@ Bhure Vs. Union of India & Ors  Insc 206 (31 March 2003)
Babu ,Syed Shah Mohammed Quadri, M.B.Shah, N. Santosh Hegde & Doraiswamy Raju
Rajendra Babu, J. :
Statement of Objects and Reasons in the Bill ultimately leading to the
enactment of the Acquisition of Certain Area at Ayodhya Act, 1993 [hereinafter
referred to as 'the Act'], it has been stated as follows:
has been a long-standing dispute relating to the erstwhile Ram Janma Bhumi-Babri
Masjid structure in Ayodhya which led to communal tension and violence from
time to time and ultimately led to the destruction of the disputed structure on
6th December, 1992. This was followed by wide-spread
communal violence which resulted in large number of deaths, injuries and
destruction of property in various parts of the country. The said dispute has
thus affected the maintenance of public order and harmony between different
communities in the country. As it is necessary to maintain communal harmony and
the spirit of common brotherhood amongst the people of India, it was considered
necessary to acquire the site of the disputed structure and suitable adjacent
land for setting up a complex which could be developed in a planned manner
wherein a Ram temple, a mosque, amenities for pilgrims, a library, museum and
other suitable facilities can be set up.
xxx xxx." In the Preamble to the Act also, it has been mentioned as
act to provide for the acquisition of certain area at Ayodhya and for matters
connected therewith or incidental thereto.
there has been a long-standing dispute relating to the structure (including the
premises of the inner and outer courtyards of such structure), commonly known
as the Ram Janma Bhumi-Babri Masjid, situated in village Kot Ramachandra in Ayodhya,
in Pragana Haveli Avadh, in Tehsil Faizabad Sadar, in the district of Faizabad
of the State of Uttar Pradesh;
WHEREAS the said dispute has affected the maintenance of public order and
harmony between different communities in the country;
WHEREAS it is necessary to maintain public order and to promote communal
harmony and the spirit of common brotherhood amongst the people of India;
WHEREAS with a view to achieving the aforesaid objectives, it is necessary to
acquire certain areas in Ayodhya;
xxx." In M.Ismail Faruqui etc. vs. Union of India & Ors., 1994 Supp.
(5) SCR 1, the validity of the Act was challenged. This Court examined the
scheme of the Act and held as under by majority of 3:2 :
Sub-section (3) of Section 4 of the Act abates all pending suits and legal
proceedings without providing for an alternative dispute-resolution mechanism
for resolution of the dispute between the parties thereto. This is an
extinction of the judicial remedy for resolution of the dispute amounting to
negation of rule of law. Sub-section (3) of Section 4 of the Act is, therefore,
unconstitutional and invalid.
The remaining provisions of the Act do not suffer from any invalidity on the
construction made thereof by us. Sub-section (3) of Section 4 of the Act is
several from the remaining Act. Accordingly, the challenge to the
constitutional validity of the remaining Act, except for Sub-section (3) of
Section 4 of, is rejected.
Irrespective of the status of a mosque under the Muslim Law applicable in the
Islamic countries, the status of a mosque under the Mahomedan Law applicable in
secular India is the same and equal to that of any other place of worship of
any religion; and it does not enjoy any greater immunity from acquisition in
exercise of the sovereign or prerogative power of the State, than that of the
places of worship of the other religions.
The pending suits and other proceedings relating to the disputed area within
which the structure [including the premises of the inner and outer courtyards
of such structure], commonly known as the Ram Janma Bhumi-Babri Masjid, stood,
stand revived for adjudication of the dispute therein, together with the
interim orders made, except to the extent the interim orders stand modified by
the provisions of Section 7 of the Act.
The vesting of the said disputed area in the Central Government by virtue of
Section 3 of the Act is limited, as a statutory receiver, with the duty for its
management and administration according to Section 7 requiring maintenance of
status quo therein under sub-section (2) of Section 7 of the Act. The duty of
the Central Government as the statutory receiver is to hand over the disputed
area in accordance with Section 6 of the Act, in terms of the adjudication made
in the suits for implementation of the final decision therein. This is the
purpose for which the disputed area has been so acquired.
The power of the courts in making further interim orders in the suits is limited
to, and circumscribed by, the area outside the ambit of Section 7 of the Act.
The vesting of the adjacent area, other than the disputed area, acquired by the
Act in the Central Government by virtue of Section 3 of the Act is absolute
with the power of management and administration thereof in accordance with
sub-section (1) of Section 7 of the Act, till its further vesting in any
authority or other body or trustees of any trust in accordance with Section 6
of the Act. The further vesting of the adjacent area, other than the disputed
area, in accordance with Section 6 of the Act has to be made at the time and in
the manner indicated, in view of the purpose of its acquisition.
The meaning of the word 'vest' in Section 3 and Section 6 of the Act has to be
so understood in the different contexts.
Section 8 of the Act is meant for payment of compensation to owners of the
property vesting absolutely in the Central Government, the title to which is
not in dispute being in excess of the disputed area which alone is the
subject-matter of the revived suits. It does not apply to the disputed area,
title to which has to be adjudicated in the suits and in respect of which the
Central Government is merely the statutory receiver as indicated, with the duty
to restore it to the owner in terms of the adjudication made in the suits.
The challenge to acquisition of any part of the adjacent area on the ground
that it is unnecessary for achieving the professed objective of settling the
long-standing dispute cannot be examined at this stage.
the area found to be superfluous on the exact area needed for the purpose being
determined on adjudication of the dispute, must be restored to the undisputed
Rejection of the challenge by the undisputed owners to acquisition of some
religious properties in the vicinity of the disputed area, at this stage is
with the liberty granted to them to renew their challenge, if necessary at a
later appropriate stage, in case of continued retention by the Central
Government of their property in excess of the exact area determined to be
needed on adjudication of the dispute.
Consequently, the Special Reference No. 1 of 1993 made by the President of
India under Article 143(1) of the Constitution of India is superfluous and
unnecessary and does not require to be answered. For this reason, we very
respectfully decline to answer it and return the same.
The questions relating to the constitutional validity of the said Act and
maintainability of the Special Reference are decided in these terms." In
this proceeding, which is initiated as public interest petition, several reliefs
were claimed but after the interested parties were impleaded and their
pleadings were put forth what has crystallized is as to the manner in which the
adjacent land should be preserved till the final decision in the title suit
pending in the High Court of Allahabad. This Court, on 13.3.2002, while issuing
the rule, made the following order:
In the meantime, we direct that on the 67.703 acres of land located in revenue
plot Nos. 159 & 160 in village Kot Ramchandra which is vested in the
Central Government, no religious activity of any kind by anyone either symbolic
or actual including bhumipuja or shila puja, shall be permitted or allowed to
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.
is subject to further orders which may be passed in this case.
The aforesaid order was clarified by another order dated 14.3.2002 in the
hearing the learned Attorney General, as there was some ambiguity in para 3 of
our order dated 13th
March, 2002, we
correct para 3 of our order as follows:
meantime, we direct that on the 67.703 acres of acquired land located in
various plots detailed in the Schedule to Acquisition of Central Area at Ayodhya
Act, 1993, which is vested in the Central Government, no religious activity of
any kind by anyone either symbolic or actual including bhumipuja or shila puja,
shall be permitted or allowed to take place." Subsequently after the
pleadings were completed an application was filed seeking for vacating the
interim order and for final hearing of the petition. Instead of considering the
interim application, we considered we should dispose of the main matter and
hence we have finally heard the matter.
counsel on both sides in the present case heavily relied upon the decision in M.Ismail
Faruqui's case [supra].
Act, as it was passed by Parliament, anticipated the settlement of the dispute
after obtaining the opinion of this Court and in terms of the said opinion.
the reference made to this Court having been returned to the President without
any opinion thereto and the provisions of Section 4(3) of the Act by which the
pending proceedings stood abated having been declared to be invalid, the suits
and the other proceedings along with the interim orders stood revived.
the whole perception of the provisions of the enactment will have to be made in
that light. While it is the contention of the petitioner that the decision of
this Court in M.Ismail Faruqui's case [supra] clearly indicates that the
purpose of the acquisition of the adjacent land is to meet the easement of
necessity of proper enjoyment of the disputed land by its owner who is ultimately
to be declared by the High Court of Allahabad and on consideration of the
various observations made by this Court in the course of the judgment,
particularly that the extent of the area required for carrying out the purpose
of the Act would depend on the decision in favour of the Muslims or Hindus in
respect of the disputed land and the scheme to be framed for purposes of
developing a complex consisting of museum, library and other structures. All
this cannot be done until the suits pending before the High Court of Allahabad
they pray that status quo as ordered by this Court in the interim order should
be made absolute and an appropriate relief be granted in the aforesaid terms.
Union of India and Others submit that the interim relief granted by this Court
earlier goes beyond the scope of the decision rendered by this Court in M.Ismail
Faruqui's case [supra] and the petition filed by the petitioner should be
dismissed straightaway because he had filed a writ petition before the High
Court of Allahabad which came to be dismissed and in this petition there is
hardly any proper foundation laid for granting any relief. It is also pleaded
that the allegations made in the petition are vague and do not contain the
necessary details to appreciate the various contentions urged before the Court
and several of the prayers made in the petition have already become infructuous.
several occasions this Court has treated letters, telegrams or post cards or
news reports as writ petitions. In such petitions, on the basis of pleadings
that emerge in the case after notice to different parties, relief has been
given or refused. Therefore, this Court would not approach matters where public
interest is involved in a technical or a narrow manner. Particularly, when this
Court has entertained this petition, issued notice to different parties, new
parties have been impleaded and interim order has also been granted, it would
not be appropriate for this Court to dispose of the petition on that ground.
of the writ petition in the High Court of Allahabad or its dismissal will not
come in the way of considering this petition. The scope of that writ petition
filed in the High Court is different from what is urged in the present
proceedings which is limited to maintaining status quo during pendency of suits
before the High Court in respect of acquired land.
Preamble to the Act itself discloses that the objective of the enactment is
maintenance of harmony between different communities in the country and to
maintain public order. If the acquisition has been effected on that basis not
only of the disputed land but also of adjacent land, this thread will run
through the entire proceedings and we must bear in mind that when the dispute
is not yet finally resolved, maintenance of communal harmony and peace is
absolutely needed. It is no doubt true that when passions run high, demands are
made for several types of activities being carried on in the adjacent land. If
any such activities are carried on in such land, even before the resolution of
the dispute pending before the court, it may affect the harmony and tranquility
that has prevailed for so long.
6(1) of the Act enables the Central Government to transfer its right, title and
interest or any of them in the area or any part thereof to any authority or
other body, or trusts on such terms and conditions as it may think fit to
impose instead of continuing to retain the same itself. Sections 6(2) and (3)
provide for certain arrangements of statutory transfer effected by Central
Government by declaring that the transferee would step into the shoes of the
Government acquiring the same right, title and interest in the area in
also that Sections 4, 5, 7, 11, so far as may be, would apply to such
transferee as would apply to Central Government.
course of the discussion in M.Ismail Faruqui's case [supra], it has been
observed as follows :
narration of facts indicates that the acquisition of properties under the Act
affects the rights of both the communities and not merely those of the Muslim
community. The interest claimed by the Muslims is only over the disputed site
where the mosque stood before its demolition. The objection of the Hindus to
this claim has to be adjudicated. The remaining entire property acquired under
the Act is such over which no title is claimed by the Muslims. A large part
thereof comprises of properties of Hindus of which the title is not even in
dispute. The justification given for acquisition of the larger area including
the property respecting which title is not disputed is that the same is
necessary to ensure that the final outcome of adjudication should not be
rendered meaningless by the existence of properties belonging to Hindus in the
vicinity of the disputed structure in case the Muslims are found entitled to
the disputed site. This obviously means that in the event of the Muslims
succeeding in the adjudication of the dispute requiring the disputed structure
to be handed over to the Muslim community, their success should not be thwarted
by denial of proper access to, and enjoyment of rights in, the disputed area by
exercise of rights of ownership of Hindu owners of the adjacent properties.
Obviously, it is for this reason that the adjacent area has also been acquired
to make available to the successful party, that part of it which is considered
necessary, for proper enjoyment of the fruits of success on the final outcome
to the adjudication. It is clear that one of the purposes of the acquisition of
the adjacent properties is the ensurement of the effective enjoyment of the
disputed site by the Muslim community in the event of its success in the
litigation; and acquisition of the adjacent area is incidental to the main
purpose and cannot be termed unreasonable. The "Manas Bhawan" and
"Sita ki Rasoi", both belonging to the Hindus, are buildings which
closely overlook the disputed site and are acquired because they are strategic
in location in relation to the disputed area. The necessity of acquiring adjacent
temples or religious buildings in view of their proximity to the disputed
structure area, which forms a unique class by itself, is permissible. (See : M.
Padmanabha Iyengar v. Government of A.P., AIR 1990 AP 357, and Akhara Shri
Braham Buta vs. State of Punjab, AIR 1989 P&H 198.) We approve the
principle stated in these decisions since it serves a larger purpose.
xxx However, at a later stage when the exact area acquired which is needed, for
achieving the professed purpose of acquisition, can be determined, it would not
merely be permissible but also desirable that the superfluous excess area is
released from acquisition and reverted to its earlier owner. The challenge to
acquisition of any part of the adjacent area on the ground that it is unnecessary
for achieving the objective of settling the dispute relating to the disputed
area cannot be examined at this stage but, in case the superfluous area is not
returned to its owner even after the exact area needed for the purpose is
finally determined, it would be open to the owner of any such property to then
challenge the superfluous acquisition being unrelated to the purpose of
of the challenge on this ground to acquisition at this stage, by the undisputed
owners of any such property situate in the vicinity of the disputed area, is
with the reservation of this liberty to them. There is no contest to their
claim of quashing the acquisition of the adjacent properties by anyone except
the Central Government which seeks to justify the acquisition on the basis of
necessity. On the construction of the statute made by us, this appears to be
the logical, appropriate and just view to take in respect of such adjacent
properties in which none other than the undisputed owner claims title and
xxx Acquisition of the adjacent undisputed area belonging to Hindus has been
attacked on the ground that it was unnecessary since ownership of the same is
undisputed. Reason for acquisition of the large area adjacent to the disputed
area has been indicated. It is, therefore, not unrelated to the resolution of
the dispute which is the reason for the entire acquisition. Even though, prima
facie, the acquisition of the adjacent area in respect of which there is no
dispute of title and which belongs to Hindus may appear to be a slant against
the Hindus, yet on closer scrutiny it is not so since it is for the larger
national purpose of maintaining and promoting communal harmony and in
consonance with the creed of secularism. Once it is found that it is
permissible to acquire an area in excess of the disputed area alone, adjacent
to it, to effectuate the purpose of acquisition of the disputed area and to
implement the outcome of the final adjudication between the parties to ensure
that in the event of success of the Muslim community in the dispute their
success remains meaningful, the extent of adjacent area considered necessary is
in the domain of policy and not a matter for judicial scrutiny or a ground for
testing the constitutional validity of the enactment. However, it is with the
caveat of the Central Government's duty to restore it to its owner, as
indicated earlier, if it is found later to be unnecessary; and reservation of
liberty to the owner to challenge the needless acquisition when the total need
has been determined." From the observations quoted above, it is clear that
the adjacent land, though vest in the Central Government, will have to be utilised
in different manners depending upon the outcome of the litigation in respect of
the disputed property. Thus the manner or extent to which the adjacent land
could be used would depend upon the final outcome of the pending dispute in the
acquisition of larger extent of land is incidental to main purpose. Thus, the
two acquired lands are intrinsically connected with one another and cannot be
separated at this stage of the proceedings for different treatment during the
interregnum. Further, it has also been made clear that if any land becomes
superfluous such land will have to be returned to the owner who may have to
initiate appropriate proceedings to challenge the validity of the acquisition
as indicated in the course of the judgment of this Court in M.Ismail Faruqui's
case [supra]. If land is transferred to any other body or trust as provided
under Section 6 of the Act at this stage further complications may arise.
Therefore, status quo will have to be maintained until suits are finally
disposed of. We hold that the orders of this Court made earlier are not beyond
the scope of the decision in M.Ismail Faruqui's case.
all, status quo has been maintained from 1992 onwards and no activities as are
set out in the course of the application have been required to be done so far.
When for a long time, a particular state of affairs has prevailed - as in the
present case for over a decade - and when the adjudication of the disputes
which are pending before the High Court are reaching final stages, it will not
be appropriate to disturb that state of affairs. It is well known that
preservation of property in its original condition is absolutely necessary to
give appropriate reliefs to the parties on the termination of the proceedings
before the courts and, therefore, we do no think that this is one of those
cases in which it becomes necessary to disturb that state.
consideration of the entire matter, we are of the view that the order made by
this Court on 13.3.2002, as modified by the order made on 14.3.2002, should be
operative until disposal of the suits in the High Court of Allahabad not only
to maintain communal harmony but also to fulfil other objectives of the Act.
writ petition shall stand disposed of accordingly.
parting with the case, we wish to put on record that all the learned counsel
and the parties who appeared in person in arguing the matter thoroughly have
presented their respective cases only on facts and law arising in the case
without bringing into court in any manner the passion raging outside whether
religious or political. We greatly appreciate this stand of the Advocates and
the parties in the court.