The facts, evidence and oral arguments of the present case have
traversed the realms of history, archaeology, religion and the law. The law must
stand apart from political contestations over history, ideology and religion. For a
case replete with references to archaeological foundations, we must remember
that it is the law which provides the edifice upon which our multicultural society
rests. The law forms the ground upon which, multiple strands of history, ideology
and religion can compete. By determining their limits, this Court as the final
arbiter must preserve the sense of balance that the beliefs of one citizen do not
interfere with or dominate the freedoms and beliefs of another. On 15 August
1947, India as a nation realised the vision of self-determination. On 26 January
1950 we gave ourselves the Constitution of India, as an unwavering commitment
to the values which define our society. At the heart of the Constitution is a
commitment to equality upheld and enforced by the rule of law. Under our
Constitution, citizens of all faiths, beliefs and creeds seeking divine provenance
are both subject to the law and equal before the law. Every judge of this Court is
not merely tasked with but sworn to uphold the Constitution and its values. The
Constitution does not make a distinction between the faith and belief of one
religion and another. All forms of belief, worship and prayer are equal. Those
whose duty it is to interpret the Constitution, enforce it and engage with it can
ignore this only to the peril of our society and nation. The Constitution speaks to
the judges who interpret it, to those who govern who must enforce it, but above
all, to the citizens who engage with it as an inseparable feature of their lives.
PART P
921
796. In the present case, this Court is tasked with an adjudicatory task of unique
dimension. The dispute is over immovable property. The court does not decide
title on the basis of faith or belief but on the basis of evidence. The law provides
us with parameters as clear but as profound as ownership and possession. In
deciding title to the disputed property, the court applies settled principles of
evidence to adjudicate upon which party has established a claim to the
immovable property.
797. On the balance of probabilities, there is clear evidence to indicate that the
worship by the Hindus in the outer courtyard continued unimpeded in spite of the
setting up of a grill-brick wall in 1857. Their possession of the outer courtyard
stands established together with the incidents attaching to their control over it.
798. As regards the inner courtyard, there is evidence on a preponderance of
probabilities to establish worship by the Hindus prior to the annexation of Oudh
by the British in 1857. The Muslims have offered no evidence to indicate that they
were in exclusive possession of the inner structure prior to 1857 since the date of
the construction in the sixteenth century. After the setting up of the grill-brick wall,
the structure of the mosque continued to exist and there is evidence to indicate
that namaz was offered within its precincts. The report of the Waqf Inspector of
December 1949 indicates that Muslims were being obstructed in free and
unimpeded access to mosque for the purposes of offering namaz. However,
there is evidence to show that namaz was offered in the structure of the mosque
and the last Friday namaz was on 16 December 1949. The exclusion of the
Muslims from worship and possession took place on the intervening night
PART P
922
between 22/23 December 1949 when the mosque was desecrated by the
installation of Hindu idols. The ouster of the Muslims on that occasion was not
through any lawful authority but through an act which was calculated to deprive
them of their place of worship. After the proceedings under Section 145 of CrPC
1898 were initiated and a receiver was appointed following the attachment of the
inner courtyard, worship of the Hindu idols was permitted. During the pendency of
the suits, the entire structure of the mosque was brought down in a calculated act
of destroying a place of public worship. The Muslims have been wrongly deprived
of a mosque which had been constructed well over 450 years ago.
799. We have already concluded that the three-way bifurcation by the High
Court was legally unsustainable. Even as a matter of maintaining public peace
and tranquillity, the solution which commended itself to the High Court is not
feasible. The disputed site admeasures all of 1500 square yards. Dividing the
land will not subserve the interest of either of the parties or secure a lasting
sense of peace and tranquillity.
800. Suit 5 has been held to be maintainable at the behest of the first plaintiff
(the deity of Lord Ram) who is a juristic person. The third plaintiff (next friend) has
been held to be entitled to represent the the first plaintiff. We are of the view that
on the one hand a decree must ensue in Suit 5, Suit 4 must also be partly
decreed by directing the allotment of alternate land to the Muslims for the
construction of a mosque and associated activities. The allotment of land to the
Muslims is necessary because though on a balance of probabilities, the evidence
PART P
923
in respect of the possessory claim of the Hindus to the composite whole of the
disputed property stands on a better footing than the evidence adduced by the
Muslims, the Muslims were dispossessed upon the desecration of the mosque on
22/23 December 1949 which was ultimately destroyed on 6 December 1992.
There was no abandonment of the mosque by the Muslims. This Court in the
exercise of its powers under Article 142 of the Constitution must ensure that a
wrong committed must be remedied. Justice would not prevail if the Court were to
overlook the entitlement of the Muslims who have been deprived of the structure
of the mosque through means which should not have been employed in a secular
nation committed to the rule of law. The Constitution postulates the equality of all
faiths. Tolerance and mutual co-existnce nourish the secular commitment of our
nation and its people.
801. The area of the composite site admeasures about 1500 square yards.
While determining the area of land to be allotted, it is necessary to provide
restitution to the Muslim community for the unlawful destruction of their place of
worship. Having weighed the nature of the relief which should be granted to the
Muslims, we direct that land admeasuring 5 acres be allotted to the Sunni Central
Waqf Board either by the Central Government out of the acquired land or by the
Government of Uttar Pradesh within the city of Ayodhya. This exercise, and the
consequent handing over of the land to the Sunni Central Waqf Board, shall be
conducted simultaneously with the handing over of the disputed site comprising
of the inner and outer courtyards as a consequence of the decree in Suit 5. Suit 4
shall stand decreed in the above terms.
PART P
924
802. Section 6 of the Acquisition of Certain Area at Ayodhya Act 1993
empowers the Central Government to direct that the right, title and interest in
relation to the area or any part thereof, instead of continuing to vest in the Central
Government shall vest in the authority or body or trustees of any trust which is
willing to comply with the terms and conditions as government may impose.407
Section 7(1) provides that the property vested in the Central Government under
Section 3, shall be maintained by the government or by any person or trustees of
any trust, authorities in this behalf.408
803. We are of the view that it would be necessary to direct the Central
Government to frame a scheme in exercise of the powers conferred upon it by
Sections 6 and 7 to set up a trust or any other appropriate mechanism to whom
the land would be handed over in terms of the decree in Suit 5. The scheme shall
incorporate all provisions necessary to vest power and authority in relation to the
management of the trust or the body chosen for the vesting of the land.
407 6. Power of Central Government to direct vesting of the area in another authority or body or trust.—(1)
Notwithstanding anything contained in Sections 3, 4, 5 and 7, the Central Government may, if it is satisfied that
any authority or other body, or trustees of any trust, set up on or after the commencement of this Act is or are
willing to comply with such terms and conditions as that Government may think fit to impose, direct by notification
in the Official Gazette, that the right, title and interest or any of them in reason to the area or any part thereof,
instead of continuing to vest in the Central Government, vest in that authority or body or trustees of that trust
either on the date of the notification or on such later date as may be specified in the notification.
(2) When any right, title and interest in relation to the area or part thereof vest in the authority or body or trustees
referred to in sub-section (1), such rights of the Central Government in relation to such area or part thereof, shall,
on and from the date of such vesting, be deemed to have become the rights of that authority or body or trustees
of that trust.
(3) The provision of Sections 4, 5, 7 and 11 shall, so far as may be, apply in relation to such authority or body or
trustees as they apply in relation to the Central Government and for this purpose references therein to the Central
Government shall be construed as references to such authority or body or trustees.
408 7. Management of property by Government.—(1) Notwithstanding anything contained in any contract or
instrument or order of any court, tribunal or other authority to the contrary, on and from the commencement of
this Act, the property vested in the Central Government under Section 3 shall be managed by the Central
Government or by a person or body of persons or trustees of any trust authorised by that Government in this
behalf.
(2) In managing the property vested in the Central Government under Section 3, the Central Government or the
authorised person shall ensure that the position existing before the commencement of this Act in the area on
which the structure (including the premises of the inner and outer courtyards of such structure), commonly known
as the Ram Janma Bhumi-Babri Masjid stood in village Kot Ramchandra in Ayodhya, in Pargana Haveli Avadh, in
tehsil Faizabad Sadar, in the district of Faizabad of the State of Uttar Pradesh is maintained.
PART Q
925
804. Suit 3 filed by Nirmohi Akhara has been held to be barred by limitation. We
have also rejected the objection of Nirmohi Akhara and of the Sunni Central Waqf
Board to the maintainability of Suit 5 which was based on their plea that Nirmohi
Akhara is a shebait. Nirmohi Akhara‘s claim to be a shebait stands rejected.
However, having regard to the historical presence of Nirmohi Akhara at the
disputed site and their role, it is necessary for this Court to take recourse to its
powers under Article 142 to do complete justice. Hence, we direct that in framing
the scheme, an appropriate role in the management would be assigned to the
Nirmohi Akhara.
Q. Reliefs and directions
805. We accordingly order and direct as follows:
1 (i) Suit 3 instituted by Nirmohi Akhara is held to be barred by limitation
and shall accordingly stand dismissed;
(ii) Suit 4 instituted by the Sunni Central Waqf Board and other plaintiffs
is held to be within limitation. The judgment of the High Court
holding Suit 4 to be barred by limitation is reversed; and
(iii) Suit 5 is held to be within limitation.
2 Suit 5 is held to be maintainable at the behest of the first plaintiff who is
represented by the third plaintiff. There shall be a decree in terms of prayer
clauses (A) and (B) of the suit, subject to the following directions:
PART Q
926
(i) The Central Government shall, within a period of three months from the
date of this judgment, formulate a scheme pursuant to the powers vested
in it under Sections 6 and 7 of the Acquisition of Certain Area at Ayodhya
Act 1993. The scheme shall envisage the setting up of a trust with a Board
of Trustees or any other appropriate body under Section 6. The scheme to
be framed by the Central Government shall make necessary provisions in
regard to the functioning of the trust or body including on matters relating
to the management of the trust, the powers of the trustees including the
construction of a temple and all necessary, incidental and supplemental
matters;
(ii) Possession of the inner and outer courtyards shall be handed over to the
Board of Trustees of the Trust or to the body so constituted. The Central
Government will be at liberty to make suitable provisions in respect of the
rest of the acquired land by handing it over to the Trust or body for
management and development in terms of the scheme framed in
accordance with the above directions; and
(iii) Possession of the disputed property shall continue to vest in the statutory
receiver under the Central Government, untill in exercise of its jurisdiction
under Section 6 of the Ayodhya Act of 1993, a notification is issued vesting
the property in the trust or other body.
3 (i) Simultaneously, with the handing over of the disputed property to the Trust
or body under clause 2 above, a suitable plot of land admeasuring 5 acres
PART Q
927
shall be handed over to the Sunni Central Waqf Board, the plaintiff in Suit
4.
(ii) The land shall be allotted either by:
(a) The Central Government out of the land acquired under the Ayodhya
Act 1993; or
(b) The State Government at a suitable prominent place in Ayodhya;
The Central Government and the State Government shall act in consultation with
each other to effectuate the above allotment in the period stipulated.
(iii) The Sunni Central Waqf Board would be at liberty, on the allotment of the
land to take all necessary steps for the construction of a mosque on the
land so allotted together with other associated facilities;
(iv) Suit 4 shall stand decreed to this extent in terms of the above directions; and
(v) The directions for the allotment of land to the Sunni Central Waqf Board in
Suit 4 are issued in pursuance of the powers vested in this Court under
Article 142 of the Constitution.
4 In exercise of the powers vested in this Court under Article 142 of the
Constitution, we direct that in the scheme to be framed by the Central
Government, appropriate representation may be given in the Trust or body, to the
Nirmohi Akhara in such manner as the Central Government deems fit.
5 The right of the plaintiff in Suit 1 to worship at the disputed property is
affirmed subject to any restrictions imposed by the relevant authorities with
PART Q
928
respect to the maintenance of peace and order and the performance of orderly
worship.
806. All the appeals shall stand disposed of in the above terms. Parties are left
to bear their own costs.
https://advocatemmmohan.com/2019/11/09/ayodhya-judgement/
traversed the realms of history, archaeology, religion and the law. The law must
stand apart from political contestations over history, ideology and religion. For a
case replete with references to archaeological foundations, we must remember
that it is the law which provides the edifice upon which our multicultural society
rests. The law forms the ground upon which, multiple strands of history, ideology
and religion can compete. By determining their limits, this Court as the final
arbiter must preserve the sense of balance that the beliefs of one citizen do not
interfere with or dominate the freedoms and beliefs of another. On 15 August
1947, India as a nation realised the vision of self-determination. On 26 January
1950 we gave ourselves the Constitution of India, as an unwavering commitment
to the values which define our society. At the heart of the Constitution is a
commitment to equality upheld and enforced by the rule of law. Under our
Constitution, citizens of all faiths, beliefs and creeds seeking divine provenance
are both subject to the law and equal before the law. Every judge of this Court is
not merely tasked with but sworn to uphold the Constitution and its values. The
Constitution does not make a distinction between the faith and belief of one
religion and another. All forms of belief, worship and prayer are equal. Those
whose duty it is to interpret the Constitution, enforce it and engage with it can
ignore this only to the peril of our society and nation. The Constitution speaks to
the judges who interpret it, to those who govern who must enforce it, but above
all, to the citizens who engage with it as an inseparable feature of their lives.
PART P
921
796. In the present case, this Court is tasked with an adjudicatory task of unique
dimension. The dispute is over immovable property. The court does not decide
title on the basis of faith or belief but on the basis of evidence. The law provides
us with parameters as clear but as profound as ownership and possession. In
deciding title to the disputed property, the court applies settled principles of
evidence to adjudicate upon which party has established a claim to the
immovable property.
797. On the balance of probabilities, there is clear evidence to indicate that the
worship by the Hindus in the outer courtyard continued unimpeded in spite of the
setting up of a grill-brick wall in 1857. Their possession of the outer courtyard
stands established together with the incidents attaching to their control over it.
798. As regards the inner courtyard, there is evidence on a preponderance of
probabilities to establish worship by the Hindus prior to the annexation of Oudh
by the British in 1857. The Muslims have offered no evidence to indicate that they
were in exclusive possession of the inner structure prior to 1857 since the date of
the construction in the sixteenth century. After the setting up of the grill-brick wall,
the structure of the mosque continued to exist and there is evidence to indicate
that namaz was offered within its precincts. The report of the Waqf Inspector of
December 1949 indicates that Muslims were being obstructed in free and
unimpeded access to mosque for the purposes of offering namaz. However,
there is evidence to show that namaz was offered in the structure of the mosque
and the last Friday namaz was on 16 December 1949. The exclusion of the
Muslims from worship and possession took place on the intervening night
PART P
922
between 22/23 December 1949 when the mosque was desecrated by the
installation of Hindu idols. The ouster of the Muslims on that occasion was not
through any lawful authority but through an act which was calculated to deprive
them of their place of worship. After the proceedings under Section 145 of CrPC
1898 were initiated and a receiver was appointed following the attachment of the
inner courtyard, worship of the Hindu idols was permitted. During the pendency of
the suits, the entire structure of the mosque was brought down in a calculated act
of destroying a place of public worship. The Muslims have been wrongly deprived
of a mosque which had been constructed well over 450 years ago.
799. We have already concluded that the three-way bifurcation by the High
Court was legally unsustainable. Even as a matter of maintaining public peace
and tranquillity, the solution which commended itself to the High Court is not
feasible. The disputed site admeasures all of 1500 square yards. Dividing the
land will not subserve the interest of either of the parties or secure a lasting
sense of peace and tranquillity.
800. Suit 5 has been held to be maintainable at the behest of the first plaintiff
(the deity of Lord Ram) who is a juristic person. The third plaintiff (next friend) has
been held to be entitled to represent the the first plaintiff. We are of the view that
on the one hand a decree must ensue in Suit 5, Suit 4 must also be partly
decreed by directing the allotment of alternate land to the Muslims for the
construction of a mosque and associated activities. The allotment of land to the
Muslims is necessary because though on a balance of probabilities, the evidence
PART P
923
in respect of the possessory claim of the Hindus to the composite whole of the
disputed property stands on a better footing than the evidence adduced by the
Muslims, the Muslims were dispossessed upon the desecration of the mosque on
22/23 December 1949 which was ultimately destroyed on 6 December 1992.
There was no abandonment of the mosque by the Muslims. This Court in the
exercise of its powers under Article 142 of the Constitution must ensure that a
wrong committed must be remedied. Justice would not prevail if the Court were to
overlook the entitlement of the Muslims who have been deprived of the structure
of the mosque through means which should not have been employed in a secular
nation committed to the rule of law. The Constitution postulates the equality of all
faiths. Tolerance and mutual co-existnce nourish the secular commitment of our
nation and its people.
801. The area of the composite site admeasures about 1500 square yards.
While determining the area of land to be allotted, it is necessary to provide
restitution to the Muslim community for the unlawful destruction of their place of
worship. Having weighed the nature of the relief which should be granted to the
Muslims, we direct that land admeasuring 5 acres be allotted to the Sunni Central
Waqf Board either by the Central Government out of the acquired land or by the
Government of Uttar Pradesh within the city of Ayodhya. This exercise, and the
consequent handing over of the land to the Sunni Central Waqf Board, shall be
conducted simultaneously with the handing over of the disputed site comprising
of the inner and outer courtyards as a consequence of the decree in Suit 5. Suit 4
shall stand decreed in the above terms.
PART P
924
802. Section 6 of the Acquisition of Certain Area at Ayodhya Act 1993
empowers the Central Government to direct that the right, title and interest in
relation to the area or any part thereof, instead of continuing to vest in the Central
Government shall vest in the authority or body or trustees of any trust which is
willing to comply with the terms and conditions as government may impose.407
Section 7(1) provides that the property vested in the Central Government under
Section 3, shall be maintained by the government or by any person or trustees of
any trust, authorities in this behalf.408
803. We are of the view that it would be necessary to direct the Central
Government to frame a scheme in exercise of the powers conferred upon it by
Sections 6 and 7 to set up a trust or any other appropriate mechanism to whom
the land would be handed over in terms of the decree in Suit 5. The scheme shall
incorporate all provisions necessary to vest power and authority in relation to the
management of the trust or the body chosen for the vesting of the land.
407 6. Power of Central Government to direct vesting of the area in another authority or body or trust.—(1)
Notwithstanding anything contained in Sections 3, 4, 5 and 7, the Central Government may, if it is satisfied that
any authority or other body, or trustees of any trust, set up on or after the commencement of this Act is or are
willing to comply with such terms and conditions as that Government may think fit to impose, direct by notification
in the Official Gazette, that the right, title and interest or any of them in reason to the area or any part thereof,
instead of continuing to vest in the Central Government, vest in that authority or body or trustees of that trust
either on the date of the notification or on such later date as may be specified in the notification.
(2) When any right, title and interest in relation to the area or part thereof vest in the authority or body or trustees
referred to in sub-section (1), such rights of the Central Government in relation to such area or part thereof, shall,
on and from the date of such vesting, be deemed to have become the rights of that authority or body or trustees
of that trust.
(3) The provision of Sections 4, 5, 7 and 11 shall, so far as may be, apply in relation to such authority or body or
trustees as they apply in relation to the Central Government and for this purpose references therein to the Central
Government shall be construed as references to such authority or body or trustees.
408 7. Management of property by Government.—(1) Notwithstanding anything contained in any contract or
instrument or order of any court, tribunal or other authority to the contrary, on and from the commencement of
this Act, the property vested in the Central Government under Section 3 shall be managed by the Central
Government or by a person or body of persons or trustees of any trust authorised by that Government in this
behalf.
(2) In managing the property vested in the Central Government under Section 3, the Central Government or the
authorised person shall ensure that the position existing before the commencement of this Act in the area on
which the structure (including the premises of the inner and outer courtyards of such structure), commonly known
as the Ram Janma Bhumi-Babri Masjid stood in village Kot Ramchandra in Ayodhya, in Pargana Haveli Avadh, in
tehsil Faizabad Sadar, in the district of Faizabad of the State of Uttar Pradesh is maintained.
PART Q
925
804. Suit 3 filed by Nirmohi Akhara has been held to be barred by limitation. We
have also rejected the objection of Nirmohi Akhara and of the Sunni Central Waqf
Board to the maintainability of Suit 5 which was based on their plea that Nirmohi
Akhara is a shebait. Nirmohi Akhara‘s claim to be a shebait stands rejected.
However, having regard to the historical presence of Nirmohi Akhara at the
disputed site and their role, it is necessary for this Court to take recourse to its
powers under Article 142 to do complete justice. Hence, we direct that in framing
the scheme, an appropriate role in the management would be assigned to the
Nirmohi Akhara.
Q. Reliefs and directions
805. We accordingly order and direct as follows:
1 (i) Suit 3 instituted by Nirmohi Akhara is held to be barred by limitation
and shall accordingly stand dismissed;
(ii) Suit 4 instituted by the Sunni Central Waqf Board and other plaintiffs
is held to be within limitation. The judgment of the High Court
holding Suit 4 to be barred by limitation is reversed; and
(iii) Suit 5 is held to be within limitation.
2 Suit 5 is held to be maintainable at the behest of the first plaintiff who is
represented by the third plaintiff. There shall be a decree in terms of prayer
clauses (A) and (B) of the suit, subject to the following directions:
PART Q
926
(i) The Central Government shall, within a period of three months from the
date of this judgment, formulate a scheme pursuant to the powers vested
in it under Sections 6 and 7 of the Acquisition of Certain Area at Ayodhya
Act 1993. The scheme shall envisage the setting up of a trust with a Board
of Trustees or any other appropriate body under Section 6. The scheme to
be framed by the Central Government shall make necessary provisions in
regard to the functioning of the trust or body including on matters relating
to the management of the trust, the powers of the trustees including the
construction of a temple and all necessary, incidental and supplemental
matters;
(ii) Possession of the inner and outer courtyards shall be handed over to the
Board of Trustees of the Trust or to the body so constituted. The Central
Government will be at liberty to make suitable provisions in respect of the
rest of the acquired land by handing it over to the Trust or body for
management and development in terms of the scheme framed in
accordance with the above directions; and
(iii) Possession of the disputed property shall continue to vest in the statutory
receiver under the Central Government, untill in exercise of its jurisdiction
under Section 6 of the Ayodhya Act of 1993, a notification is issued vesting
the property in the trust or other body.
3 (i) Simultaneously, with the handing over of the disputed property to the Trust
or body under clause 2 above, a suitable plot of land admeasuring 5 acres
PART Q
927
shall be handed over to the Sunni Central Waqf Board, the plaintiff in Suit
4.
(ii) The land shall be allotted either by:
(a) The Central Government out of the land acquired under the Ayodhya
Act 1993; or
(b) The State Government at a suitable prominent place in Ayodhya;
The Central Government and the State Government shall act in consultation with
each other to effectuate the above allotment in the period stipulated.
(iii) The Sunni Central Waqf Board would be at liberty, on the allotment of the
land to take all necessary steps for the construction of a mosque on the
land so allotted together with other associated facilities;
(iv) Suit 4 shall stand decreed to this extent in terms of the above directions; and
(v) The directions for the allotment of land to the Sunni Central Waqf Board in
Suit 4 are issued in pursuance of the powers vested in this Court under
Article 142 of the Constitution.
4 In exercise of the powers vested in this Court under Article 142 of the
Constitution, we direct that in the scheme to be framed by the Central
Government, appropriate representation may be given in the Trust or body, to the
Nirmohi Akhara in such manner as the Central Government deems fit.
5 The right of the plaintiff in Suit 1 to worship at the disputed property is
affirmed subject to any restrictions imposed by the relevant authorities with
PART Q
928
respect to the maintenance of peace and order and the performance of orderly
worship.
806. All the appeals shall stand disposed of in the above terms. Parties are left
to bear their own costs.
https://advocatemmmohan.com/2019/11/09/ayodhya-judgement/
