in this behalf from the Central Government. It is fair to say that he had not much time to do so as the arguments were closed on the day after the clarification was sought.

The Statement of Objects and Reasons state that the acquisition of the whole bundle of property and rights is necessary for setting up a planned complex housing "a Ram temple, a mosque, amenities for pilgrims, a library, museum and other suitable facilities". More importantly, the provisions of Section 4 of the Act, inasmuch as they deprive the Sunni Wakf Board and the Muslim community of the right to plead and establish adverse possession as aforesaid and restrict theredress of their grievance in respect of the disputed site to the answer to the limited question posed by the Reference and to negotiations subsequent thereto, and the provisions of Section 3 of the Act, which vest the whole bundle of property and rights in the Central Government to achieve this purpose, offend the principle of secularism, which is a part of the basic structure of the Constitution, being slanted in favour of one religious community as against another. ………….. The core provisions of the Act are Sections 3, 4 and 8. The other provisions of the Act are only ancillary and incidental to Sections 3, 4 and 8. Since the core provisions of Sections 3, 4 and 8 are unconstitutional, the Act itself cannot stand.

Reference was made in the course of the proceedings to the provisions of the Places of Worship Special Provisions Act, 1991. It is a statute to prohibit the conversion of any place of worship and to provide for the maintenance of the religious character of any place of worship as it existed on 15-8-1947. It enjoins that no person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof. It declares that the religious character of a place of worship existing on 15-8-1947, shall continue to be the same as it existed on that date. It is specified that nothing contained in the statute shall apply to the place of worship which was the disputed structure at Ayodhya and to any suit, appeal or other proceedings relating to it. Based upon The Places of Worship Act, it was submitted that what had happened at Ayodhya on 6-12-1992, could never happen again. The submission overlooks the fact that the Indian Penal Code contains provisions in respect of offences relating to religion. Section 295 thereof states that whoever destroys, damages or defiles any place of worship or any object held sacred by any class of persons with the object of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion shall be punished. Section 295 provides for punishment of a person who with the deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representation or otherwise insults or attempts to insult the religion or religious beliefs of that class. Those who razed the disputed structure to the ground on 6-12-1992, were not deterred by these provisions. Others similarly minded are as little likely to be deterred by the provisions of the Places of Worship Act.

If the title to the place of worship is in dispute in a court of law and public order is jeopardised, two courses are open to the Central Government. It may apply to the court concerned to be appointed Receiver of the place of worship, to hold it secure pending the final adjudication of its title, or it may enact legislation that makes it statutory Receiver of the place of worship pending the adjudication of its title by the court concerned. In either event, the Central Government would bind itself to hand over the place of worship to the party in whose favour its title is found.

In our view, the Reference must not be answered, for the following reasons. 1. The Act and the Reference, as stated hereinabove, favour one religious community and disfavour another; the purpose of the Reference is, therefore, opposed to secularism and is unconstitutional. Besides, the Reference does not serve a constitutional purpose.
2. Secondly, the fifth recital to the Reference states that "the Central Government proposes to settle the said dispute after obtaining the opinion of the Supreme Court of India and in terms of the said opinion". It is clear that the Central Government does not propose to settle the dispute in terms of the Court's opinion. It proposes to use the Court's opinion as a springboard for negotiations. Resolution of the dispute as a result of such negotiations cannot be said to be a resolution of the dispute "in terms of the said opinion". Asked to obtain instructions and tell the Court that the mosque would be rebuilt if the question posed by the Reference was answered in the negative, the learned Solicitor General made the statement quoted above. It leaves us in no doubt that even in the circumstance that this Court opines that no Hindu temple or Hindu religious structure existed on the disputed site before the disputed structure was built thereon, there is no certainty that the mosque will be rebuilt.
3. Thirdly, there is the aspect of evidence in relation to the question referred. It is not our suggestion that a court of law is not competent to decide such a question. It can be done if expert evidence of archaeologists and historians is led, and is tested in cross-examination. The principal protagonists of the two stands are not appearing in the Reference; they will neither lead evidence nor cross- examine. The learned Solicitor General stated that the Central Government would lead no evidence, but it would place before the Court the material that it had collected from the two sides during the course of earlier negotiations. The Court being ill-equipped to examine and evaluate such material, it would have to appoint experts in the field to do so, and their evaluation would go unchallenged. Apart from the inherent inadvisability of rendering a judicial opinion on such evaluation, the opinion would be liable to the criticism of one or both sides that it was rendered without hearing them or their evidence. This would ordinarily be of no significance for they had chosen to stay away, but this opinion is intended to create a public climate for negotiations and the criticism would find the public ear, to say nothing of the fact that it would impair this Court's credibility.
4. Ayodhya is a storm that will pass. The dignity and honour of the Supreme Court cannot be compromised because of it.
5. No observation that we have made is a reflection on the referring authority. We have the highest respect for the office of the President of India and for its present incumbent; his secular credentials are well known. 6. Having regard to the construction that we have placed upon the Act and the Reference, it is neither necessary nor appropriate to discuss the other challenges to their validity and maintainability, respectively. It may, however, be said that we found the argument that the Act was public order legislation and, therefore, beyond the competence of Parliament very plausible.
7. To quote Gandhiji again: "India cannot cease to be one nation because people belonging to different religions live in it. ... In no part of the world are one nationality and one religion synonymous terms, nor has it ever been so in India."
8. The Acquisition of Certain Area at Ayodhya Act, 1993, is struck down as being unconstitutional. The writ petitions impugning the validity of the Act are allowed.

BAR AND BENCH RELATIONSHIP: ADVOCATE SHALL NOT INDULGE IN SCANDALISING JUDICIARY

In a case before Supreme Court of India, M.B. Sanghi, Advocate vs High Court Of Punjab And Haryana ... Decided on 31 July, 1991 by the Bench Consisting of AHMADI, A.M. (J) & AGRAWAL, S.C. (J) Reported in AIR 1991 SC 1834:- Unable to secure an ad-interim stay in favour of his client, the appellant, a practising Advocate, uttered cer- tain words imputing motives to the Sub-Judge in refusing to grant the stay. The sub-Judge submitted a report to the District and Sessions Judge setting out the words uttered by the appellant, for taking necessary action against him. The District and Sessions Judge in turn submitted a report to the High Court, and proceedings for contempt were initiated by the High Court. The Supreme court held that “The appellant had made an attack on the learned Subordinate Judge which was disparaging in character and derogatory to his dignity and would vitally shake the confi- dence of the public in him and that the aspersions made by the appellant had the effect of scandalising the Court in such a way as to create distrust in the people's mind and impair confidence of the prople in Court. The appellant has, therefore, been rightly held guilty of having committed the contempt of court under section 2(c)(i) of the Act. The High Court, in its appreciation of evidence, has rightly placed reliance on the testimony of the Sub- Judge corroborated by the evidence of the Reader in his Court, in preference to the testimony of the three Advocates. ………………… Moreover this was not the first occasion in which proceedings for contempt of court had been initiated against the appellant and on an earlier occasion also proceedings for contempt of court had been initiated against him in pursuance of a report of the then Chief Judicial Magistrate, and in those proceedings the rule issued against the appellant was discharged on his tendering unqualified apology before the High Court. In those proceed- ings also the appellant is said to have made disparaging remarks against the Judge. Keeping in view the said circumstance, the High Court has found that the appellant was addicted to using contemptuous language and making scurrilous attacks on Judges. …………. In the instant case, the appellant repeated his performance presumably because he was let off lightly on the first occasion. Softjustice is not the answer. The appellant cannot be let off on an apology which is far from sincere. His apology was hollow, there was no remorse-no regret--it was only a device to escape the rigour of the law. The High Court rightly did not accept it. 

CASES AND GUIDELINES APTLY QUOTED M.Y. Shareef & Anr. v. The Hon'ble Judges of the High Court of Nagpur & Ors., [1955] 1 SCR 757, relied on. Per Ahmadi, J. (Concurring): 1. The exact words uttered by the appellant, leave no doubt that the intention of the appellant was to cast aspersions on the integrity of the Judge and to lower him in the esteem of others by creating doubts regarding his honesty, judicial impartiality and independence. The tendency of maligning the reputation of Judicial Officers by disgruntled elements who fail to secure the desired order is ever on the increase and it is high time it is nipped in the bud. And, when a member of the profession resorts to such cheap gimmicks with a view to browbeating the Judge into submission, it is all the more painful. When there is a deliberate attempt to scandalise which would shake the confidence of the litigating public in the system, the damage caused is not only to the reputation of the concerned Judge but also to the fair name of the judiciary. Veiled threats, abrasive behaviour, use of disre- spectful language and at times blatant condemnatory attacks like the present one are often designedly employed with a view to taming a Judge into submission to secure a desired order. Such cases raise larger issues touching the independ- ence of not only the concerned Judge but the entire institu- tion. The foundation of our system which is based on the independence and impartiality of those who man it will be shaken if disparaging and derogatory remarks are made against the Presiding Judicial Officers with impunity. The much cherished judicial independence which is of vital importance to any free Society, has to be protected not only from the executive or the legislature but also from those who are an integral part of the system. 

L.D. Jaikwal v. State of U.P., [ 1984] 3 SCC 405. This Court described it as a 'paper apology and refused to accept it in the following words: "We do not think that merely because the appellant has tendered his apology we should set aside the sentence and allow him to go unpunished. Otherwise, all that a person wanting to intimidate a Judge by making the grossest imputations against him has to do, is to go ahead and scandalize him, and later on tender a formal empty apology which costs him practically nothing. If such an apology were to be accepted, as a rule, and not as an exception, we would in fact be virtually issuing a 'licence' to scandalize courts and commit contempt of court with impunity. It will be rather difficult to persuade members of the Bar, who care for their self-respect, to join the judiciary if they are expected to pay such a price for it. And no sitting judge will feel free to decide any matter as per the dictates of his conscience on account of fear of being scandalized and persecuted by an advocate who does not mind making reckless allegations if the Judge goes against his wishes. If this situation were to be counte- nanced, advocates who can cow down the Judges, and make them fail in line with their wishes, by threats of character assassination and persecution, will be preferred by the liti- gants to the advocates who are mindful of professional ethics and believe in maintaining the decorum of courts." 

IMPORTANCE OF ETHICAL VALUES AND DUTY OF BAR COUNCIL When a member of the Bar is required to be punished for use of contemptuous language it is highly painful--it pleases none--but painful duties have to be performed to uphold the honour and dignity of individual Judge and his office and the prestige of the institution. Courts are generally slow in using their contempt jurisdiction against erring members of the profession in the hope that the con- cerned Bar Council will chasten its members for failure to maintain proper ethical norms. If timely action is taken by Bar Councils, the decline in the ethical values can be easily arrested.

WHY THIS BLOG OF INFORMATION - IT MAY NOT BE HELPFUL FOR HAVES BUT SEE THE PLIGHT OF HAVE NOTS

The information of case laws is collected from the websites of supreme court, several High courts & other free websites by taking care to repeat the accurate words of Hon’ble justices. All the praise and credit for this blog contents should go to Hon’ble Justices of our country, who are enlightening us with their golden words of research. I have no intention to have copyright over these blogs. I have no intention to gain monetarily from the contents of the blog. Donation is solicited from gracious donors, to subserve several humanitarian causes, including this legal awareness campaign expenses. As a advocate, I suffered a lot by unabled to invest in books and gain knowledge. With little help from seniors and clients, although I collected books, but they did not updated me, because of further financial difficulties in sparing money to books. Initially when I searched online data on Indian laws, I was surprised to see only foreign origin websites rather than Indian sites in 2006 and 2007. In 2007 I started this blog of information by pooling in the typed data and my case law index collected dairy information to blogs. Usually we get a peculiar type of cases in courts which needs some debate and research to come to accurate conclusions. Such attitude of my several colleagues and my senior encouraged me to search online solutions for the different cases of others and of my clients. The information provided in Supreme court website and Common Lii dot org website of England and other later High Courts web informations encouraged me to bring out these several blogs. Iam happy that for whatever legal query submitted by any one through google/yahoo search online, my web blogs are referred within top ten websites out of crores together searched websites. I cannot explain in any technical effect how this has happened. Its all with the help of visitors like you. The free websites of law like Indian kanoon dot org, Rishabdra dot com, openjudis, lawyersclubindia dot com, legalserviceindia dot com are doing well but still india needs consolidated data of case laws for any research oriented persons. Many pay sites are there, one should remember that a major percentage of practicing advocates in district and taluk level are having financial difficulties to even have moderate law updates, by spending nearly Rs 12,000-00(Minimum) for any law reporters, it is of great difficult to a ethical practitioner. If we go online we need Rs 12000-00 for online BB expenses and further subscription of Rs 5000-00(Minimum) for pay channels. When government is spending crores together funds over education why can’t it spend to this Nob’le profession’s legal awareness upliftment. It is a sorry state of affairs that many advocates are yet to be updated, just because of non-cenfessional financial crisis. Government is spending salary and other expenses to Hon’ble Justices, the works of their research is being utilized by private capitalist. Long live our socialist Republic. When Judges/Justices works are being utilized by private publishers just at the expense of public money of government, our govt is sitting mute spectator. It is our great disaster that no one thinks of have nots. If we say we are have not advocates. Jolly speakers amuse us - we are case less practitioners. Every one knows how cases are being hijacked by unethical persons of little knowledge with many touts in lower courts on caste and other broker commission lines. Law speaks great Justice to all but it is doing great injustice to its own foundation creators that is RURAL ADVOCATES.

GOVERNMENT LAND SHALL BE DISPOSED BY ONLY PUBLIC AUCTION

AFTER 08-05-2007 FROM KARNATAKA LAND REVENUE AMENDMENT ACT 2005


"69A. Disposal of lands or other property belonging to the State Government by public auction.- (1) Notwithstanding anything contained in section 69 of the Act subject to such rules as may be prescribed in this behalf the State Government or the Authorised Officer may dispose of valuable land or other property belonging to the State Government under section 67 or otherwise by public auction.
Provided that heritage sites and buildings or relics shall not be disposed under this section. (2) The Deputy Commissioner or the Authorised Officer may by order confirm the sale under sub-section (1) on the expiration of thirty days from the date of sale of the immovable property.

Explanation.- For the purpose of this section valuable land means those lands which if auctioned shall fetch values far above the normal price."

REVENUE AUTHORITIES ARE DUTY BOUND TO MAKE REVENUE RECORD ENTRIES - KARNATAKA HIGH COURT

Mahadevappa And Ors. vs State Of Karnataka By Its Secretary, Revenue Department And Ors. ILR 2008 KAR 1750 It is needles to say it is duty bound on the part of the revenue authorities and the Sub-Registrar as per Section 128(4) to invariably intimate the fact of transfer of interest or ownership from the first party to the second party to the concerned revenue authorities so that concerned revenue authorities will make the mutation entries in the concerned register and also proper entries in the revenue register after following the procedure as per Section 129 of the Land Revenue Act. Ultimately, any intended purchaser would get himself verified about the status of the property whether before he could go for any such purchase or seek for transfer of interest from the person who has got a right, title and interest so that he will not be mislead. For want of these entries in the revenue records and for want of proper information from the concerned Department of the Government, often purchasers are being mislead and get into problems and hardship. It is high time to intimate the Revenue Department and the concerned Department to meticulously follow the procedure as provided under Section 128 & 129 of the Karnataka Land Revenue Act and also it should be made mandatory as a matter of responsibility on the part of the Government to save the public from the precarious situation and also there shall be timely action by the revenue authorities without there being any delay on their part in making entries in the mutation register and other registers in the revenue office and in the Corporation/Municipality in city limits to avoid future complications.

CASE LAW ON RELEVANCE OF JUDICIAL ADMISSIONS

In the case of Sangramsinh P. Gaekwad and Ors. v. Shantadevi P. Gaekwad (dead) through LRs and Ors. (2005) 11 SCC 314 , it is categorically held by the Apex Court after discussion of following decisions that judicial admissions by themselves can be made the foundation of the rights of the parties and admissions in the pleadings are admissible proprio vigore against the makers thereof. In Nagindas Ramdas Vs. Dalpatram Iccharam alias Brijram and others [AIR 1974 SC 471], this Court held: "Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rival as evidence are by themselves not conclusive. They can be shown to be wrong." In Viswalakshmi Sasidharan (Mrs.) and Others Vs. Branch Manager, Syndicate Bank, Belgaum [(1997) 10 SCC 173], this Court held: "On the other hand, it is admitted that due to slump in the market they could not sell the goods, realize the price of the finished product and pay back the loan to the Bank. That admission stands in their way to plead at the later stage that they suffered loss on account of the deficiency in service..." In Kaveripatnam Subbaraya Setty Annaiah Setty Charities Trust Vs. S.K. Viswanatha Setty [(2004) 8 SCC 717], this Court deprecated raising a plea for the first time before the appellate court without amendment of plaint holding that when materials to substantiate such plea had not been brought on record and, thus, it is impermissible to consider the same, stating:"However, there is no material placed on record by way of pleadings to show whether the appellant is a religious or charitable institution. The plaint was never amended. The appellant seeks exemption. Exemption needs to be alleged and proved. Opportunity is required to be given to the respondent to meet the plea of exemption. In the circumstances, we are in agreement with the view expressed by the High Court that the said plea was not open to the appellant at the stage of second appeal, particularly, in the absence of any material available to substantiate such plea." In Heeralal Vs. Kalyan Mal and Others [(1998) 1 SCC 278] following Modi Spinning (supra), it was observed:"The facts of the present case are entirely different and consequently the said decision also cannot be of any help for the learned counsel for the respondents. Even that apart the said decision of two learned Judges of this Court runs counter to a decision of a Bench of three learned Judges of this Court in the case of Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram and Co., (1977) 1 SCR 728 : (AIR 1977 SC 680). In that case Ray, C.J., speaking for the Bench had to consider the question whether the defendant can be allowed to amend his written statement by taking an inconsistent plea as compared to the earlier plea which contained an admission in favour of the plaintiff. It was held that such an inconsistent plea which would displace the plaintiff completely from the admissions made by the defendants in the written statement cannot be allowed. If such amendments are allowed in the written statement plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admissions from the defendants."

JUSTICE N KUMAR OBSERVES LAND MAFIA- LEGAL ADVISORS MAFIA- GOVERNMENT INACTION- GOOD DEVELOPMENTS

In The State Of Karnataka VS H.B. Munivenkatappa 2007 (4) KarLJ 439 JUSTICE N KUMAR OBSEERVED:- 

GOVERNMENT AND PUBLIC DUPED BY OFFICIALS
“The officials of the Government, the advocates who are conducting the cases on behalf of the Government and others have let down the interest of the Government and public. Under these circumstances, I am of the view it would be appropriate to refer the entries in the original ledger book where Form No. 7 is noted and orders passed by the Land Reforms Tribunal, Bangalore South Taluk in all those cases at any rate as contained in this book, for enquiry to the aforesaid committee which may throw some light on the way the tribunal, the Government officials and others have discharged their duties in protecting public property, and if illegalities are found to take steps to restore the land to the Government.”


DO NOT REGULARIZE INJUSTICE ON TECHNICAL GROUNDS REMOVE INJUSTICE
“The judiciary is respected not on account of its power to regularize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. If appeals brought by the Government are lost on account of delay, no person is individually affected, but what in the ultimate analysis suffers is, the public interest. The law of Limitation is no doubt the same for private citizen as well as for Governmental authorities. Government, like any other litigant must take the responsibility for the acts or omissions of its officers. But some what different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to the acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. On account of impersonal machinery, no one Page 0797 incharge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal and the inherited bureaucratic methodology imbued with the note-making, file pushing and passing on the buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represent collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Refusing to condone the delay can result in a meritorious matter being thrown out, at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a case would be decided on merits after hearing the parties. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. The technicalities of procedure should yield to considerations which would promote public interest and substantial justice. The Courts should decide the matters on merits, unless it is hopelessly without any merit.”


DECREE WITHOUT JURISDICTION IS NULLITY
“It is also a fundamental principle, that a decree passed by the Court without jurisdiction is a nullity. Its validity can be set up whenever and where ever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. The defect of jurisdiction whether it is technical or territorial or whether it is in respect of subject matter of action, strikes at the very authority of the Court to pass any decree and such defect cannot be cured even by consent of parties. Nullity has to be understood in the sense that it is ultra vires the power of the court passing the decree and not merely avoidable decree. If the decree strikes at the jurisdiction of the Court or the Court lacks jurisdiction, it strikes at the very root of the authority to pass the order or the decree. The decree passed by such a Court is a nullity and non est.”

PUBLIC PROPERTY NOT HANDLED PROPERLY
In The State Of Karnataka VS H.B. Munivenkatappa 2007 (4) KarLJ 439 JUSTICE N KUMAR OBSEERVED:- “The material on record discloses at every stage the persons who were entrusted with the responsibility of protecting the public property have let down the Government. The way the litigation has been fought and the way the Government representatives and their counsel have let down the public interest, is shocking. When the matter was brought to the notice of the Lokayuktha, it issued a clean chit to those officials saying that the public interest has not suffered. There cannot be a worst situation than this. A mighty Government rendered helpless by such advise and breach of trust. If the order of the Land Reforms Tribunal exists as contended by the plaintiff, it is clear that the Assistant Commissioner who is the Chairman of the Tribunal has failed to notice the aforesaid statutory provisions which confers no right to the vested land in the inamdar and the Tribunal to grant occupancy rights in respect of a tank bed. He is a party to this order of grant granting public property to the plaintiff. When the suit was filed for Page 0798 declaration of title on the basis of the said document though appropriate defence were taken in the written statement, the same is not pursued as they were expected to and in the result a decree came to be passed. Though it was stated in the written statement filed in the suit, steps would be taken to challenge the order of the Land Tribunal, no writ petition was filed, a serious lapse. The learned Government Advocate who conducted the case on behalf of the Government instead of advising suitably the Government to prefer an appeal, gave his opinion that it is not a fit case for an appeal. The Director of Public Prosecution (Civil) who was expected to apply his mind and take an independent decision has failed to discharge his duties and he has concurred with the opinion given by the learned Government Advocate not to prefer an appeal. It appears thereafter the concerned file did not reach the Law Department nor any opinion was sought from the Law Department. Even when the matter was being agitated in this Court in writ proceedings, advocate who was incharge of these matters appears to have not applied his mind properly.”


PRAISE FOR GOOD OFFICIALS – ALL ARE NOT BAD – LOKAYUKTA’S BLINDNESS
“However, it is heartening to note that there are some officials still left in the administration who have a commitment in life and who think about public good. The said officiate at the relevant point of time did notice that the schedule land is a Government land and it is a 'sarkari kere' and mutation entries cannot be made in the name of the decree holder. They resisted the attempt to get the mutation entries made. It is only when arrest warrants were issued against them for disobeying the decree of a Civil Court, the Government realised the blunder they have committed and the Law Officers who betrayed its trust. Then they have approached the Law Department, sought for their opinion and on consideration of the entire material the Law Department gave its advice on 22.12.2003 to the effect that it is a fit case for preferring the appeal. On 7.1.2004 the Government accorded sanction to prefer the appeal. When Lokayukta was requested to investigate the circumstances in which no appeal was filed earlier, the Lokayukta had issued an endorsement to the effect that there are no laches on the part of any Government servant and that it appears that no loss has been caused to the State. It is thereafter the appeal is filed with an application for condonation of delay.”


LEGAL ADVISORS OF GOVERNMENT GOT BLOW IN THIS CASE
“A beginner in the legal profession would know, that against a judgment and decree of declaration of title, an appeal lies and not a revision. This is the type of legal advise which has been given to the Government over a period of nearly ten years. "It is a case of salt having lost its savour". The judicial Page 0799 process is used to acquire rights over the Government property, a clear case of abuse of judicial process.”

GOVERNMENT FACING CHALLENGES WITH IN/OUT IN LEGAL FIELD
“Karnataka being one of the progressive State in the Union of India, Bangalore being the center of attraction to the whole world, unfortunately, the professional legal advise given to the Government is of this nature. It is no wonder that the value of landed property in Bangalore is more than gold and the real estate business is the most thriving business in the city of Bangalore. The State Legislature has to appoint a Committee to go into this problem of grabbing of Government lands which runs to thousands of acres involving crores of rupees. The said Committee has submitted an interim report blaming the officials and lawyers in-charge of the case and others being a privy to these illegal activities right under the nose of the seat of power. Now that multinational companies are competing with each other to have a foot hold in Bangalore, with the liberalization, globalization and privatization, having its impact on all walks of life in the society, whether the Government is capable of meeting the challenges in the field of law and in protecting its people and its properties, with the kind of legal assistance they have. There is no dearth for legal talent in the State. The problem is the mind to utilise the said talent. This case should be an eye opener to the Government. It is for them to take appropriate steps to overhaul their revenue, and legal department, including the quality of the Advocates they choose to represent them in Courts, if the Government is sincere in protecting the public and its properties.”

KARNATAKA LAND LAWS

CASE LAW ON LAND LAWS