TMI Blog2018 (9) TMI 2082X X X X Extracts X X X X X X X X Extracts X X X X ..... ity and integrality? (c) Does Article 25, only protect belief and practices of particular significance of a 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? The Registry is directed to place this matter before the Hon'ble Chief Justice of India for appropriate orders. - CIVIL APPEAL NOS. 10866-10867/2010, 4768-4771/2011, 2636/2011, 821/2011, 4739/2011, 4905-4908/2011, 2215/2011, 4740/2011, 2894/2011, 6965/2011, 4192/2011, 5498/2011, 7226/2011, 8096/2011, DIARY NO(S). 22744/2017 - - - Dated:- 27-9-2018 - DIPAK MISRA, C.J.I., ASHOK BHUSHAN AND S. ABDUL NAZEER, JJ. For the Appellant : Mr. C.S. Vaidyanathan, Sr. Adv., Mr. S.S. Shamshery, Adv., Mr. P.K. Singh, Adv., Ms. Aditi, Adv., Mr. Anirudh Sharma, Adv., Mr. Amit Sharma, Adv., Mr. Sandeep Singh, Adv., Mr. Pranav Kumar, Adv., Mr. Ashish Kumar Upadhyay, Adv., Mr. Bhuvan Jayant, Adv., Mr. Y. Lokesh, Adv., Mr. P.V. Yogeswaran, AOR, Dr. Rajeev Dhavan, Sr. Adv., Mr. Raju Ramachandran, Sr. Adv., Mr. Ejaz Maqbool, AOR, Mr. Shahid Nadeem Ansari, Adv., Ms. Avani Bansal, Adv., Mr. C. George Thomas, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aushik, Adv., Mr. Abhishek Atrey, AOR, Mr. Bhakti Vardhan Singh, AOR, Mr. Yash Mishra, Adv., Mr. Vikas Singh Jangra, Adv., Mr. Sarthak Nayak, Adv., Mr. Shridhar Pottaraju, Adv., Ms. Ankita Sharma, Adv., Mr. Prakash Gautam, Adv., Mr. Amit Kumar Pathak, Adv., Mr. Tushar Thareja, Adv., Mr. Sayooj Mohandas, Adv., Mr. Praneet Pranav, Adv., Mr. S.S. Shamshery, Adv., Mr. D. Bharat Kumar, Adv., Mr. Yash Mishra, Adv., Mr. Ankit Raj, Adv., Ms. Indira Bhakhar, Adv., Mr. Rajesh Singh, Adv., Mr. Vineet Pandey, Adv., Mr. Santosh Kumar, Adv., Mr. T. Bhaskar Gowtham, Adv., Ms. Ruchi Kohli, AOR, Ms. Sucheta Joshi, Adv., Mr. Bharat Sood, Adv., Mr. Ankit Raj, Adv., Mr. R.K. Rajvanshi, Adv., Mr. Harshvardhan Singh Rathore, Adv., Mr. Nachiketa Joshi, AOR, Mr. Fuzail Ahmad Ayyubi, AOR, Mr. Abdul Qadir, Adv., Mr. Ibad Mushtaq, Adv., Mr. Kauser Husain, Adv., Mr. Saurabh Shyam Shamshery, Adv., Mr. Anish Kumar Gupta, Adv., Mr. Chandra Shekhar Suman, Adv., Mr. Avdhesh Kumar Singh, Adv., Mr. Rajendra Kumar Singh, Adv., Ms. Rita Gupta, Adv., Ms. Deepshikha Bharati, Adv., Mr. Nisarg Chaudhary, Adv., Mr. Puneet Sheoran, Adv., Ms. Ruchi Kohli, AOR, Mr. Manoj Kumar, Adv., Ms. Shweta Bharti, Adv., Mr. Shantanu, Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 Code of Civil Procedure, be deemed to claim under the persons so litigating and are barred by Res Judicata in view of Explanation VI to Section 11 Code of Civil Procedure 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 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 judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and interest of both the communities. Shri Parasaran, during his 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocal point in the present case being Constitution Bench judgment in Dr. M. Ismail Faruqui and Ors. v. Union of India and 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 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 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. [See also Haryana Financial Corporation v. Jagadamba O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 v. Allied Air-conditioning Corporation (Regd.), (2006) 7 SCC 735 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aragraph 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: 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 vio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gral 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 v. 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 pursua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Ali and 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 acquis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch rights be deemed to claim under the person so litigating attracting the applicability of Explanation VI of Section 11, Code of Civil Procedure. He placed reliance on judgment of this Court in Ahmed Adam Sait and Ors. v. Inayathullah Mekhri and Ors., 1964 (2) SCR 647. In the above case, in suit Under Section 92, Code of Civil Procedure, a scheme had already been framed by Court of Competent Jurisdiction. Another suit was instituted Under Section 92 of Code of Civil Procedure 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 Section 92 binds all parties. The basis of this view is that a suit Under Section 92 is a representative suit and is brought with the necessary sanction required by it on behalf of all the beneficiaries interested in the Trust. The said Section authorises two or more persons having an interest in the Trust to file a suit for claiming one or more of the reliefs specified in Clauses (a) to (h) of Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Articles 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 Article 226 on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsequent 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 v. 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 Code of Civil Procedure 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 questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging 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 sufficie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22nd/23rd December, 1949. The case set up and the argument of some of the Hindu parties 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the relevant observation in this regard: 78. It appears from various decisions rendered by this Court, referred later, that subject to the protection Under Articles 25 and 26 of the Constitution, places of religious worship like mosques, churches, temples etc. can be acquired under the State's sovereign power of acquisition. Such acquisition per se does not violate either Article 25 or Article 26 of the Constitution. The decisions relating to taking over of the management have no bearing on the sovereign power of the State to acquire property. 82. While offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an essential or integral part thereof. Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of the religion, stand on a different footing and have to be treated differently and more reverentially. 81. There are references of judgments of Ismail Faruqui's case in various other places ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 judgment 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 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 cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 Swa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendered by this Court in Assn. for Democratic Reforms 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 Anr. v. State of Maharashtra and Anr. (2005) 2 SCC 673. Constitution Bench of this Court while noticing provisions of Supreme Court Rules, 1966 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. v. Union of India and 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 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 supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 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 v. Gangadhar and Ors. 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 que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taining to reference to larger Bench. 110. Similarly, in Syndicate Bank v. Prabha D. Naik and Anr. (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 v. 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 v. Bharat Sanchar Nigam Limited (2014) 3 SCC 304, where two Judge Bench has made a reference to a larger Bench. In Securities and Exchange Board of India v. Sahara India Real Estate Corporation Limited and Ors. (2014) 8 SCC 751, an earlier order passed by three Judge Bench was sought to be enforced, hence reference was made to a Three Judge Bench, which again was not a case for reference to a Constitution Bench of five Judges. Judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 observati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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? 126. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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) 128. 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. Irr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 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. 130. On the other hand, Shri Parasaran, learned senior Counsel submits that the questionable observations in Ismail Faruqui that a mosque not being an essential part of the practice of Islam have to be read in the context of the validity of the acquisition of the suit property under the 1993 Act. He submits that this Court has not ruled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 134. What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrine, tenets and beliefs of that religion itself. This has been laid down at page 1025 in Shirur Mutt: ...The learned Attorney-General lays stress upon Clause (2)(a) of the Article and his contention is that all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to State Regulation. The contention formulated in such broad terms cannot, we think, be supported. In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 137. In Sri Venkataramana Devaru and Ors. v. The State of Mysore and Ors. 1958 SCR 895, a Constitution Bench of this Court had the opportunity to consider Articles 25 and 26 of the Constitution of India in the context of Madras Temple Entry Authorisation Act, 1947 as amended in 1949. After referring to Shirur Mutt, this Court has held as under: 16(3).... Now, the precise connotation of the expression matters of religion came up for consideration by this Court in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [(1954) SCR 1005] and it was held therein that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances 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 are considered integral by the community itself. Though not conclusive, this is also one of the facets to be noticed. The practice in question is religious in character and whether it could be regarded as an integral and essential part of the religion and if the court finds upon evidence adduced before it that it is an integral or essential part of the religion, Article 25 accords protection to it.... (Emphasis supplied) 143. As mentioned above, parties have produced various texts in Islam in support of their respective contentions. For the present, we are concerned with the approach of the Court in concluding questionable observations without examining the doctrine, tenets and beliefs of the religion. The conclusion in paragraph 82 of Ismail Faruqui that A mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered anywhere, even in open has been arrived at without undertaking comprehensive examination. 144. Now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard. Thus, on the basis of Islamic tenets the Muslims claim that the property shall be construed as a Mosque. In this reference the controversy has already been set at rest by the Privy Council in the decision of Masjid Shahid Ganj v. Shiromani Gurudwara Prabandhak Committee, Amritsar AIR 1940 PC 116. The aforesaid view has been approved in Dr. M. Ismail Faruqui v. Union Of India, 1994 (6) SCC 360, Para 70 of the ruling is relevant which reads as under.... [Printed volume of the judgment at page Nos. 3061] Sri Jain has relied upon para 78 of Dr. M. Ismail Faruqui and Ors. v. Union of India and Ors. 1994(6) SCC 360, which is reproduced as under: While offer of prayer or worship is are religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an essential or integral part thereof. Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of the religion, stand on a different footing and have to be treated differently and move reverentia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court records in the Ismail Faruqui case above the contention in paragraph 1.2 of the White Paper of the Government of India as recorded in Paragraph 9, Page 380, of the said judgment. It reads as follows: 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. It is further very significant to note that the Muslims for the first time, after 1949, assert their right howsoever unsustainable, only in 18th December, 1961. Therefore, the right of the Hindus to worship at the Rama Janma Bhumi, continuing since times immemorial as an integral part of their religious right and faith was also sanctified by judicial orders from 1949 continuously. This right has concretised and remains an integral part of Hindu religion and has to be protected. [Printed volume of the judgment at page Nos. 3439] 146. Similarly, in the judgment rendered by Justice Sudhir Agarwal, Ismail Faruqui has been quoted at page No. 2015 in the printed volume of the judgment, which is as under: 3501. Sri Prasad argued that belief of Hindu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Hindus, this is a place of birth of lord Rama and that be so, there cannot be any other place for which such belief persists since time immemorial. Once this land is allowed to be lost due to the acts of persons other than Hindus, the very right of this Section of people, as protected by Article 25, shall stand destroyed. This is another reason for not attracting the provisions of limitation in the present case. 148. Similarly, Justice D.V. Sharma has stated thus: A SOVEREIGN GOVERNMENT EVEN BY EXERCISING THE POWER OF EMINENT DOMAN CANNOT EXERCISE THE POWER OF ACQUISITION OF LAND OR PROPERTY WHICH EXTINGUISHES THE CORE OF THE FAITH OR THE PLACE OR THE INSTITUTION WHICH IS HELD TO BE SACRED. What clearly follows is that a sovereign Government cannot extinguish the core of the Hindu religion which is the Ram Janambhumi, let alone the same be extinguished through a suit, by transferring the same to some other party in this case the Plaintiff thereby ensuring that the said fundamental right to worship at the Ram Janambhumi is extinguished forever. RELEVANT CASE LAW... (b) Dr. M. Ismail Faruqui and Ors. v. Union of India and Ors., 1994 (6) SCC Para 76, Page 416 - Achar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irth 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 service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 3. In M. Ismail Faruqui (Dr.) v. Union of India (supra) the Hon'ble Supreme Court held that a mosque is not an essential part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered any where even in open. The Right to Worship is not at any and every place so long as it can be practised effective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... syar as they are unconstitutional. Various grounds have been urged in support of the stand as to how these practices, which come within the domain of personal law, are not immune from judicial review under the Constitution. It is urged by them that the majority opinion of the Constitution Bench in the case of Shayara Bano etc. v. Union of India and Ors. etc. (2017) 9 SCC 1 has not dealt with these aspects. They have drawn our attention to various paragraphs of the judgment to buttress the point that the said issues have not been really addressed as there has been no delineation on these aspects. On a perusal of the judgment, we find the submission of the learned Counsel for the Parties/Petitioners is correct that these concepts have not been decided by the Constitution Bench. xxx xxx xxx xxx xxx xxx At this juncture, a submission has been advanced at the Bar that keeping in view the importance of the issue, the matter should be placed before the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue in its entirety from all perspectives. In view of the aforesaid, we are of the view that the matter should be placed before a larger Bench. The Registry is directed to place the papers of the instant matter before the Hon'ble Chief Justice of India for obtaining appropriate directions in this regard. (Emphasis supplied) 154. Considering 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 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 Article 25, only protect belief and practices of particular significance of a 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? 155. The Registry is directed to place this matter before the Hon'ble Chief Justice of India for appropriate orders. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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