# M. SIDDIQ (D) THR. LRS v. MAHANT SURESH DAS AND OTHERS ETC

- **Citation:** [2018] 11 S.C.R. 175
- **Court:** Supreme Court of India
- **Decided:** 2018-09-27
- **Case number:** Civil Appeal Nos. 10866-10867 of 2010
- **Bench:** Dipak Misra, Ashok Bhushan, S. Abdul Nazeer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-siddiq-d-thr-lrs-v-mahant-suresh-das-and-others-etc-32246
- **Pages:** 100

## Headnote

Reference to Larger Bench : Whether Dr. M. Ismail Faruqui
and Ors. v. Union of India reported in [1994] 5 Suppl. SCR 1 needs
reconsideration - In Para 82 of Ismail Faruqui case, the
Constitutional Bench observed "A mosque is not an essential part
of the practice of the religion of Islam and namaz (prayer) by
Muslims can be offered anywhere, even in open." - Held: Majority
opinion (Per Ashok Bhushan, J. [for himself and Dipak Misra, CJI.]),
the statement that a mosque is not an essential part of the practice
of religion of Islam was in context of issue as to whether the mosque,
which was acquired by Act of 1993 had immunity from acquisition
- Constitution Bench had held that while offer of prayer or worship
is a religious practice, its offering at every location where such
prayers can be offered would not be an essential or integral part of
such religious practice unless the place has a particular significance
for that religion so as to form an essential or integral part thereof -
What Court meant was that unless the place of offering of prayer
has a particular significance so that any hindrance to worship may
violate right under Arts.25 and 26, any hindrance to offering of
prayer at any place shall not affect rights under Arts.25 and 26 -
The phrase "particular significance" was used by the Constitution
Bench only in context of immunity from acquisition - No case was
made out to refer the Constitution Bench judgment in Ismail Faruqui
case for reconsideration - (Per S. Abdul Nazeer, J.) (Dissenting)
The questionable observations in Ismail Faruqui case certainly
permeated the impugned judgment - Thus, the impugned judgment
can be claimed to be both expressly and inherently affected by the
questionable observations made in Ismail Faruqui - Further, Ismail
Faruqui prima facie leads a different approach regarding the
application of essential and/or integral test which also needs to be
resolved as a matter of constitutional significance - Ismail Faruqui
[2018] 11 S.C.R. 175
175
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needs to be brought in line with the authoritative pronouncements
in Shirur Mutt and other decisions - In view of constitutional
importance and significance of the issues involved, the following
questions referred to a larger Bench: (a) Whether in the light of
Shirur Mutt and other aforementioned cases, an essential practice
can be decided without a detailed examination of the beliefs, tenets
and practice of the faith in question (b) Whether the test for
determining the essential practice is both essentiality and integrality
(c) Does Art.25, only protect belief and practices of particular
significance of a faith or all practices regarded by the faith as
essential (d) Do Arts.15, 25 and 26 (read with Art.14) allow the
comparative significance of faiths to be undertaken - Religious
institutions - Constitution of India - Arts.25 and 26 - Acquisition
of Certain Area at Ayodhya Act, 1993.
Acquisition of Certain Area at Ayodhya Act, 1993 - Plea of
res judicata - The issues which have been framed in the suits giving
rise to these appeals were different issues which cannot be said to
be directly and substantially in issue in Ismail Faruqui's case -
Non-fulfilment of this condition itself is sufficient to reject the plea
of res judicata.
While issuing directions for further listing, the Court
HELD:
Per Ashok Bhushan, J. (for himself and Dipak Misra, CJI.)
1. The statement "a mosque is not essential part of the
practice of religion....." in Ismail Faruqui case was a statement
which was made by the Constitution Bench in specific context
and reference. Whether every mosque is the essential part of
the practice of religion of Islam, acquisition of which ipso facto
may violate the rights under Articles 25 and 26, was the question
which had cropped up for consideration before the Constitution
Bench. The Court in Ismail Faruqui case held that if the place
where offering of namaz is a place of particular si

## Text

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M. SIDDIQ (D) THR. LRS.
v.
MAHANT SURESH DAS AND OTHERS ETC.
(Civil Appeal Nos. 10866-10867 of 2010)
SEPTEMBER 27, 2018
[DIPAK MISRA, CJI, ASHOK BHUSHAN AND
S. ABDUL NAZEER, JJ.]
Reference to Larger Bench : Whether Dr. M. Ismail Faruqui
and Ors. v. Union of India reported in [1994] 5 Suppl. SCR 1 needs
reconsideration - In Para 82 of Ismail Faruqui case, the
Constitutional Bench observed "A mosque is not an essential part
of the practice of the religion of Islam and namaz (prayer) by
Muslims can be offered anywhere, even in open." - Held: Majority
opinion (Per Ashok Bhushan, J. [for himself and Dipak Misra, CJI.]),
the statement that a mosque is not an essential part of the practice
of religion of Islam was in context of issue as to whether the mosque,
which was acquired by Act of 1993 had immunity from acquisition
- Constitution Bench had held that while offer of prayer or worship
is a religious practice, its offering at every location where such
prayers can be offered would not be an essential or integral part of
such religious practice unless the place has a particular significance
for that religion so as to form an essential or integral part thereof -
What Court meant was that unless the place of offering of prayer
has a particular significance so that any hindrance to worship may
violate right under Arts.25 and 26, any hindrance to offering of
prayer at any place shall not affect rights under Arts.25 and 26 -
The phrase "particular significance" was used by the Constitution
Bench only in context of immunity from acquisition - No case was
made out to refer the Constitution Bench judgment in Ismail Faruqui
case for reconsideration - (Per S. Abdul Nazeer, J.) (Dissenting)
The questionable observations in Ismail Faruqui case certainly
permeated the impugned judgment - Thus, the impugned judgment
can be claimed to be both expressly and inherently affected by the
questionable observations made in Ismail Faruqui - Further, Ismail
Faruqui prima facie leads a different approach regarding the
application of essential and/or integral test which also needs to be
resolved as a matter of constitutional significance - Ismail Faruqui
[2018] 11 S.C.R. 175
175
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[2018] 11 S.C.R.
needs to be brought in line with the authoritative pronouncements
in Shirur Mutt and other decisions - In view of constitutional
importance and significance of the issues involved, the following
questions referred to a larger Bench: (a) Whether in the light of
Shirur Mutt and other aforementioned cases, an essential practice
can be decided without a detailed examination of the beliefs, tenets
and practice of the faith in question (b) Whether the test for
determining the essential practice is both essentiality and integrality
(c) Does Art.25, only protect belief and practices of particular
significance of a faith or all practices regarded by the faith as
essential (d) Do Arts.15, 25 and 26 (read with Art.14) allow the
comparative significance of faiths to be undertaken - Religious
institutions - Constitution of India - Arts.25 and 26 - Acquisition
of Certain Area at Ayodhya Act, 1993.
Acquisition of Certain Area at Ayodhya Act, 1993 - Plea of
res judicata - The issues which have been framed in the suits giving
rise to these appeals were different issues which cannot be said to
be directly and substantially in issue in Ismail Faruqui's case -
Non-fulfilment of this condition itself is sufficient to reject the plea
of res judicata.
While issuing directions for further listing, the Court
HELD:
Per Ashok Bhushan, J. (for himself and Dipak Misra, CJI.)
1. The statement "a mosque is not essential part of the
practice of religion....." in Ismail Faruqui case was a statement
which was made by the Constitution Bench in specific context
and reference. Whether every mosque is the essential part of
the practice of religion of Islam, acquisition of which ipso facto
may violate the rights under Articles 25 and 26, was the question
which had cropped up for consideration before the Constitution
Bench. The Court in Ismail Faruqui case held that if the place
where offering of namaz is a place of particular significance,
acquisition of which may lead to the extinction of the right to
practice of the religion, only in that condition the acquisition is
not permissible and subject to this condition, the power of
acquisition is available for a mosque like any other place of
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worship of any religion. The sentence "A mosque is not essential
part of the practice of the religion of Islam and namaz (prayer) by
Muslims can be offered anywhere, even in open" is followed
immediately by the next sentence that is "Accordingly, its
acquisition is not prohibited by the provisions in the Constitution
of India" which makes it amply clear that the said sentence was
confined to the question of immunity from acquisition of a mosque
which was canvassed before the Court. First sentence cannot be
read divorced from the second sentence which immediately
followed the first sentence. [Paras 54, 56, 58, 59][215-G-H; 216A-B, G-H; 217-A, C-D]
2. "Comparative significance" & "Particular significance".
2.1 The Constitution Bench held that if a particular place is
of such significance for that religion that worship at such place is
an essential religious practice and the extinction of such place
may breach their right of Article 25, the acquisition of such place
is not permissible. A place of particular significance has been
noticed by the Constitution Bench in that context. When
acquisition of such place results in extinction of the right to
practice the religion, there is violation of Article 25, which was
an exception laid by the Constitution Bench while laying down
general proposition that acquisition of all places of worship is
permissible. Thus, no exception can be taken to the Constitution
Bench having used expression 'place of particular significance'
for carving out an exception to the general power of acquisition
of the State of religious places like church, mosque and temple
or gurudwara. The above exception carved out by the Constitution
Bench is to protect the constitutional right guaranteed under
Article 25. [Para 61][218-G-H; 219-A-B]
2.2 'Particular significance' of place of birth of Lord Rama:
The phrase "particular significance" was used by the Constitution
Bench only in context of immunity from acquisition. It is another
matter that the place of birth of Lord Rama is referred as sacred
place for Hindu community, which has been pleaded throughout.
In any view of the matter acquisition under Act, 1993 having been
upheld, the use of expression "particular significance" loses all
its significance for decision of the suits and the appeals. [Para
62][219-D-E]
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC.
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3. RES-JUDICATA: The issues which were involved in
Ismail Faruqui's case were validity of Acquisition of Certain Area
at Ayodhya Act, 1993. One of the issues which was taken up by
Ismail Faruqui's case was as to whether by virtue of Section 4
sub-section (3) of Act, 1993, suits pending in Allahabad High Court
stood abated. The Presidential Reference No.1 of 1993 was also
heard along with the writ petitions and transferred cases. The
issues which have been framed in the suits giving rise to these
appeals are different issues which cannot be said to be directly
and substantially in issue in Ismail Faruqui's case. Non-fulfilment
of this condition itself is sufficient to reject the plea of res judicata.
Suits which were pending in the High Court were never
transferred to be heard alongwith Presidential Reference and writ
petition filed under Article 32. This Court had only stayed the
hearing of preliminary issue framed by the High Court as to
whether the suits have abated or survive. In Special Reference
No. 1 of 1993, individual notices were issued to the parties to the
proceeding which stood abated by virtue of Section 4(3) of the
Ordinance but mere issuance of notice when the suits were not
transferred by this Court to be heard alongwith Presidential
Reference is not sufficient to conclude that the judgment of Ismail
Faruqui should be treated as part of judgment in suits. Thus,
judgment of Ismail Faruqui is not part of the judgment in the suit
itself. [Paras 72, 75][225-B-C; 226-F-H; 227-A]
Ahmed Adam Sait & others v. Inayathullah Mekhri &
others [1964] 2 SCR 647; Gulabchand Chhotalal
Parikh v. State of Gujarat AIR 1965 SC 1153 :
[1965] SCR 547; Daryao and others v. State of U.P. &
others AIR 1961 SC 1457: [1962] SCR 574; Sheodan
Singh v. Daryao Kunwar AIR 1966 SC 1332:
[1966] SCR 300; Sajjadanashin Sayed v. Musa
Dadabhai Ummer (2000) 3 SCC 350: [2000]
1 SCR1095; Mahila Bajrangi(dead) through Lrs. v.
Badribai w/o Jagannath and another (2003) 2 SCC
464:[2002] 5 Suppl. SCR 557; Union of India & Others
versus Dr. M. Ismail Faruqui and others (1994) 1 SCC
265 - referred to.
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4. Reliance on the judgment of Ismail Faruqui
Article 145(3) of the Constitution provides that minimum
number of judges, who are to sit for purpose of deciding any case
involving a substantial question of law as to the interpretation of
the Constitution or for the purpose of hearing any reference under
Article 143 shall be five. As per proviso, the reference to a bench
of five judges can be made by judges sitting in lesser strength
than five judges while hearing an appeal, on fulfilment of following
two conditions:- The Court is satisfied that the appeal involves a
substantial question of law as to the interpretation of this
Constitution; The determination of which is necessary for the
disposal of the appeal. The proviso to Article 145(3) thus, clearly
indicate that on fulfilment of both the conditions, a bench of smaller
strength than five judges can make a reference of a case to be
heard by a Bench strength of five judges. [Paras 98-100][237-EF; 238-A-C]
Shayara Bano etc. v. Union of India & Ors. etc. (2017)
9 SCC 1 : [2017] 7 SCR 797; Hyderabad Industries
Ltd. And Another v. Union of India And Others (1995)
5 SCC 338 : [1995] 2 Suppl. SCR 287; Khandelwal
Metal and Engineering Works and Another v. Union
of India and Others (1985) 3 SCC 620 : [1985] 1 Suppl.
 SCR 750; S.S. Rathore v. State of M.P. (1988) Supp.
SCC 522; Sita Ram Goel v. Municipal Board, Kanpur
and Others AIR 1958 SC 1036 : [1959] SCR 1148;
Ashwani Kumar and Others v. State of Bihar and Others
(1996) 7 SCC 577 : [1995] 5 Suppl. SCR 367;
Balasaria Construction (P) Ltd. v. Hanuman Seva Trust
and Others (2006) 5 SCC 662; Acchan Rizvi (I) v. State
of U.P. and Others (1994) 6 SCC 751; Acchan Rizvi
(II) v. State of U.P. and Others (1994) 6 SCC 752; Mohd.
Aslam alias Bhure v. Union of India and Others (2003)
2 SCC 576; Mohd. Aslam alias Bhure v. Union of India
and Others (2003) 4 SCC 1 : [2003] 3 SCR 143; Vinod
Kumar Shantilal Gosalia v. Gangadhar and Others
(1980) Supp. SCC 340; Ram Jethmalani v. Union of
India (1984) 3 SCC 696 : [1984] 3 SCR 926; Krishan
Kumar v. Union of India and Others (1989) 2 SCC 504;
Union of India v. M. Gopalakrishnaiah (1995) Supp. 4
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC.
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SCC 81; Delhi Transport Corporation v. D.T.C.
Mazdoor Congress and Others (1991) Supp 1 SCC 600
: [1990] 1 Suppl. SCR 142; Central Inland Water
Transport Corporation Limited and Another v. Brojo
Nath Ganguly and Another (1986) 3 SCC 156 : [1986]
2 SCR 278; Syndicate Bank v. Prabha D. Naik and
Another (2002) 10 SCC 686; Charanjeet Singh v.
Raveendra Kaur, (2008) 17 SCC 650; Telecom
Regulatory Authority of India v. Bharat Sanchar Nigam
Limited (2014) 3 SCC 304; Securities and Exchange
Board of India v. Sahara India Real Estate Corporation
Limited and Others (2014) 8 SCC 751; Rajeev Dhavan
v. Gulshan Kumar Mahajan and Others (2014) 12 SCC
618: [2014] 8 SCR 930; Vivek Narayan Sharma v.
Union of India (2017) 1 SCC 388 : [2016] 7 SCR 798
- Held inapplicable.
Abdul Rahim Ismail C. Rahimtoola v. State of Bombay
AIR 1959 SC 1315 : [1960] SCR 285; Ebrahim Vazir
Mavat v. State of Bombay and others AIR 1954 SC 229
: [1954] SCR 933; Bhagwan Swarup Lal Bishan Lal v.
State of Maharashtra AIR 1965 SC 682 : [1964] SCR
378 ; People's Union for Civil Liberties (PUCL) and
Another v. Union of India and Another (2003) 4 SCC
399 : [2003] 2 SCR 1136; Union of India v. Association
for Democratic Reforms and Another (2002) 5 SCC 294
- (A Three Judge Bench Judgment); Central Board
of Dawoodi Bohra Community and Another v. State of
Maharashtra and Another (2005) 2 SCC 673;
26.03.2018 in W.P. (C) No. 222 of 2018 - Sameena
Begum v. Union of India & Ors. - referred to.
5.1 Present is a case where appeals have been filed against
judgment dated 30.09.2010 of Allahabad High Court by which
Four Original Suits, which were transferred by the High Court to
itself have been decided. Four Civil Suits were filed claiming
title to the disputed structure. Parties led elaborate evidences
running in several thousands pages. The Court, after marshalling
the evidences before it has decided the Civil Suits giving rise to
these appeals. The issues, which aose in these appeals were no
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doubt important issues, which were to be heard and decided in
these appeals. Normally appeals arising out of suits are placed
before a Bench of Two Judges but looking to the importance of
the matter, the instant appeals were already placed before three
Judge Bench. For the said reasons, these appeals are not
required to be referred to Constitution Bench of Five Judges for
reconsidering Ismail Faruqui's case. [Para 112][245-E-H]
5.2 The observations made in Ismail Faruqui's case were
made in context of land acquisition. Those observations were
neither relevant for deciding the suits nor relevant for deciding
these appeals. No case is made out to refer the Constitution
Bench judgment of this Court in Ismail Faruqui case for
reconsideration. [Para 119, 120][248-C-D]
Dr. M. Ismail Faruqui and Ors. v. Union of India and
Ors. (1994) 6 SCC 360 : [1994] 5 Suppl. SCR 1; The
Commissioner, Hindu Religious Endowments, Madras
v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,
[1954] SCR 1005; Quinn v. Leathem 1901 AC 495;
Sarva Shramik Sanghatana (KV), Mumbai v. State of
Maharashtra and others (2008) 1 SCC 494 : [2007]
12 SCR 645; Islamic Academy of Education and
another v. State of Karnataka and others (2003) 6 SCC
697 : [2003] 2 Suppl. SCR 474; Commissioner of
Central Excise, Delhi v. Allied Air-conditioning
Corporation (Regd.) (2006) 7 SCC 735 : [2006] 6
Suppl. SCR 41; Ratilal Panachand Gandhi and Others
v. State of Bombay and Others AIR 1954 SC 388: [1954]
SCR 1035; Sri Jagannath Ramanuj Das and Another
v. State of Orissa and Another AIR 1954 SC 400 : [1954]
SCR 1046; Sri Venkataramana Devaru and Others v.
State of Mysore and Others AIR 1958 SC 255 : [1958]
SCR 895; Mohd. Hanif Quareshi and Others v. State
of Bihar AIR 1958 SC 731 : [1959] SCR 629; Sardar
Syedna Taher Saifuddin Saheb v. State of Bombay, AIR
1962 SC 853 : [1962] Suppl. SCR 496; Tikayat Shri
Govindlalji Maharaj etc. v. State of Rajasthan and
Others AIR 1963 SC 1638 : [1964] SCR 561 - referred
to.
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC.
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Per S. Abdul Nazeer, J. (Partly dissenting)
1.1 The question as to whether a particular religious practice
is an essential or integral part of the religion is a question which
is to be considered by considering the doctrine, tenets and beliefs
of the religion. The examination of what constitutes an essential
practice requires detailed examination. The conclusion in Ismail
Faruqui that "A mosque is not an essential part of the practice of
the religion of Islam and namaz (prayer) by Muslims can be offered
anywhere, even in open" has been arrived at without undertaking
comprehensive examination. [Paras 19, 21][258-C-D; 259-A]
Sri Adi Visheshwara of Kashi Vishwanath Temple,
Varanasi and Ors. v. State of U.P. and Ors. (1997) 4
SCC 606 : [1997] 2 SCR 1086 - referred to.
1.2 The questionable observations in Ismail Faruqui case
have certainly permeated the impugned judgment. Thus, the
impugned judgment can be claimed to be both expressly and
inherently affected by the questionable observations made in
Ismail Faruqui. Further, Ismail Faruqui prima facie leads a
different approach regarding the application of essential and/or
integral test which also needs to be resolved as a matter of
constitutional significance. Ismail Faruqui needs to be brought
in line with the authoritative pronouncements in Shirur Mutt and
other decisions referred to in paragraphs 14 to 18 and 20 of this
judgment.[Para 27][270-G-H; 270-A]
Sameena Begum v. Union of India & Ors. W.P. (C) No.
222 of 2018; Jyoti Jagran Mandal v. NDMC & Anr.
[Civil Appeal No. 5820 of 2018]; Sunita Tiwari v. Union
of India & Ors. [Writ Petition (Civil) No. 286 of 2017]
- relied on.
2. In view of the constitutional importance and significance
of the issues involved, the following need to be referred to a
larger Bench: (a) Whether in the light of Shirur Mutt and other
cases, an essential practice can be decided without a detailed
examination of the beliefs, tenets and practice of the faith in
question? (b) Whether the test for determining the essential
practice is both essentiality and integrality? (c) Does Article 25,
only protect belief and practices of particular significance of a
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faith or all practices regarded by the faith as essential? (d) Do
Articles 15, 25 and 26 (read with Article 14) allow the comparative
significance of faiths to be undertaken? [Para 32][293-F-H; 274A-B]
Commissioner, Hindu Religious Endowments, Madras
v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt
[1954] SCR 1005; Ratilal Panachand Gandhi and
Others v. State of Bombay and Others [1954] SCR 1035;
Sri Venkataramana Devaru and Others v. State of
Mysore and Others [1958] SCR 895; The Durgah
Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors.
(1962) 1 SCR 383; Sardar Syedna Taher Saifuddin
Saheb v. State of Bombay [1962] Suppl. SCR 496;
Tikayat Shri Govindlalji Maharaj etc. v. State of
Rajasthan and Others [1964] SCR 561 - relied on.
Dr. M. Ismail Faruqui and Ors. v. Union of India and
Ors. (1994) 6 SCC 360 : [1994] 5 Suppl. SCR 1 -
referred to.
Case Law Reference
In the Judgment of Ashok Bhushan, J.
[1994] 5 Suppl. SCR 1
 referred to
Para 1
[2003] 3 SCR 143
 referred to
Para 7
[1954] SCR 1005
 referred to
Para 11
[1994] 5 Suppl. SCR 1
 referred to
Para 22
1901 AC 495
 referred to
Para 22
[2007] 12 SCR 645
 referred to
Para 23
[2003] 2 Suppl. SCR 474
 referred to
Para 24
[2006] 6 Suppl. SCR 41
 referred to
Para 26
[1954] SCR 1005
 referred to
Para 45
[1954] SCR 1035
 referred to
Para 48
[1954] SCR 1046
 referred to
Para 49
[1958] SCR 895
 referred to
Para 49
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC.
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[1959] SCR 629
referred to
Para 50
[1962] Suppl. SCR 496
referred to
Para 51
[1964] SCR 561
referred to
Para 52
[1964] 2 SCR 647
referred to
Para 65
[1965] SCR 547
referred to
Para 66
[1962] SCR 574
referred to
Para 67
[1966] SCR 300
referred to
Para 68
[2000] 1 SCR 1095
referred to
Para 69
[2002] 5 Suppl. SCR 557
referred to
Para 70
(1994) 1 SCC 265
referred to
Para 74
[1960] SCR 285
referred to
Para 100
[1954] SCR 933
referred to
Para 100
[1964] SCR 378
referred to
Para 101
[2003] 2 SCR 1136
referred to
Para 102
(2002) 5 SCC 294
referred to
Para 102
(2005) 2 SCC 673
referred to
Para 103
[2017] 7 SCR 797
referred to
Para 104
[1995] 2 Suppl. SCR 287
held inapplicable
Para 106
[1985] 1 Suppl. SCR 750
held inapplicable
Para 106
(1988) Supp. SCC 522
held inapplicable
Para 106
[1959] SCR 1148
held inapplicable
Para 106
[1995] 5 Suppl. SCR 367 held inapplicable
Para 106
(2006) 5 SCC 662
held inapplicable
Para 106
(1994) 6 SCC 751
held inapplicable
Para 106
(1994) 6 SCC 752
held inapplicable
Para 106
(2003) 2 SCC 576
held inapplicable
Para 106
[2003] 3 SCR 143
held inapplicable
Para 106
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(1980) Supp. SCC 340
held inapplicable
Para 107
[1984] 3 SCR 926
held inapplicable
Para 108
(1989) 2 SCC 504
held inapplicable
Para 109
(1995) Supp. 4 SCC 81
held inapplicable
Para 109
[1990] 1 Suppl. SCR 142
held inapplicable
Para 109
[1986] 2 SCR 278
held inapplicable
Para 109
(2002) 10 SCC 686
held inapplicable
Para 110
(2008) 17 SCC 650
held inapplicable
Para 110
(2014) 3 SCC 304
held inapplicable
Para 110
(2014) 8 SCC 751
held inapplicable
Para 110
[2014] 8 SCR 930
held inapplicable
Para 110
[2016] 7 SCR 798
held inapplicable
Para 110
In the Judgment of S. Abdul Nazeer, J.
[1994] 5 Suppl. SCR 1
referred to
Para 1
[1954] SCR 1005
relied on
Para 7
[1954] SCR 1035
relied on
Para 14
[1958] SCR 895
relied on
Para 15
[1962] 1 SCR 383
relied on
Para 16
[1962] Suppl. SCR 496
relied on
Para 17
[1964] SCR 561
relied on
Para 18
[1997] 2 SCR 1086
referred to
Para 20
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1086610867 of 2010.
From the Judgment and Order dated 30.09.2010 of the High Court
of Judicature at Allahabad, Lucknow Bench, Lucknow in O.O.S.
No.4/1989 (Regular Suit No.12 of 1961) and O.O.S. No.5/1989 (Regular
Suit No.236 of 1989).
WITH
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
OTHERS ETC.
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Civil Appeal Nos. 4768-4771, 2636, 821, 4739, 4905-4908, 2215,
4740, 2894, 6965, 4192, 5498, 7226, 8096 of 2011 and Diary No. 22744
of 2017.
Maninder Singh, Tushar Mehta, ASGs, Madan Mohan Pandey,
Ms. Aishwarya Bhati, AAGs, Dr. Rajeev Dhavan, Raju Ramachandran,
C.S. Vaidyanathan, Aman Sinha, Raghvendra Singh, Sushil Kumar Jain,
Hari Nath, S.P. Singh, Sr. Advs., Ejaz Maqbool, Shahid Nadeem Ansari,
Ms. Avani Bansal, C. George Thomas, Ms. Akriti Chaubey,
Ms. Qurrantulain, Ms. Tanya Shree, Kunwar Aditya Singh, Wasif Rahman
Khan, Ishwar Mohanty, Ms. Hamsini Shankar, Zarin Maqbool,
Ms. Priyanshi Jaiswal, Zafaryab Jilani, S.S. Shamshery, P.K. Singh, Ms.
Aditi, Anirudh Sharma, Amit Sharma, Sandeep Singh, Pranav Kumar,
Ashish Kumar Upadhyay, Bhuvan Jayant, Y. Lokesh, P.V. Yogeswaran,
Syed Shahid Hussain Rizvi, M.T. Khan, S. Mansoor Ali, Zeeshan Rizvi,
Mujeebudheen Jehan, Rashid Saeed, M. R. Shamshad, Nizampasha,
Aditya Samaddar, Zaki Ahmad Khan, Shakil Ahmed Syed, Mohd. Parvez
Dabas, Uzmi Jameel Husain, Daanish Ahmad Syed, Mohd. Shakim,
Mujeebuddin Khan, Niaz Ahmad Farooqui, Pulkit Chandna, Milan Laskar,
Ms. Kanika Chauhan, Haaris Osmani, D. Bharat Kumar, Yash Mishra,
Ankit Raj, Ms. Indira Bhakhar, Rajesh Singh, Vineet Pandey, Santosh
Kumar, T. Bhaskar Gowtham, Ms. Ruchi Kohli, Ms. Ranjana Agnihotri,
Ms. Mamta Tewari, Ms. Sukanya Basu, M/s Fox Mandal & Co.,
Ms. Pratibha Jain, Irshad Ahmad, R.C. Gubrele, Vishnu Shankar Jain,
M.C. Dhingra, R. Balasubramanian, Nalin Kohli, Prabhas Bajaj,
Ms. Aarti Sharma, B.V. Balramdas, Kamlendra Mishra, Sanjay Kumar
Tyagi, Rajeev Kumar Dubey, Aviral Saxena, Ms. Vaidruti Mishra, Puneet
Jain, Ms. Christi Jain, Tarunjeet Verma, Ranjeet Lal Verma, Ms. Priyal
Jain, Shailendra Sharma, Ram Sewak Tripathi, Mukesh Verma, Pawan
Kumar Shukla, Yash Pal Dhingra, Rounak Parekh, Sudhakar Dwivedi,
A. Deb Kumar, Ms. A. Deepa, Ambuj Ojha, Vidit Shrivastav, Syed Mehdi
Imam, Atif Suhrawardy, Tabrez Ahmad, Ms. Shamama Anis,
Moh. Noorullah, M. Tayyab, Mohd. Aamir Dabas, Vidyottama,
Sai Deepak, Ravindra Lokhande, Harshit Kaushik, Abhishek Atrey,
Avdhesh Kumar Singh, Chandra Shekhar Suman, Puneet Sheoran,
Ms. Rita Gupta, Ms. Deepshikha Bharati, Ms. Harsha, Vikas Singh
Jangra, Fuzail Ahmad Ayyubi, Ibad Mushtaq, Ikauser Husain, Bhakti
Vardhan Singh, Sarthak Nayak, Shridhar Pottaraju, Ms. Ankita Sharma,
Prakash Gautam, Amit Kumar Pathak, Tushar Thareja, Sayooj
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Mohandas, Acharya Santosh Prasad Chaurasia, Acharya Santosh
Pandey, Ms. Sucheta Joshi, Bharat Sood, R.K. Rajvanshi, Harshardhan
Singh Rathore, Nachiketa Joshi, Barun Kumar Sinha, Birender
Choudhary, Arun Kumar, Ms. Pratibha Singh, Aditya Sharma, B.K. Satija,
Karunesh Kumar Shukla, Virender Chaubey, Amit Pawan, Awdesh
Chaubey, Virendra Chaubey, Awadhesh Kumar, Gopal Jha, Shantanu,
Anil Kumar, Sukrit R. Kapoor, Bhavanishankar V. Gadnis, Ashok
Shrivastava, Vishwanath Gadnis, Ms. Swarupama Chaturvedi,
B.N. Dubey, Ms. Devika Gulati, Kumar Gaurav, Robin Khokhar,
Md. Shahid Anwar, Shakil Ahmed Syed, Mohd. Irshad Manif, Ajit Singh
Pundir, Lakshmi Raman Singh, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. (For self & Dipak Misra, CJI.)
1. These appeals were fixed for commencement of final arguments
on 05.12.2017, when Dr. Rajeev Dhavan, learned senior counsel appearing
for the appellants (C.A. No. 10866-10867 of 2010 and C.A. No. 2215 of
2011) submitted that the Constitution Bench Judgment of this Court in
Dr. M. Ismail Faruqui and Ors. Vs. Union of India and Ors., (1994)
6 SCC 360 (hereinafter referred to as "Ismail Faruqui's case") needs
reconsideration, hence the reference be made to a larger Bench. The
above submission of Dr. Dhavan was opposed by learned counsel
appearing for the respondents. After completion of the pleadings, when
matter was again taken on 14.03.2018, we thought it appropriate that
we should hear Dr. Dhavan as to whether the judgment in Ismail
Faruqui's case requires reconsideration.
2. We have heard Dr. Rajeev Dhavan, learned senior counsel for
the appellants, Shri K. Parasaran and Shri C.S. Vaidyanathan, learned
senior counsel for the respondents in Civil Appeal Nos. 4768-4771 of
2011, Shri Tushar Mehta, learned Additional Solicitor General has
appeared for the State of U.P. We have also heard Shri P.N. Mishra,
Shri S.K. Jain and several other learned counsels. Shri Raju
Ramachandran, learned senior counsel has also addressed submissions
supporting the reference to larger Bench. Learned counsel for the parties
have given their notes of submissions.
3. Before we notice the respective submissions of learned counsel
for the parties, we need to notice few facts, leading to the Constitution
Bench decision in Ismail Faruqui's case. The sequence of events
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which lead filing of these appeals be also noticed. The Constitution
Bench in Ismail Faruqui's case has extracted few facts from White
Paper, which was published by Central Government. In Para 5 and 6 of
the judgment, the Constitution Bench noticed:-
"5. The 'Overview' at the commencement of the White Paper in
Chapter I states thus:
"1.1 Ayodhya situated in the north of India is a township in
District Faizabad of Uttar Pradesh. It has long been a place of
holy pilgrimage because of its mention in the epic Ramayana
as the place of birth of Sri Ram. The structure commonly
known as Ram Janma Bhoomi-Babri Masjid was erected as a
mosque by one Mir Baqi in Ayodhya in 1528 AD. It is claimed
by some sections that it was built at the site believed to be the
birthspot of Sri Ram where a temple had stood earlier. This
resulted in a long-standing dispute.
1.2 The controversy entered a new phase with the placing of
idols in the disputed structure in December 1949. The premises
were attached under Section 145 of the Code of Criminal
Procedure. Civil suits were filed shortly thereafter. Interim
orders in these civil suits restrained the parties from removing
the idols or interfering with their worship. In effect, therefore,
from December 1949 till 6-12-1992 the structure had not been
used as a mosque."
6. The movement to construct a Ram Temple at the site of the
disputed structure gathered momentum in recent years which
became a matter of great controversy and a source of tension.
This led to several parleys the details of which are not very material
for the present purpose. These parleys involving the Vishwa Hindu
Parishad (VHP) and the All India Babri Masjid Action Committee
(AIBMAC), however, failed to resolve the dispute. A new
dimension was added to the campaign for construction of the
temple with the formation of the Government in Uttar Pradesh in
June 1991 by the Bhartiya Janata Party (BJP) which declared its
commitment to the construction of the temple and took certain
steps like the acquisition of land adjoining the disputed structure
while leaving out the disputed structure itself from the acquisition.
The focus of the temple construction movement from October
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1991 was to start construction of the temple by way of kar sewa
on the land acquired by the Government of Uttar Pradesh while
leaving the disputed structure intact. This attempt did not succeed
and there was litigation in the Allahabad High Court as well as in
this Court. There was a call for resumption of kar sewa from 612-1992 and the announcement made by the organisers was for a
symbolic kar sewa without violation of the court orders including
those made in the proceedings pending in this Court. In spite of
initial reports from Ayodhya on 6-12-1992 indicating an air of
normalcy, around midday a crowd addressed by leaders of BJP,
VHP, etc., climbed the Ram Janma Bhumi-Babri Masjid (RJMBM) 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-hundredyear-old structure which was defenceless and whose safety was
a sacred trust in the hands of the State Government was
demolished."
4. The Constitution Bench has noticed details of suits, which were
filed in the year 1950 and thereafter, which suits were ultimately
transferred to the Allahabad High Court to be heard together in the year
1989. In Para 9 of the judgment, following has been noticed:-
"9. A brief reference to certain suits in this connection may now
be made. In 1950, two suits were filed by some Hindus; in one of
these suits in January 1950, the trial court passed interim orders
whereby the idols remained at the place where they were installed
in December 1949 and their puja by the Hindus continued. The
interim order was confirmed by the High Court in April 1955. On
1-2-1986, the District Judge ordered the opening of the lock placed
on a grill leading to the sanctum sanctorum of the shrine in the
disputed structure and permitted puja by the Hindu devotees. In
1959, a suit was filed by the Nirmohi Akhara claiming title to the
disputed structure. In 1981, another suit was filed claiming title to
the disputed structure by the Sunni Central Wakf Board. In 1989,
Deoki Nandan Agarwal, as the next friend of the Deity filed a
title suit in respect of the disputed structure. In 1989, the
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
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aforementioned suits were transferred to the Allahabad High Court
and were ordered to be heard together. On 14-8-1989, the High
Court ordered the maintenance of status quo in respect of the
disputed structure (Appendix-I to the White Paper). As earlier
mentioned, it is stated in para 1.2 of the White Paper that:
"... interim orders in these civil suits restrained the parties
from removing the idols or interfering with their worship. In
effect, therefore, from December 1949 till 6-12-1992 the
structure had not been used as a mosque."
5. As a result of the happenings at Ayodhya on 06.12.1992, the
President of India issued a proclamation under Article 356 of the
Constitution of India assuming to himself all the functions of the
Government of Uttar Pradesh, dissolving the U.P. Vidhan Sabha. As a
consequence of the events at Ayodhya on 06.12.1992, the Central
Government decided to acquire all areas in dispute in the suits pending in
the Allahabad High Court. It was also decided to acquire suitable adjacent
area, which would be made available to two Trusts for construction of a
Ram Temple and a Mosque respectively. The Government of India has
also decided to request the President to seek the opinion of the Supreme
Court on the question whether there was a Hindu temple existing on the
site where the disputed structure stood. An ordinance was issued on
07.01.1993 namely "Acquisition of Certain Area at Ayodhya Ordinance"
for acquisition of 67.703 acres of land in the Ram Janam Bhumi-Babri
Masjid complex. A reference to the Supreme Court under Article 143
of the Constitution was also made on the same day, i.e. 07.01.1993. The
Ordinance No. 8 of 1993 had been replaced by the Acquisition of Certain
Area at Ayodhya Act, 1993 (No. 33 of 1993) (hereinafter referred to as
"Act, 1993"). A Writ Petition Under Article 32 was filed in this Court
challenging the validity of the Act No. 33 of 1993. Several writ petitions
at Allahabad High Court were also filed challenging various aspects of
the Act, 1993. This Court exercising its jurisdiction under Article 139A
had transferred the writ petitions, which were pending in the High Court.
The Writ Petitions under Article 32, transferred cases from High Court
of Allahabad as well as Reference No.1 of 1993 made by President
under Article 143 were all heard together and decided by common
judgment dated 24.10.1994, where the Constitution Bench had upheld
the validity of the Act except that of Section 4(3) of the Act, 1993 which
was struck down.
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6. After the judgment of this Court in the above Constitution Bench,
all the suits, which had been transferred by the High Court to be heard
by a Full Bench of the High Court stood revived. One Mohd. Aslam,
who was also one of the petitioners in Constitution Bench Judgment in
Ismail Faruqui's case filed a writ petition seeking certain reliefs with
regard to 67.703 acres of land acquired under the Act, 1993. This Court
on 13.03.2002 passed an interim order. Paras 4 and 5 of the interim
order are as follows:-
"4. In the meantime, we direct that on 67.703 acres of acquired
land located in various plots detailed in the Schedule to the
Acquisition of Certain Area at Ayodhya Act, 1993, which is vested
in the Central Government, no religious activity of any kind by
anyone either symbolic or actual including bhumi puja or shila
puja, shall be permitted or allowed to take place.
5. Furthermore, no part of the aforesaid land shall be handed
over by the Government to anyone and the same shall be retained
by the Government till the disposal of this writ petition nor shall
any part of this land be permitted to be occupied or used for any
religious purpose or in connection therewith."
7. The above writ petition was ultimately decided on 31.03.2003
by a Constitution Bench, which judgment is reported in (2003) 4 SCC
1, Mohd. Aslam alias Bhure Vs. Union of India and Others. Before
the Constitution Bench, both the parties had placed reliance on Ismail
Faruqui's case. This Court disposed of the writ petition directing that
order of this Court dated 13.03.2002 as modified on 14.03.2002 should
be operative until disposal of the suits in the High Court of Allahabad.
The Allahabad High Court after hearing all the suits on merits decided
all the suits vide its judgment dated 30.08.2010. The parties aggrieved -
both plaintiffs and defendants in the original suits have filed these appeals
in this Court.
8. Dr. Rajeev Dhavan submits that judgment in Ismail Faruqui's
case had made observations that a mosque is not an essential part of the
practice of the religion of Islam and namaz (prayer) by Muslims can be
offered anywhere, even in open. The observations made by the
Constitution Bench has influenced the decisions under the appeal, the
law laid down in Ismail Faruqui in relation to praying in a mosque not
being an essential practice is contrary to both, i.e. the law relating to
M. SIDDIQ (D) THR. LRS. v. MAHANT SURESH DAS AND
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essential practice and the process by which essential practice is to be
considered. Whether essential practice can be decided on a mere ipse
dixit of the Court or whether the Court is obliged to examine belief,
tenets and practices, is a pure question of law. The Ismail Faruqui's
judgment being devoid of any examination on the above issues, the
matter need to go to a larger Bench.
9. Dr. Dhavan specifically referred to paras 78 and 82 of the
judgment in Ismail Faruqui's case. He specifically attacked following
observations in Paragraph 78 :-
"78. While offer of prayer or worship is a religious practice, its
offering at every location where such prayers can be offered
would not be an essential or integral part of such religious practice
unless the place has a particular significance for that religion so
as to form an essential or integral part thereof. Places of worship
of any religion having particular significance for that religion, to
make it an essential or integral part of the religion, stand on a
different footing and have to be treated differently and more
reverentially."
10. In Para 82, following observation is specifically attacked:-
"A mosque is not an essential part of the practice of the religion
of Islam and namaz(prayer) by Muslims can be offered anywhere,
even in open."
11. He submits that essential practice of a religion requires a detailed
examination. He has referred to various judgments of this Court to
support his submission that wherever this Court had to determine the
essential practice of a religion, detailed examination was undertaken.
He submits that Ismail Faruqui's case does not refer to any material
nor enters into any detailed examination before making the observations
in Paragraphs 78 and 82 as noticed above. Dr. Dhavan further submits
that a broad test of essentiality as laid down by Seven Judges Bench in
The Commissioner, Hindu Religious Endowments, Madras Vs.
Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR
1005 cannot be cut down by a later judgment of lesser strength, which
judgments have introduced the test of integrality. He submits that the
test of integrality is interchangable with essentiality test. Dr. Dhavan,
during his submissions, has taken us to submissions made by various
parties before the High Court, where reliance was placed on Ismail
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Faruqui's case. He has also referred to various grounds taken in these
appeals, which grounds rely on the judgment of Ismail Faruqui's case.
He submits that the above furnishes ample grounds for appellants to
pray for reconsideration of Ismail Faruqui's case. Dr. Dhavan in his
notes 'For reference to a larger Bench' has clarified that questionable
aspects as noted above are not the ratio of Ismail Faruqui's case. Dr.
Dhavan submits that ratio in Ismail Faruqui's case can be summed up
to the following effect:-
(i) The suits revive in their entirety.
(ii) The acquisition was legally competent, traceable to List III
and Entry 42 of the Seventh Schedule of the Constitution.
(iii) The word 'vest' has multiple meanings and implied that the
status of the Central Government was that of a statutory
receiver which would dispense with the land (including the
other areas acquired) in accordance with the judgment in the
suits rather than the Reference which was declined.
(iv) Status quo as in Section 7(2) of the Act would be maintained,
justified on the basis of comparative user since 1949.
(v) Secularism is a facet of equality and represents equal treatment
of all religions in their own terms and with equal respect and
concern for all.
12. Shri K. Parasaran, learned senior counsel refuting the
submissions of Dr.