In the Supreme Court of India Civil Appellate Jurisdiction Civil Appeal Nos 10866-10867 Of 2010 Appellants M Siddiq (D) Thr Lrs Respondents Mahant Suresh Das & Ors Date of Judgement 9th November 2019 Bench Hon'ble Justice Ranjan Gogoi; Hon'bleJustice SA Bobde, CJ; Hon'ble Justice Ashok Bhushan; Hon'ble Justice DY Chandrachud; Hon'ble Justice Sa Nazeer
Facts of case
The disputed land forms part of the village of Kot Rama Chandra or, as it is otherwise called, Ramkot at Ayodhya, in Pargana Haveli Avadh, of Tehsil Sadarm in the District of Faizabad. An old structure of a mosque existed at the site until 6 December 1992. The Hindus assert that there existed at the disputed site an ancient temple dedicated to Lord Ram, which was demolished upon the conquest of the Indian sub-continent by Mughal Emperor Babur. On the other hand, the
Muslims contended that the mosque was built by or at the behest of Babur on vacant land.
The Central Government acquired an area of about 68 acres, including the premises in dispute, by a legislation called the Acquisition of Certain Area at Ayodhya Act 1993 (Ayodhya Acquisition Act 1993). Sections 3 and 4 envisaged the abatement of all suits which were pending before the High Court. Simultaneously, the President of India made a reference to this Court under Article 143 of the Constitution. The reference was on whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janam Bhoomi and Babari Masjid (including the premises of the inner and outer courtyards on such structure) in the area on which the structure stands.
Writ petitions were filed before the High Court of Allahabad and this Court challenging the validity of the Act of 1993. All the petitions and the reference by the President were heard together and decided by a judgment dated 24 October 1994. The decision of a Constitution Bench of this Court titled Dr M Ismail Faruqui v. Union of India held Section 4(3), which provided for the abatement of all pending suits as unconstitutional. The rest of the Act of 1993 was held to be valid.
During the course of the hearings, the High Court issued directions on 23 October 2002 to the Archaeological Survey of India (ASI) to carry out a scientific investigation and have the disputed site surveyed by Ground Penetrating Technology or Geo-Radiology (GPR). In order to facilitate a further analysis, the High Court directed the ASI on 5 March 2003 to undertake the excavation of the disputed site. A fourteen-member team was constituted, and a site plan was prepared indicating the number of trenches to be laid out and excavated.
On 30 September 2010, the Full Bench of the High Court comprising of Justice S U Khan, Justice Sudhir Agarwal and Justice D V Sharma delivered the judgment, which is in appeal here. The High Court had before it 533 exhibits and depositions of 87 witnesses traversing 13,990 pages. Besides this, counsel relied on over a thousand reference books in Sanskrit, Hindi, Urdu, Persian, Turkish, French and English, ranging from subjects as diverse as history, culture, archaeology and religion. Justices S U Khan and Sudhir Agarwal observed: We have no benefit of testifying the correctness of the contents of the said documents. In the absence of any one available to prove the contents of the said documents, in our view, the same cannot be relied and therefore, nothing turns out from the aforesaid documents either in favour or against any of the parties.
On 5 December 2017, a three judge Bench of this Court rejected the plea that the appeals against the impugned judgement be referred to a larger Bench in view of certain observations of the Constitution Bench in Ismail Faruqui. On 14 March 2018, a three judge Bench heard arguments on whether the judgment in Ismail Faruqui required reconsideration. On 27 September 2018, the three judge Bench of this Court by a majority of 2:1 declined to refer the judgment in Ismail Faruqui for reconsideration and listed the appeals against the impugned judgement for hearing. By an administrative order dated 8 January 2019 made pursuant to the provisions of Order VI Rule 1 of the Supreme Court Rules, 2013, the Chief Justice of India constituted a five judge
Bench to hear the appeals.
On 26 February 2019, this Court referred the parties to a Court appointed and monitored mediation to explore the possibility of bringing about a permanent solution to the issues raised in the appeals. On 8 March 2019, a panel of mediators comprising of (i) Justice Fakkir Mohamed Ibrahim Kalifulla, a former Judge of this Court; (ii) Sri Sri Ravi Shankar; and (iii) Mr. Sriram Panchu, Senior Advocate was constituted. Time granted to the mediators to complete the mediation proceedings was extended on 10 May 2019. Since no settlement had been reached, on 2 August 2019, the hearing of the appeals was directed to commence from 6 August 2019.
Final arguments were concluded in the batch of appeals on 16 October 2019. On the same day, the mediation panel submitted a report titled ‘Final Report of the Committee’ stating that a settlement had been arrived at by some of the parties to the present dispute. The settlement was signed by Mr. Zufar Ahmad Faruqi, Chairman of the Sunni Central Waqf Board. Though under the settlement, the Sunni Central Waqf Board agreed to relinquish all its rights, interests and claims over the disputed land, this was subject to the fulfillment of certain conditions stipulated.
The settlement agreement received by this Court from the mediation panel has not been agreed to or signed by all the parties to the present dispute. Moreover, it is only conditional on certain stipulations being fulfilled. Hence, the settlement cannot be treated to be a binding or concluded agreement between the parties to the dispute.
It is necessary to note that the legal personality of the first plaintiff in Suit 5 (Bhagwan Sri Ram Virajman) as represented by the physical idols of Lord Ram at the disputed site is not contested by any of the parties. Whether the second plaintiff (Asthan Sri Ram Janam Bhumi) is a juristic person has however been the subject of controversy in the oral proceedings before us.
1) Whether Suit 3 is barred by limitation?
2) Whether Shebaits have an exclusive right to sue?
3) Whether Suit 5 can be held to be within limitation on the ground that a deity is a perpetual minor.
Arguments on behalf of the Sunni Central Waqf Board
a. No deities were installed within the premises of Babri Masjid until the idol was surreptitiously brought in on the night between 22-23 December 1949. The written statement denies the presence of a presiding deity or of ―any Asthan.
b. Regular prayers were offered in the mosque up to 22 December 1949 and Friday prayers until 16 December 1949.
c. The colonial government continued grants for the upkeep and maintenance of the mosque originally given during the time of Babur.
d. Even in the absence of an express dedication, the long use of the disputed site for public worship as a mosque elevates the property in question to a waqf by user. It contended that since the construction of the mosque by Emperor Babur in 1528 till its desecration on 22/23 December 1949, namaz has been offered in the mosque. Hence, the disputed property has been the site of religious worship.
Arguments on behalf of the Plaintiffs
a. It was urged that during Babur‘s invasion of India, several temples were destroyed, including the temple constructed by Vikramaditya at Ayodhya. He contended that during the Mughal period, the territory now known as India was under foreign occupation –
Hindus were not permitted to exercise their religious rights and, upon the adoption of the Constitution of India, the wrongs of the Mughals are liable to be rectified.
b. It was further urged that as the land of a deity is inalienable, the title of the plaintiff deities from the twelfth century continues to be legally enforceable today.
c. The 1928 edition of the Faizabad Gazetteer, in support of the plea that the ancient temple, called the Ram Janmabhumi temple, was destroyed by Babur in 1528 and on its site, a mosque was built largely with the materials of the destroyed temple, including the Kasauti pillars. Yet, according to the plaint, the worshippers continued to worship Lord Ram through symbols such as the Charan and Sita Rasoi and the idol of Lord Ram on the Ramchabutra within the enclosure.
d. No valid waqf was ever created or could have been created. Despite occasional trespass by the Muslim residents, it has been stated that title and possession vested in the plaintiff deities. It is alleged that no prayers were offered at the mosque.
e. Proceedings under Section 145 to which the plaintiff deities were not parties.
f. Deities have been in possession and any claim of title adverse to the deities stands extinguished by adverse possession.
g. Suit 5 was necessitated as a result of the deity not being a party to the earlier suits and based on the apprehension that in the existing suits, the personal interests of the leading parties were being pursued without protecting the independent needs and concerns of the deity of Lord Ram, is well and truly borne out by the proceedings as they unfolded in the proceedings before this Court.
In order to bring the suit within the purview of Article 142, the following requirements must be fulfilled:
a. The suit must be for possession of immovable property;
b. The plaintiff must establish having been in possession of the property; and
c. The plaintiff should have been dispossessed or must have discontinued possession while in possession of the property.
Justice B K Mukherjea in ―The Hindu Law of Religious and Charitable Trusts‖ in the following manner: ―This decision [in Maharaja Jagadindra Nath Roy Bahadur v Rani Hemanta Kumari Devi 9], therefore, establishes three things: –
(1) That the right of a suit in respect of the deity‘s property is in the Shebait;
(2) This right is a personal right of the Shebait which entitles him to claim the privilege afforded by the Limitation Act; and
(3) The Shebait can sue in his own name and the deity need not figure as a plaintiff in the suit, though the pleadings must show that the Shebait is suing as such.
The Suit by Nirmohi Akhara (Suit 3) was for management and charge of what it described as the Ram Janmabhoomi temple. Its claim of being a shebait had not, as of the date of the institution of Suit 3, been adjudicated. It was not a de-jure shebait (there being no deed of dedication) and its claim of being a de facto shebait had to be established on evidence. Suit 5 is founded on the plea that the needs and concerns of the deity of Lord Ram were not being protected and that the parties to the earlier suits were pursuing their own interests.
It must be held that Suit 5 is instituted within the period of limitation.
a. On 22/23 December 1949, when a group of fifty to sixty persons installed idols on the pulpit of the mosque below the central dome. The inner courtyard was thereafter attached in proceedings under Section 145 CrPC 1898 on 29 December 1949 and the receiver took possession; XVII on 6 December 1992, the structure of the mosque was brought down and the mosque was destroyed. The destruction of the mosque took place in breach of the order of status quo and an assurance given to this Court. The destruction of the mosque and the obliteration of the Islamic structure was an egregious violation of the rule of law;
b. The High Court has adopted a path which was not open to it in terms of the principles formulated above. It granted reliefs which were not the subject matter of the prayers in the suits. In the process of doing so, it proceeded to assume the jurisdiction of a civil court in a suit for partition, which the suits before it were not.
c. The allotment of land to the Muslims is necessary because though on a balance of probabilities, the evidence in respect of the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing than the evidence adduced by the Muslims, the Muslims were dispossessed upon the desecration of the mosque on 22/23 December 1949 which was ultimately destroyed on 6 December 1992.
d. There was no abandonment of the mosque by the Muslims. This Court in the exercise of be remedied. Justice would not prevail if the Court were to overlook the entitlement of the Muslims who have been deprived of the structure of the mosque through means which should not have been employed in a secular nation committed to the rule of law.
The Constitution postulates the equality of all faiths. Tolerance and mutual co-existence nourish the secular commitment of our nation and its people. While determining the area of land to be allotted, it is necessary to provide restitution to the Muslim community for the unlawful destruction of their place of worship. Having weighed the nature of the relief which should be granted to the Muslims, we direct that land admeasuring 5 acres be allotted to the Sunni Central Waqf Board either by the Central Government out of the acquired land or by the Government of Uttar Pradesh within the city of Ayodhya.
e. The Central Government shall, within a period of three months from the date of this judgment, formulate a scheme pursuant to the powers vested in it under Sections 6 and 7 of the Acquisition of Certain Areas at Ayodhya Act 1993. The scheme shall envisage the setting up of a trust with a Board of Trustees or any other appropriate body under Section 6 The scheme to be framed by the Central Government shall make necessary provisions in regard to the functioning of the trust or body including on matters relating to the management of the trust, the powers of the trustees including the construction of a temple and all necessary, incidental and supplemental matters;
f. Suit 3 filed by Nirmohi Akhara has been held to be barred by limitation. Nirmoh Akhara‘s claim to be a shebait stands rejected. However, having regard to the historical presence of Nirmohi Akhara at the disputed site and their role, it is necessary for this Court to take recourse to its powers under Article 142 to do complete justice. Hence, it is directed that in framing the scheme, an appropriate role in the management would be assigned to the Nirmohi Akhara.
“The views of the authors are personal“