M. Siddiq (D) Thr. Lrs. vs Mahant Suresh Das and Others etc.

(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 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]

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.

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 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 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.

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 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.