TaxTMI 
TaxTMI 
2018 (9) TMI 2082
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....dv., Ms. Priyanshi Jaiswal, Adv., Mr. Yusuf Hatim Muchhala, Sr. Adv., Mr. Zafaryab Jilani, Adv., Mr. Ejaz Maqbool, AOR, Mr. C. George Thomas, Adv., Ms. Akriti Chaubey, Adv., Ms. Qurratulain, Adv., Ms. Tanya Shree, Adv., Mr. Kunwar Aditya Singh, Adv., Mr. Shakil Ahmed Syed, AOR, Mr. Mohd. Parvez Dabas, Adv., Mr. Uzmi Jameel Husain, Adv., Mr. Pulkit Chandna, Adv., Mr. M. Tayab Khan, Adv., Mr. Mujeebuddin Khan, Adv., Mr. Niaz Ahmed Farooqui, Adv., Mr. Milan Laskar, Adv., Mr. Amit Kumar Srivastava, Adv., Mr. M.R. Shamshad, AOR, Mr. Nizam Pasha, Adv., Mr. Zaki Ahmad Khan, Adv., Mr. Aditya Samaddar, Adv., Ms. Sarah Haque, Adv., Mr. Syed Shahid Hussain Rizvi, AOR, Mr. Syed Mansoor Ali, Adv., Mr. Zeeshan Rizvi, Adv., Mr. M. Tayyab Khan, Adv., Mr. Mujeebur Rehman, Adv., Mr. Prakash Sharma, Adv., Mr. Anuj Saxena, Adv., Ms. Pratibha Jain, AOR, Mr. S.S. Shamshery, Adv., Mr. D. Bharat Kumar, Adv., Mr. Yash Mishra, Adv., Mr. Ankit Raj, Adv., Ms. Indira Bhakhar, Adv., Mr. Rajesh Singh, Adv., Mr. Vineet Pandey, Adv., Mr. Santosh Kumar, Adv., Mr. T. Bhaskar Gowtham, Adv., Ms. Ruchi Kohli, AOR, M/s. Fox Mandal & Co., AOR, Mr. Irshad Ahmad, AOR, Mr. Vishnu Shankar Jain, AOR, Mr. M.C. Dhingra, AOR, Mr....
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....shali Verma, Adv., Mr. Ajay Bansal, Adv., Mr. Gaurav Yadava, Adv., Ms. Veena Bansal, Adv., Mr. B.K. Satija, AOR, Mr. P.V. Yogeswaran, AOR, Mr. Ashish K. Upadhyay, Adv., Mr. V. Susheatha, Adv., Mr. Buvan, Adv., Mr. Sushil Kumar Jain, AOR, Mr. Karunesh Kumar Shukla, Adv., Mr. Yasswyi Mishra, Adv., Ms. Rachna Gandhi, Adv., Mr. Anish Kumar Gupta, AOR, Mr. Chandra Shekhar Suman, Adv., Mr. Avdhesh Kumar Singh, Adv., Ms. Rita Gupta, Adv., Ms. Deepshikha Bharati, Adv., Mr. Rajendra Kr. Singh, Adv., Ms. Harsha, Adv., Mr. Puneet Shoran, Adv., Mr. Nisarg Chaudhary, Adv., Mr. R.K. Rajwanshi, Adv., Ms. Swarupama Chaturvedi, AOR, Mr. Anish Kumar Gupta, Adv., Mr. B.N. Dubey, Adv., Ms. Devika Gulati, Adv., Mr. Kumar Gaurav, Adv., Mr. Robin Khokhar, Adv., Mr. Mukesh Verma, Adv., Mr. Pankaj Kumar Singh, Adv., Mr. Pawan Kumar Shukla, Adv., Mr. Shiv Kumar Tiwari, Adv., Mr. Yash Pal Dhingra, AOR, Mr. Barun Kumar Sinha, Adv., Mrs. Pratibha Sinha, Adv., Mr. Birendra Kumar Choudhary, Adv., Mr. Arun Kumar, Adv., Mr. Aditya Sharma, Adv., Mr. Swatantra Rai, Adv., Mr. B.K. Satija, AOR, Mr. Bhavanishankar V. Gadnis, Adv., Mr. Vishwanath B. Gadnis, Adv., Mr. Amit Pawan, AOR, Mr. Radni V. Gadnis, Adv., Mr. Bhava....
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....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 birth spot of Sri Ram where a temple had stood earlier. This resulted in a long-standing dispute. 1.2 The controversy entered a new phase with the placing of idols in the disputed structure in December 1949. The premises were attached Under Section 145 of the Code of Criminal Procedure. Civil suits were filed shortly thereafter. Interim orders in these civil suits restrained the parties from removing the idols or interfering with their worship. In effect, therefore, from December 1949 till 6-12-1992 the structure had not been used as a mosque. 6. The movement to construct a Ram Temple at the site of the disputed structure gathered momentum in recent years which became a matter of great controversy and a source of tension. This led to several parleys the details of which are not very material for ....
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....ember 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-I to the White Paper). As earlier mentioned, it is stated in para 1.2 of the White Paper that: ... interim orders in these civil suits restrained the parties from removing the idols or interfering with their worship. In effect, therefore, from December 1949 till 6-12-1992 the structure had not been used as a mosque. 5. As a r....
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.....2002 passed an interim order. Paras 4 and 5 of the interim order are as follows: 4. In the meantime, we direct that on 67.703 acres of acquired land located in various plots detailed in the Schedule to the Acquisition of Certain Area at Ayodhya Act, 1993, which is vested in the Central Government, no religious activity of any kind by anyone either symbolic or actual including bhumi puja or shila puja, shall be permitted or allowed to take place. 5. Furthermore, no part of the aforesaid land shall be handed over by the Government to anyone and the same shall be retained by the Government till the disposal of this writ petition nor shall any part of this land be permitted to be occupied or used for any religious purpose or in connection therewith. 7. The above writ petition was ultimately decided on 31.03.2003 by a Constitution Bench, which judgment is reported in (2003) 4 SCC 1, Mohd. Aslam alias Bhure v. Union of India and Ors. Before the Constitution Bench, both the parties had placed reliance on Ismail Faruqui's case. This Court disposed of the writ petition directing that order of this Court dated 13.03.2002 as modified on 14.03.2002 should be operative....
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.... He submits that Ismail Faruqui's case does not refer to any material nor enters into any detailed examination before making the observations in Paragraphs 78 and 82 as noticed above. Dr. Dhavan further submits that a broad test of essentiality as laid down by Seven Judges Bench in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005 cannot be cut down by a later judgment of lesser strength, which judgments have introduced the test of integrality. He submits that the test of integrality is interchangable with essentiality test. Dr. Dhavan, during his submissions, has taken us to submissions made by various parties before the High Court, where reliance was placed on Ismail Faruqui's case. He has also referred to various grounds taken in these appeals, which grounds rely on the judgment of Ismail Faruqui's case. He submits that the above furnishes ample grounds for Appellants to pray for reconsideration of Ismail Faruqui's case. Dr. Dhavan in his notes 'For reference to a larger Bench' has clarified that questionable aspects as noted above are not the ratio of Ismail Faruqui's case. Dr. D....
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....ail Faruqui's case is overruled, nevertheless, in so far as "Ayodhya Janmasthan Babri Masjid" is concerned, the judgment in Ismail Faruqui's case will still be binding on the Appellants on the principle of finality. He submits that in the present case, the submissions made were a reargument of the submissions made in Ismail Faruqui's case as if it were an appeal against the said judgment by canvassing the correctness of the said judgment. He further submits that in addition to being binding on the parties, the judgment operates as a declaration of law Under Article 141 of the Constitution. 13. Shri Parasaran further submits that observations in Ismail Faruqui's case that a mosque is not an essential part of the practice of Islam have to be read in the context of validity of the acquisition of the suit property under the Act, 1993. He submits that this Court has not ruled that offering namaz by Muslims is not an essential religious practice. It only ruled that the right to offer namaz at every mosque that exists is not essential religious practice. But if a place of worship of any religion has a particular significance for that religion, enough to make it an essen....
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....erits of the case of either of the parties is concerned. 17. Shri Parmeshwar Nath Mishra, learned Counsel appearing for one of the Respondents submits that all Mosques of the World are not essential for practice of Islam. During the submissions, he referred to various texts, sculptures of the religion of Islam. He further submits that the Al-Masjid, Al-Haram i.e. Ka'ba in Mecca is a mosque of particular significance for the reasons that there is Quranic command to offer prayers facing towards Ka'ba and to perform Haj as well as Umra in Ka'ba without which right to practise the religion of Islam is not conceivable. Two other Mosques namely, Al-Masjid Al-Aqsa i.e. Baitul Muqaddas in Jerusalem and Al-Masjid of Nabi at Madina also have particular significances for the reason that besides Ka'ba, pilgrimage to these two mosques have also been commanded by the sacred Hadiths. Shri Mishra in his submission has referred to and relied on various texts and sculptures. He has referred to verses of Holy Quran and Hadiths, which are principal source of religion of Islam, its beliefs, doctrine, tenets and practices. 18. Shri S.K. Jain, learned senior Counsel appearing for Ni....
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....t that something is, or not the essential practice is contrary to law. He further submits that in the Constitution Bench, the suits were not transferred rather it was the writ petitions, which were filed in the High Court challenging the Act, 1993, were transferred. No transfer of the suit having been made in the Supreme Court to be heard alongwith Ismail Faruqui's case, the judgment in Ismail Faruqui's case cannot be said to be judgment in the suits. What constitute an essential practice and how it is to be established is a pure question of law and not amenable to res judicata. It is open to this Court to examine the law relating to determination and application of the essential practices test. The observations on prayer in a Mosque not being essential or concept of particular significance and comparative significance are without foundation. Replying to the submission of Shri Tushar Mehta, Dr. Dhavan submits that State has not taken a non-neutral stance in the present proceedings. He submits that there is no delay on the part of the Appellants in praying for reconsideration of Ismail Faruqui's judgment. He submits that impugned judgment of the High Court is affected by....
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....proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all. 23. The following words of LORD DENNING in the matter of applying precedents have become locus classicus: Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J.) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. * * * Precedent should be followed only so far as it marks the path o....
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....lways Board v. Herrington, (1972) 1 All ER 749. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. [See also Haryana Financial Corporation v. Jagadamba Oil Mills (2002 3 SCC 496] 141. In General Electric Co. v. Renusagar Power Co., (1987) 4 SCC 137, it was held: (SCC p. 157, paragraph 20) As often enough pointed out by us, words and expressions used in a judgment are not to be construed in the same manner as statutes or as words and expressions defined in statutes. We do not have any doubt that when the words "adjudication of the merits of the controversy in the suit" were used by this Court in State of U.P. v. Janki Saran Kailash Chandra [1974]1 SCR 31, the words were not used to take in every adjudication which brought to an end the proceeding before the court in whatever manner but were meant to cover only such adjudication as touched upon the real dispute between the parties which gave rise to the action. Objections to adjudication of the disputes between the parties, on whatever ground are in truth not aids to the progress of the suit but hurdles to such progress. Adjudication....
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....consider the constitutional or relevant, statutory provisions vis-a-vis its earlier decisions on which reliance has been placed. 26. Justice Arijit Pasayat, J. speaking for the Court in Commissioner of Central Excise, Delhi v. Allied Air-conditioning Corporation (Regd.), (2006) 7 SCC 735, held that the judgment should be understood in the light of facts of the case and no more should be read into it than what it actually says. In paragraph 8 following has been laid down: 8.... A judgment should be understood in the light of facts of the case and no more should be read into it than what it actually says. It is neither desirable nor permissible to pick out a word or a sentence from the judgment divorced from the context of the question under consideration and treat it to be complete law decided by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. (See Mehboob Dawood Shaikh v. State of Maharashtra, (2004) 2 SCC 362.... 27. In the light of the above principles, we now revert back to the Constitution Bench judgment in Ismail Faruqui. We need to notice th....
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....ing an essential and integral part of the right to practice the religion, the acquisition of which would result in the extinction of the right to freedom of religion itself. It was also contended that the purpose of acquisition in the present case does not bring the statute within the ambit of Entry 42, List III but is referable to Entry 1, List II and, therefore, the Parliament did not have the competence to enact the same. It was then urged by learned Counsel canvassing the Muslim interest that the legislation is tilted heavily in favour of the Hindu interests and, therefore, suffers from the vice of non-secularism, and discrimination in addition to violation of the right to freedom of religion of the Muslim community..... 30. The challenge to the acquisition of the area in excess of area which is disputed area was on the ground that same was unnecessary, hence, ought to be declared invalid. The challenge to excess area was laid by members of the Hindu community to whom the said plots belonged. One of the grounds of attack was based on secularism. It was contended that Act read as a whole is anti-secular and against the Muslim community. A mosque has immunity from State's ....
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....As noted above, one of the principal submission which was raised by the Petitioners before the Constitution Bench was that mosque cannot be acquired because of a special status in the Mohammedan Law. The Constitution Bench in Ismail Faruqui case by a separate heading "MOSQUE-IMMUNITY FROM ACQUISITION" from paragraphs 65 to 82 considered the above ground. 34. The discussion from paragraphs 65 to 82 as per above heading indicates that the discussion and all observations were in the context of immunity from acquisition of a mosque. In paragraph 65 of the judgment a larger question was raised at the hearing that there is no power in the State to acquire any mosque, irrespective of its significance to practice of the religion of Islam. The Court after noticing the above observation has observed that the proposition advanced does appear to be too broad for acceptance. We reproduce paragraph 65 which is to the following effect: 65. A larger question raised at the hearing was that there is no power in the State to acquire any mosque, irrespective of its significance to practice of the religion of Islam. The argument is that a mosque, even if it is of no particular significance ....
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.... 74. It appears from various decisions rendered by this Court, referred later, that subject to the protection Under Articles 25 and 26 of the Constitution, places of religious worship like mosques, churches, temples etc. can be acquired under the State's sovereign power of acquisition. Such acquisition per se does not violate either Article 25 or Article 26 of the Constitution. The decisions relating to taking over of the management have no bearing on the sovereign power of the State to acquire property. 37. The Constitution Bench further held that the right to practice, profess and propagate religion guaranteed Under Article 25 of the Constitution does not necessarily include the right to acquire or own or possess property. Similarly, this right does not extend to the right of worship at any and every place of worship. Further, it was held that protection Under Articles 25 and 26 of the Constitution is to religious practice which forms an essential and integral part of the religion. In paragraphs 77 and 78 following has been held: 77. It may be noticed that Article 25 does not contain any reference to property unlike Article 26 of the Constitution. The right ....
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.... (iii) The protection Under Articles 25 and 26 of the Constitution is to religious practice which forms an essential or integral part of the religion. (iv) A practice may be a religious practice but not an essential and integral part of practice of that religion. (v) While offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an essential or integral part thereof. The Court itself has drawn a distinction with regard to the place of a particular significance for that religion where offer of prayer or worship may be an essential or integral part of the religion. 40. The Court held that the mosques were subject to the provisions of statute of limitation thereby extinguishing the right of Muslims to offer prayers in a particular mosque. In paragraph 80 following was held: 80. It has been contended that a mosque enjoys a particular position in Muslim Law and once a mosque is established and prayers are offered in such a mosque, the same remains ....
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....e only in unusual and extraordinary situations for a larger national purpose keeping in view that such acquisition should not result in extinction of the right to practice the religion, if the significance of that place be such. Subject to this condition, the power of acquisition is available for a mosque like any other place of worship of any religion. The right to worship is not at any and every place, so long as it can be practised effectively, unless the right to worship at a particular place is itself an integral part of that right. A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open. 43. Dr. Dhavan submits that above observation in Para 82 of the Constitution Bench judgment in Ismail Faruqui's case is the reason for reconsideration of the judgment. He submits that the above statements in paragraph 82 are wrong because it is wrong to say that: (vi) A mosque is not essential to Islam. (vii) The essential practices doctrine does not protect places of worship other than those having particular significance. 44. Elaborating his submission, Dr. Dhavan relies on ....
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....rts of religion, and these forms and observances might extend even to matters of food and dress. 46. Further, in Para 18, following was laid down: 18. The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression "practice of religion" in Article 25.... 47. The Court further held; what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. In Para 19, following has been laid down: 19. The contention formulated in such broad terms cannot, we think, be supported. In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these wou....
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....performed at certain times and in a particular manner, it cannot be said that these are secular activities partaking of commercial or economic character simply because they involve expenditure of money or employment of priests or the use of marketable commodities. No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate.... 49. Another judgment, which followed the Shirur Mutt case was Sri Jagannath Ramanuj Das and Anr. v. State of Orissa and Anr. AIR 1954 SC 400. The Constitution Bench in Sri Venkataramana Devaru and Ors. v. State of Mysore and Ors. AIR 1958 SC 255 had occasion to consider Articles 25 and 26 of the Constitution of India in context of Madras Temple Entry Authorisation Act, 1947 as amended in 1949. Referring to Shirur Mutt case, following was stated in para 16(3): 16(3)....Now, the precise connotation of the expression "matters of religion" came up for consideration by this Court in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swami....
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....: (AIR 1954 S.C. 282); Ramanuj Das v. State of Orissa, 1954 SCR 1046: (AIR 1954 SC 400); 1958 SCR 895: (AIR 1958 S.C. 255); (Civil Appeal No. 272 of 1969 D/- 17-3-1961: (AIR 1961 S.C. 1402) and several other cases and the main principles underlying these provisions have by these decisions been placed beyond controversy. The first is that the protection of these articles is not limited to matters of doctrine or belief, they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion. The second is that what constitutes an essential part of a religion or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion. 52. Next judgment to be noticed is Constitution Bench judgment of Tikayat Shri Govindlalji Maharaj etc. v. State of Rajasthan and Ors. AIR 1963 SC 1638. The validity of Nathdwara Temple Act, 1959 was challenged in the Rajasthan High Court. It was contended by Tilkayat that the idol of Shri Shrinathji in the Nathdwara Templ....
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....n essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26. 59. In this connection, it cannot be ignored that what is protected Under Articles 25(1) and 26(b) respectively are the religious practices and the right to manage affairs in matters of religion. If the practice in question is purely secular or the affair which is controlled by the statute is essentially and absolutely secular in character, it cannot be urged that Article 25(1) or Article 26(b) has been contravened. The protection is given to the practice of religion and to the denomination's right to manage its own affairs in matters of religion. Therefore, whenever a claim is made on behalf of an individual citizen that the impugned statute contravenes his fundamental right to practise religion or a claim is made on behalf of the denomination that the fundamental right guaranteed to it to manage its own affairs in matters of religion is contravened, it is necessary to consider whether the practice in question is religious or the affairs in respect of which the right of management is all....
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.... may violate right Under Articles 25 and 26, any hindrance to offering of prayer at any place shall not affect right Under Articles 25 and 26. The observation as made in paragraph 82 as quoted above has to be understood with the further observation made in the same paragraph where this Court held: 82....Obviously, the acquisition of any religious place is to be made only in unusual and extraordinary situations for a larger national purpose keeping in view that such acquisition should not result in extinction of the right to practice the religion, if the significance of that place be such. Subject to this condition, the power of acquisition is available for a mosque like any other place of worship of any religion. The right to worship is not at any and every place, so long as it can be practised effectively, unless the right to worship at a particular place is itself an integral part of that right. 56. The Court held that if the place where offering of namaz is a place of particular significance, acquisition of which may lead to the extinction of the right to practice of the religion, only in that condition the acquisition is not permissible and subject to this condition....
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....has lost sight of the secular principles which are embedded in the Constitution of India. It is true that the Constitution Bench has used phrase "comparative significance" but comparative significance of both the communities were noticed only to highlight the significance of place which is claimed by both the parties and to emphasise that the impact of acquisition is equally on the right and interest of the Hindu community as well as Muslim community. In paragraph 51 of the judgment following has been noticed: 51. It may also be mentioned that even as Ayodhya is said to be of particular significance to the Hindus as a place of pilgrimage because of the ancient belief that Lord Rama was born there, the mosque was of significance for the Muslim community as an ancient mosque built by Mir Baqi in 1528 A.D. As a mosque, it was a religious place of worship by the Muslims. This indicates the comparative significance of the disputed site to the two communities and also that the impact of acquisition is equally on the right and interest of the Hindu community. Mention of this aspect is made only in the context of the argument that the statute as a whole, not merely Section 7 there....
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....its that the above observation was uncalled for since there cannot be any comparison between two religions. We have observed above that phrase "particular significance" was used by the Constitution Bench only in context of immunity from acquisition. What the Court held was that if a religious place has a particular significance, the acquisition of it ipso facto violates the right of religion Under Articles 25 and 26, hence the said place of worship has immunity from acquisition. It is another matter that the place of birth of Lord Rama is referred as sacred place for Hindu community, which has been pleaded throughout. In any view of the matter acquisition under Act, 1993 having been upheld, the use of expression "particular significance" has lost all its significance for decision of the suits and the appeals. RES-JUDICATA 63. Shri Parasaran submits that Appellants are precluded from questioning the Ismail Faruqui's judgment. The Petitioner in Ismail Faruqui's case represented the right of the Muslim public, hence, all persons interested in such rights for the purposes of Section 11 be deemed to claim under the persons so litigating and are barred by res-judicata in vi....
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....y to consider the basis of the decisions that a decree passed in a suit Under Section 92 binds all parties. The basis of this view is that a suit Under Section 92 is a representative suit and is brought with the necessary sanction required by it on behalf of all the beneficiaries interested in the Trust. The said Section authorises two or more persons having an interest in the Trust to file a suit for claiming one or more of the reliefs specified in Clauses (a) to (h) of Sub-section (1) after consent in writing there prescribed has been obtained. Thus, when a suit is brought Under Section 92, it is brought by two or more persons interested in the Trust who have taken upon themselves the responsibility of representing all the beneficiaries of the Trust. In such a suit, though all the beneficiaries may not be expressly impleaded, the action is instituted on their behalf and relief is claimed in a representative character. This position immediately attracts the provisions of explanation VI to Section 11 of the Code. Explanation VI provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and Ors. all persons inte....
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.... 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest. We therefore, hold that, on the general principle of res judicata, the decision of the High Court on a writ petition Under Article 226 on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter. 67. In Daryao and Ors. v. State of U.P. and Ors. AIR 1961 SC 1457, this Court held that on general consideration of public policy there seems to be no reason by which the Rule of res judicata should be treated as not admissible or irrelevant in deciding writ petition filed Under Article 32. 68. A Constitution Bench of this Court in Sheodan Singh v. Daryao Kunwar AIR 1966 SC 1332, after elaborately considering the principles underlined Under Section 11 of the Code of Civil Procedure, held that there are five essential conditions which must be satisfied before plea of res judicata can be pressed. In paragraph 9 of the judgment, the conditions have been enu....
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....udicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only "collaterally or incidentally" in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue. 13. As pointed out in Halsbury's Law of England (Vol. 16, para 1538, 4th edition), the fundamental Rule is that a judgment is not conclusive if any matter came collaterally in question[R. v. knaptoft Inhabitants; Heptulla Bros. v. Thakore WLR at p. 297(PC)]; or if any matter was incidentally cognizable [Sanders (otherwise Saunders) v. Sanders (otherwise Saunders) All ER at p. 771]. 14. A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxillary issue and the latter the principal issue. The expression "collaterally or incidentally" in issue implies that there is another matter which is "directly and substantially" in issue(Mulla's Code of Civil Procedure, 15th edn., p. 104). Difficulty in distinguishing whether a matter was directly in issue or collaterally or incidentally in issue....
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....ficient to reject the plea of res judicata as raised by Shri Parasaran. 73. We may further notice submissions of Shri Parasaran that IA which was filed in the suit was also taken up along with the Ismail Faruqui's case, hence, the judgment rendered in Ismail Faruqui's case shall be treated to be the part of judgment in the suits which preclude the Appellant to reagitate the same issue. For appreciating the above submissions we need to look into as to what matters were before this Court in Ismail Faruqui's case. 74. The Act, 1993 was preceded by an ordinance which was issued on 07.01.1993. Section 4(3) of the Ordinance contemplated that suit, appeal or other proceeding in respect of right, title or interest having to any property vested in Central Government Under Section 3 shall abate. After the ordinance Plaintiff had applied for amendment of plaints challenging the legality and validity of the Ordinance. High Court in the suits framed the issue namely "whether the suits have abated or survive". Many writ petitions were also filed in the High Court challenging the Ordinance. Writ Petition No. 208 of 1993, Mohd. Aslam v. Union of India and Ors. was also filed Unde....
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....d alongwith Presidential Reference and writ petition filed Under Article 32. This Court had only stayed the hearing of preliminary issue framed by the High Court as to whether the suits have abated or survive. It is also relevant to notice that in Special Reference No. 1 of 1993, individual notices were issued to the parties to the proceeding which stood abated by virtue of Section 4(3) of the Ordinance but mere issuance of notice when the suits were not transferred by this Court to be heard alongwith Presidential Reference is not sufficient to conclude that the judgment of Ismail Faruqui should be treated as part of judgment in suits. We, thus, also do not accept the submissions of Shri Parasaran that judgment of Ismail Faruqui is part of the judgment in the suit itself. We, thus, do not find any substance in the above submissions raised by Shri Parasaran. Reliance on the judgment of Ismail Faruqui 76. Dr. Dhavan submits that Ismail Faruqui's judgment goes to the core of the issues in these appeals and it permeates throughout the impugned judgment in the suits. He submits that observations concerning comparative significance of the disputed site and the observation that ....
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....g in 1856 or 1857 if Muslims were not offering Namaz in the constructed portion till then. In the riot of 1855 seventy Muslims were killed while taking shelter in the premises in dispute. After such a huge defeat Namaz could not be for the first time started thereat. 79. Justice Sudhir Agarwal in his judgment has also noticed Ismail Faruqui's case. Dr. Dhavan referred to the submissions made by Shri Ravi Shankar Prasad in Paras 3501 and 3502 of the impugned judgment: 3501. Sri Prasad argued that belief of Hindus that Lord Ram as incarnation of Vishnu having born at Ayodhya forms an integral part of Hindu religion which cannot be denied to be practised, observed and performed by them and refers to Commissioner of Police and Ors. v. Acharya Jagadishwarananda Avadhuta and Anr. (2004) 12 SCC 770 (para 9) and Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi (supra). In order to show what constitutes public order Under Article 25 of the Constitution, he also placed reliance on Dalbir Singh and Ors. v. State of Punjab AIR 1962 SC 1106 (para 8). 3502. Next he submits that applying the doctrine of Eminent Domain, the place in dispute, having special signific....
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.... its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an essential or integral part thereof. Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of the religion, stand on a different footing and have to be treated differently and more reverentially. 81. There are references of judgments of Ismail Faruqui's case in various other places in the judgment of Justice Sudhir Agarwal like Para 5 in the judgment where it has been observed that area of the land in dispute, which is to be adjudicated by this Court (High Court) is now restricted to what has been referred to in Ismail Faruqui's case. Para 5 of the judgment is as follows: 5. In view of the decision of the Apex Court in Dr. M. Ismail Faruqui etc. v. Union of India and Ors. (1994) 6 SCC 360: AIR 1995 SC 605, the area of land in dispute which is to be adjudicated by this Court is now restricted to what has been referred to in para 4 above, i.e. main roofed structure, the inner Court....
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....ficance for Hindus and it should be treated on different footing, which reads as under: 78. While offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an essential or integral part thereof. Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of the religion, stand on a different footing and have to be treated differently and more reverentially. On behalf of Hindus it is urged that the Plaintiffs are not entitled for the relief claimed and as such the relief is barred by the provisions of Section 42 of the Specific Relief Act, 1877 which is at par with Section 34 of the Specific Relief Act, 1963 on the ground that they have superior fundamental rights. Contentions of Hindus are as under: The Hindus have superior fundamental right than the Muslims under articles 25 & 26 of the Constitution of India for the reasons that performing customary rituals and offering services worship....
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....at Ayodhya including the land which was subject matter in these suits sought to be acquired by the Government of India. Further, the Apex Court was considering the special reference made by the President of India on 7th January, 1993 Under Article 143 of the Constitution seeking opinion of the Apex Court on the following question: "Whether a Hindu temple or any Hindu religious structure existing prior to the construction of Ram Janma Bhumi-Babari Masjid (including the premises of the inner and outer courtyard of said structure) in the area on which the structure stood. 90. The High Court has clearly held that mentioning of certain facts in Ismail Faruqui's case does not mean that those facts stood adjudicated by this Court for the reason that those facts were neither in issue before the Supreme Court nor had been adjudicated. The relevant discussion in the above context is contained in Paragraph 4053, which is to the following effect: 4053. It is in this context that certain facts place on record are mentioned therein but it cannot be said that those facts stood adjudicated by the Apex Court for the reason that those facts neither were in issue before the Court nor ....
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.... 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". Ultimately the law has been laid down by the Constitution Bench by majority that under the Mohammedan Law applicable in India title to a mosque can be lost by adverse possession. If that is the position in law, there can be no reason to hold that a mosque as a unique or special status, higher than that of the places of worship of other religions in secular India to make it immune from acquisition by exercise of the sovereign or prerogative power of the State. A mosque is not an essential part of the practice of religion of Islam and namaz (prayer) by Muslims can be offered anywhere even in open. The Court also held that unless the right to worship at a particular place is itself an integral part of that right, i.e., the place is of a particular significance, its alienability cannot be doubted. The Apex Court having....
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....It is due to above finding of the High Court that in several appeals filed against impugned judgment by the Plaintiff of Suit Nos. 1 and 5 grounds have been taken which grounds have been referred to and relied by Dr. Rajiv Dhavan in his submission as noted above. The grounds taken in the appeal, to which exception is being taken by Dr. Dhavan are: (i) Partition of the site would effectively extinguish the right of Hindus to worship at the site protected by Article 25 being a site which is integral and essential part of Hindu religion; (ii) The purported Muslim structure on the area was never pleaded to be an essential or integral part of the Islamic religion. 94. The above grounds are yet to be looked into and considered by this Court in these appeals. 95. We have already dealt with and noticed the extent and nature of the observations made by this Court in Paragraphs 78 and 82 of Ismail Faruqui's case. The expression "particular significance" and "comparative significance" as occurring in the judgment in Ismail Faruqui's case has also been noted and explained by us in foregoing paragraphs. The observations of this Court in Ismail Faruqui's case ....
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....t appeals arise out of a suit where for deciding the issues in a suit, the evidence is to be appreciated, which need not be done by five judges. He submits that five judges are to appreciate the evidence only in case of Presidential Election. 98. Before we enter into submission of learned Counsel for the parties, the constitutional provision regarding reference of a case for hearing by the Constitution Bench consisting of five judges need to be looked into. Article 145(3) of the Constitution provides that minimum number of judges, who are to sit for purpose of deciding any case involving a substantial question of law as to the interpretation of the Constitution or for the purpose of hearing any reference Under Article 143 shall be five. The proviso to Article 145(3) provides: Provided that, where the Court hearing an appeal under any of the provisions of this Chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Cou....
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....on states that the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of the Constitution or for the purpose of hearing any reference Under Article 143 shall be five. It is clear that no substantial question of law as to the interpretation of the Constitution arises in the present case as the very question raised has been decided by a Bench of this Court consisting of five Judges. As the question raised before us has been already decided by this Court it cannot be said that any substantial question of law arises regarding the interpretation of the Constitution. 101. In Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra AIR 1965 SC 682, this Court held that a substantial question of interpretation of a provision of the Constitution cannot arise when the law on the subject has been finally and effectively decided by this Court. In Para 11, following has been laid down: 11....Learned Counsel suggests that the question raised involves the interpretation of a provision of the Constitution and therefore the appeal of this Accused will have to be referred to a Bench consisting of not ....
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....s. Hence, the matter is not required to be referred to a five-Judge Bench. 78. What emerges from the above discussion can be summarised thus: Xxxxxxxxxxxxxxx (C) The judgment rendered by this Court in Assn. for Democratic Reforms has attained finality, therefore, there is no question of interpreting constitutional provision which calls for reference Under Article 145(3). 103. On question of reference to a larger bench, one more Constitution Bench judgment of this Court needs to be noticed, i.e. Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr. (2005) 2 SCC 673. Constitution Bench of this Court while noticing provisions of Supreme Court Rules, 1966 and Articles 141 and 145(2) noticed in Paragraph 12 of the judgment that the law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. A bench of lesser quorum cannot disagree or dissent from the view of the law laid down by a Bench of larger quorum. In case of doubt, the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for he....
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....ano (supra) has not dealt with the aspect of Nikah Halala; Nikah Mutah; and Nikah Misyar. Thus, the question as to those religious practices are protected by Article 25 was very much involved in the Writ Petition before three Judge Bench. The three Judge Bench also came to the conclusion that the above noted concepts have not been decided by the Constitution Bench, hence the reference was made to the Constitution Bench, looking to the importance of the issue. The reference made by order dated 26.03.2018 was in the facts as noted above and does not support the submissions made by Shri Raju Ramachandran in the present case. 105. Now, we come to those cases, which have been relied by Shri Raju Ramachandran in support of his submission. 106. The judgment of this Court in Hyderabad Industries Ltd. And Anr. v. Union of India and Ors. (1995) 5 SCC 338 was a case where a three Judge Bench had doubted the correctness of an earlier judgment, i.e., Khandelwal Metal and Engineering Works and Anr. v. Union of India and Ors. (1985) 3 SCC 620. Similarly, S.S. Rathore v. State of M.P., 1988 (Supp.) SCC 522 was also a case where correctness of a five Judges decision in Sita Ram Goel v. Munici....
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....erved judgment. On going through the judgment of the Judicial Commissioner and the documents and after a careful consideration of the arguments of the parties, we find that these appeals involve a substantial question of law of great importance which is likely to govern a number of cases arising out of mining leases in the present territory of Goa, Daman & Diu. We, therefore, direct that this case be placed before a larger Bench. Let these appeals be placed before the Hon'ble the Chief Justice for orders. 108. The above order was passed by two Judge Bench, which had directed the appeal to be placed before Chief Justice for hearing the matter by a larger Bench due to the fact that appeal involves a substantial question of law of great importance. The said matter cannot be read as an order directing the matter to be placed before a Constitution Bench nor any proposition regarding reference to Constitution Bench is decipherable from the above order, which may help the learned Counsel. Another judgment, which was relied by Shri Ramachandran is an order passed by Justice E.S. Venkatramiah - Vacation Judge in Ram Jethmalani v. Union of India, (1984) 3 SCC 696. The above order was ....
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....0 looking to the importance of the question, a two Judge Bench had made reference to a larger Bench. Two Judge Bench reference was not to a Constitution Bench, hence, does not support the submission. To the similar effect is the judgment of this Court in Telecom Regulatory Authority of India v. Bharat Sanchar Nigam Limited (2014) 3 SCC 304, where two Judge Bench has made a reference to a larger Bench. In Securities and Exchange Board of India v. Sahara India Real Estate Corporation Limited and Ors. (2014) 8 SCC 751, an earlier order passed by three Judge Bench was sought to be enforced, hence reference was made to a Three Judge Bench, which again was not a case for reference to a Constitution Bench of five Judges. Judgment of this Court in Rajeev Dhavan v. Gulshan Kumar Mahajan and Ors. (2014) 12 SCC 618 was a case pertaining to a contempt petition, which is not relevant for the present controversy. Last judgment relied by Shri Ramachandran is Vivek Narayan Sharma v. Union of India, (2017) 1 SCC 388. The three Judge Bench was considering the issue of notification dated 08.11.2016 demonetizing currency notes of Rs. 500/- and Rs. 1000/-. Various aspects of demonetization came for con....
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....they have been ruled and now they are sharers in power (of course junior partners). They are not in majority but they are also not negligible minority (Maximum member of Muslims are in huge majority which makes them indifferent to the problem in question or in negligible minority which makes them redundant. Indian Muslims have also inherited huge legacy of religious learning and knowledge. They are therefore in the best position to tell the world the correct position. Let them start with their role in the resolution of the conflict at hand. 114. Justice J.S. Verma in paragraph 156 of the judgment expressed great hope into Hinduism which is a tolerant faith. In paragraph 156 it was observed: 156. Before we pass final orders, some observations of a general nature appear to be in order. Hinduism is a tolerant faith. It is that tolerance that has enabled Islam, Christianity, Zoroastrianism, Judaism, Buddhism, Jainism and Sikhism to find shelter and support upon this land. We have no doubt that the moderate Hindu has little taste for the tearing down of the place of worship of another to replace it with a temple. It is our fervent hope that that moderate opinion shall find g....
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....religions has dispelled the belief that only this or that religion has produced men of courage and patience, self-denying love and creative energy. Every great religion has cured its followers of the swell of passion, the thrust of desire and the blindness of temper. The crudest religion seems to have its place in the cosmic scheme, for gorgeous flowers justify the muddy roots from which they spring. 118. We are confident that observations made by Justice S.U. Khan of Allahabad High Court as quoted above as well as observations of Justice J.S. Verma made in paragraph 156 of the judgment are observations which shall guide both the communities in their thought, deed and action. 119. To conclude, we again make it clear that questionable observations made in Ismail Faruqui's case as noted above were made in context of land acquisition. Those observations were neither relevant for deciding the suits nor relevant for deciding these appeals. 120. In view of our foregoing discussions, we are of the considered opinion that no case has been made out to refer the Constitution Bench judgment of this Court in Ismail Faruqui case (supra) for reconsideration. 121. We record our ap....
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....ence to enact the said legislation and except for Section 4(3), the entire 1993 Act is constitutionally valid. While deciding so, the Court in paragraph 51 went on to discuss the "comparative significance" of the disputed site to the two communities. The following is reproduced as under: 51. It may also be mentioned that even as Ayodhya is said to be of particular significance to the Hindus as a place of pilgrimage because of the ancient belief that Lord Rama was born there, the mosque was of significance for the Muslim community as an ancient mosque built by Mir Baqi in 1528 AD. As a mosque, it was a religious place of worship by the Muslims. This indicates the comparative significance of the disputed site to the two communities and also that the impact of acquisition is equally on the right and interest of the Hindu community. Mention of this aspect is made only in the context of the argument that the statute as a whole, not merely Section 7 thereof, is anti-secular being slanted in favour of the Hindus and against the Muslims. 127. After the aforementioned conclusion, in paragraphs 65 to 82 the Court examined the question as to whether a mosque is immune from acquisi....
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....arised thus. Under the Mahomedan Law applicable in India, title to a mosque can be lost by adverse possession (See Mulla's Principles of Mahomedan Law, 19th Edn., by M. Hidayatullah - Section 217; and Shahid Ganj v. Shiromani Gurdwara [AIR 1940 PC 116, 121]. If that is the position in law, there can be no reason to hold that a mosque has a unique or special status, higher than that of the places of worship of other religions in secular India to make it immune from acquisition by exercise of the sovereign or prerogative power of the State. A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open. Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India. Irrespective of the status of a mosque in an Islamic country for the purpose of immunity from acquisition by the State in exercise of the sovereign power, its status and immunity from acquisition in the secular ethos of India under the Constitution is the same and equal to that of the places of worship of the other religions, namely, church, temple etc. It is neither more nor less than that of the places of w....
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.... devoid of any examination on this issue, the matter needs to go to a larger Bench. Dr. Dhavan further submits that the impugned judgment was affected by the questionable observations in Ismail Faruqui. He has taken us through various paragraphs in the impugned judgment in this regard. Dr. Dhavan has also referred to various observations made in the impugned judgment to support his submission that Ismail Faruqui has influenced the said judgment. 130. On the other hand, Shri Parasaran, learned senior Counsel submits that the questionable observations in Ismail Faruqui that a mosque not being an essential part of the practice of Islam have to be read in the context of the validity of the acquisition of the suit property under the 1993 Act. He submits that this Court has not ruled that offering Namaz by Muslims is not an essential religious practice. It only ruled that right to offer Namaz at every mosque that exists is not essential religious practice. But if a place of worship of any religion has a particular significance for that religion, enough to make an essential or integral part of the religion, then it would stand on a different footing and would have to be treated differe....
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....amaz by Muslims can be offered anywhere even in open. 134. What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrine, tenets and beliefs of that religion itself. This has been laid down at page 1025 in Shirur Mutt: ...The learned Attorney-General lays stress upon Clause (2)(a) of the Article and his contention is that all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to State Regulation. The contention formulated in such broad terms cannot, we think, be supported. In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditu....
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....igion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate. (Emphasis supplied) 137. In Sri Venkataramana Devaru and Ors. v. The State of Mysore and Ors. 1958 SCR 895, a Constitution Bench of this Court had the opportunity to consider Articles 25 and 26 of the Constitution of India in the context of Madras Temple Entry Authorisation Act, 1947 as amended in 1949. After referring to Shirur Mutt, this Court has held as under: 16(3).... Now, the precise connotation of the expression "matters of religion" came up for consideration by this Court in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [(1954) SCR 1005] and it was held therein that it embraced not merely matters of doctrine and belief pertaining to the religion but also the practice of it, or to put it in terms of Hindu theology, not merely its Gnana but also its Bhakti and Karma Kandas. .... 138. In The Durgah Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors. (1962) 1 SCR 383, a Constitution Bench of this Court, after considering the histori....
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....nd the Petitioner was allowed to amend his petition. It was contended that if the temple was held to be a public temple then the Act is to be invalid because it contravenes the fundamental rights guaranteed to the denomination Under Articles 25 and 26 of the Constitution. After considering the rival contentions, the Court has held as under: In deciding the question as to whether a given religious practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the community following the religion or not. This formula may in some cases present difficulties in its operation. Take the case of a practice in relation to food or dress. If in a given proceeding, one Section of the community claims that while performing certain rites white dress is an integral part of the religion itself, whereas another Section contends that yellow dress and not the white dress is the essential part of the religion, how is the Court going to decide the question? Similar disputes may arise in regard to food. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to ....
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....on is religious in character and whether it could be regarded as an integral and essential part of the religion and if the court finds upon evidence adduced before it that it is an integral or essential part of the religion, Article 25 accords protection to it.... (Emphasis supplied) 143. As mentioned above, parties have produced various texts in Islam in support of their respective contentions. For the present, we are concerned with the approach of the Court in concluding questionable observations without examining the doctrine, tenets and beliefs of the religion. The conclusion in paragraph 82 of Ismail Faruqui that "A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open" has been arrived at without undertaking comprehensive examination. 144. Now, the question is whether the impugned judgment has been affected by the questionable observations in Ismail Faruqui. A perusal of the impugned judgment shows that learned advocates appearing for the parties have repeatedly quoted various paragraphs of Ismail Faruqui while arguing the case and have also placed strong reliance on the questionab....
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....oresaid view has been approved in Dr. M. Ismail Faruqui v. Union Of India, 1994 (6) SCC 360, Para 70 of the ruling is relevant which reads as under.... [Printed volume of the judgment at page Nos. 3061] Sri Jain has relied upon para 78 of Dr. M. Ismail Faruqui and Ors. v. Union of India and Ors. 1994(6) SCC 360, which is reproduced as under: While offer of prayer or worship is are religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an essential or integral part thereof. Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of the religion, stand on a different footing and have to be treated differently and move reverentially. Sri H.S. Jain, Advocate has further argued that since birth place of Lord Ram was considered as a place of worship which was integral part of religious practice of Hindu from times immemorial. It is deity and it stands on a different footing and have to be treated reverentiall....
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....suits restrained the parties from removing the idols or interfering with their worship. In effect, therefore, from December 1949 till 6.12.1992 the structure had not been used as a mosque." It is further very significant to note that the Muslims for the first time, after 1949, assert their right howsoever unsustainable, only in 18th December, 1961. Therefore, the right of the Hindus to worship at the Rama Janma Bhumi, continuing since times immemorial as an integral part of their religious right and faith was also sanctified by judicial orders from 1949 continuously. This right has concretised and remains an integral part of Hindu religion and has to be protected. [Printed volume of the judgment at page Nos. 3439] 146. Similarly, in the judgment rendered by Justice Sudhir Agarwal, Ismail Faruqui has been quoted at page No. 2015 in the printed volume of the judgment, which is as under: 3501. Sri Prasad argued that belief of Hindus that Lord Ram as incarnation of Vishnu having born at Ayodhya forms an integral part of Hindu religion which cannot be denied to be practised, observed and performed by them and refers to Commissioner of Police and Or....
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....ch a property cannot be acquired. While negativing this plea, the Apex Court said that a plea in regard to general religious purposes cannot be said to be an integral part of religion which will deprive the worshippers of the right of worship at any other place and therefore, such a property can be acquired by the State. However, the position would be otherwise if the religious property would have been of special significance and cannot be one of several such kind of properties. It will be useful to reproduce the relevant observation in this regard: 78. It appears from various decisions rendered by this Court, referred later, that subject to the protection Under Articles 25 and 26 of the Constitution, places of religious worship like mosques, churches, temples etc. can be acquired under the State's sovereign power of acquisition. Such acquisition per se does not violate either Article 25 or Article 26 of the Constitution. The decisions relating to taking over of the management have no bearing on the sovereign power of the State to acquire property. 82. While offer of prayer or worship is a religious practice, its offering at every location where such prayers c....
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....to be lost due to the acts of persons other than Hindus, the very right of this Section of people, as protected by Article 25, shall stand destroyed. This is another reason for not attracting the provisions of limitation in the present case. 148. Similarly, Justice D.V. Sharma has stated thus: A SOVEREIGN GOVERNMENT EVEN BY EXERCISING THE POWER OF EMINENT DOMAN CANNOT EXERCISE THE POWER OF ACQUISITION OF LAND OR PROPERTY WHICH EXTINGUISHES THE CORE OF THE FAITH OR THE PLACE OR THE INSTITUTION WHICH IS HELD TO BE SACRED. What clearly follows is that a sovereign Government cannot extinguish the core of the Hindu religion which is the Ram Janambhumi, let alone the same be extinguished through a suit, by transferring the same to some other party in this case the Plaintiff thereby ensuring that the said fundamental right to worship at the Ram Janambhumi is extinguished forever. RELEVANT CASE LAW... (b) Dr. M. Ismail Faruqui and Ors. v. Union of India and Ors., 1994 (6) SCC Para 76, Page 416 - Acharya Maharajshri Narendra Prasadji Anand Prasadji Maharaj v. State of Gujarat, (1976) 2 SCR 317 at pages 327-328: (AIR 1974 SC 2098 at p. 2103), has held: ....
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.... 78. While offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an essential or integral part thereof. Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of the religion, stand on a different footing and have to be treated differently and more reverentially. On behalf of Hindus it is urged that the Plaintiffs are not entitled for the relief claimed and as such the relief is barred by the provisions of Section 42 of the Specific Relief Act, 1877 which is at par with Section 34 of the Specific Relief Act, 1963 on the ground that they have superior fundamental rights. Contentions of Hindus are as under: The Hindus have superior fundamental right than the Muslims under articles 25 & 26 of the Constitution of India for the reasons that performing customary rituals and offering service worship to the lord of universe to acquire merit and to get salvation as such it is integral part ....
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....rticles 25 and 26 of the Constitution is to religious practice which forms an essential and integral part of the religion. A practice may be a religious practice but not an essential and integral part of practice of that religion. 78. While offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an essential or integral part thereof. Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of the religion, stand on a different footing and have to be treated differently and more reverentially. 3. In M. Ismail Faruqui (Dr.) v. Union of India (supra) the Hon'ble Supreme Court held that a mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered any where even in open. The Right to Worship is not at any and every place so long as it can be practised effectively, unless the Right to Worship at a particular place is itself an integral....
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.... make it immune from acquisition by exercise of the sovereign or prerogative power of the State. A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open. Accordingly, its acquisition is not prohibited by the provisions in the Constitution of India. Irrespective of the status of a mosque in an Islamic country for the purpose of immunity from acquisition by the State in exercise of the sovereign power, its status and immunity from acquisition in the secular ethos of India under the Constitution is the same and equal to that of the places of worship of the other religions, namely, church, temple etc. It is neither more nor less than that of the places of worship of the other religions. Obviously, the acquisition of any religious place is to be made only in unusual and extraordinary situations for a larger national purpose keeping in view that such acquisition should not result in extinction of the right to practise the religion, if the significance of that place be such. Subject to this condition, the power of acquisition is available for a mosque like any other place of worship of any religion. The....
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....tional. Various grounds have been urged in support of the stand as to how these practices, which come within the domain of personal law, are not immune from judicial review under the Constitution. It is urged by them that the majority opinion of the Constitution Bench in the case of Shayara Bano etc. v. Union of India and Ors. etc. (2017) 9 SCC 1 has not dealt with these aspects. They have drawn our attention to various paragraphs of the judgment to buttress the point that the said issues have not been really addressed as there has been no delineation on these aspects. On a perusal of the judgment, we find the submission of the learned Counsel for the Parties/Petitioners is correct that these concepts have not been decided by the Constitution Bench. xxx xxx ....
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....herefore, requested to constitute an appropriate Bench to hear the aforesaid matter. (Emphasis supplied) 153. In Sunita Tiwari v. Union of India and Ors. {Writ Petition (Civil) No. 286 of 2017} a Three-Judge Bench of this Court was considering the question relating to banning the practice of Female Genital Mutilation (FGM) or Khatna or Female Circumcision (FC) or Khafd. It was submitted by the Senior Counsel appearing for the contesting Respondent that the matter should be referred to a larger Bench for an authoritative pronouncement because the practice is an essential and integral practice of the religious sect. Learned Attorney General for India also submitted that it deserves to be referred to a larger Bench. By Order dated 24.09.2018, the matter was referred to a larger Bench, the relevant portion of which is as under: Regard being had to the nature of the case, the impact on the religious sect and many other concomitant factors, we think it apposite not to frame questions which shall be addressed to by the larger Bench. We also think it appropriate that the larger Bench may consider the issue in its entirety from all perspectives. In view of the afores....