M. SIDDIQ (D) THR. LRS. versus MAHANT SURESH DAS AND OTHERS ETC.
[2018] 11 S.C.R. 175, Supreme Court of India, 2018
Outcome: Directions issued
Segment: Issues
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M. SIDDIQ (D) THR. LRS.
v.
MAHANT SURESH DAS AND OTHERS ETC.
(Civil Appeal Nos. 10866-10867 of 2010)
SEPTEMBER 27, 2018
[DIPAK MISRA, CJI, ASHOK BHUSHAN AND
S. ABDUL NAZEER, JJ.]
Reference to Larger  Bench :  Whether Dr. M. Ismail Faruqui
and Ors. v. Union of India  reported in [1994] 5 Suppl. SCR 1 needs
reconsideration – In Para 82 of Ismail Faruqui case, the
Constitutional Bench observed “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.” –  Held: Majority
opinion (Per Ashok Bhushan, J. [for himself and Dipak Misra, CJI.]),
the statement that a mosque is not an essential part of the practice
of religion of Islam was in context of issue as to whether the mosque,
which was acquired by Act of 1993 had immunity from acquisition
– Constitution Bench had held that while offer of prayer or worship
is a religious practice, its offering at every location where such
prayers can be offered would not be an essential or integral part of
such religious practice unless the place has a particular significance
for that religion so as to form an essential or integral part thereof –
What Court meant was that unless the place of offering of prayer
has a particular significance so that any hindrance to worship  may
violate right under Arts.25 and 26, any hindrance to offering of
prayer at any place shall not affect rights under Arts.25 and 26 –
The phrase “particular significance”
was used by the Constitution
Bench only in context of immunity from acquisition – No case was
made out to refer the Constitution Bench judgment in  Ismail Faruqui
case for reconsideration – (Per S. Abdul Nazeer, J.) (Dissenting)
The questionable observations in Ismail Faruqui case certainly
permeated the impugned judgment – Thus, the impugned judgment
can be claimed to be both expressly and inherently affected by the
questionable observations made in Ismail Faruqui – Further, Ismail
Faruqui prima facie leads a different approach regarding the
application of essential and/or integral test which also needs to be
resolved as a matter of constitutional significance – Ismail Faruqui
[2018] 11 S.C.R. 175
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needs to be brought in line with the authoritative pronouncements
in Shirur Mutt and other decisions – In view of constitutional
importance and significance of the issues involved, the following
questions referred to a larger Bench: (a) Whether in the light of
Shirur Mutt and other aforementioned cases, an essential practice
can be decided without a detailed examination of the beliefs, tenets
and practice of the faith in question (b) Whether the test for
determining the essential practice is both essentiality and integrality
(c) Does Art.25, only protect belief and practices of particular
significance of a faith or all practices regarded by the faith as
essential (d) Do Arts.15, 25 and 26 (read with Art.14) allow the
comparative significance of faiths to be undertaken – Religious
institutions – Constitution of India – Arts.25 and 26 – Acquisition
of Certain Area at Ayodhya Act, 1993.
Acquisition of Certain Area at Ayodhya Act, 1993 –  Plea of
res judicata – The issues which have been framed in the suits giving
rise to these appeals were different issues which cannot be said to
be directly and substantially in issue in Ismail Faruqui’s case –
Non-fulfilment of this condition itself is sufficient to reject the plea
of res judicata.
While issuing directions for further listing, the Court
HELD:
Per Ashok Bhushan, J. (for himself and Dipak Misra, CJI.)
1. The statement “a mosque is not essential part of the
practice of
religion…..” in Ismail Faruqui case was a statement
which was made by the Constitution Bench in specific context
and reference.   Whether every mosque is the essential part of
the practice of religion of Islam, acquisition of which ipso facto
may violate the rights under Articles 25 and 26, was the question
which had cropped up for consideration before the Constitution
Bench. The Court  in Ismail Faruqui case held that if the place
where offering of namaz is a place of particular significance,
acquisition of which may lead to the extinction of the right to
practice of the religion, only in that condition the acquisition is
not permissible and subject to this condition, the power of
acquisition is available for a mosque like any other place of
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worship of any religion. The sentence “A mosque is not essential
part of the practice of the religion of Islam and namaz (prayer) by
Muslims can be offered anywhere, even in open” is followed
immediately by the next sentence that is “Accordingly, its
acquisition is not prohibited by the provisions in the Constitution
of India” which makes it amply clear that the said sentence was
confined to the question of immunity from acquisition of a mosque
which was canvassed before the Court. First sentence cannot be
read divorced from the second sentence which immediately
followed the first sentence.  [Paras 54, 56, 58, 59][215-G-H; 216-
A-B, G-H; 217-A, C-D]
2. “Comparative significance” & “Particular significance”.
2.1 The Constitution Bench held that if a particular place is
of such significance for that religion that worship at such place is
an essential religious practice and the extinction of such place
may breach their right of Article 25, the acquisition of such place
is not permissible. A place of particular significance has been
noticed by the Constitution Bench in that context. When
acquisition of such place results in extinction of the right to
practice the religion, there is violation of Article 25, which was
an exception laid by the Constitution Bench while laying down
general proposition that acquisition of all places of worship is
permissible. Thus, no exception can be taken to the Constitution
Bench having used expression ‘place of particular
significance’
for carving out an exception to the general power of acquisition
of the State of religious places like church, mosque and temple
or gurudwara. The above exception carved out by the Constitution
Bench is to protect the constitutional right guaranteed under
Article 25. [Para 61][218-G-H; 219-A-B]
2.2 ‘Particular significance’ of place of birth of Lord Rama:
The phrase “particular significance” was used by the Constitution
Bench only in context of 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” loses all
its significance for decision of the suits and the appeals. [Para
62][219-D-E]
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC.
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3.  RES-JUDICATA:  The issues which were involved in
Ismail Faruqui’s case were validity of Acquisition of Certain Area
at Ayodhya Act, 1993. One of the issues which was taken up by
Ismail Faruqui’s case was as to whether by virtue of Section 4
sub-section (3) of Act, 1993, suits pending in Allahabad High Court
stood abated. The Presidential Reference No.1 of 1993 was also
heard along with the writ petitions and transferred cases. The
issues which have been framed in the suits giving rise to these
appeals are different issues which cannot be said to be directly
and substantially in issue in Ismail Faruqui’s case. Non-fulfilment
of this condition itself is sufficient to reject the plea of res judicata.
Suits which were pending in the High Court were never
transferred to be heard alongwith Presidential Reference and writ
petition filed under Article 32. This Court had only stayed the
hearing of preliminary issue framed by the High Court as to
whether the suits have abated or survive. 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. Thus,
judgment of Ismail Faruqui is not part
of the judgment in the suit
itself.  [Paras 72, 75][225-B-C; 226-F-H; 227-A]
Ahmed Adam Sait & others v. Inayathullah Mekhri &
others [1964] 2 SCR 647; Gulabchand Chhotalal
Parikh v. State of Gujarat AIR 1965 SC 1153 :
[1965] SCR 547; Daryao and others v. State of U.P. &
others AIR 1961 SC 1457: [1962] SCR 574; Sheodan
Singh v. Daryao Kunwar AIR 1966 SC 1332:
[1966] SCR 300; Sajjadanashin Sayed v. Musa
Dadabhai Ummer (2000) 3 SCC 350: [2000]
1 SCR1095; Mahila Bajrangi(dead) through Lrs. v.
Badribai w/o Jagannath and another (2003) 2 SCC
464:[2002] 5 Suppl. SCR 557; Union of India & Others
versus Dr. M. Ismail Faruqui and others (1994) 1 SCC
265 – referred to.
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4.  Reliance on the judgment of Ismail Faruqui
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.  As per proviso, the reference to a bench
of five judges can be made by judges sitting in lesser strength
than five judges while hearing an appeal, on fulfilment of following
two conditions:- 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. The proviso to Article 145(3) thus, clearly
indicate that on fulfilment of both the conditions, a bench of smaller
strength than five judges can make a reference of a case to be
heard by a Bench strength of five judges. [Paras 98-100][237-E-
F; 238-A-C]
Shayara Bano etc. v. Union of India & Ors. etc. (2017)
9 SCC 1 : [2017] 7 SCR 797; Hyderabad Industries
Ltd. And Another v. Union of India And Others (1995)
5 SCC 338 : [1995] 2 Suppl. SCR 287; Khandelwal
Metal and  Engineering Works and Another v. Union
of India and Others (1985) 3 SCC 620 : [1985] 1 Suppl.
 SCR 750; S.S. Rathore v. State of M.P. (1988) Supp.
SCC 522; Sita Ram Goel v. Municipal Board, Kanpur
and Others AIR 1958 SC 1036 : [1959]  SCR 1148;
Ashwani Kumar and Others v. State of Bihar
and Others
(1996) 7 SCC 577 : [1995] 5 Suppl. SCR  367; 
Balasaria Construction (P) Ltd. v. Hanuman Seva Trust
and Others (2006) 5 SCC 662; Acchan Rizvi (I) v. State
of U.P. and Others (1994) 6 SCC 751; Acchan Rizvi
(II) v. State of U.P. and Others (1994) 6 SCC 752; Mohd.
Aslam alias Bhure v. Union of India and Others (2003)
2 SCC 576; Mohd. Aslam alias Bhure v. Union of India
and Others (2003) 4 SCC 1 : [2003] 3 SCR  143; Vinod
Kumar Shantilal Gosalia v. Gangadhar and Others
(1980) Supp. SCC 340; Ram Jethmalani v. Union of
India (1984) 3 SCC 696 : [1984] 3 SCR  926; Krishan
Kumar v. Union of India and Others (1989) 2 SCC 504;
Union of India v. M. Gopalakrishnaiah (1995) Supp. 4
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC.
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SCC 81; Delhi Transport Corporation v. D.T.C.
Mazdoor Congress and Others (1991) Supp 1 SCC 600
: [1990] 1 Suppl. SCR 142; Central Inland Water
Transport Corporation Limited and Another v. Brojo
Nath Ganguly and Another (1986) 3 SCC 156 : [1986]
2 SCR 278; Syndicate Bank v. Prabha D. Naik and
Another (2002) 10 SCC 686;  Charanjeet Singh v.
Raveendra Kaur, (2008) 17 SCC 650; Telecom
Regulatory Authority of India v. Bharat Sanchar Nigam
Limited (2014) 3 SCC 304; Securities and Exchange
Board of India v. Sahara India Real Estate Corporation
Limited and Others (2014) 8 SCC 751; Rajeev Dhavan
v. Gulshan Kumar Mahajan and Others (2014) 12 SCC
618: [2014] 8 SCR 930; Vivek Narayan Sharma v.
Union of India (2017) 1 SCC 388 : [2016] 7 SCR 798
– Held inapplicable.
Abdul Rahim Ismail C. Rahimtoola v. State of Bombay
AIR 1959 SC 1315 : [1960] SCR 285; Ebrahim Vazir
Mavat v. State of Bombay and others AIR 1954 SC 229
: [1954] SCR 933; Bhagwan Swarup Lal Bishan Lal v.
State of Maharashtra AIR 1965 SC 682 : [1964] SCR
378 ; People’s Union for Civil Liberties (PUCL) and
Another v. Union of India and Another (2003) 4 SCC
399 : [2003] 2 SCR 1136; Union of India v. Association
for Democratic Reforms and Another (2002) 5 SCC 294
– (A Three Judge Bench Judgment); Central Board
of Dawoodi Bohra Community and Another v. State of
Maharashtra and Another (2005) 2 SCC 673;
26.03.2018 in W.P. (C) No. 222 of 2018 – Sameena
Begum v. Union of
India & Ors. – referred to.
5.1 Present is a case where appeals have been filed against
judgment dated 30.09.2010 of Allahabad High Court by which
Four Original Suits, which were transferred by the High Court to
itself have been decided.  Four Civil Suits were filed claiming
title to the disputed structure. Parties led elaborate evidences
running in several thousands pages.  The Court, after marshalling
the evidences before it has decided the Civil Suits giving rise to
these appeals.  The issues, which aose in these appeals were no
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doubt important issues, which were to be heard and decided in
these appeals. Normally appeals arising out of suits are placed
before a Bench of Two Judges but looking to the importance of
the matter, the instant appeals were already placed before three
Judge Bench.  For the said reasons,  these appeals are not
required to be referred to Constitution Bench of Five Judges for
reconsidering  Ismail Faruqui’s case. [Para 112][245-E-H]
5.2 The observations made in Ismail Faruqui’s case were
made in context of land acquisition.  Those observations were
neither relevant for deciding the suits nor relevant for deciding
these appeals. No case is made out to refer the Constitution
Bench judgment of this Court in  Ismail Faruqui case for
reconsideration.  [Para 119, 120][248-C-D]
Dr. M. Ismail Faruqui and Ors. v. Union of India and
Ors. (1994) 6 SCC 360 : [1994] 5 Suppl. SCR 1; The
Commissioner, Hindu Religious Endowments, Madras
v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,
[1954] SCR 1005; Quinn v. Leathem 1901 AC 495;
Sarva Shramik Sanghatana (KV), Mumbai v. State of
Maharashtra and others (2008) 1 SCC 494 : [2007]
12 SCR 645; Islamic Academy of Education and
another v. State of Karnataka and others (2003) 6 SCC
697 : [2003] 2 Suppl. SCR 474; Commissioner of
Central Excise, Delhi v. Allied Air-conditioning
Corporation (Regd.) (2006) 7 SCC 735 : [2006] 6
Suppl. SCR 41; Ratilal Panachand Gandhi and Others
v. State of Bombay and Others AIR 1954 SC 388:
[1954]
SCR 1035; Sri Jagannath Ramanuj Das and Another
v. State of Orissa and Another AIR 1954 SC 400 : [1954]
SCR 1046; Sri Venkataramana Devaru and Others v.
State of Mysore and Others AIR 1958 SC 255 : [1958]
SCR 895; Mohd. Hanif Quareshi and Others v. State
of  Bihar AIR 1958 SC 731 : [1959] SCR 629; Sardar
Syedna Taher Saifuddin Saheb v. State of Bombay, AIR
1962 SC 853 : [1962] Suppl. SCR 496; Tikayat Shri
Govindlalji Maharaj etc. v. State of Rajasthan and
Others AIR 1963 SC 1638 : [1964] SCR 561 – referred
to.
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Per S. Abdul Nazeer, J. (Partly dissenting)
1.1  The question as to whether a particular religious practice
is an essential or integral part of the religion is a question which
is to be considered by considering the doctrine, tenets and beliefs
of the religion.  The examination of what constitutes an essential
practice requires detailed examination. The conclusion in 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.  [Paras 19, 21][258-C-D; 259-A]
Sri Adi Visheshwara of Kashi Vishwanath Temple,
Varanasi and Ors. v. State of U.P. and Ors. (1997) 4
SCC 606 : [1997] 2 SCR 1086 – referred to.
1.2  The questionable observations in Ismail Faruqui case
have certainly permeated the impugned judgment. Thus, the
impugned judgment can be claimed to be both expressly and
inherently affected by the questionable observations made in
Ismail Faruqui. Further, Ismail Faruqui prima facie leads a
different approach regarding the application of essential and/or
integral test which also needs to be resolved as a matter of
constitutional significance. Ismail Faruqui needs to be brought
in line with the authoritative pronouncements in Shirur Mutt and
other decisions referred to in paragraphs 14 to 18 and 20 of this
judgment.[Para 27][270-G-H; 270-A]
Sameena
Begum v. Union of India & Ors. W.P. (C) No.
222 of 2018;  Jyoti Jagran Mandal v. NDMC & Anr.
[Civil Appeal No. 5820 of 2018];  Sunita Tiwari v. Union
of India & Ors. [Writ Petition (Civil) No. 286 of 2017]
– relied on.
2.  In view of the constitutional importance and significance
of the issues involved, the following need to be referred to a
larger Bench:  (a) Whether in the light of Shirur Mutt and other
cases, an essential practice can be decided without a detailed
examination of the beliefs, tenets and practice of the faith in
question? (b) Whether the test for determining the essential
practice is both essentiality and integrality?  (c) Does Article 25,
only protect belief and practices of particular significance of a
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faith or all practices regarded by the faith as essential? (d) Do
Articles 15, 25 and 26 (read with Article 14) allow the comparative
significance of faiths to be undertaken? [Para 32][293-F-H; 274-
A-B]
Commissioner, Hindu Religious Endowments, Madras
v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt
[1954] SCR 1005;  Ratilal Panachand Gandhi and
Others v. State of Bombay and Others [1954] SCR 1035;
Sri Venkataramana Devaru and Others v. State of
Mysore and Others [1958] SCR 895; The Durgah
Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors.
(1962) 1 SCR 383;  Sardar Syedna Taher Saifuddin
Saheb v. State of Bombay [1962] Suppl. SCR 496;
Tikayat Shri Govindlalji Maharaj etc. v. State of
Rajasthan and Others [1964] SCR 561 – relied on.
Dr. M. Ismail Faruqui and Ors. v. Union of India and
Ors. (1994) 6 SCC 360 : [1994] 5 Suppl. SCR 1 –
referred to.
Case Law Reference
In the Judgment of Ashok Bhushan, J.
[1994] 5 Suppl. SCR 1
 referred to
Para 1
[2003] 3 SCR  143
 referred to
Para 7
[1954] SCR 1005
 referred to
Para 11
[1994] 5  Suppl.  SCR  1
 referred to
Para 22
1901 AC 495
 referred to
Para 22
[2007] 12 SCR 645 
 referred to
Para 23
[2003] 2 Suppl.  SCR 474
 referred to
Para 24
[2006] 6  Suppl.  SCR 41
 referred to
Para 26
[1954] SCR 1005
 referred to
Para 45
[1954] SCR 1035
 referred to
Para 48
[1954] SCR 1046
 referred to
Para 49
[1958] SCR 895
 referred to
Para 49
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[1959] SCR 629
referred to
Para 50
[1962] Suppl.  SCR  496
referred to
Para 51
[1964] SCR 561
referred to
Para 52
[1964] 2 SCR 647
referred to
Para 65
[1965] SCR 547
referred to
Para 66
[1962] SCR  574
referred to
Para 67
[1966] SCR  300
referred to
Para 68
[2000] 1 SCR 1095
referred to
Para 69
[2002] 5 Suppl. SCR 557
referred to
Para 70
(1994) 1 SCC 265
referred to
Para 74
[1960] SCR 285
referred to
Para 100
[1954] SCR 933
referred to
Para 100
[1964] SCR 378 
referred to
Para 101
[2003] 2 SCR 1136
referred to
Para 102
(2002) 5 SCC 294
referred to
Para 102
(2005) 2 SCC 673
referred to
Para 103
[2017] 7 SCR 797  
referred to
Para 104
[1995] 2 Suppl. SCR 287
held inapplicable
Para 106
[1985] 1 Suppl. SCR 750 
held inapplicable
Para 106
(1988) Supp. SCC 522
held inapplicable
Para 106
[1959] SCR 1148
held inapplicable
Para 106
[1995] 5 Suppl. SCR 367        held inapplicable
Para 106
(2006) 5 SCC 662
held inapplicable
Para 106
(1994) 6 SCC 751
held inapplicable
Para 106
(1994) 6 SCC 752
held inapplicable
Para 106
(2003) 2 SCC 576
held inapplicable
Para 106
[2003] 3 SCR 143
held inapplicable
Para 106
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(1980) Supp. SCC 340
held inapplicable
Para 107
[1984] 3 SCR 926
held inapplicable
Para 108
(1989) 2 SCC 504
held inapplicable
Para 109
(1995) Supp. 4 SCC 81
held inapplicable
Para 109
[1990] 1 Suppl.  SCR 142
held inapplicable
Para 109
[1986] 2 SCR 278
held inapplicable
Para 109
(2002) 10 SCC 686
held inapplicable
Para 110
(2008) 17 SCC 650
held inapplicable
Para 110
(2014) 3 SCC 304
held inapplicable
Para 110
(2014) 8 SCC 751
held inapplicable
Para 110
[2014] 8 SCR 930
held inapplicable
Para 110
[2016] 7 SCR 798
held inapplicable
Para 110
In the Judgment of  S. Abdul Nazeer, J.
[1994] 5 Suppl. SCR 1
referred to
Para 1
[1954] SCR 1005
relied on
Para 7
[1954] SCR 1035
relied on
Para 14
[1958] SCR 895
relied on
Para 15
[1962] 1 SCR 383
relied on
Para 16
[1962] Suppl.  SCR 496
relied on
Para 17
[1964] SCR 561
relied on
Para 18
[1997] 2 SCR 1086
referred to
Para 20
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 10866-
10867 of 2010.
From the Judgment and Order dated 30.09.2010 of the High Court
of Judicature at Allahabad, Lucknow Bench, Lucknow in O.O.S.
No.4/1989 (Regular Suit No.12 of 1961) and O.O.S. No.5/1989 (Regular
Suit No.236 of 1989).
WITH
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC.
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Civil Appeal Nos. 4768-4771, 2636, 821, 4739, 4905-4908, 2215,
4740, 2894, 6965, 4192, 5498, 7226, 8096 of 2011 and Diary No. 22744
of 2017.
Maninder Singh, Tushar Mehta, ASGs, Madan Mohan Pandey,
Ms. Aishwarya Bhati, AAGs, Dr. Rajeev Dhavan, Raju Ramachandran,
C.S. Vaidyanathan, Aman Sinha, Raghvendra Singh, Sushil Kumar Jain,
Hari Nath, S.P. Singh, Sr. Advs., Ejaz Maqbool, Shahid Nadeem Ansari,
Ms. Avani Bansal,  C. George Thomas, Ms. Akriti Chaubey,
Ms. Qurrantulain, Ms. Tanya Shree, Kunwar Aditya Singh, Wasif Rahman
Khan, Ishwar Mohanty, Ms. Hamsini Shankar, Zarin Maqbool,
Ms. Priyanshi Jaiswal, Zafaryab Jilani, S.S. Shamshery, P.K. Singh, Ms.
Aditi, Anirudh Sharma, Amit Sharma, Sandeep Singh, Pranav Kumar,
Ashish Kumar Upadhyay, Bhuvan Jayant, Y. Lokesh, P.V. Yogeswaran,
Syed Shahid Hussain Rizvi, M.T. Khan, S. Mansoor Ali, Zeeshan Rizvi,
Mujeebudheen Jehan, Rashid Saeed, M. R. Shamshad, Nizampasha,
Aditya Samaddar, Zaki Ahmad Khan, Shakil Ahmed Syed, Mohd. Parvez
Dabas, Uzmi Jameel Husain, Daanish Ahmad Syed, Mohd. Shakim,
Mujeebuddin Khan, Niaz Ahmad Farooqui, Pulkit Chandna, Milan Laskar,
Ms. Kanika Chauhan, Haaris Osmani,  D. Bharat Kumar, Yash Mishra,
Ankit Raj, Ms. Indira Bhakhar, Rajesh Singh, Vineet Pandey, Santosh
Kumar, T. Bhaskar Gowtham, Ms. Ruchi Kohli, Ms. Ranjana Agnihotri,
Ms. Mamta Tewari, Ms. Sukanya Basu, M/s Fox Mandal & Co.,
Ms. Pratibha Jain, Irshad Ahmad, R.C. Gubrele, Vishnu Shankar Jain,
M.C. Dhingra, R. Balasubramanian, Nalin Kohli, Prabhas Bajaj,
Ms. Aarti Sharma, B.V. Balramdas, Kamlendra Mishra, Sanjay Kumar
Tyagi,  Rajeev Kumar Dubey, Aviral Saxena, Ms. Vaidruti Mishra, Puneet
Jain, Ms. Christi Jain, Tarunjeet Verma, Ranjeet Lal Verma, Ms. Priyal
Jain, Shailendra Sharma, Ram Sewak Tripathi, Mukesh Verma, Pawan
Kumar Shukla, Yash Pal Dhingra,  Rounak Parekh,  Sudhakar Dwivedi,
A. Deb Kumar, Ms. A. Deepa, Ambuj Ojha, Vidit Shrivastav, Syed Mehdi
Imam, Atif Suhrawardy, Tabrez Ahmad, Ms. Shamama Anis,
Moh. Noorullah, M. Tayyab, Mohd. Aamir Dabas, Vidyottama,
Sai Deepak, Ravindra Lokhande, Harshit Kaushik, Abhishek Atrey,
Avdhesh Kumar Singh, Chandra Shekhar Suman, Puneet Sheoran,
Ms. Rita Gupta, Ms. Deepshikha Bharati, Ms. Harsha, Vikas Singh
Jangra, Fuzail Ahmad Ayyubi, Ibad Mushtaq, Ikauser Husain,  Bhakti
Vardhan Singh, Sarthak Nayak, Shridhar Pottaraju, Ms. Ankita Sharma,
Prakash Gautam, Amit Kumar Pathak,  Tushar Thareja, Sayooj
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Mohandas, Acharya Santosh Prasad Chaurasia, Acharya Santosh
Pandey,  Ms. Sucheta Joshi, Bharat Sood, R.K. Rajvanshi, Harshardhan
Singh Rathore, Nachiketa Joshi, Barun Kumar Sinha, Birender
Choudhary, Arun Kumar, Ms. Pratibha Singh, Aditya Sharma, B.K. Satija,
Karunesh Kumar Shukla, Virender Chaubey, Amit Pawan, Awdesh
Chaubey, Virendra Chaubey, Awadhesh Kumar, Gopal Jha, Shantanu,
Anil Kumar, Sukrit R. Kapoor, Bhavanishankar V. Gadnis, Ashok
Shrivastava, Vishwanath Gadnis, Ms. Swarupama Chaturvedi,
B.N. Dubey, Ms. Devika Gulati, Kumar Gaurav, Robin Khokhar,
Md. Shahid Anwar, Shakil Ahmed Syed, Mohd. Irshad Manif, Ajit Singh
Pundir, Lakshmi Raman Singh, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. (For self & Dipak Misra, CJI.)
1. These appeals were fixed for commencement of final arguments
on 05.12.2017, when Dr. Rajeev Dhavan, learned senior counsel appearing
for the appellants (C.A. No. 10866-10867 of 2010 and C.A. No. 2215 of
2011) submitted that the Constitution Bench Judgment of this Court in
Dr. M. Ismail Faruqui and Ors. Vs. Union of India and Ors., (1994)
6 SCC 360 (hereinafter referred to as “Ismail Faruqui’s case”) needs
reconsideration, hence the reference be made to a larger Bench.  The
above submission of Dr. Dhavan was opposed by learned counsel
appearing for the respondents.  After completion of the pleadings, when
matter was again taken on 14.03.2018, we thought it appropriate that
we should
hear Dr. Dhavan as to whether the judgment in Ismail
Faruqui’s case requires reconsideration.
2. We have heard Dr. Rajeev Dhavan, learned senior counsel for
the appellants, Shri K. Parasaran and Shri C.S. Vaidyanathan, learned
senior counsel for the respondents in Civil Appeal Nos. 4768-4771 of
2011, Shri Tushar Mehta, learned Additional Solicitor General has
appeared for the State of U.P.  We have also heard Shri P.N. Mishra,
Shri S.K. Jain and several other learned counsels.   Shri Raju
Ramachandran, learned senior counsel has also addressed submissions
supporting the reference to larger Bench.  Learned counsel for the parties
have given their notes of submissions.
3. Before we notice the respective submissions of learned counsel
for the parties, we need to notice few facts, leading to the  Constitution
Bench decision in Ismail Faruqui’s case.  The sequence of events
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which lead filing of these appeals be also noticed.   The Constitution
Bench in Ismail Faruqui’s case has extracted few facts from White
Paper, which was published by Central Government.  In Para 5 and 6 of
the judgment, the Constitution Bench noticed:-
“5. The ‘Overview’ at the commencement of the White Paper in
Chapter I states thus:
“1.1 Ayodhya situated in the north of India is a township in
District Faizabad of Uttar Pradesh. It has long been a place of
holy pilgrimage because of its mention in the epic Ramayana
as the place of birth of Sri Ram. The structure commonly
known as Ram Janma Bhoomi-Babri Masjid was erected as a
mosque by one Mir Baqi in Ayodhya in 1528 AD. It is claimed
by some sections that it was built at the site believed to be the
birthspot of Sri Ram where a temple had stood earlier. This
resulted in a long-standing dispute.
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 the present purpose. These parleys involving the Vishwa Hindu
Parishad (VHP) and the All India Babri Masjid Action Committee
(AIBMAC), however, failed to resolve the dispute. A new
dimension was added to the campaign for construction of the
temple with the formation of the Government in Uttar Pradesh in
June 1991 by the Bhartiya Janata Party (BJP) which declared its
commitment to the construction of the temple and took certain
steps like the acquisition of land adjoining the disputed structure
while leaving out the disputed structure itself from the acquisition.
The focus of the temple construction movement from October
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1991 was to start construction of the temple by way of kar sewa
on the land acquired by the Government of Uttar Pradesh while
leaving the disputed structure intact. This attempt did not succeed
and there was litigation in the Allahabad High Court as well as in
this Court. There was a call for resumption of kar sewa from 6-
12-1992 and the announcement made by the organisers was for a
symbolic kar sewa without violation of the court orders including
those made in the proceedings pending in this Court. In spite of
initial reports from Ayodhya on 6-12-1992 indicating an air of
normalcy, around midday a crowd addressed by leaders of BJP,
VHP, etc., climbed the Ram Janma Bhumi-Babri Masjid (RJM-
BM) structure and started damaging the domes. Within a short
time, the entire structure was demolished and razed to the ground.
Indeed, it was an act of “national shame”. What was demolished
was not merely an ancient structure; but the faith of the minorities
in the sense of justice and fairplay of majority. It shook their faith
in the rule of law and constitutional processes. A five-hundred-
year-old structure which was defenceless and whose safety was
a sacred trust in the hands of the State Government was
demolished.”
4. The Constitution Bench has noticed details of suits, which were
filed in the year 1950 and thereafter, which suits were ultimately
transferred to the Allahabad High Court to be heard together in the year
1989.  In Para 9 of the judgment, following
has been noticed:-
“9. A brief reference to certain suits in this connection may now
be made. In 1950, two suits were filed by some Hindus; in one of
these suits in January 1950, the trial court passed interim orders
whereby the idols remained at the place where they were installed
in December 1949 and their puja by the Hindus continued. The
interim order was confirmed by the High Court in April 1955. On
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
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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 result of the happenings at Ayodhya on 06.12.1992, the
President of India issued a proclamation under Article 356 of the
Constitution of India assuming to himself all the functions of the
Government of Uttar Pradesh, dissolving the U.P. Vidhan Sabha.  As a
consequence of the events at Ayodhya on 06.12.1992, the Central
Government decided to acquire all areas in dispute in the suits pending in
the Allahabad High Court. It was also decided to acquire suitable adjacent
area, which would be made available to two Trusts for construction of a
Ram Temple and a Mosque respectively.  The Government of India has
also decided to request the President to seek the opinion of the Supreme
Court on the question whether there was a Hindu temple existing on the
site where the disputed structure stood.  An ordinance was issued on
07.01.1993 namely “Acquisition of Certain Area at Ayodhya Ordinance”
for
acquisition of 67.703 acres of land in the Ram Janam Bhumi-Babri
Masjid complex.  A reference to the Supreme Court under Article 143
of the Constitution was also made on the same day, i.e. 07.01.1993.  The
Ordinance No. 8 of 1993 had been replaced by the Acquisition of Certain
Area at Ayodhya Act, 1993 (No. 33 of 1993) (hereinafter referred to as
“Act, 1993”).  A Writ Petition Under Article 32 was filed in this Court
challenging the validity of the Act No. 33 of 1993.  Several writ petitions
at Allahabad High Court were also filed challenging various aspects of
the Act, 1993. This Court exercising its jurisdiction under Article 139A
had transferred the writ petitions, which were pending in the High Court.
The Writ Petitions under Article 32, transferred cases from High Court
of Allahabad as well as Reference No.1 of 1993 made by President
under Article 143 were all heard together and decided by common
judgment dated 24.10.1994, where the Constitution Bench had upheld
the validity of the Act except that of Section 4(3) of the Act, 1993 which
was struck down.
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6. After the judgment of this Court in the above Constitution Bench,
all the suits, which had been transferred by the High Court to be heard
by a Full Bench of the High Court stood revived.  One Mohd. Aslam,
who was also one of the petitioners in Constitution Bench Judgment in
Ismail Faruqui’s case filed a writ petition seeking certain reliefs with
regard to 67.703 acres of land acquired under the Act, 1993.  This Court
on 13.03.2002 passed an interim order.  Paras 4 and 5 of the interim
order are as follows:-
“4.  In the meantime, we direct that on 67.703 acres of acquired
land located in various plots detailed in the Schedule to the
Acquisition of Certain Area at Ayodhya Act, 1993, which is vested
in the Central Government, no religious activity of any kind by
anyone either symbolic or actual including bhumi puja or shila
puja, shall be permitted or allowed to take place.
5.  Furthermore, no part of the aforesaid land shall be handed
over by the Government to anyone and the same shall be retained
by the Government till the disposal of this writ petition nor shall
any part of this land be permitted to be occupied or used for any
religious purpose or in connection therewith.”
7. The above writ petition was ultimately decided on 31.03.2003
by a Constitution Bench, which judgment is reported in (2003) 4 SCC
1, Mohd. Aslam alias Bhure Vs. Union of India and Others. Before
the Constitution Bench, both the parties had placed reliance on Ismail
Faruqui’s case.
This Court disposed of the writ petition directing that
order of this Court dated 13.03.2002 as modified on 14.03.2002 should
be operative until disposal of the suits in the High Court of Allahabad.
The Allahabad High Court after hearing all the suits on merits decided
all the suits vide its judgment dated 30.08.2010.  The parties aggrieved -
both plaintiffs and defendants in the original suits have filed these appeals
in this Court.
8. Dr. Rajeev Dhavan submits that judgment in Ismail Faruqui’s
case had made observations that a mosque is not an essential part of the
practice of the religion of Islam and namaz (prayer) by Muslims can be
offered anywhere, even in open.  The observations made by the
Constitution Bench has influenced the decisions under the appeal, the
law laid down in Ismail Faruqui in relation to praying in a mosque not
being an essential practice is contrary to both, i.e. the law relating to
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essential practice and the process by which essential practice is to be
considered. Whether essential practice can be decided on a mere ipse
dixit of the Court or whether the Court is obliged to examine belief,
tenets and practices, is a pure question of law.  The Ismail Faruqui’s
judgment being devoid of any examination on the above issues,  the
matter need to go to a larger Bench.
9. Dr. Dhavan specifically referred to paras 78 and 82 of the
judgment in Ismail Faruqui’s case.  He specifically attacked following
observations in Paragraph 78 :-
“78. While offer of prayer or worship is a religious practice, its
offering at every location where such prayers can be offered
would not be an essential or integral part of such religious practice
unless the place has a particular significance for that religion so
as to form an essential or integral part thereof. Places of worship
of any religion having particular significance for that religion, to
make it an essential or integral part of the religion, stand on a
different footing and have to be treated differently and more
reverentially.”
10. In Para 82, following observation is specifically attacked:-
“A mosque is not an essential part of the practice of the religion
of Islam and namaz(prayer) by Muslims can be offered anywhere,
even in open.”
11. He submits that essential practice of a religion requires a detailed
examination.  He has referred to various judgments of this
Court to
support his submission that wherever this Court had to determine the
essential practice of a religion, detailed examination was undertaken.
He submits that Ismail Faruqui’s case does not refer to any material
nor enters into any detailed examination before making the observations
in Paragraphs 78 and 82 as noticed above.  Dr. Dhavan further submits
that a broad test of essentiality as laid down by Seven Judges Bench in
The Commissioner, Hindu Religious Endowments, Madras Vs.
Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR
1005 cannot be cut down by a later judgment of lesser strength, which
judgments have introduced the test of integrality.  He submits that the
test of integrality is interchangable with essentiality test.  Dr. Dhavan,
during his submissions, has taken us to submissions made by various
parties before the High Court, where reliance was placed on Ismail
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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.
Dhavan submits that ratio in Ismail Faruqui’s case can be summed up
to the following effect:-
(i) The suits revive in their entirety.
(ii) The acquisition was legally competent, traceable to List III
and Entry 42 of the Seventh Schedule of the Constitution.
(iii) The word ‘vest’ has multiple meanings and implied that the
status of the Central Government was that of a statutory
receiver which would dispense with the land (including the
other areas acquired) in accordance with the judgment in the
suits rather than the Reference which was declined.
(iv) Status quo as in Section 7(2) of the Act would be maintained,
justified on the basis of comparative user since 1949.
(v) Secularism is a facet of equality and represents equal treatment
of all religions in their own terms and with equal respect and
concern for all.
12. Shri K. Parasaran, learned senior counsel refuting the
submissions of Dr. Dhavan submitted that the prayer for reconsideration
of the judgment in Ismail Faruqui’s case is not maintainable at the
instance of the appellants.   He
submitted that those who were eo nomine
parties to the proceedings in the case in Ismail Faruqui, litigated bona
fide in respect of a public right viz. the right of the Muslim public, all
persons interested in such right shall, for the purposes of Section 11 Civil
Procedure Code, be deemed to claim under the persons so litigating and
are barred by Res Judicata in view of Explanation VI to Section 11
C.P.C.  He submits that the interests of Muslim community were
adequately represented before this Court in Ismail Faruqui’s case.   He
further submits that the judgment in Ismail Faruqui’s case is binding on
those who are eo-nomine parties thereto.  Even apart from the question
of res judicata, the doctrine of representation binds those whose interests
are the same in the subject matter of Ram Janam Bhumi-Babri Masjid
as those of eo-nomine parties.  He submitted that the appellants are not
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entitled to request for reconsideration of the said judgment on the principle
of doctrine of representation.   Mr. Parasaran submitted that to reconsider
the judgment in Ismail Faruqui’s case will be an exercise in futility as
the judgment therein is binding on the present appellants. Assuming without
admitting that by a further reference to a larger bench Ismail Faruqui’s
case is overruled, nevertheless, in so far as “Ayodhya Janmasthan Babri
Masjid” is concerned, the judgment in Ismail Faruqui’s case will still
be binding on the appellants on the principle of finality.  He submits that
in the present case, the submissions made were a reargument of the
submissions made in Ismail Faruqui’s case as if it were an appeal
against the said judgment by canvassing the correctness of the said
judgment.   He further submits that in addition to being binding on the
parties, the judgment operates as a declaration of law under Article 141
of the Constitution.
13. Shri Parasaran further submits that observations in Ismail
Faruqui’s case that a mosque is not an essential part of the practice of
Islam have to be read in the context of validity of the acquisition of the
suit property under the Act, 1993. He submits that this Court has not
ruled that offering namaz by Muslims is not an essential religious practice.
It only ruled that the right to offer namaz at every mosque that exists is
not essential religious practice. But if a
place of worship of any religion
has a particular significance for that religion, enough to make it an essential
or integral part of the religion, then it would stand on a different footing
and would have to be treated differently and more reverentially.
Mr.Parasaran respectfully submitted that the thrust of the reasoning of
this Court has to be understood as to the freedom of religion under
Articles 25 and 26 of the Constitution in the context of the inherent
sovereign power of the State to compulsorily acquire property in the
exercise of its jurisdiction of eminent domain in a secular democracy.
14. Shri Parasaran further submits that the fundamental right of
the Muslim community under Article 25, to offer namaz, is not affected
because the Babri Masjid was not a mosque with particular significance
for that religion.  The faith/practice to offer namaz is an essential part of
Muslim religion and, therefore, it may be performed in any mosque at
Ayodhya.  Ayodhya is of particular significance to the Hindus as a place
of pilgrimage because of the ancient belief that Lord Ram was born
there.  He further submits that the impact of acquisition is equally on the
right and interest of both the communities. Shri Parasaran, during his
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submissions, has also tried to distinguish the cases relied by the appellants
to support their submissions in favour of reference.
15. Shri C.S. Vaidyanathan has submitted that present is not a
case where judgment of Ismail Faruqui’s case need any reference to
a larger Bench. He has adopted the submissions made by Shri Parasaran.
16. Shri Tushar Mehta, learned Additional Solicitor General, submits
that Constitution Bench judgment of this Court in Ismail Faruqui’s case
is a correct law, which does not deserves to be disturbed by referring it
to a larger Bench.  Shri Mehta further submits that the prayer made by
the appellants for referring to larger Bench deserves to be rejected on
the ground of inordinate delay.  He submits that judgment was rendered
in 1994.  The judgment came for consideration in Mohd. Aslam’s case,
(2003) 4 SCC 1 where both the parties have relied on the judgments.
Had there been any genuine grounds, request for reference ought to
have been made at that time.  He further submits that a request is not a
bona fide request and has been made with the intent to delay the
proceedings.  Shri Tushar Mehta, learned Additional Solicitor General
has reiterated his submissions that State of U.P. is neutral in so far as
merits of the case of either of the parties is concerned.
17. Shri Parmeshwar Nath Mishra, learned counsel appearing for
one of the respondents submits that all Mosques of the World are not
essential for practice of Islam.  During
the submissions, he referred to
various texts, sculptures of the religion of Islam.  He further submits that
the 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 Nirmohi
Akhada has also refuted the submission of Dr. Dhavan that Ismail
Faruqui’s case needs to be referred to a larger Bench.
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19. Dr. Rajeev Dhavan in his submissions in rejoinder refutes the
submission of Shri Parasaran that principle of res judicata is attracted in
the present case.  He submits that Ismail Faruqui’s case was about a
challenge to the Act, 1993 and the Presidential Reference and the
question as to whether in the light of the Act, 1993 the suits abated due
to Section 4(3) of the Act, 1993.  The cases under these appeals are
from suits, where the issues were entirely different.  He submits that for
constituting a matter res judicata the following conditions must be satisfied,
namely:-
1. The matter directly and substantially in issue in the subsequent
suit or issue must be the same matter which was directly and
substantially in issue in the former suit;
2. The former suit must have been a suit between the same parties
or between parties under whom they or any of them claim;
3. The parties must have litigated under the same title in the former
suit;
4. The court which decided the former suit must be a court
competent to try the subsequent suit or the suit in which such
issue is subsequently raised; and
5. The matter directly and substantially in issue in the subsequent
suit must have been heard and finally decided by the Court in
the first suit.  Further Explanation I shows that it is not the date
on which the suit is filed that matters but the date on which the
suit is decided, so that even if a suit was filed later, it will
be a
former suit if it has been decided earlier.  In order therefore
that the decision in the earlier two appeals dismissed by the
High Court operates as res judicata it will have to be seen
whether all the five conditions mentioned above have been
satisfied.
20. He submits that matter, which was directly and substantially
in issue in the suits is entirely different from the issues, which came for
consideration in the case of Ismail Faruqui. His submission is that Ismail
Faruqui’s case was concerned with the Act, 1993 and the Presidential
Reference.  He further submits that issue of essentiality of a Mosque
generally was not before the Court and emerged only in the judgment.
He further submits that pure questions of law are not res judicata.  The
ipse dixit of the Court that something is, or not the essential practice is
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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 the
observations made in the Ismail Faruqui’s case.  He submits that
submission of Shri Tushar Mehta that prayer is not bonafide and has
been made only to delay the proceedings are incorrect and deserves to
be rejected.  Dr. Dhavan has also referred to various observations made
by judgment in High Court to support its submissions
that judgment of
Ismail Faruqui’s case has influenced the judgment of the High Court.
He has further referred to various submissions made by the learned
counsel for the parties relying on judgment of Ismail Faruqui’s case
before the High Court.  He further submits that in these appeals also,
several grounds have been taken by the different learned counsel relying
on Ismail Faruqui’s case.
21. Learned counsel for the parties have referred to and relied on
various judgments of this Court, which shall be referred to while
considering the submissions in detail.
22. Before we enter into the submissions advanced by  the learned
counsel for the parties it is relevant to notice certain established principle
on reading of a judgment of the Court. The focal point in the present
case being Constitution Bench judgment in Dr. M. Ismail Faruqui &
Ors. vs. Union of India & Ors. reported  in (1994) 6 SCC 360. We
have to find out the context of observations made in the judgment which
according to the appellant are questionable and to decide whether the
said observations furnish any ground for reconsideration of the
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Constitution Bench judgment. The most celebrated principle on reading
of a judgment of a Court of law which has been approved time and
again by this Court is the statement by LORD HALSBURY in Quinn v.
Leathem, 1901 AC 495, where following was laid down:
“Before discussing the case of Allen v. Flood (1898) AC 1 and
what was decided therein, there are two observations of a general
character which I wish to make, and one is to repeat what I have
very often said before, that every judgment must be read as
applicable to the particular facts proved, or assumed to be proved,
since the generality of the expressions which may be found there
are not intended to be expositions of the whole law, but are
governed and qualified by the particular facts of the case in which
such expressions are to be found. The other is that a case is only
an authority for what it actually decides. I entirely deny that it can
be quoted for a proposition that may seem to follow logically from
it. Such a mode of reasoning assumes that the law is necessarily
a logical code, whereas every lawyer must acknowledge that the
law is not always logical at all. “
23. The following words of LORD DENNING in the matter of
applying precedents have become locus classicus:
“Each case depends on its own facts and a close similarity
between one case and another is not enough because even a
single significant detail may alter the entire aspect, in deciding
such cases,
one should avoid the temptation to decide cases (as
said by Cardozo, J. ) by matching the colour of one case against
the colour of another. To decide therefore, on which side of the
line a case falls, the broad resemblance to another case is not at
all decisive.
* * *
Precedent should be followed only so far as it marks the path of
justice, but you must cut the dead wood and trim off the side
branches else you will find yourself lost in thickets and branches.
My plea is to keep the path of justice clear of obstructions which
could impede it.”
The above passage has been quoted with approval by this Court
in Sarva Shramik Sanghatana (KV), Mumbai vs. State of
Maharashtra and others, (2008) 1 SCC 494.
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24. In the Constitution Bench judgment in Islamic Academy of
Education and another v. State of Karnataka and others, (2003) 6
SCC 697, Chief Justice V.N. Khare speaking for majority held:
“The ratio decidendi of a Judgment has to be found out only on
reading the entire Judgment. In fact the ratio of the judgment is
what is set out in the judgment itself. The answer to the question
would necessarily have to be read in the context of what is set out
in the judgment and not in isolation. In case of any doubt as regards
any observations, reasons and principles, the other part of the
judgment has to be looked into. By reading a line here and there
from, the judgment, one cannot find out the entire ratio decidendi
of the judgment. We, therefore, while giving our clarifications, are
deposed to look into other parts of the Judgment other than those
portions which may be relied upon.”
25. Justice S.B. Sinha, J. in his concurring opinion has reiterated
the principles of interpretation of a judgment in paragraphs 139 to 146.
Following has been held in paragraphs 139-146:
“INTERPRETATION OF A JUDGMENT
139. A judgment, it is trite, is not to be read as a statute. The
ratio decidendi of a judgment is its reasoning which can be
deciphered only upon reading the same in its entirety. The ratio
decidendi of a case or the principles and reasons on which it is
based is distinct from the relief finally granted or the manner
adopted for its disposal.
[See Executive Engineer,
Dhenkanal Minor Irrigation Division
v. N.C. Budharaj   [2001]2 SCC 721].
140. In Padma Sundara Rao v. State of T.N.,(2002) 3 SCC
533, it is stated: (SCC p. 540 paragraph 9)
“There is always peril in treating the words of a speech or
judgment as though they are words in a legislative enactment, and
it is to be remembered that judicial utterances are made in the
setting of the facts of a particular case, said Lord Morris in
Herrington v. British Railways Board (1972) 2 WLR 537 [Sub
nom British Railways Board v. Herrington, (1972) 1 All ER 749.
Circumstantial flexibility, one additional or different fact may make
a world of difference between conclusions in two cases.”
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC. [ASHOK BHUSHAN, J.]
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[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]1SCR31 , the words
were not used to take in every adjudication which brought to an
end the proceeding before the court in whatever manner but were
meant to cover only such adjudication as touched upon the real
dispute between the parties which gave rise to the action.
Objections to adjudication of the disputes between the parties, on
whatever ground are in truth not aids to the progress of the suit
but hurdles to such progress. Adjudication of such objections cannot
be termed as adjudication of the merits of the controversy in the
suit. As we said earlier, a broad view has to be taken of the
principles involved and narrow and technical interpretation which
tends to defeat the object of the legislation must be avoided.”
142. In Rajeshwar Prasad Mishra v. The State of West, Bengal,
AIR 1965 SC 1887, it was held:
“Article 141 empowers the Supreme Court to declare the law
and
enact it. Hence the observation of the Supreme Court should
not be read as statutory enactments. It is also well known that
ratio of a decision is the reasons assigned therein.”
(See also Amar Nath Om Prakash and Ors. v. State of
Punjab[1985] 1 SCC 345 and Hameed Joharan v. Abdul Salam,
2001 (7) SCC 573).
143. It will not, therefore, be correct to contend, as has been
contended by Mr. Nariman, that answers to the questions would
be the ratio to a judgment. The answers to the questions are
merely conclusions. They have to be interpreted, in a case of
doubt or dispute with the reasons assigned in support thereof in
the body of the judgment, where for, it would be essential to read
the other paragraphs of the judgment also. It is also permissible
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for this purpose (albeit only in certain cases and if there exist
strong and cogent reasons) to look to the pleadings of the parties.
144. In Keshav Chandra Joshi  v. Union of India, 1992 Supp
(1) SCC 272, this Court when faced with difficulties where
specific guidelines had been laid down for determination of seniority
in Direct Recruits Class II Engineering Officers’ Association
v. State of Maharashtra, (1990) 2 SCC 715, held that the
conclusions have to be read along with the discussions and the
reasons given in the body of the judgment.
145. It is further trite that a decision is an authority for what it
decides and not what can be logically deduced therefrom. [See
Union of India v. Chajju Ram, (2003) 5 SCC 568.
146. The judgment of this Court in T.M.A. Pai Foundations,
(2002) 8 SCC 481, will, therefore, have to be construed or to be
interpreted on the aforementioned principles, The Court cannot
read some sentences from here and there to find out the intent
and purport of the decision by not only considering what has been
said therein but the text and context in which it was said. For the
said purpose the Court may also consider the constitutional or
relevant, statutory provisions 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 vs. 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.....”
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC. [ASHOK BHUSHAN, J.]
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27. In the light of the above principles, we now revert back to the
Constitution Bench judgment in  Ismail Faruqui. We need to notice the
issues which had come up for consideration before the Constitution Bench,
the ratio of the judgment and the context of observations.  We have
noticed above that the Constitution Bench in  Ismail Faruqui case
decided five transferred cases, two writ petitions filed under Article 32
and Special Reference No.1 of 1993. The Special Reference No.1 of
1993 made by the President of India under Article 143 was respectfully
declined to be answered by the Constitution Bench. The challenge in the
writ petitions under Article 32 and transferred cases was to the Act,
1993. The Act, 1993 was enacted to provide for the acquisition of certain
area at Ayodhya and for matters connected therewith or incidental thereto.
Section 2(a) defines the area as:
“2(a) “area” means the area (including all the buildings,
structures or other properties comprised therein) specified in the
Schedule;
28. The Schedule of the Act contained the description of the area
acquired. Apart from the other plots Revenue Plot Nos.159 and 160
situated in village Kot Ramchandra wherein structure commonly known
as Ram Janam Bhumi-Babri Masjid was situated was also included.
Several other plots including all the building structure on other properties
comprised therein were acquired.
29. The validity of Act, 1993 was challenged on
several grounds.
The ground for challenge has been noticed in paragraph 17 of the judgment
which is to the following effect:
“17. Broadly stated, the focus of challenge to the statute as a
whole is on the grounds of secularism, right to equality and right
to freedom of religion. Challenge to the acquisition of the area in
excess of the disputed area is in addition on the ground that the
acquisition was unnecessary being unrelated to the dispute
pertaining to the small disputed area within it. A larger argument
advanced on behalf of some of the parties who have assailed the
Act with considerable vehemence is that a mosque being a place
of religious worship by the Muslims, independently of whether
the acquisition did affect the right to practice religion, is wholly
immune from the State’s power of acquisition and the statute is,
therefore, unconstitutional as violative of Articles 25 and 26 of the
Constitution of India for this reason alone. The others, however,
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limited this argument of immunity from acquisition only to places
of special significance, forming an essential and integral part of
the right to practice the religion, the acquisition of which would
result in the extinction of the right to freedom of religion itself. It
was also contended that the purpose of acquisition in the present
case does not bring the statute within the ambit of Entry 42, List
III but is referable to Entry 1, List II and, therefore, the Parliament
did not have the competence to enact the same. It was then urged
by learned Counsel canvassing the Muslim interest that the
legislation is tilted heavily in favour of the Hindu interests and,
therefore, suffers from the vice of 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 power of acquisition. It was
contended on behalf of the Muslim community that the defences open to
the minority community in the suits filed by other side including that of
adverse
possession for over 400 years since 1528 AD when the Mosque
was constructed have been extinguished by the acquisition. The suits
have been abated without the substitution of an alternate dispute resolution
mechanism to which they are entitled in the Constitutional scheme.
31. The Constitution Bench held that acquisition of the properties
under the Act affects the rights of both the communities and not merely
those of the Muslim community. In paragraph 49 following has been
noticed:
“49. The narration of facts indicates that the acquisition of
properties under the Act affects the rights of both the communities
and not merely those of the Muslim community. The interest
claimed by the Muslims is only over the disputed site where 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.... “
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC. [ASHOK BHUSHAN, J.]
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32. This Court also noticed that Ayodhya is said to be of particular
significance to the Hindus as a place of pilgrimage because of the ancient
belief that Lord Rama was born there. The Court also noticed that equally
mosque was of significance for the Muslim community as an ancient
mosque built by Mir Baqi in 1528 AD. In paragraph 51 of the judgment
following has been noticed:
“51. It may also be mentioned that even as Ayodhya is said to
be of particular significance to the Hindus as a place of pilgrimage
because of the ancient belief that Lord Rama was born there, the
mosque was of significance for the Muslim community as an
ancient mosque built by Mir Baqi in 1528 A.D. As a mosque, it
was a religious place of worship by the Muslims. This indicates
the comparative significance of the disputed site to the two
communities and also that the impact of acquisition is equally on
the right and interest of the Hindu community. Mention of this
aspect is made only in the context of the argument that the statute
as a whole, not merely Section 7 thereof, is anti-secular being
slanted in favour of the Hindus and against the Muslims.”
33. 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 re-produce paragraph 65 which is to the following
effect:
“65. A larger question raised at the hearing was that there is no
power in the State to acquire any mosque, irrespective of its
significance to practice of the religion of Islam. The argument is
that a mosque, even if it is of no particular significance to the
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practice of religion of Islam, cannot be acquired because of the
special status of a mosque in Mahomedan Law. This argument
was not confined to a mosque of particular significance without
which right to practice the religion is not conceivable because it
may form an essential and integral part of the practice of Islam.
In the view that we have taken of limited vesting in the Central
Government as a statutory receiver of the disputed area in which
the mosque stood, for the purpose of handing it over to the party
found entitled to it, and requiring it to maintain status quo therein
till then, this question may not be of any practical significance
since there is no absolute divesting of the true owner of that
property. We may observe that the proposition advanced does
appear to us to be too broad for acceptance inasmuch as it would
restrict the sovereign power of acquisition even where such
acquisition is essential for an undoubted national purpose, if the
mosque happens to be located in the property acquired as an
ordinary place of worship without any particular significance
attached to it for the practice of Islam as a religion. It would also
lead to the strange result that in secular India there would be
discrimination against the religions, other than Islam. In view of
the vehemence with which this argument was advanced by Dr.
Rajeev Dhavan and Shri Abdul Mannan to contend that the
acquisition is invalid for this reason alone, it is necessary for us to
decide this question. “
35. Although in paragraph 65 the Court observed that the
proposition is too broad for acceptance but in view of the vehemence
with which argument of the learned counsel appearing for the petitioners
was put the Court proceeded to decide the issue.
36. The contention  before the Constitution Bench was also that
acquisition of a mosque violates the right given under Articles 25 and 26
of the Constitution of India. After noticing the law in the British India,
prior to 1950, and the law after enforcement of the Constitution, the
Constitution Bench came to the conclusion that places of religious worship
like mosques, churches, temples etc. can be acquired under the State’s
sovereign power of acquisition. Such acquisition per se does not violates
either Article 25 or Article 26 of the Constitution. After noticing the
various decisions following was laid down in paragraph 74:
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC. [ASHOK BHUSHAN, J.]
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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 to practice, profess and propagate religion guaranteed under
Article 25 of the Constitution does not necessarily include the
right to acquire or own or possess property. Similarly this right
does not extend to the right of worship at any and every place of
worship so that any hindrance to worship at a particular place per
se may infringe the religious freedom guaranteed under Articles
25 and 26 of the Constitution. The protection under Articles 25
and 26 of the Constitution is to religious practice which forms an
essential and integral part of the religion. A practice may be a
religious practice but not an essential and integral part of practice
of that religion.
78. While offer of prayer or worship is a religious practice, its
offering at every location where such prayers can be offered
would not be an essential or integral part of such religious practice
unless the place has a particular significance for that religion 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. “
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38. With the above observation the Constitution Bench held that
offer of prayer or worship is a religious practice, its offering at every
location would not be an essential or integral part of such religious practice
unless the place has a particular significance for that religion so as to
form an essential or integral part thereof. Places of worship of any religion
having particular significance for that religion, to make it an essential or
integral part of the religion, stand on a different footing and have to be
treated differently and more reverentially.
39. From what we have noticed above following are deducible:
(i) Places of religious worship like mosques, churches, temples,
etc. can be acquired under the State’s sovereign power of
acquisition, which does not violate Articles 25 or 26 of the
Constitution.
(ii) The right to practice, profess and propagate religion guaranteed
under Article 25 does not extend to the right of worship at any
and every place of worship so that any hindrance to worship
at a particular place per se may infringe the religious freedom
guaranteed under Articles 25 and 26 of the Constitution.
(iii) The protection under Articles 25 and 26 of the Constitution is
to religious practice which forms an essential or integral part
of the religion.
(iv) A practice may be a religious practice but not an essential and
integral part of practice of that religion.
(v) While offer of prayer or worship is a religious practice, its
offering at
every location where such prayers can be offered
would not be an essential or integral part of such religious
practice unless the place has a particular significance for that
religion so as to form an essential or integral part thereof.
The Court itself has drawn a distinction with regard 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:
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC. [ASHOK BHUSHAN, J.]
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“80. It has been contended that a mosque enjoys a particular
position in Muslim Law and once a mosque is established and
prayers are offered in such a mosque, the same remains for all
time to come a property of Allah and the same never reverts back
to the donor or founder of the mosque and any person professing
Islamic faith can offer prayer in such a mosque and even if the
structure is demolished, the place remains the same where the
Namaz can be offered. As indicated hereinbefore, in British India,
no such protection was given to a mosque and the mosque was
subjected to the provisions of statute of limitation there by
extinguishing the right of Muslims to offer prayers in a particular
mosque lost by adverse possession over that property.”
41. The Constitution Bench unequivocally laid down that every
immovable property be a temple, church or mosque etc. is liable to be
acquired and a mosque does not enjoy any additional protection which is
not available to religious places of worship of other religions.
42. Now, we come to paragraph 82 of the judgment which is the
sheet anchor of the submission raised by Dr. Rajiv Dhavan. Serious
objections have been raised by Dr. Rajiv Dhavan to some observations
made in paragraph 82. Entire paragraph 82 is quoted below:
“82. The correct position may be summarised thus. Under the
Mahomedan Law applicable in India, title to a mosque can be lost
by adverse possession (See Mulla’s
Principles of Mahomedan
Law, 19th Edn. by M. Hidaytullah - Section 217; and AIR 1940
PC 116). If that is the position in law, there can be no reason to
hold that a mosque has a unique or special status, higher than that
of the places of worship of other religions in secular India to make
it immune from acquisition by exercise of the sovereign or
prerogative power of the State. A mosque is not an essential part
of the practice of the religion of Islam and Namaz (prayer) by
Muslims can be offered anywhere, even in open. Accordingly, its
acquisition is not prohibited by the provisions in the Constitution of
India. Irrespective of the status of a mosque in an Islamic country
for the purpose of immunity from acquisition by the State in
exercise of the sovereign power, its status and immunity from
acquisition in the secular ethos of India under the Constitution is
the same and equal to that of the places of worship of the other
religions, namely, church, temple etc. It is neither more nor less
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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 practice the religion, if the significance of that place be
such. Subject to this condition, the power of acquisition is available
for a mosque like any other place of worship of any religion. The
right to worship is not at any and every place, so long as it can be
practised effectively, unless the right to worship at a particular
place is itself an integral part of that right. “
“A mosque is not an essential part of the practice of the
religion of Islam and namaz(prayer) by Muslims can be
offered anywhere, even in open.”
43. Dr. Dhavan submits that above observation in Para 82 of the
Constitution Bench judgment in Ismail Faruqui’s case is the reason for
reconsideration of the judgment.  He submits that the above statements
in paragraph 82 are wrong because it is wrong to say that
(vi) A mosque is not essential to Islam.
(vii) The essential practices doctrine does not protect places of
worship other than those having particular significance.
44. Elaborating his submission, Dr. Dhavan relies on several
judgments of this Court where what are the essential practice of a religion
had been elaborated and how the Court should determine the essential
practice of a religion has been
noticed.  The submission is that above
observations were made by the Constitution Bench on its ipse dixit
without consideration of any material due to which reason the statement
is unsustainable.
45. Before we proceed to examine the nature and content of
above statement, it is relevant to have an overview of the law laid down
by this Court with regard to essential practices of a religion.  The locus
classicus of the subject is Constitution Bench judgment of this Court in
Commissioner, Hindu Religious Endowments, Madras Vs. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC
282.   The Mathadipati of Shirur Mutt filed a writ petition in Madras
High Court challenging various provisions of Madras Hindu Religious
and Charitable Endowments Act, 1951.  Challenge to the Act was on
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC. [ASHOK BHUSHAN, J.]
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various grounds including the ground that provisions of the Act violate
the fundamental right guaranteed under Articles 25 and 26 of the
Constitution of India.  The High Court had struck down various provisions
of the Act against which appeal was filed by the Commissioner, Hindu
Religious Endowments, Madras.  Justice B.K. Mukherjea speaking for
the Constitution Bench held that it would not be correct to say that a
religion is nothing but a doctrine or belief.  It was held that a religion may
also lay down a code of ethical rules for its followers and it might prescribe
rituals and observances, ceremonies and modes of worship which are
regarded as integral parts of religion.  In Para 17, following was held:-
“17.....Religion is certainly a matter of faith with individuals or
communities and it is not necessarily theistic. There are well known
religions in India like Buddhism and Jainism which do not believe
in God or in any Intelligent First Cause. A religion undoubtedly
has its basis in a system of beliefs or doctrines which are regarded
by those who profess that religion as conducive to their spiritual
well being, but it would not be correct to say that religion is nothing
else but a doctrine or belief. A religion may not only lay down a
code of ethical rules for its followers to accept, it might prescribe
rituals and observances, ceremonies and modes of worship which
are regarded as integral parts of religion, and
these forms and
observances might extend even to matters of food and dress.”
46. Further, in Para 18, following was laid down:-
18.  The guarantee under our Constitution not only protects the
freedom of religious opinion but it protects also acts done in
pursuance of a religion and this is made clear by the use of the
expression “practice of religion” in Article 25......”
47. The Court further held; what constitutes the 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
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year or that there should be daily recital of sacred texts or oblations
to the sacred fire, all these would be regarded as parts of religion
and the mere fact that they involve expenditure of money or
employment of priests and servants or the use of marketable
commodities would not make them secular activities partaking of
a commercial or economic character; all of them are religious
practices and should be regarded as matters of religion within the
meaning of Article 26(b).
What Article 25(2)(a) contemplates is not regulation by the State
of religious practices as such, the freedom of which is guaranteed
by the Constitution except when they run counter to public order,
health and morality but regulation of activities which are economic,
commercial or political in their character though they are associated
with religious practices......”
48. Two other judgments were delivered in the same year, which
had relied and referred to Madras judgment.  In Ratilal Panachand
Gandhi and Others Vs. State of Bombay and Others, AIR 1954 SC
388, in paragraph Nos. 10 and 13 following was held:-
“10.  Article 25 of the Constitution guarantees to every person
and not merely to the citizens of India, the freedom of conscience
and the right freely to profess, practise and propagate religion.
This is subject, in every case, to public order, health and morality.
Further exceptions are engrafted upon this right by clause (2) of
the article. Sub-clause (a) of clause (2) saves the
power of the
State to make laws regulating or restricting any economic, financial,
political or other secular activity which may be associated with
religious practice; and sub-clause (b) reserves the State’s power
to make laws providing for social reform and social welfare even
though they might interfere with religious practices.
Thus, subject to the restrictions which this article imposes, every
person has a fundamental right under our Constitution not merely
to entertain such religious belief as may be approved of by his
judgment or conscience but to exhibit his belief and ideas in such
overt acts as are enjoined or sanctioned by his religion and further
to propagate his religious views for the edification of others.....
13. Religious practices or performances of acts in pursuance of
religious belief are as much a part of religion as faith or belief in
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particular doctrines. Thus if the tenets of the Jain or the Parsi
religion lay down that certain rites and ceremonies are to be
performed at certain times and in a particular manner, it cannot
be said that these are secular activities partaking of commercial
or economic character simply because they involve expenditure
of money or employment of priests or the use of marketable
commodities. No outside authority has any right to say that these
are not essential parts of religion and it is not open to the secular
authority of the State to restrict or prohibit them in any manner
they like under the guise of administering the trust estate.....”
49. Another judgment, which followed the Shirur Mutt case was
Sri Jagannath Ramanuj Das and Another Vs. State of Orissa and
Another, AIR 1954 SC 400. The Constitution Bench in Sri
Venkataramana Devaru and Others Vs. State of Mysore and Others,
AIR 1958 SC 255 had occasion to consider Articles 25 and 26 of the
Constitution of India in context of Madras Temple Entry Authorisation
Act, 1947 as amended in 1949.  Referring to Shirur Mutt case, following
was stated in para 16(3):-
“16(3)....Now, the precise connotation of the expression “matters
of religion” came up for consideration by this Court in The
Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC
282), and it was held therein that it embraced not merely matters
of
doctrine and belief pertaining to the religion but also the practice
of it, or to put it in terms of Hindu theology, not merely its Gnana
but also its Bakti and Karma Kandas....”
50. Another judgment, which needs to be noticed is Mohd. Hanif
Quareshi and Others Vs. State of Bihar, AIR 1958 SC 731.  A writ
petition under Article 32 was filed questioning the validity of three
legislative enactments banning the slaughter of certain animals passed
by the States of Bihar, Uttar Pradesh and Madhya Pradesh respectively.
One of the submissions raised by the petitioner was that banning of
slaughter of cows infringes fundamental right of petitioner to sacrifice
the cow on Bakra-Id.  The Court proceeded to dwell with essential
practice of the religion of Islam in above context.  The Court examined
the material placed before it for determining the essential practice of the
religion and made following observations in paragraph 13:-
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“What then, we inquire, are the materials placed before us to
substantiate the claim that the sacrifice of a cow is enjoined or
sanctioned by Islam? The materials before us are extremely meagre
and it is surprising that on a matter of this description the allegations
in the petition should be so vague. In the Bihar Petition No. 58 of
1956 are set out the following bald allegations:
Xxxxxxxxxxxxxxx
We have, however, no material on the record before us which will
enable us to say, in the face of the foregoing facts, that the sacrifice
of a cow on that day is an obligatory overt act for a Mussalman to
exhibit his religious belief and idea. In the premises, it is not possible
for us to uphold this claim of the petitioners.”
51. Next case to be considered is Sardar Syedna Taher Saifuddin
Saheb Vs. State of Bombay, AIR 1962 SC 853.  The issue raised
before this Court in the above case was regarding validity of law
interfering with right of religious denomination to excommunicate its
members.  Articles 25 and 26  came to be considered in the above
context.  In paragraph 34 of the judgment, referring to earlier decisions
of this Court, main principles underlying have been noticed, which is to
the following effect:-
“34. The content of Articles 25 and 26 of the Constitution came
up for consideration before this Court in 1954 SCR 1005 : (AIR
1954 S.C. 282); Ramanuj Das v. State of Orissa, 1954 SCR 1046
: (AIR 1954 SC 400); 1958 SCR 895 : (AIR 1958 S.C. 255);
(Civil
Appeal No. 272 of 1969 D/-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.”
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
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52. Next judgment to be noticed is Constitution Bench judgment
of Tikayat Shri Govindlalji Maharaj etc. Vs. State of Rajasthan
and Others, AIR 1963 SC 1638.  The validity of Nathdwara Temple
Act, 1959 was challenged in the Rajasthan High Court.  It was contended
by Tilkayat that the idol of Shri Shrinathji in the Nathdwara Temple and
all the properties pertaining to it were his private properties and hence,
the State Legislature was not competent to pass the Act. It was also
contended that if the temple was held to be a public temple, then the Act
would be invalid because it contravened the fundamental rights guaranteed
to the denomination under Articles 25 and 26 of the Constitution.
Gajendragadkar, J. speaking for the Court in Paragraphs 58 and 59 laid
down following:-
“58. In deciding the question as to whether a given religious
practice is an integral part of the religion or not, the test always
would be whether it is regarded as such by the community
following the religion or not. This formula may in some cases
present difficulties in its operation. Take the case of a practice in
relation to food or dress. If in a given proceeding, one section of
the community claims that while performing certain rites white
dress is an integral part of the religion itself, whereas another
section contends that yellow dress and not the white dress is the
essential part of the religion, how is the Court going to decide the
question? Similar disputes may arise in regard to food. In cases
where conflicting evidence is produced in respect of rival
contentions as to competing religious practices the Court may not
be able to resolve the dispute by a blind application of the formula
that the community decides which practice in an intergral part of
its religion, because the community may speak with more than
one voice and the formula would, therefore, break down. This
question will always have to be decided by the Court and in doing
so, the Court may have to enquire whether the practice in question
is religious in character and if it is, whether it can be regarded as
an integral or essential part of the religion, and the finding of the
Court on such an issue will always depend upon the evidence
adduced before it as to the conscience of the community and the
tenets of its religion. It is in the light of this possible complication
which may arise in some cases that this Court struck a note of
caution in the case of Dungah Committee Ajmer v. Syed Hussain
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Ali & Ors.18 and observed that in order that the practices in
question should be treated as a part of religion they must be regarded
by the said religion as its essential and integral part; otherwise
even purely secular practices which are not an essential or an
integral part of religion are apt to be clothed with a religious form
and may make a claim for being treated as religious practices
within the meaning of Article 26.
59. In this connection, it cannot be ignored that what is protected
under Articles 25(1) and 26(b) respectively are the religious
practices and the right to manage affairs in matters of religion. If
the practice in question is purely secular or the affair which is
controlled by the statute is essentially and absolutely secular in
character, it cannot be urged that Article 25(1) or Article 26(b)
has been contravened. The protection is given to the practice of
religion and to the denomination’s right to manage its own affairs
in matters of religion. Therefore, whenever a claim is made on
behalf of an individual citizen that the impugned statute contravenes
his fundamental right to practise religion or a claim is made on
behalf of the denomination that the fundamental right guaranteed
to it to manage its own affairs in matters of religion is contravened,
it is necessary to consider whether the practice in question is
religious or the affairs in respect of which the right of management
is alleged to have been contravened are affairs in
matters of
religion. If the practice is a religious practice or the affairs are the
affairs in matter of religion, then, of course, the right guaranteed
by Article 25(1) and Article 26 (b) cannot be contravened.”
53. The above decisions of this Court clearly lay down that the
question as to whether particular religious practice is essential or integral
part of the religion is a question, which has to be considered by considering
the doctrine, tenets and beliefs of the religion.  What Dr. Dhavan contends
is that Constitution Bench in Ismail Faruqui’s case without there being
any consideration of essentiality of a religion have made the questionable
observations in paragraph 82 as noticed above.
54. We have to examine the observations made in paragraph 82
of the Constitution Bench judgment in the light of the above submission,
law and the precedents as noticed above.  The statement “a mosque is
not essential part of the practice of religion…..” is a statement which
has been made by the Constitution Bench in specific context and
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reference.  The context for making the above observation was claim of
immunity of a mosque from acquisition.  Whether every mosque is the
essential part of the practice of religion of Islam, acquisition of which
ipso facto may violate the rights under Articles 25 and 26, was the
question which had cropped up for consideration before the Constitution
Bench.  Thus, the statement that a mosque is not an essential part of the
practice of religion of Islam is in context of issue as to whether the
mosque, which was acquired by Act, 1993 had immunity from acquisition.
55. The above observation by the Constitution Bench has been
made to emphasise that there is no immunity of the mosque from the
acquisition. We have noticed that Constitution Bench had held that while
offer of prayer or worship is a religious practice, its offering at every
location where such prayers can be offered would not be an essential or
integral part of such religious practice unless the place has a particular
significance for that religion so as to form an essential or integral part
thereof. The above observation made in paragraph 78 has to be read
along with observation made in paragraph 82. What Court meant was
that unless the place of offering of prayer has a particular significance
so that any hindrance to worship  may violate right under Articles 25 and
26, any hindrance to offering of prayer at any place shall not affect right
under Articles 25
and 26. The observation as made in paragraph 82 as
quoted above has to be understood with the further observation made in
the same paragraph where this Court held:
“82....Obviously, the acquisition of any religious place is to be
made only in unusual and extraordinary situations for a larger
national purpose keeping in view that such acquisition should not
result in extinction of the right to practice the religion, if the
significance of that place be such. Subject to this condition, the
power of acquisition is available for a mosque like any other place
of worship of any religion. The right to worship is not at any and
every place, so long as it can be practised effectively, unless the
right to worship at a particular place is itself an integral part of
that right. “
56. The Court held that if the place where offering of namaz is a
place of particular significance, acquisition of which may lead to the
extinction of the right to practice of the religion, only in that condition the
acquisition is not permissible and subject to this condition, the power of
acquisition is available for a mosque like any other place of worship of
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any religion. Thus, observation made in paragraph 82 that mosque is not
an essential part of the practice of the religion of Islam and namaz even
in open can be made was made in reference to the argument of the
petitioners regarding immunity of mosque from acquisition.
57. The submission which was pressed before the Constitution
Bench was that there is no power in the State to acquire any mosque,
irrespective of its significance to practice of the religion of Islam. The
said contention has been noticed in paragraph 65 of the judgment as
extracted above.
58. The sentence “A mosque is not essential part of the practice
of the religion of Islam and namaz(prayer) by Muslims can be offered
anywhere, even in open” is   followed immediately by the next sentence
that is “Accordingly, its acquisition is not prohibited by the provisions in
the Constitution of India” which makes it amply clear that the above
sentence was confined to the question of immunity from acquisition of a
mosque which was canvassed before the Court. First sentence cannot
be read divorced from the second sentence which immediately followed
the first sentence.
59. No arguments having been raised before the Constitution Bench
that Ram Janam Bhumi-Babri Masjid is a mosque of a particular
significance, acquisition of which shall extinct the right of practice of the
religion, the Court had come to the conclusion that by acquisition of
mosque rights under Articles 25 and 26 are not infringed.  We
conclude
that observations as made by the Constitution Bench in paragraphs 78
and 82 which have been questioned by the petitioners were observations
made in reference to acquisition of place of worship and has to confine
to the issue of acquisition of place of worship only. The observation
need not be read broadly to hold that a mosque can never be an essential
part of the practice of the religion of Islam.
“Comparative significance” & “Particular significance”.
60. Dr. Rajiv Dhavan submits that the Constitution Bench has
entered into the comparative significance of both the places that is birth
place of Ram for Hindus and Ram Janam Bhumi-Babri Masjid for
Muslims. He submits that India is a secular country and all religions
have to be treated equal and the Court by entering into comparative
significance concept has lost sight of the secular principles which are
embedded in the Constitution of India. It is true that the Constitution
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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 thereof, is anti-secular being
slanted in favour of the Hindus and against the Muslims. “
61. Dr. Dhavan has also taken exception to the phrase ‘particular
significance’ as is occurring in the Constitution Bench judgment. He
submits that all religions are equal and have to be equally respected by
all including the State. All mosques, all churches and all temples are
equally significant for the communities practicing and professing such
religions. The concept that some places are of particular significance is
itself faulty. We have bestowed our consideration to the above aspect of
the matter. We have already noticed that the Constitution Bench held
that acquisition is a sovereign or prerogative power of the State to acquire
property and all religious places, namely, church, mosque, temple etc.
are liable to be acquired in  exercise of right of eminent domain of the
State. The Constitution Bench also observed that acquisition of place of
religious worship like church, mosque etc. per se does not violate rights
under Articles 25 and 26. The Court, however, has noticed one fetter on
such acquisition. The Constitution Bench held that if a particular place is
of such significance for that religion that worship at such place is an
essential religious practice and the extinction of such place may breach
their right of Article 25, the acquisition of such place is not permissible.
A place of particular significance has been noticed by the Constitution
Bench in the above context. When acquisition of such place results in
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extinction of the right to practice the religion, there is violation of Article
25, which was an exception laid by the Constitution Bench while laying
down general proposition that acquisition of all places of worship is
permissible. Thus, no exception can be taken to the Constitution Bench
having used expression ‘place of particular significance’ for carving out
an exception to the general power of acquisition of the State of religious
places like church, mosque and temple or gurudwara. The above
exception carved out by the Constitution Bench is to protect the
constitutional right guaranteed under Article 25.
‘Particular significance’ of place of birth of Lord Rama
62. Dr. Dhavan has taken exception to observation of Constitution
Bench, where, place of birth of Lord Rama, has been held to be of
particular significance.   He submits that the above observation was
uncalled for since there cannot be any comparison between two religions.
We have observed above that phrase “particular significance” was used
by the Constitution Bench only in context of immunity from acquisition.
What the Court held was that if a religious place has a particular
significance, the acquisition of it ipso facto violates the right of religion
under Articles 25 and 26, hence the said place of worship has immunity
from acquisition.  It is another matter that the place 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
view of Explanation VI to Section 11, CPC. He further submits that
judgment in Ismail Faruqui’s case is part of the judgment in the suit
itself, in view of the fact that IA in suits were transferred and decided
alongwith petitions under Article 32. The appellants are thus clearly bound
by the judgment in Ismail Faruqui’s case.
64. Dr. Dhavan replying the submissions of Shri Parasaran submits
that Ismail Faruqui’s case was about a challenge to the Act,1993, the
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Presidential reference and further as to whether in the light of Act, 1993
the suits abated due to Section 4(3) of the Act. The cases under appeal
are from suits where the issues are entirely different. The suits having
never been transferred to be decided with Ismail Faruqui’s case, the
decision rendered in Ismail Faruqui’s case cannot be said to be part of
the judgment in suits. He submits that the issues which were raised in
Ismail Faruqui’s case were not the issues which are directly and
substantially in issue in the suits. He further submits that res judicata is
not attracted in the present proceedings.
65. The principle of res judicata as contained in Section 11 of
Civil Procedure Code as well as the general principles are well settled
by several judgments of this Court. For applicability of the principle of
res judicata there are several essential conditions which need to be
fulfilled. Shri Parasaran, in support of his submission, states that the
parties in Ismail Faruqui’s case represented the interest of Muslim
community and those petitioners bonafidely litigated in respect of public
rights, hence, all persons interested in such rights be deemed to claim
under the person so lititgating attracting the applicability of Explanation
VI of Section 11, CPC. He placed reliance on judgment of this Court in
Ahmed Adam Sait & others versus Inayathullah Mekhri & others,
1964 (2) SCR 647. In the above case, in suit
under Section 92, CPC, a
scheme had already been framed by Court of Competent Jurisdiction.
Another suit was instituted under Section 92 of CPC praying for settling
a scheme for proper administration of the Jumma Masjid. The plea of
res judicata was urged. Upholding the plea of res judicata, following
was laid down:-
“... In assessing the validity of this argument, it is necessary
to consider the basis of the decisions that a decree passed in
a suit under s.92 binds all parties. The basis of this view is
that a suit under s.92 is a representative suit and is brought
with the necessary sanction required by it on behalf of all the
beneficiaries interested in the Trust. The said section
authorises two or more persons having an interest in the Trust
to file a suit for claiming one or more of the reliefs specified
in clauses (a) to (h) of sub-section (1) after consent in writing
there prescribed has been obtained. Thus, when a suit is
brought under s.92, it is brought by two or more persons
interested in the Trust who have taken upon themselves the
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responsibility of representing all the beneficiaries of the Trust.
In such a suit, though all the beneficiaries may not be
expressly impleaded, the action is instituted on their behalf
and relief is claimed in a representative character. This position
immediately attracts the provisions of explanation VI to s.11
of the Code. Explanation VI provides that where persons
litigate bona fide in respect of a public right or of a private
right claimed in common for themselves and others, all persons
interested in such right shall, for the purposes of this section,
be deemed to claim under the persons so litigating. It is clear
that s.11 read with its explanation VI leads to the result that a
decree passed in a suit instituted by persons to which
explanation VI applies will bar further claims by persons
interested in the same right in respect of which the prior suit
had been instituted. Explanation VI thus illustrates one aspect
of constructive res judicata. Where a representative suit is
brought under s.92 and a decree is passed in such a suit, law
assumes that all persons who have the same interest as the
plaintiffs in the representative suit were represented by the
said plaintiffs and, therefore, are constructively barred by
res judicata from reagitating the matters directly and
substantially in issue in the said earlier suit.”
66. Learned Counsel for both the parties have referred to and
relied on Constitution Bench Judgment of this Court in Gulabchand
Chhotalal Parikh versus State of Gujarat, AIR 1965 SC 1153.
Whether a decision of High Court on merits on certain matters after
contest in a writ petition under Article 226 of the Constitution operates
as res judicata in regular suit with respect to the same matter between
the same party was the issue considered by this court. This Court after
referring to almost all relevant judgments on the subjects laid down
following in paragraphs 60 and 61:-
“60. As a result of the above discussion, we are of opinion
that the provisions of S.11, C.P.C., are not exhaustive with
respect to an earlier decision operating as res judicata
between the same parties on the same matter in controversy
in a subsequent regular suit and that on the general principle
of res judicata, any previous decision on a matter in
controversy, decided after full contest or after affording fair
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opportunity to the parties to prove their case by a Court
competent to decide it, will operate as res judicata in a
subsequent regular suit. It is not necessary that the Court
deciding the matter formerly be competent to decide the
subsequent suit or that the former proceeding and the
subsequent suit have the same subject-matter. The nature of
the former proceeding is immaterial.
61. We do not see any good reason to preclude such decisions
on matters in controversy in writ proceedings under Arts. 226
and 32 of the Constitution from operating as res judicata in
subsequent regular suits on the same matters in controversy
between the same parties and thus to give limited effect to the
principle of the finality of decisions after full contest. We
therefore, hold that, on the general principle of res judicata,
the decision of the High Court on a writ petition under Art.226
on the merits on a matter after contest will operate as res
judicata in a subsequent regular suit between the same parties
with respect to the same matter.”
67. In Daryao and others versus State of U.P. & others, AIR
1961 SC 1457, this Court held that on general consideration of public
policy there seems to be no reason by which the rule of res judicata
should be treated as not admissible or irrelevant in deciding writ petition
filed under Article 32.
68. A Constitution Bench of this Court in Sheodan Singh  versus
Daryao Kunwar, AIR 1966 SC 1332, after
elaborately considering
the principles underlined under Section 11 of the CPC, held that there
are five essential conditions which must be satisfied before plea of res
judicata can be pressed. In paragraph 9 of the judgment, the conditions
have been enumerated which are to the following effect:-
“9. A plain reading of S.11 shows that to constitute a matter
res judicata, the following conditions must be satisfied, namely
-(I) The matter directly and substantially in issue in the
subsequent suit or issue must be the same matter which was
directly and substantially in issue in the formar suit; (II) The
former suit must have been a suit between the same parties or
between parties under whom they or any of them claim; (III)
The parties must have litigated under the same title in the
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former suit; (IV) The court which decided the former suit must
be a Court competent to try the subsequent suit or the suit in
which such issue is subsequently raised; and (V) The matter
directly and substantially in issue in the subsequent suit must
have been heard and finally decided by the Court in the first
suit. Further Explanation I shows that it is not the date on
which the suit is decided, so that even if a suit was filed later,
it will be a former suit if it has been decided earlier. In order
therefore that the decision in the earlier two appeals dismissed
by the High Court operates as res judicata it will have to be
seen whether all the five conditions mentioned above have
been satisfied.”
69. One of the submissions put on forefront by Dr. Dhavan is that
issues which were involved in Ismail Faruqui’s case are not issues
which are directly and substantially involved in the suits giving rise to
these appeals, hence, the plea of res judicata should fail on this ground
alone. One of the conditions as enumerated by this Court in Sheodan
Singh’s case(supra) is that “the matter directly and substantially in issue,
in subsequent suit must have been heard and finally decided by the Court
in the first suit.” Dr. Dhavan elaborating the principle of directly and
substatially in issue has relied on judgment of this court in Sajjadanashin
Sayed vs. Musa Dadabhai Ummer, (2000) 3 SCC 350. This Court
while considering the condition of “directly and substantially
in issue” in
reference to Section 11 laid down following principles in paragraph 12,
13 & 14:-
“12. It will be noticed that the words used in Section 11 CPC
are “directly and substantially in issue”. If the matter was in
issue directly and substantially in a prior litigation and decided
against a party then the decision would be res judicata in a
subsequent proceeding. Judicial decisions have however held
that if a matter was only “collaterally or incidentally” in issue
and decided in an earlier proceeding, the finding therein
would not ordinarily be res judicata in a latter proceeding
where the matter is directly and substantially in issue.
13. As pointed out in Halsbury’s Law of England(Vol.16, para
1538, 4th edition), the fundamental rule is that a judgment is
not conclusive if any matter came collaterally in
question[R.v.knaptoft Inhabitants; Heptulla Bros. v. Thakore
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC. [ASHOK BHUSHAN, J.]
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WLR at p.297(PC)]; or if any matter was incidentally
cognizable [Sanders(otherwise Saunders)v. Sanders
(otherwise Saunders) All ER at p.771].
14. A collateral or incidental issue is one that is ancillary to
a direct and substantive issue; the former is an auxillary issue
and the latter the principal issue. The expression “collaterally
or incidentally” in issue implies that there is another matter
which is “directly and substantially” in issue(Mulla’s Civil
Procedure Code, 15th edn.,p.104).
Difficulty in distinguishing whether a matter was directly in
issue or collaterally or incidentally in issue and tests laid
down in various courts.
70. In Mahila Bajrangi(dead) through Lrs. versus Badribai
w/o Jagannath and another, (2003) 2 SCC 464, above principle was
reiterated in following words in paragraph 6 which is to the following
effect:-
“6.....That apart, it is always the decision on an issue that
has been directly and substantially in issue in the former suit
between the same parties which has been heard and finally
decided that is considered to operate as res judicata and not
merely any finding on every incident or collateral question to
arrive at such a decision that would constitute res judicata.”
71. The impugned judgment has also categorically held that issues,
which have been raised in the suits are not the issues, which can be said
to have been noticed and adjudicated by this court in Ismail Faruqui’s
case. The
High Court has clearly held that the authority of the Superior
Court laying down a law is binding on the courts below provided a matter
has been decided by the court.  In Para 4054, following has been held:-
“4054. The mere fact that some facts have been noticed by the
Government of India in White Paper and those facts have simply
been noticed by the Apex Court while referring to the facts
mentioned in the White Paper, it cannot be said that those facts
can be construed as if they have been accepted by the Apex
Court to be correct and stand adjudicated. The law of precedent
is well known. The authority of the superior Court laying down a
law is binding on the Courts below provided a matter has been
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decided by the Court. An issue can be considered to be decided
by a superior Court when it was raised, argued and decided and
only then it is a binding precedent for the other courts.”
72. We have noticed above that the issues which were involved in
Ismail Faruqui’s case were validity of Act, 1993. One of the issues
which was taken up by Ismail Faruqui’s case was as to whether by
virtue of Section 4 sub-section (3) of Act, 1993 suits pending in Allahabad
High Court stands abated. The Presidential Reference No.1 of 1993
was also heard along with the writ petitions and transferred cases. The
issues which have been framed in the suits giving rise to these appeals
are different issues which cannot be said to be directly and substantially
in issue in Ismail Faruqui’s case. Non-fulfilment of this condition itself
is sufficient 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 versus Union
of India & Ors. was also filed under Article 32 in this Court. The Union
of India had filed transfer petitions under Article 139A for transferring
of writ petitions filed in Allahabad High Court. By an Order dated
24.09.1993 passed in Union of India & Others versus Dr. M.Ismail
Faruqui and others, (1994) 1 SCC 265, this Court allowed the transfer
application transferring five writ petitions to be heard alongwith the
Presidential Reference and writ petitions filed under Article 32. The
preliminary issue which was framed by the High Court in both the suits
was stayed. It is useful to extract paragraph 4 and 7 of the order:-
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
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“4. After the issuance of the Ordinance it appears that in the
pending suits renumbered O.O.S. Nos. 3 and 4 of 1989 the
plaintiffs applied for amendment of the plaints challenging
the legality and validity of the Ordinance by which the suits
abated. The Full Bench of the High Court heard the said
applications and passed an order on March 15, 1993. By the
said order the High Court framed the question ‘whether the
suit has abated or survives’ and since the said issue necessarily
touched upon the validity of the Ordinance, the Court ordered
notice to the Attorney General and listed the case for hearing
of the issue on April 26, 1993. Although this order was passed
in Suit O.O.S. No. 4 of 1989, it was also to govern the
amendment application in Suit O.O.S. No. 3 of 1989. It also
appears that in the meantime as many as five Writ Petition
Nos. 552, 925, 1351, 1532 and 1809 of 1993 came to be
filed in the High Court challenging the validity of the
Ordinance, now the Act. Besides these proceedings in the High
Court a Writ Petition No. 208 of 1993 also came to be filed in
this Court under Article 32 of the Constitution challenging
the legality and validity of the very same law.
7. In the result, we allow this application by ordering the
withdrawal of the five Writ Petition Nos. 552, 925, 1351, 1532
and 1809 of 1993 to this Court to be heard along with the
Presidential reference and Writ Petition No. 208 of 1993
pending in
this Court. The hearing of the preliminary issue
framed by the High Court ‘whether the suit has abated or
survives’ in both the suits will stand stayed till further orders.
In order to expedite the hearing we direct as under:”
75. From the above, it is clear that suits which were pending in
the High Court were never transferred to be heard alongwith Presidential
Reference and writ petition filed under Article 32. This Court had only
stayed the hearing of preliminary issue framed by the High Court as to
whether the suits have abated or survive. It is also relevant to notice that
in Special Reference No. 1 of 1993, individual notices were issued to the
parties to the proceeding which stood abated by virtue of Section 4(3) of
the Ordinance but mere issuance of notice when the suits were not
transferred by this Court to be heard alongwith Presidential Reference
is not sufficient to conclude that the judgment of Ismail Faruqui should
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be treated as part of judgment in suits. We, thus, also do not accept the
submissions of Shri Parasaran that judgment of Ismail Faruqui is part
of the judgment in the suit itself. We, thus, do not find any substance in
the above submissions raised by Shri Parasaran.
Reliance on the judgment of Ismail Faruqui
76. Dr. Dhavan submits that Ismail Faruqui’s judgment goes to
the core of the issues in these appeals and it permeates throughout the
impugned judgment in the suits.  He submits that observations concerning
comparative significance of the disputed site and the observation that a
mosque is not an essential part of the practice of the religion of Islam,
have permeated the impugned judgment as the Hindu parties have
successfully claimed that the disputed site, which is allegedly the birthplace
of Lord Ram is protected by Articles 25 and 26.  Dr. Dhavan has referred
to various observations of the HIGH Court in the impugned judgment to
support his submission.  He has also referred to various grounds taken in
the appeals filed against the judgment of the High Court.
77. Shri Parasaran and Shri Tushar Mehta refuting the above
submission contend that even if the judgment of Ismail Faruqui has
been referred to in the submission of the counsel for the parties before
the High Court and has been noticed in the impugned judgment, the
impugned judgment in no way is affected by the observations made in
Ismail Faruqui’s case.
78. It is relevant to notice some of the
observations made by the
High Court in the impugned judgment and certain grounds taken in some
of the appeals, which are before us. Justice S.U.Khan referring to Ismail
Faruqui’s case in his judgment made following observations:-
“A mosque even if its construction remains as a mosque cannot
be treated to be mosque if no prayers are offered in it and it is in
the possession, occupation and use of non-Muslims as held by the
Privy Council in Mosque known as Masjid Shahid Ganj Vs.
S.G.P.C. Amritsar, AIR 1940 P.C. 116 approved in Dr. M. Ismail
Farooqi Vs. Union of India, 1994 (6) S.C.C. 360. Accordingly,
unless it is proved that prayers were being offered in the premises
in dispute, or the Hindus had not exclusively possessed the
constructed portion and inner court yard it cannot be held to be a
mosque or a continuing mosque uptil 22nd/ 23rd December, 1949.
The case set up and the argument of some of the Hindu parties
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
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that till 1855 no prayers (Namaz) were offered in the mosque is
not at all acceptable. If a mosque is referred to as mosque in
several gazetteers, books etc. and nothing else is said then it means
that it is a mosque in use as such. A defunct mosque where prayers
are not at all offered, whenever mentioned as mosque, is bound to
be further qualified as defunct and not in use. If construction of
mosque could not be obstructed, how offering of prayer in it could
be obstructed. Moreover, there was absolutely no sense in dividing
the premises in dispute by railing in 1856 or 1857 if Muslims were
not offering Namaz in the constructed portion till then. In the riot
of 1855 seventy Muslims were killed while taking shelter in the
premises in dispute. After such a huge defeat Namaz could not
be for the first time started thereat.”
79. Justice Sudhir Agarwal in his judgment has also noticed Ismail
Faruqui’s case.  Dr. Dhavan referred to the submissions made by Shri
Ravi Shankar Prasad in Paras 3501 and 3502 of the impugned judgment:-
“3501. Sri Prasad argued that belief of Hindus that Lord Ram as
incarnation of Vishnu having born at Ayodhya forms an integral
part of Hindu religion which cannot be denied to be practised,
observed and performed by them and refers to Commissioner of
Police and others v. Acharya Jagadishwarananda Avadhuta and
another, (2004) 12 SCC 770 (para 9) and Sri Adi Visheshwara of
Kashi Vishwanath Temple,
Varanasi (supra). In order to show
what constitutes public order under Article 25 of the Constitution,
he also placed reliance on Dalbir Singh and others v. State of
Punjab, AIR 1962 SC 1106 (para 8).
3502. Next he submits that applying the doctrine of Eminent
Domain, the place in dispute, having special significance for
Hindus, cannot be touched at all either by any particular person or
even by State and the provisions of even acquisition would not
apply to it though with respect to the alleged mosque, it has been
already held and observed by the Apex Court that the disputed
building could not be shown to be of any special significance to
Muslims. He refers to Dr. M. Ismail Faruqui and others v. Union
of India and others, (1994) 6 SCC 360 (para 65, 72, 75 and 96);
Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj
and others v. State of Gujarat and others, (1975) 1 SCC 11. The
relief sought by the plaintiff (Suit-4) is barred by Section 34 Specific
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Reliefs Act, 1963 and reliance is placed on Executive Committee
of Vaish Degree College, Shamli and others v. Lakshmi Narain
and others, (1976) 2 SCC 58 (para 20 and 27); American Express
Bank Ltd. v. Calcutta Steel Co. and others, (1993) 2 SCC 199
(pare 22).”
80. Justice Sudhir Agarwal has noticed Ismail Faruqui’s case in
Para 2723 in following manner:-
“2723. In Ismail Farooqui (supra), Supreme Court has considered
the plea of validity of acquisition of land under Land Acquisition
Act that once a waqf of mosque is created, the property vests in
almighty and it always remain a waqf hence such a property cannot
be acquired. While negativing this plea, the Apex Court said that
a plea in regard to general religious purposes cannot be said to be
an integral part of religion which will deprive the worshippers of
the right of worship at any other place and therefore, such a
property can be acquired by the State. However, the position would
be otherwise if the religious property would have been of special
significance and cannot be one of several such kind of properties.
It will be useful to reproduce the relevant observation in this regard:
“78. lt appears from various decisions rendered by this Court,
referred later, that subject to the protection under Articles 25 and
26 of the Constitution, places of religious worship like mosques,
churches, temples etc. can be acquired under the State’s sovereign
power of acquisition. Such acquisition per se does not
violate either
Article 25 or Article 26 of the Constitution. The decisions relating
to taking over of the management have no bearing on the sovereign
power of the State to acquire property.”
“82. While offer of prayer or worship is a religious practice, its
offering at every location where such prayers can be offered
would not be an essential or integral part of such religious practice
unless the place has a particular significance for that religion so
as to form an essential or integral part thereof. Places of worship
of any religion having particular significance for that religion, to
make it an essential or integral part of the religion, stand on a
different footing and have to be treated differently and more
reverentially.”
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC. [ASHOK BHUSHAN, J.]
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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 others, (1994) 6 SCC  360 :
AIR 1995 SC 605, the area of land in dispute which is to be
adjudicated by this Court is now restricted to what has been
referred to in para 4 above, i.e. main roofed structure, the inner
Courtyard and the outer Courtyard.  In fact, the area under the
roofed structure and Sahan, for the purpose of convenience shall
be referred hereinafter as “inner Courtyard” and rest as the “outer
Courtyard”.  Broadly, the measurement of the disputed area is
about 130X80 sq. feet.”
82. Dr. Dhavan, in his written submissions, has mentioned details
of several other places, where Justice Sudhir Agarwal has referred to
Ismail Faruqui’s case in the impugned judgment.
83. Justice Dharam Veer Sharma, while giving a dissenting
judgment has referred to submission of parties in Ismail Faruqui’s case
at Paras 3038 and 3039 of Volume III, following observations have been
made while considering the Issue No.19(d):-
“On behalf of defendants it
is contended that the building in
question was not a mosque under the Islamic Law.  It is not disputed
that the structure has already been demolished on 6.12.1992.
According to Dr. M. Ismail Faruqui and others v. Union of India
and others, (1994) 6 SCC 360, the Hon’ble Apex Court held at
para 70 that the sacred character of the mosque can also be lost.
According to the tenets of Islam, minarets are required to give
Azan.  There cannot be a public place of worship in mosque in
which Provision of Azan is not available, hence the disputed
structure cannot be deemed to be a mosque.”
84. Further, Justice Dharam Veer Sharma while noticing
submission of Shri H.S. Jain has observed as follows:-
“Shri H.S. Jain, advocate relied upon para 78 of Ismail Faruqui’s
judgment to argue that since birth place of Lord Ram was
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considered as a place of worship which was integral part of
religious practice of Hindu from times immemorial.  The deity
stood on a different footing and had to be treated reverentially.”
85. Justice Sharma has observed that, in para 78 of the Ismail
Faruqui’s judgment, the Apex Court held that the place of birth has a
particular significance for Hindus and should be treated on a different
footing. At page 3455, following observations have been made by Justice
Sharma while referring to Ismail Faruqui’s case:-
“Hon’ble Apex Court upheld the validity of provisions of Acquisition
of Certain Area at Ayodhya, 1993 in Dr. Ismail Faruqui case
(supra) and held that the Central Government can acquire any
place of worship. At para-78 Apex Court held that the place of
birth has a particular significance for Hindus and it should be treated
on different footing, which reads as under:
“78. While offer of prayer or worship is a religious practice, its
offering at every location where such prayers can be offered
would not be an essential or integral part of such religious practice
unless the place has a particular significance for that religion so
as to form an essential or integral part thereof. Places of worship
of any religion having particular significance for that religion, to
make it an essential or integral part of the religion, stand on a
different footing and have to be treated differently and more
reverentially.”
On behalf of Hindus it is urged that the
plaintiffs are not entitled
for the relief claimed and as such the relief is barred by the
provisions of Section 42 of the Specific Relief Act, 1877 which is
at par with Section 34 of the Specific Relief Act,1963 on the ground
that they have superior fundamental rights. Contentions of Hindus
are as under:
The Hindus have superior fundamental right than the Muslims
under articles 25 & 26 of the Constitution of India for the reasons
that performing customary rituals and offering services worship
to the lord of universe to acquire merit and to get salvation as
such it is integral part of Hindu Dharma & religion in view whereof
it is humbly submitted that the instant suit is liable to be dismissed
with exemplary cost:”
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC. [ASHOK BHUSHAN, J.]
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86. Dr. Dhavan further submits that Justice Sharma has relied on
submissions advanced by Shri P.N. Mishra, who had relied on paragraphs
77, 78, 80 and 82 of Ismail Faruqui’s case. Dr. Dhavan has also referred
to submission of Shri Ravi Shankar Prasad, which was noticed by Justice
Sharma that the right of Hindus to worship at the Rama Janam Bhumi,
continuing since times immemorial was an integral part of their religious
right and faith and was also sanctified by judicial orders since 1949.
This right has concretised and has to be protected.
87. Although Dr. Dhavan has referred to various passages from
impugned judgment, where reference has been made of  Ismail Faruqui’s
case but main paragraphs where findings have been returned in reference
to Ismail Faruqui’s case are Paragraphs 4049 to 4054 (Vol. II) of
judgment of Justice Sudhir Agarwal, as has been pointed out by Shri
Tushar Mehta, learned Additional Solicitor General.
88. Paragraphs 4049 and 4050 are to the following effect:-
“4049. Some of the learned counsel for the parties sought to rely
on the Constitution Bench decision in Dr. M. Ismail Faruqui (supra)
by reading certain passages in a manner as if the Apex Court has
expressed its opinion on certain aspects which are contentious
issues before this Court in the suits pending before us and said
that the said observations are binding on this Court and, therefore,
those aspects cannot be looked into.
4050. Sri
Iyer, Senior Advocate sought to read the aforesaid
judgement where the contents of the White Paper issued by the
Central Government quoted to suggest that these are the findings
of the Government of India having taken note by the Apex Court
and, therefore, should be treated to be concluded. It is suggested
that the issues, if any, in those matters should be deemed to be
concluded by the judgement of the Apex Court.”
89. The above submission was noted and expressly rejected by
the High Court in Paragraph 4051, which is to the following effect:-
“4051. We, however, find no force in the submission. The
Constitution Bench considered the validity of Ayodhya Act, 1993
whereby certain land at Ayodhya including the land which was
subject matter in these suits sought to be acquired by the
Government of India. Further, the Apex Court was considering
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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 actually have
been adjudicated. The only one question which has specifically
been considered and decided that was necessary in the light of
challenge thrown to the power of acquisition of land over which a
mosque existing. It appears that pro-mosque parties raised a
contention that a mosque cannot be acquired because of special
status in Mohammedan Law irrespective of its significance to
practice of the religion of Islam. This argument in the
context of
acquisition of land was considered from para 68 (AIR) and
onwards in the judgement. The Court has held that the right to
worship of Muslims in a mosque and Hindus in a temple was
recognised only as a civil right in British India. Relying on the Full
Bench decision of Lahore High Court in Mosque Known as Masjid
Shahid Ganj Vs. Shiromani Gurdwara Prabandhak Committee,
Amritsar, AIR 1938 Lahore 369 where it was held that a mosque
if adversely possessed by non muslims it will loose its sacred
character as mosque, the Apex Court held that, “the view that
once a consecrated mosque, it remains always a place of worship
as a mosque was not the Mahomedan Law of India as approved
by Indian Courts.” The Lahore High Court also held that, “a
mosque in India was an immovable property and the right of
worship at a particular place is lost when the right to property on
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
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which it stands is lost by adverse possession.” Both these views
were approved by the Privy Council and the Apex Court followed
the said view.  Besides, independently also the Court took the
view that the sovereign power of the State empowers it to acquire
property. It is a right inherent in every sovereign to take an
appropriate private property belonging to individual citizens for
public use.  This right is described as eminent domain in American
Law and is like the power of taxation of offering of political
necessity and is supposed to be based upon an implied reservation
by the Government that private property acquired by its citizens
under its protection may be taken or its use can be controlled for
public benefit irrespective of the wishes of the owner. The Court
also considered the right of worship whether a fundamental right
enshrined under Article 25 or 26 of the Constitution and observed,
“while offer of prayer or worship is a religious practice, its offering
at every location where such prayers can be offered would not
be an essential or integral part of such religious practice unless
the place has a particular significance for that religion so as to
form an essential or integral part thereof. Places of worship of
any religion having particular significance for that religion, to make
it an essential or integral part of the religion, stand on a different
footing and have to be treated differently and more
reverentially”.
Ultimately the law has been laid down by the Constitution Bench
by majority that under the Mohammedan Law applicable in India
title to a mosque can be lost by adverse possession. If that is the
position in law, there can be no reason to hold that a mosque as a
unique or special status, higher than that of the places of worship
of other religions in secular India to make it immune from acquisition
by exercise of the sovereign or prerogative power of the State. A
mosque is not an essential part of the practice of religion of Islam
and namaz (prayer) by Muslims can be offered anywhere even in
open. The Court also held that unless the right to worship at a
particular place is itself an integral part of that right, i.e., the
place is of a particular significance, its alienability cannot
be doubted. The Apex Court having answered the various
questions on the validity of the Act 1993 decline to answer
the reference and returned the same as such as it is. The suits
having been revived due to striking down of Section 4(3) of
the Act, this Court trying the original suits has to decide the
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entire matter on merits unless it can be shown that a particular
issue which is engaging attention of this Court in trial of the
original suit has already been raised, argued and decided by
the Apex Court. The learned counsels for the parties have
not been able to show any such finding in respect to the matters
which are involved in various issues before this Court and,
therefore, we are not in agreement with the counsels for the
parties as argued otherwise.”
      (underlined by us)
91. The High Court has clearly held that an issue can be considered
to be decided by a superior Court only when it was raised, argued and
decided.  Following was held in Paragraph 4054:-
“4054.  The mere fact that some facts have been noticed by the
Government of India in White Paper and those facts have simply
been noticed by the Apex Court while referring to the facts
mentioned in the White Paper, it cannot be said that those facts
can be construed as if they have been accepted by the Apex
Court to be correct and stand adjudicated. The law of precedence
is well known. The authority of the superior Court laying down a
law is binding on the Courts below provided a matter has been
decided by the Court. An issue can be considered to be decided
by a superior Court when it was raised, argued and decided and
only then it is a binding precedent for the other courts.”
92. The above view expressed by majority judgment in appeal,
thus, makes it clear that the High Court has held that
judgment of Ismail
Faruqui’s case does not decide any of the issues which are subject
matter of the suit. Whatever observations have been made in the judgment
of Ismail Faruqui are not to govern the decision in suits and the suits
were to be decided on the basis of the evidence on record.  The
questionable observations made in Ismail Faruqui’s case have to be
treated as only observations and not for the purpose of deciding suits
and these appeals, they are not to be treated as governing factor or
relevant.  The said observations are to be understood solely as observation
made in context of land acquisition and nothing more.
93. It is due to above finding of the High Court that in several
appeals filed against impugned judgment by the plaintiff of Suit Nos.1
and 5 grounds have been taken which grounds have been referred to
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC. [ASHOK BHUSHAN, J.]
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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
has to be understood as above. The question as to whether in the impugned
judgment, reliance on Ismail Faruqui’s case affects the ultimate decision
of the High Court and needs any clarification or correction is a task,
which we have to undertake with the assistance of learned counsel for
the parties in the present appeals.  We, thus, conclude that reliance on
the judgment of Ismail Faruqui by the High Court in the impugned
judgment and reliance by learned counsel for
the appellants and taking
grounds in these appeals on the strength of judgment of Ismail Faruqui’s
case are all questions, on the merits of the appeals, which need to be
addressed in these appeals.  Thus, the above submission does not help
the appellant in contending that judgment of Ismail Faruqui’s case needs
reconsideration.
Additional grounds for reference to larger Bench
96. Shri Raju Ramachandran, learned senior counsel appearing
for some of the parties has pressed for the reference to larger Bench
for reconsideration of Ismail Faruqui’s case on some additional grounds
in addition to what has been canvassed by Dr. Rajeev Dhavan. Shri
Raju Ramachandran submits that looking to the importance of the case
the matter should be referred to the Constitution Bench for
reconsideration of Ismail Faruqui’s judgment.  He submits that there
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are various instances, where this court had made reference to larger
Bench looking to the importance of the matter. He submits that High
Court vide its order dated 10.07.1989 had withdrawn the suits to be tried
by the High Court by Full Bench looking to the importance of the case.
The case being very important and appeals having been filed by all the
sides, the case is of such magnitude that it is appropriate that matter
may be referred to a Bench of a larger strength to consider the case.
Shri Ramachandran has referred to and relied on several judgments of
this Court, which shall be noted by us hereinafter.
97.  The submission of Shri Raju Ramachandran has been refuted
by Shri K. Parasaran, learned senior counsel and Shri C.S. Vaidyanathan.
They submit that if there are constitutional principles involved, the matter
can be referred to a larger bench, but present is not a case where any
principle of constitutional interpretation is involved, hence reference of
the case to a larger bench needs to be refused.  Shri Parasaran submits
that present appeals arise out of a suit where for deciding the issues in a
suit, the evidence is to be appreciated, which need not be done by five
judges. He submits that five judges are to appreciate the evidence only
in case of Presidential Election.
98. Before we enter into submission of learned counsel for the
parties, the constitutional provision regarding reference of a case for
hearing by the Constitution Bench
consisting of five judges need to be
looked into.  Article 145(3) of the Constitution provides that minimum
number of judges, who are to sit for purpose of deciding any case involving
a substantial question of law as to the interpretation of the Constitution
or for the purpose of hearing any reference under article 143 shall be
five.  The proviso to Article 145(3) provides:-
“Provided that, where the Court hearing an appeal under any of
the provisions of this Chapter other than Article 132 consists of
less than five Judges and in the course of the hearing of the appeal
the Court is satisfied that the appeal involves a substantial question
of law as to the interpretation of this Constitution the determination
of which is necessary for the disposal of the appeal, such Court
shall refer the question for opinion to a Court constituted as required
by this clause for the purpose of deciding any case involving such
a question and shall on receipt of the opinion dispose of the appeal
in conformity with such opinion”
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99.  As per proviso, the reference to a bench of five judges can be
made by judges sitting in lesser strength than five judges while hearing
an appeal, on fulfilment of following two conditions:-
(i) The Court is satisfied that the appeal involves a substantial
question of law as to the interpretation of this Constitution;
(ii) The determination of which is necessary for the disposal of
the appeal.
100. The proviso to Article 145(3) as noted above, thus, clearly
indicate that on fulfilment of both the conditions as noticed above, a
bench of smaller strength than five judges can make a reference of a
case to be heard by a Bench strength of five judges.  This Court in
Abdul Rahim Ismail C. Rahimtoola Vs. State of Bombay, AIR 1959
SC 1315 had occasion to consider Article 145(3).  In the above case,
question pertaining to Article 19(1)(d), (e) and sub-section (5) of Article
19 came for consideration.  A five Judge Bench in Ebrahim Vazir Mavat
Vs. State of Bombay and others, AIR 1954 SC 229 had already
held that requirement that an Indian citizen to produce a passport before
entering into India is a proper restriction upon entering India.  Before
two judge bench in Abdul Rahim Ismail (supra), challenge was made
to Rule 3 of Passport Rules, 1950, which provided that no person,
proceeding from any place outside India, shall enter, or attempt to enter,
India by water, land or air unless he is in possession of a valid
passport.
Contention raised was that Section 3 of the Act and Rule 3 of the Rules
in so far as it purported to relate to an Indian citizen is ultra vires the
Constitution, as they offended against the provisions of Articles 19(1)(d)
and (e).  This Court had held that issue having already been decided by
a five judges Bench no substantial question of law as to the interpretation
of the Constitution arises.  In Para 6, following was held:-
“6....It was, however, urged that as a constitutional question has
been raised this matter cannot be decided by Judges less than
five in number. Therefore, the case should be referred to what is
described as the Constitution Bench. Article 145(3) of the
Constitution states that the minimum number of Judges who are
to sit for the purpose of deciding any case involving a substantial
question of law as to the interpretation of the Constitution or for
the purpose of hearing any reference under Article 143 shall be
five. It is clear that no substantial question of law as to the
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interpretation of the Constitution arises in the present case as the
very question raised has been decided by a Bench of this Court
consisting of five Judges. As the question raised before us has
been already decided by this Court it cannot be said that any
substantial question of law arises regarding the interpretation of
the Constitution.”
101. In Bhagwan Swarup Lal Bishan Lal Vs. State of
Maharashtra, AIR 1965 SC 682, this Court held that a substantial
question of interpretation of a provision of the Constitution cannot arise
when the law on the subject has been finally and effectively decided by
this Court.  In Para 11, following has been laid down:-
“11. ....Learned counsel suggests that the question raised involves
the interpretation of a provision of the Constitution and therefore
the appeal of this accused will have to be referred to a Bench
consisting of not less than 5 Judges. Under Article 145(3) of the
Constitution only a case involving a substantial question of law as
to the interpretation of the Constitution shall be heard by a bench
comprising not less than 5 Judges. This Court held in State of
Jammu and Kashmir v. Thakur Ganga Singh, AIR 1960 SC 356
that a substantial question of interpretation of a provision of the
Constitution cannot arise when the law on the subject has been
finally and effectively decided by this Court…………………
XXXXXXXXXXXXXXXX
As the question raised has already been decided by this Court,
what remains is only the
application of the principle laid down to
the facts of the present case. We cannot, therefore, hold that the
question raised involves a substantial question of law as to the
interpretation of the Constitution within the meaning Article 145(3)
of the Constitution.”
102. A three Judge Bench in People’s Union for Civil Liberties
(PUCL) and Another Vs. Union of India and Another, (2003) 4
SCC 399 had also occasion to consider Article 145(3).  Submission was
made that a substantial question of law as to the interpretation of the
Constitution has arisen, hence, the matter may be referred to a Bench
consisting of Five Judges.  Three Judge Bench notices that question
raised having already been decided in Union of India Vs. Association
for Democratic Reforms and Another, (2002) 5 SCC 294 – (A
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
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Three Judge Bench Judgment), no other substantial question of law
regarding interpretation of Constitution survives, following was laid in
Paragraph Nos. 28, 32 and 78:-
“28. Mr Arun Jaitley, learned Senior Counsel and Mr Kirit N.
Raval, learned Solicitor-General submitted that the question
involved in these petitions is a substantial question of law as to the
interpretation of the Constitution and, therefore, the matter may
be referred to a Bench consisting of five Judges.
32. From the judgment rendered by this Court in Assn. for
Democratic Reforms1 it is apparent that no such contention was
raised by the learned Solicitor-General, who appeared in appeal
filed on behalf of the Union of India that question involved in that
matter was required to be decided by a five-Judge Bench, as
provided under Article 145(3) of the Constitution. The question
raised before us has been finally decided and no other substantial
question of law regarding the interpretation of the Constitution
survives. Hence, the matter is not required to be referred to a
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 Another Vs.
State of Maharashtra and Another, (2005) 2 SCC 673.  Constitution
Bench of this Court while noticing provisions of Supreme Court Rules,
1966 and Articles 141 and 145(2) noticed in Paragraph 12 of the judgment
that the law laid down by this Court in a decision delivered by a Bench
of larger strength is binding on any subsequent Bench of lesser or coequal
strength. A bench of lesser quorum cannot disagree or dissent from the
view of the law laid down by a Bench of larger quorum.  In case of
doubt, the Bench of lesser quorum can do is to invite the attention of the
Chief Justice and request for the matter being placed for hearing before
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a Bench of larger quorum than the Bench whose decision has come for
consideration.  Two exceptions were also noticed to the above noted
principles in Para 12(3), which is to the following effect:-
“(3) The above rules are subject to two exceptions: (i) The
abovesaid rules do not bind the discretion of the Chief Justice in
whom vests the power of framing the roster and who can direct
any particular matter to be placed for hearing before any particular
Bench of any strength; and (ii) in spite of the rules laid down
hereinabove, if the matter has already come up for hearing before
a Bench of larger quorum and that Bench itself feels that the
view of the law taken by a Bench of lesser quorum, which view is
in doubt, needs correction or reconsideration then by way of
exception (and not as a rule) and for reasons given by it, it may
proceed to hear the case and examine the correctness of the
previous decision in question dispensing with the need of a specific
reference or the order of Chief Justice constituting the Bench
and such listing. Such was the situation in Raghubir Singh and
Ors. and Hansoli Devi and Ors. (supra). “
104.  In the present case, since the submission of Shri Raju
Ramachandran and Dr. Dhavan is for a reference to a Constitution Bench
to reconsider Ismail Faruqui’s case, the question needs to be considered
in view of the law laid down by this Court in reference to Article 145(3)
as noticed above. Both Shri Raju Ramachandran and Dr. Dhavan
have
placed heavy reliance on order passed by this Court on 26.03.2018 in
W.P. (C) No. 222 of 2018 – Sameena Begum Vs. Union of India &
Ors.  Learned counsel submit that reference to the Constitution Bench
has been made by a three Judge Bench of this Court looking to the
importance of the issue.  A perusal of the order dated 26.03.2018 indicates
that challenge in those writ petitions pertains to the prevalent practice of
polygamy including Nikah Halala; Nikah Mutah; and Nikah Misyar on
the ground that they are unconstitutional.  Referring to a five Judges
Constitution Bench judgment of this Court in the case of Shayara Bano
etc. Vs. Union of India & Ors. etc., (2017) 9 SCC 1, where this
Court declared that practice of talaq-e-biddat or triple talaq is not
protected by Article 25 and it is not an essential religious practice, it was
contended that the five Judges Bench judgment in Shayara Bano (supra)
has not dealt with the aspect of Nikah Halala; Nikah Mutah; and Nikah
Misyar.  Thus, the question as to those religious practices are protected
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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 Another Vs. Union of India And Others, (1995) 5 SCC 338
was a case where a three Judge Bench had doubted the correctness of
an earlier judgment, i.e., Khandelwal Metal and Engineering Works
and Another Vs. Union of India and Others, (1985) 3 SCC 620.
Similarly, S.S. Rathore Vs. State of M.P., 1988 (Supp.) SCC 522
was also a case where correctness of a five Judges decision in Sita
Ram Goel Vs. Municipal Board, Kanpur and Others, AIR 1958
SC 1036 was doubted.  Further, judgments of this Court due to difference
of opinion in two judgments or conflict of opinion in judgments insisted
reference, which are cases of this court in Ashwani Kumar and Others
Vs. State of Bihar and Others, (1996) 7 SCC 577 and Balasaria
Construction (P) Ltd. Vs. Hanuman Seva Trust and Others, (2006)
5
SCC 662, hence these cases also does not support the submission.
The judgment of this Court in Acchan Rizvi (I) Vs. State of U.P. and
Others, (1994) 6 SCC 751 and Acchan Rizvi (II) Vs. State of U.P.
and Others, (1994) 6 SCC 752 are the cases where interlocutory
applications in contempt petitions were filed and decided.  No principle
regarding reference was noticed, the said judgments have no relevance
with regard to issue of reference of larger Bench.  Similarly, judgment
of this Court in Mohd. Aslam alias Bhure Vs. Union of India and
Others, (2003) 2 SCC  576 was a case where an interim order was
passed by this Court with regard to acquisition of 67.703 acres of land
as was noticed in Ismail Faruqui’s case.  This judgment has no
relevance with regard to reference to larger Bench.  Judgment of this
Court in Mohd. Aslam alias Bhure Vs. Union of India and Others,
(2003) 4 SCC 1, has been relied, which was a case decided by a five
Judges Bench. A public interest writ petition under Article 32 was filed
with regard to manner in which the adjacent land, i.e., adjacent land to
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the disputed structure should be preserved till the final decision in the
suit pending in the High Court, which was revived consequent to judgment
in Ismail Faruqui’s case.  The five Judges Bench noticed various
observations and directions passed in Ismail Faruqui’s case and
ultimately had directed that interim order passed by this Court on
13.03.2002 as modified on 14.03.2002 should be operative until disposal
of the suits in the High Court of Allahabad not only to maintain communal
harmony but also to fulfil other objectives of the Act. The Writ Petition
was disposed of accordingly. No principle regarding reference to larger
Bench was laid down in the said case, which may support the submission
of learned counsel.
107. A two Judge Bench judgment in Vinod Kumar Shantilal
Gosalia Vs. Gangadhar and Others, 1980 (Supp.) SCC 340 has
also been relied, in which following order was passed:-
“After having heard counsel for the parties we reserved judgment.
On going through the judgment of the Judicial Commissioner and
the documents and after a careful consideration of the arguments
of the parties, we find that these appeals involve a substantial
question of law of great importance which is likely to govern a
number of cases arising out of mining leases in the present territory
of Goa, Daman & Diu. We, therefore, direct that this case be
placed before a larger Bench. Let these appeals be placed before
the Hon’ble the Chief Justice for orders.”
108.  The above
order was passed by two Judge Bench, which
had directed the appeal to be placed before Chief Justice for hearing the
matter by a larger Bench due to the fact that appeal involves a substantial
question of law of great importance.  The said matter cannot be read as
an order directing the matter to be placed before a Constitution Bench
nor any proposition regarding reference to Constitution Bench is
decipherable from the above order, which may help the learned counsel.
Another judgment, which was relied by Shri Ramachandran is an order
passed by Justice E.S. Venkatramiah – Vacation Judge in Ram
Jethmalani Vs. Union of India, (1984) 3 SCC 696.  The above order
was passed in a Writ Petition (Criminal). Issue in the above case involves
release of Sikh leaders detained after Punjab action.  One of the issues
noticed in the order was that it relates to personal liberty of a sizeable
section of the community.  Court was of the view that question involved
are too large and complex for the shoulders of a Single Judge.  The
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Court opined that these and other cases of like nature should be heard
by a seven Judges Bench of this Court.  The above order was passed in
the peculiar circumstances as noticed in the judgment and no principle
of law has been laid down in context of reference of a case to a
Constitution Bench.  The above order was, thus, in peculiar facts of the
case.
109. In Krishan Kumar Vs. Union of India and Others, (1989)
2 SCC 504, the Court noticed that on the issue, there are no decided
cases of this Court, hence the Court observed that in the above view, the
matter should be referred to a larger Bench.  That again was a judgment
of two Judge Bench and there was no direction that reference should be
made to a larger Bench contemplated in the order, which might have
been a Bench of three Hon’ble Judges deciding the issue. In Union of
India Vs. M. Gopalakrishnaiah, 1995 Supp. (4) SCC 81, an earlier
Constitution Bench judgment in Delhi Transport Corporation Vs.
D.T.C. Mazdoor Congress and Others, 1991 Supp (1) SCC 600
was noticed and the question as to whether the reasoning of the decision
in the Delhi Transport Corporation (supra) and Central Inland
Water Transport Corporation Limited and Another Vs. Brojo
Nath Ganguly and Another, (1986) 3 SCC 156, which applied to
permanent employees can be extended to the Director on their fixed
tenure in the Scheme should be considered.  Thus, whether the
Constitution Bench Judgment
applied in aforesaid case was the question
referred, which is again an order passed in the peculiar facts of the case
and does not contain any ratio pertaining to reference to larger Bench.
110. Similarly, in Syndicate Bank Vs. Prabha D. Naik and
Another, (2002) 10 SCC 686, a two Judge Bench made a reference
to larger Bench to consider the interpretation of Article 535 of the
Portuguese Civil Code and applicability of the Limitation Act.  The
reference was not to a Constitution Bench and was only to a larger
Bench, which might be to a three Judge Bench. Similarly, in Charanjeet
Singh Vs. Raveendra Kaur, (2008) 17 SCC 650 looking to the
importance of the question, a two Judge Bench had made reference to a
larger Bench.  Two Judge Bench reference was not to a Constitution
Bench, hence, does not support the submission.  To the similar effect is
the judgment of this Court in Telecom Regulatory Authority of India
Vs. Bharat Sanchar Nigam Limited (2014) 3 SCC 304, where two
Judge Bench has made a reference to a larger Bench.  In Securities
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and Exchange Board of India Vs. Sahara India Real Estate
Corporation Limited and Others, (2014) 8 SCC 751, an earlier
order passed by three Judge Bench was sought to be enforced, hence
reference was made to a Three Judge Bench, which again was not a
case for reference to a Constitution Bench of five Judges.  Judgment of
this Court in Rajeev Dhavan Vs. Gulshan Kumar Mahajan and
Others, (2014) 12 SCC 618 was a case pertaining to a contempt
petition, which is not relevant for the present controversy.  Last judgment
relied by Shri Ramachandran is Vivek Narayan Sharma Vs. Union of
India, (2017) 1 SCC 388.  The three Judge Bench was considering
the issue of notification dated 08.11.2016 demonetizing currency notes
of Rs. 500/- and Rs. 1000/-.  Various aspects of demonetization came
for consideration in the writ petition filed under Article 32 and the transfer
petitions, where this Court noticed following in Paragraph 3:-
“3. Keeping in view the general public importance and the far-
reaching implications which the answers to the questions may
have, we consider it proper to direct that the matters be placed
before the larger Bench of five Judges for an authoritative
pronouncement. The Registry shall accordingly place the papers
before the Hon’ble the Chief Justice for constituting an appropriate
Bench.”
111.  In the above background, the three Judge Bench has directed
the matter to be placed before larger bench of five judges.
112.  Present is a case where
appeals have been filed against
judgment dated 30.09.2010 of Allahabad High Court by which Four
Original Suits, which were transferred by the High Court to itself have
been decided.  Four Civil Suits were filed claiming title to the disputed
structure. Parties lead elaborate evidences running in several thousands
pages.  The Court, after marshalling the evidences before it has decided
the Civil Suits giving rise to these appeals.  The issues, which have
arisen in these appeals are no doubt important issues, which have to be
heard and decided in these appeals. Normally appeals arising out of
suits are placed before a Bench of Two Judges but looking to the
importance of the matter, the present appeals have already been placed
before three Judge Bench.  For the aforesaid reasons, we do not agree
with the submission of Shri Raju Ramachandran that these appeals be
referred to Constitution Bench of Five Judges to reconsider the Constitution
Bench judgment in Ismail Faruqui’s case.
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
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113. Before we close we remind us as well as members of both
the major communities of this country, Hindus and Muslims, the thoughtful
message given by Justice S.U. Khan  in his judgment as well as the
words of Justice J.S. Verma, speaking for majority in  Ismail Faruqui’s
case. Justice S.U. Khan made following appeal:
‘Muslims must also ponder that at present the entire  world wants
to know the exact teaching of Islam in respect of relationship of
Muslims with others. Hostility-peace-friendship-tolerance-
opportunity to impress others with the Message-opportunity to
strike wherever and whenever possible-or what? In this regard
Muslims in India enjoy a unique position. They have been rulers
here, they have been ruled and now they are sharers in power (of
course junior partners). They are not in majority but they are also
not negligible minority (Maximum member of Muslims are in huge
majority which makes them indifferent to the problem in question
or in negligible minority which makes them redundant. Indian
Muslims have also inherited huge legacy of religious learning and
knowledge. They are therefore in the best position to tell the world
the correct position. Let them start with their role in the resolution
of the conflict at hand.”
114. Justice J.S. Verma in paragraph 156 of the judgment
expressed great hope into Hinduism which is a tolerant    faith. In
paragraph 156 it was observed:
“156.Before we pass final
orders, some observations of a general
nature appear to be in order. Hinduism is a tolerant faith. It is that
tolerance that has enabled Islam, Christianity, Zoroastrianism,
Judaism, Buddhism, Jainism and Sikhism to find shelter and support
upon this land. We have no doubt that the moderate Hindu has
little taste for the tearing down of the place of worship of another
to replace it with a temple. It is our fervent hope that that moderate
opinion shall find general expression and that communal
brotherhood shall bring to the dispute at Ayodhya an amicable
solution long before the courts resolve it.”
115.  We are also reminded of rich culture and heritage of this
ancient country which has always been a matter of great learning and
inspiration for the whole world.
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116.  The great King Asoka in 245 B.C. (Before Christ), had
given several messages to the world which are engraved in rock edicts
which  shows reverence towards faith of others. The  Twelfth Rock
Edict of the great King Asoka stated:
“‘The King, beloved of the Gods, honours every form of religious
faith, but considers no gift or honour so much as the increase of
the substance of religion; whereof this is the root, to reverence
one’s own faith and never to revile that of others. Whoever acts
differently injures his own religion while he wrong’s another’s.’
‘The texts of all forms of religion shall be followed under my
protection.’”
117.  Dr. S. Radhakrishnan, most Learned and respected former
President of India, in his celebrated book “The Hindu View of Life”
while dealing with the subject of “conflict of religion” has expressed
great hope with Hindu view of life. Dr. Radhakrishnan in prophetic words
states:
“That the Hindu solution of the problem of the conflict of religions
is likely to be accepted in the future seems to me to be fairly
certain. The spirit of democracy with its immense faith in the
freedom to choose one’s ends and direct one’s course in the effort
to realize them makes for it. Nothing is good which is not self-
chosen; no determination is valuable which is not self-
determination. The different religions are slowly learning to hold
out hands of friendship to each other in every part of the world.
The parliaments of religions and
conferences and congresses of
liberal thinkers of all creeds promote mutual understanding and
harmony. The study of comparative religion is developing a fairer
attitude to other religions. It is impressing onus the fundamental
unity of all religions by and the need of the hour determine the
emphasis in each religion. We are learning to think clearly about
the inter-relations of religions. We tend to look upon different
religions not as incompatibles but as complementaries, and so
indispensable to each other for the realization of the common end.
Closer contact with other religions has dispelled the belief that
only this or that religion has produced men of courage and patience,
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
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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 appreciation to the valuable assistance
rendered by the learned counsel for both the parties, especially Shri Ejaz
Maqbool and P.V. Yogeswaran who have rendered great assistance to
the Court in compiling various volumes in orderly manner which had
been of great help to the Court, both, in hearing and deciding the issue.
122. The appeals which are awaiting consideration by this Court
for quite a long period, be now listed in week commencing 29th October,
2018 for hearing.
S. ABDUL NAZEER, J. 1. I have had the privilege of reading
the erudite Judgment of
my learned Brother Justice Ashok Bhushan.
My learned Brother has held that the questionable observations made in
paragraph 82 of the judgment in Dr. M. Ismail Faruqui and Ors. v.
Union of India and Ors. (1994) 6 SCC 360 (for short ‘Ismail Faruqui’)
are not relevant for deciding these appeals.  Therefore, His Lordship
has concluded that no case has been made out seeking reference of
these appeals to a Constitution Bench of this Court.  I am unable to
accept this view expressed by my learned Brother.  However, I am in
respectful agreement with his opinion on the question of res judicata
contained in paragraphs 63 to 75 of the Judgment and have restricted
this judgment to the other issues.
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2. Since the facts of the case and the rival contentions of the
parties have been set out by my learned Brother in detail, it is not
necessary to reiterate them. Therefore, I have stated only certain relevant
facts.
3. In Ismail Faruqui, the Court started by elucidating the
background of the case leading to the Acquisition of Certain Area at
Ayodhya Act, 1993 (No. 33 of 1993) (for short ‘1993 Act’) and the
reasons for making Special Reference to this Court by the President of
India in exercise of his power in clause (1) of Article 143 of the
Constitution of India.  Herein the Special Reference mentioned, had the
following question for consideration and opinion:
“Whether a Hindu temple or any Hindu religious structure existed
prior to the construction of the Ram Janma Bhumi-Babri Masjid
(including the premises of the inner and outer courtyards of such
structure) in the area on which the structure stood?”
4.  After narrating the facts, the Court went on to examine the
constitutional validity of the 1993 Act. On this issue, the Court concluded
that the Parliament has the legislative competence to enact the said
legislation and except for Section 4(3), the entire 1993 Act is
constitutionally valid. While deciding so, the Court in paragraph 51 went
on to discuss the “comparative significance” of the disputed site to the
two communities. The following is reproduced as under:
“51.  It may also be mentioned that even as Ayodhya is said to be
of particular
significance to the Hindus as a place of pilgrimage
because of the ancient belief that Lord Rama was born there, the
mosque was of significance for the Muslim community as an
ancient mosque built by Mir Baqi in 1528 AD.  As a mosque, it
was a religious place of worship by the Muslims.  This indicates
the comparative significance of the disputed site to the two
communities and also that the impact of acquisition is equally on
the right and interest of the Hindu community.  Mention of this
aspect is made only in the context of the argument that the statute
as a whole, not merely Section 7 thereof, is anti-secular being
slanted in favour of the Hindus and against the Muslims.”
5. After the aforementioned conclusion, in paragraphs 65 to 82
the Court examined the question as to whether a mosque is immune
from acquisition. Among these paragraphs, the observations in paragraphs
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77, 78 and 80 are important for the matter in hand and are reproduced as
under:-
“77.  It may be noticed that Article 25 does not contain any
reference to property unlike Article 26 of the Constitution. The
right to practise, profess and propagate religion guaranteed under
Article 25 of the Constitution does not necessarily include the
right to acquire or own or possess property. Similarly this right
does not extend to the right of worship at any and every place of
worship so that any hindrance to worship at a particular place per
se may infringe the religious freedom guaranteed under Articles
25 and 26 of the Constitution. The protection under Articles 25
and 26 of the Constitution is to religious practice which forms an
essential and integral part of the religion. A practice may be a
religious practice but not an essential and integral part of practice
of that religion.
78. While offer of prayer or worship is a religious practice,
its offering at every location where such prayers can be
offered would not be an essential or integral part of such
religious practice unless the place has a particular
significance for that religion so as to form an essential or
integral part thereof. Places of worship of any religion having
particular significance for that religion, to make it an
essential or integral part of the religion, stand on a different
footing and have to be treated differently and more
reverentially.
80. It has
been contended that a mosque enjoys a particular
position in Muslim Law and once a mosque is established and
prayers are offered in such a mosque, the same remains for all
time to come a property of Allah and the same never reverts back
to the donor or founder of the mosque and any person professing
Islamic faith can offer prayer in such a mosque and even if the
structure is demolished, the place remains the same where the
namaz can be offered. As indicated hereinbefore, in British India,
no such protection was given to a mosque and the mosque was
subjected to the provisions of statute of limitation thereby
extinguishing the right of Muslims to offer prayers in a particular
mosque lost by adverse possession over that property.”
   (Emphasis supplied)
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6. In paragraph 82 this Court summarised the position as under:
“82. The correct position may be summarised thus. Under the
Mahomedan Law applicable in India, title to a mosque can be lost
by adverse possession (See Mulla’s Principles of Mahomedan
Law, 19th Edn., by M. Hidayatullah - Section 217; and Shahid
Ganj v. Shiromani Gurdwara [AIR 1940 PC 116, 121]. If that
is the position in law, there can be no reason to hold that a mosque
has a unique or special status, higher than that of the places of
worship of other religions in secular India to make it immune from
acquisition by exercise of the sovereign or prerogative power of
the State. A mosque is not an essential part of the practice
of the religion of Islam and namaz (prayer) by Muslims can
be offered anywhere, even in open. Accordingly, its acquisition
is not prohibited by the provisions in the Constitution of India.
Irrespective of the status of a mosque in an Islamic country for
the purpose of immunity from acquisition by the State in exercise
of the sovereign power, its status and immunity from acquisition
in the secular ethos of India under the Constitution is the same
and equal to that of the places of worship of the other religions,
namely, church, temple etc. It is neither more nor less than that of
the places of worship of the other religions. Obviously, the
acquisition of any religious place is to be made only in unusual and
extraordinary situations for a larger national purpose keeping in
view that such acquisition should not result in extinction of the
right to practise the religion, if the significance of that place be
such. Subject to this condition, the power of acquisition is available
for a mosque like any other place of worship of any religion. The
right to worship is not at any and every place, so long as it can be
practised effectively, unless the right to worship at a particular
place is itself an integral part of that right.”
              (Emphasis supplied)
7.  Dr. Rajeev Dhavan, learned senior counsel, submits that the
observations made in the above mentioned paragraph, reading “A mosque
is not an essential part of the practice of the religion of Islam and namaz
(prayer) by Muslims can be offered anywhere, even in open.” is contrary
to law and the Court was obliged to examine the faith to make this
statement.  He further contends that the observations on the concepts
of particular significance and comparative significance are without
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foundation.  Moreover, he contends that what constitutes the essential
part of a religion is primarily to be ascertained with reference to the
doctrine of that religion itself as has been done by the Seven-Judge
Constitution Bench of this Court in, the Commissioner, Hindu
Religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt 1954 SCR 1005 (for short ‘Shirur Mutt’).
It has also been submitted that the broad test of “essentiality” in Shirur
Mutt cannot be cut down by later Five and Two Judges’ decisions.
“Integral” is interchangeable with “essential”.  The latter cannot be short
circuited by the use of the former.  This may lie at the root of many mal-
understandings and needs to be clarified. Further, it is precisely this error
of integrality that Ismail Faruqui uses when it speaks of “particular
significance”. He also submits that the test used in paragraph 78 of
Ismail Faruqui was essential and integral even though the word “or”
was used. The Court has failed to examine the tenets of faith and
proceeded in its own intuitive understanding to make ipse dixit
observations. Learned senior counsel has also relied on certain decisions
of this Court in support of his contentions.  Ismail Faruqui being devoid
of any examination on this issue, the matter needs to go to a larger
Bench. Dr. Dhavan further submits that the impugned judgment was
affected by the questionable observations in Ismail
Faruqui. He has
taken us through various paragraphs in the impugned judgment in this
regard.  Dr. Dhavan has also referred to various observations made in
the impugned judgment to support his submission that Ismail Faruqui
has influenced the said judgment.
8. On the other hand, Shri Parasaran, learned senior counsel
submits that the questionable observations in Ismail Faruqui that a
mosque not being an essential part of the practice of Islam have to be
read in the context of the validity of the acquisition of the suit property
under the 1993 Act.   He submits that this Court has not ruled that
offering Namaz by Muslims is not an essential religious practice.  It only
ruled that right to offer Namaz at every mosque that exists is not essential
religious practice. But if a place of worship of any religion has a particular
significance for that religion, enough to make an essential or integral
part of the religion, then it would stand on a different footing and would
have to be treated differently and more reverentially.  It is argued that
the fundamental right of Muslim community under Article 25, to offer
namaz is not affected in the present case as the Babri Masjid was not a
mosque with particular significance for that religion.
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9. We have also heard S/Shri C.S. Vaidyanathan, Raju
Ramachandran, S.K. Jain, learned senior counsel and Shri Tushar Mehta,
learned Additional Solicitor General and Shri P.N. Mishra, learned
advocate.
10. Learned counsel for the parties have also produced Islamic
religious texts on mosque, relevant excerpts of the holy Quran and
illuminating discourses on the holy Quran in support of their respective
contentions on whether a mosque is an essential part of the practice of
the religion of Islam.
11. It is evident from Ismail Faruqui that the principal submission
of the petitioners was that mosque cannot be acquired because of a
special status in Mahomedan Law.  The Constitution Bench has
discussed this aspect under a separate heading “Mosque – Immunity
from Acquisition” from paragraph 65 of the judgment. Specifically in
paragraph 74, the Court observed that subject to protection under Articles
25 and 26 of the Constitution, places of religious worship, like mosques,
churches, temples, etc. can be acquired under the State’s sovereign power
of acquisition.   Such acquisition per se does not violate either Article 25
or Article 26 of the Constitution.  Further, the Court in paragraph 77
noted that Article 25 does not contain any reference to property unlike
Article 26 of the Constitution.  The right to practice, profess and
propagate religion guaranteed under Article 25 of the Constitution does
not necessarily include right to acquire or own or possess
property.
Similarly, this right does not extend to the right of worship at any and
every place of worship so that any hindrance to worship at a place per
se may infringe the religious freedom guaranteed under Articles 25 and
26 of the Constitution. Additionally, in paragraph 78, it noted that places
of worship of any religion having particular significance for that religion,
to make it an essential or integral part of the religion, stand on a different
footing and have to be treated differently and more reverentially. While
summarizing the position, in paragraph 82, the Court has observed that a
mosque is not an essential part of practice of religion of Islam and namaz
by Muslims can be offered anywhere even in open.
12. What constitutes the essential part of a religion is primarily to
be ascertained with reference to the doctrine, tenets and beliefs of that
religion itself.  This has been laid down at page 1025 in Shirur Mutt :
“……..The learned Attorney-General lays stress upon clause
(2)(a) of the article and his contention is that all secular activities,
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which may be associated with religion but do not really constitute
an essential part of it, are amenable to State regulation.
The contention formulated in such broad terms cannot, we think,
be supported. In the first place, what constitutes the essential
part of a religion is primarily to be ascertained with
reference to the doctrines of that religion itself. If the tenets
of any religious sect of the Hindus prescribe that offerings
of food should be given to the idol at particular hours of the
day, that periodical ceremonies should be performed in a
certain way at certain periods of the year or that there
should be daily recital of sacred texts or oblations to the
sacred fire, all these would be regarded as parts of religion
and the mere fact that they involve expenditure of money
or employment of priests and servants or the use of
marketable commodities would not make them secular
activities partaking of a commercial or economic character;
all of them are religious practices and should be regarded
as matters of religion within the meaning of Article 26(b).
What Article 25(2)(a) contemplates is not regulation by the
State of religious practices as such, the freedom of which is
guaranteed by the Constitution except when they run
counter to public order, health and morality, but regulation
of activities which are economic, commercial or political in
their character though they are associated with religious
practices.”
(Emphasis supplied)
13. Further, at pages 1028-1029 it is stated that,
“Under Article 26(b), therefore, a religious denomination
or organization enjoys complete autonomy in the matter of
deciding as to what rites and ceremonies are essential
according to the tenets of the religion they hold and no
outside authority has any jurisdiction to interfere with their
decision in such matters. Of course, the scale of expenses to
be incurred in connection with these religious observances would
be a matter of administration of property belonging to the religious
denomination and can be controlled by secular authorities in
accordance with any law laid down by a competent legislature;
for it could not be the injunction of any religion to destroy the
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institution and its endowments by incurring wasteful expenditure
on rites and ceremonies.”
   (Emphasis supplied)
14. In Ratilal Panachand Gandhi v. The State of Bombay and
Ors. 1954 SCR 1055, a Constitution Bench of this Court has held thus:
“It may be noted that ‘religion’ is not necessarily theistic and in
fact there are well known religions in India like Buddhism and
Jainism which do not believe in the existence of God or of any
Intelligent First Cause. A religion undoubtedly has its basis in
a system of beliefs and doctrines which are regarded by
those who profess that religion to be conducive to their
spiritual well being, but it would not be correct to say, as
seems to have been suggested by one of the learned Judges
of the Bombay High Court, that matters of religion are
nothing but matters of religious faith and religious belief.
xxx
     xxx
xxx
….. No outside authority has any right to say that these are
not essential parts of religion and it is not open to the secular
authority of the State to restrict or prohibit them in any
manner they like under the guise of administering the trust
estate.”
              (Emphasis supplied)
15. In Sri Venkataramana Devaru and Ors. v. The State of
Mysore and Ors. 1958 SCR 895, a Constitution Bench of this 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. ….”
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
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16. In The Durgah Committee, Ajmer and Anr. v. Syed
Hussain Ali and Ors. (1962) 1 SCR 383, a Constitution Bench of this
Court, after considering the historical background of the dispute, has
held thus:-
“Having thus reviewed broadly the genesis of the shrine,
its growth and the story of its endowments and their
management, it may now be relevant to enquire what is the
nature of the tenets and beliefs to which Soofism subscribes.
Such an enquiry would serve to assist us in determining whether
the Chishtia sect can be regarded as a religious denomination or
a section thereof within Art 26.”
   (Emphasis supplied)
17. In Sardar Syedna Taher Saifuddin Saheb v. The State of
Bombay 1962 Supp (2) SCR 496, this Court was considering the validity
of the law interfering with the right of religious denominations to ex-
communicate its members.  In this context Articles 25 and 26 came to
be considered.  After referring to the various decisions a Constitution
Bench of this Court has held as under:-
“The content of Arts. 25 and 26 of the Constitution came up for
consideration before this Court in the Commissioner, Hindu
Religious Endowments Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Matt; Mahant Jagannath Ramanuj Das
v. The State of Orissa; Sri Venkatamana Devaru v. The State
of Mysore; Durgah Committee; Ajmer v. Syed Hussain Ali  and
several other cases and the main principles underlying these
provisions have by
these decisions been placed beyond controversy.
The first is that the protection of these articles is not limited to
matters of doctrine or belief they extend also to acts done in
pursuance of religion and therefore contain a guarantee for rituals
and observances, ceremonies and modes of worship which are
integral parts of religion.  The second is that what constitutes
an essential part of a religious or religious practice has to
be decided by the courts with reference to the doctrine of a
particular religion and include practices which are regarded
by the community as a part of its religion.”
                                       (Emphasis supplied)
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18. In Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan
and Ors. (1964) 1 SCR 561, a Constitution Bench of this Court was
considering the validity of Nathdwara Temple Act, 1959 (No. XIII of
1959). The same was challenged on behalf of the denomination of
followers of Vallabha. The case originally involved challenge to the
Nathdwara Ordinance, 1959 (No. II of 1959) which was issued on
February 6, 1959.  Subsequently, this Ordinance was repealed by the
Act and the petitioner was allowed to amend his petition. It was
contended that if the temple was held to be a public temple then the Act
is to be invalid because it contravenes the fundamental rights guaranteed
to the denomination under Articles 25 and 26 of the Constitution.  After
considering the rival contentions, the Court has held as under:
“In deciding the question as to whether a given religious practice
is an integral part of the religion or not, the test always would be
whether it is regarded as such by the community following the
religion or not. This formula may in some cases present difficulties
in its operation. Take the case of a practice in relation to food or
dress. If in a given proceeding, one section of the community
claims that while performing certain rites white dress is an integral
part of the religion itself, whereas another section contends that
yellow dress and not the white dress is the essential part of the
religion, how is the Court going to decide the question? Similar
disputes may arise in regard to food. In cases where conflicting
evidence is produced in respect of rival contentions as to competing
religious practices the Court may not be able to resolve the dispute
by a blind application of the formula that the community decides
which practice in an integral part of its religion, because the
community may speak with more than one voice and the formula
would, therefore, break down. This question will always have
to be decided by the Court and in doing so, the Court may
have to enquire whether the practice in question is religious
in character and if it is, whether it can be regarded as an
integral or essential part of the religion, and the finding of
the Court on such an issue will always depend upon the
evidence adduced before it as to the conscience of the
community and the tenets of its religion. It is in the light of
this possible complication which may arise in some cases that this
Court struck a note of caution in the case of Durgah Committee
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Ajmer v. Syed Hussain Ali [(1962) 1 SCR 383 at p. 411] and
observed that in order that the practices in question should be
treated as a part of religion they must be regarded by the said
religion as its essential and integral part; otherwise even purely
secular practices which are not an essential or an integral part of
religion are apt to be clothed with a religious form and may make
a claim for being treated as religious practices within the meaning
of Article 25(1).”
               (Emphasis supplied)
19. It is clear from the aforesaid decisions that the question as to
whether a particular religious practice is an essential or integral part of
the religion is a question which is to be considered by considering the
doctrine, tenets and beliefs of the religion.  It is also clear that the
examination of what constitutes an essential practice requires detailed
examination as reflected in the aforesaid judgments.
20. At this juncture, it is also pertinent to note the observations in
Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi and
Ors. v. State of U.P. and Ors. (1997) 4 SCC 606, at paragraph 28,
where it is stated:
“….The concept of essentiality is not itself a determinative
factor. It is one of the circumstances to be considered in
adjudging whether the particular matters of religion or
religious practices or belief are an integral part of the
religion.  It must be decided whether the practices or matters