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CASE NO.:

Writ Petition (civil) 160 of 2002

PETITIONER:

Mohd. Aslam @ Bhure

RESPONDENT:

Union of India & Ors.

DATE OF JUDGMENT: 31/03/2003

BENCH:

S. RAJENDRA BABU ,SYED SHAH MOHAMMED QUADRI, M.B.SHAH, N. SANTOSH HEGDE & DORAISWAMY RAJU

JUDGMENT:

J U D G M E N T

RAJENDRA BABU, J. :

In the Statement of Objects and Reasons in the Bill ultimately leading to

the enactment of the Acquisition of Certain Area at Ayodhya Act, 1993

[hereinafter referred to as 'the Act'], it has been stated as follows:

"There has been a long-standing dispute relating to the erstwhile Ram

Janma Bhumi-Babri Masjid structure in Ayodhya which led to communal

tension and violence from time to time and ultimately led to the

destruction of the disputed structure on 6th December, 1992. This was

followed by wide-spread communal violence which resulted in large

number of deaths, injuries and destruction of property in various parts of

the country. The said dispute has thus affected the maintenance of public

order and harmony between different communities in the country. As it is

necessary to maintain communal harmony and the spirit of common

brotherhood amongst the people of India, it was considered necessary to

acquire the site of the disputed structure and suitable adjacent land for

setting up a complex which could be developed in a planned manner

wherein a Ram temple, a mosque, amenities for pilgrims, a library,

museum and other suitable facilities can be set up.

2. xxx xxx xxx.

3. xxx xxx xxx."

In the Preamble to the Act also, it has been mentioned as follows:

"An act to provide for the acquisition of certain area at Ayodhya and for

matters connected therewith or incidental thereto.

WHEREAS there has been a long-standing dispute relating to the

structure (including the premises of the inner and outer courtyards of such

structure), commonly known as the Ram Janma Bhumi-Babri Masjid,

situated in village Kot Ramachandra in Ayodhya, in Pragana Haveli

Avadh, in Tehsil Faizabad Sadar, in the district of Faizabad of the State of

Uttar Pradesh;

AND WHEREAS the said dispute has affected the maintenance of public

order and harmony between different communities in the country;

AND WHEREAS it is necessary to maintain public order and to promote

communal harmony and the spirit of common brotherhood amongst the

people of India;

AND WHEREAS with a view to achieving the aforesaid objectives, it is

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necessary to acquire certain areas in Ayodhya;

xxx xxx xxx."

In M.Ismail Faruqui etc. vs. Union of India & Ors., 1994 Supp. (5) SCR

1, the validity of the Act was challenged. This Court examined the scheme of the

Act and held as under by majority of 3:2 :

"1(a) Sub-section (3) of Section 4 of the Act abates all pending suits and

legal proceedings without providing for an alternative dispute-resolution

mechanism for resolution of the dispute between the parties thereto. This

is an extinction of the judicial remedy for resolution of the dispute

amounting to negation of rule of law. Sub-section (3) of Section 4 of the

Act is, therefore, unconstitutional and invalid.

(b) The remaining provisions of the Act do not suffer from any invalidity on

the construction made thereof by us. Sub-section (3) of Section 4 of the

Act is several from the remaining Act. Accordingly, the challenge to the

constitutional validity of the remaining Act, except for Sub-section (3) of

Section 4 of, is rejected.

(2) Irrespective of the status of a mosque under the Muslim Law

applicable in the Islamic countries, the status of a mosque under the

Mahomedan Law applicable in secular India is the same and equal to that

of any other place of worship of any religion; and it does not enjoy any

greater immunity from acquisition in exercise of the sovereign or

prerogative power of the State, than that of the places of worship of the

other religions.

(3) The pending suits and other proceedings relating to the disputed area

within which the structure [including the premises of the inner and outer

courtyards of such structure], commonly known as the Ram Janma

Bhumi-Babri Masjid, stood, stand revived for adjudication of the dispute

therein, together with the interim orders made, except to the extent the

interim orders stand modified by the provisions of Section 7 of the Act.

(4) The vesting of the said disputed area in the Central Government by

virtue of Section 3 of the Act is limited, as a statutory receiver, with the

duty for its management and administration according to Section 7

requiring maintenance of status quo therein under sub-section (2) of

Section 7 of the Act. The duty of the Central Government as the statutory

receiver is to hand over the disputed area in accordance with Section 6 of

the Act, in terms of the adjudication made in the suits for implementation

of the final decision therein. This is the purpose for which the disputed

area has been so acquired.

(5) The power of the courts in making further interim orders in the suits is

limited to, and circumscribed by, the area outside the ambit of Section 7

of the Act.

(6) The vesting of the adjacent area, other than the disputed area,

acquired by the Act in the Central Government by virtue of Section 3 of

the Act is absolute with the power of management and administration

thereof in accordance with sub-section (1) of Section 7 of the Act, till its

further vesting in any authority or other body or trustees of any trust in

accordance with Section 6 of the Act. The further vesting of the adjacent

area, other than the disputed area, in accordance with Section 6 of the

Act has to be made at the time and in the manner indicated, in view of the

purpose of its acquisition.

(7) The meaning of the word 'vest' in Section 3 and Section 6 of the Act

has to be so understood in the different contexts.

(8) Section 8 of the Act is meant for payment of compensation to owners

of the property vesting absolutely in the Central Government, the title to

which is not in dispute being in excess of the disputed area which alone is

the subject-matter of the revived suits. It does not apply to the disputed

area, title to which has to be adjudicated in the suits and in respect of

which the Central Government is merely the statutory receiver as

indicated, with the duty to restore it to the owner in terms of the

adjudication made in the suits.

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(9) The challenge to acquisition of any part of the adjacent area on the

ground that it is unnecessary for achieving the professed objective of

settling the long-standing dispute cannot be examined at this stage.

However, the area found to be superfluous on the exact area needed for

the purpose being determined on adjudication of the dispute, must be

restored to the undisputed owners.

(10) Rejection of the challenge by the undisputed owners to acquisition of

some religious properties in the vicinity of the disputed area, at this stage

is with the liberty granted to them to renew their challenge, if necessary at

a later appropriate stage, in case of continued retention by the Central

Government of their property in excess of the exact area determined to

be needed on adjudication of the dispute.

(11) Consequently, the Special Reference No. 1 of 1993 made by the

President of India under Article 143(1) of the Constitution of India is

superfluous and unnecessary and does not require to be answered. For

this reason, we very respectfully decline to answer it and return the same.

(12) The questions relating to the constitutional validity of the said Act and

maintainability of the Special Reference are decided in these terms."

In this proceeding, which is initiated as public interest petition, several

reliefs were claimed but after the interested parties were impleaded and their

pleadings were put forth what has crystallized is as to the manner in which the

adjacent land should be preserved till the final decision in the title suit pending in

the High Court of Allahabad. This Court, on 13.3.2002, while issuing the rule,

made the following order:

". In the meantime, we direct that on the 67.703 acres of land located in

revenue plot Nos. 159 & 160 in village Kot Ramchandra which is vested

in the Central Government, no religious activity of any kind by anyone

either symbolic or actual including bhumipuja or shila puja, shall be

permitted or allowed to take place.

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.

This is subject to further orders which may be passed in this case.

."

The aforesaid order was clarified by another order dated 14.3.2002 in the

following terms:

"After hearing the learned Attorney General, as there was some ambiguity

in para 3 of our order dated 13th March, 2002, we correct para 3 of our

order as follows:

In the meantime, we direct that on the 67.703 acres of acquired land

located in various plots detailed in the Schedule to Acquisition of Central

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 bhumipuja or shila puja, shall be permitted or allowed to take

place."

Subsequently after the pleadings were completed an application was filed

seeking for vacating the interim order and for final hearing of the petition. Instead

of considering the interim application, we considered we should dispose of the

main matter and hence we have finally heard the matter.

Learned counsel on both sides in the present case heavily relied upon the

decision in M.Ismail Faruqui's case [supra].

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The Act, as it was passed by Parliament, anticipated the settlement of the

dispute after obtaining the opinion of this Court and in terms of the said opinion.

However, the reference made to this Court having been returned to the President

without any opinion thereto and the provisions of Section 4(3) of the Act by which

the pending proceedings stood abated having been declared to be invalid, the

suits and the other proceedings along with the interim orders stood revived.

Therefore, the whole perception of the provisions of the enactment will have to

be made in that light. While it is the contention of the petitioner that the decision

of this Court in M.Ismail Faruqui's case [supra] clearly indicates that the

purpose of the acquisition of the adjacent land is to meet the easement of

necessity of proper enjoyment of the disputed land by its owner who is ultimately

to be declared by the High Court of Allahabad and on consideration of the

various observations made by this Court in the course of the judgment,

particularly that the extent of the area required for carrying out the purpose of the

Act would depend on the decision in favour of the Muslims or Hindus in respect

of the disputed land and the scheme to be framed for purposes of developing a

complex consisting of museum, library and other structures. All this cannot be

done until the suits pending before the High Court of Allahabad are settled.

Therefore, they pray that status quo as ordered by this Court in the interim order

should be made absolute and an appropriate relief be granted in the aforesaid

terms.

The Union of India and Others submit that the interim relief granted by this

Court earlier goes beyond the scope of the decision rendered by this Court in

M.Ismail Faruqui's case [supra] and the petition filed by the petitioner should be

dismissed straightaway because he had filed a writ petition before the High Court

of Allahabad which came to be dismissed and in this petition there is hardly any

proper foundation laid for granting any relief. It is also pleaded that the

allegations made in the petition are vague and do not contain the necessary

details to appreciate the various contentions urged before the Court and several

of the prayers made in the petition have already become infructuous.

On several occasions this Court has treated letters, telegrams or post

cards or news reports as writ petitions. In such petitions, on the basis of

pleadings that emerge in the case after notice to different parties, relief has been

given or refused. Therefore, this Court would not approach matters where public

interest is involved in a technical or a narrow manner. Particularly, when this

Court has entertained this petition, issued notice to different parties, new parties

have been impleaded and interim order has also been granted, it would not be

appropriate for this Court to dispose of the petition on that ground.

Filing of the writ petition in the High Court of Allahabad or its dismissal will

not come in the way of considering this petition. The scope of that writ petition

filed in the High Court is different from what is urged in the present proceedings

which is limited to maintaining status quo during pendency of suits before the

High Court in respect of acquired land.

The Preamble to the Act itself discloses that the objective of the

enactment is maintenance of harmony between different communities in the

country and to maintain public order. If the acquisition has been effected on that

basis not only of the disputed land but also of adjacent land, this thread will run

through the entire proceedings and we must bear in mind that when the dispute

is not yet finally resolved, maintenance of communal harmony and peace is

absolutely needed. It is no doubt true that when passions run high, demands are

made for several types of activities being carried on in the adjacent land. If any

such activities are carried on in such land, even before the resolution of the

dispute pending before the court, it may affect the harmony and tranquility that

has prevailed for so long.

Section 6(1) of the Act enables the Central Government to transfer its

right, title and interest or any of them in the area or any part thereof to any

authority or other body, or trusts on such terms and conditions as it may think fit

to impose instead of continuing to retain the same itself. Sections 6(2) and (3)

provide for certain arrangements of statutory transfer effected by Central

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Government by declaring that the transferee would step into the shoes of the

Government acquiring the same right, title and interest in the area in question.

As also that Sections 4, 5, 7, 11, so far as may be, would apply to such

transferee as would apply to Central Government.

In the course of the discussion in M.Ismail Faruqui's case [supra], it has

been observed as follows :

"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. (See : M. Padmanabha Iyengar v. Government of A.P.,

AIR 1990 AP 357, and Akhara Shri Braham Buta vs. State of Punjab,

AIR 1989 P&H 198.) We approve the principle stated in these decisions

since it serves a larger purpose.

xxx xxx xxx

However, at a later stage when the exact area acquired which is

needed, for achieving the professed purpose of acquisition, can be

determined, it would not merely be permissible but also desirable that the

superfluous excess area is released from acquisition and reverted to its

earlier owner. The challenge to acquisition of any part of the adjacent

area on the ground that it is unnecessary for achieving the objective of

settling the dispute relating to the disputed area cannot be examined at

this stage but, in case the superfluous area is not returned to its owner

even after the exact area needed for the purpose is finally determined, it

would be open to the owner of any such property to then challenge the

superfluous acquisition being unrelated to the purpose of acquisition.

Rejection of the challenge on this ground to acquisition at this stage, by

the undisputed owners of any such property situate in the vicinity of the

disputed area, is with the reservation of this liberty to them. There is no

contest to their claim of quashing the acquisition of the adjacent

properties by anyone except the Central Government which seeks to

justify the acquisition on the basis of necessity. On the construction of

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the statute made by us, this appears to be the logical, appropriate and

just view to take in respect of such adjacent properties in which none

other than the undisputed owner claims title and interest.

xxx xxx xxx

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 large

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. 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."

From the observations quoted above, it is clear that the adjacent land,

though vest in the Central Government, will have to be utilised in different

manners depending upon the outcome of the litigation in respect of the disputed

property. Thus the manner or extent to which the adjacent land could be used

would depend upon the final outcome of the pending dispute in the High Court.

The acquisition of larger extent of land is incidental to main purpose. Thus, the

two acquired lands are intrinsically connected with one another and cannot be

separated at this stage of the proceedings for different treatment during the

interregnum. Further, it has also been made clear that if any land becomes

superfluous such land will have to be returned to the owner who may have to

initiate appropriate proceedings to challenge the validity of the acquisition as

indicated in the course of the judgment of this Court in M.Ismail Faruqui's case

[supra]. If land is transferred to any other body or trust as provided under Section

6 of the Act at this stage further complications may arise. Therefore, status quo

will have to be maintained until suits are finally disposed of. We hold that the

orders of this Court made earlier are not beyond the scope of the decision in

M.Ismail Faruqui's case.

Above all, status quo has been maintained from 1992 onwards and no

activities as are set out in the course of the application have been required to be

done so far. When for a long time, a particular state of affairs has prevailed - as

in the present case for over a decade - and when the adjudication of the disputes

which are pending before the High Court are reaching final stages, it will not be

appropriate to disturb that state of affairs. It is well known that preservation of

property in its original condition is absolutely necessary to give appropriate reliefs

to the parties on the termination of the proceedings before the courts and,

therefore, we do no think that this is one of those cases in which it becomes

necessary to disturb that state.

On consideration of the entire matter, we are of the view that the order

made by this Court on 13.3.2002, as modified by the order made on 14.3.2002,

should be operative until disposal of the suits in the High Court of Allahabad not

only to maintain communal harmony but also to fulfil other objectives of the Act.

The writ petition shall stand disposed of accordingly.

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Before parting with the case, we wish to put on record that all the learned

counsel and the parties who appeared in person in arguing the matter thoroughly

have presented their respective cases only on facts and law arising in the case

without bringing into court in any manner the passion raging outside whether

religious or political. We greatly appreciate this stand of the Advocates and the

parties in the court.