After Uttar Pradesh government’s plea for early hearing of appeals challenging the Allahabad High Court order in the Ram Janmabhoomi-Babri Masjid title suit, the Supreme Court Monday, while observing “we have our own priorities”, ordered listing of appeals before an “appropriate bench” in the first week of January 2019 to fix a date for hearing.
Solicitor General Tushar Mehta, who appeared for the UP government before a bench of Chief Justice of India Ranjan Gogoi and Justices S K Kaul and K M Joseph, said it was over a hundred-year-old dispute and should be accorded priority. He requested the court to take up the matter immediately after the Diwali vacation.
When Mehta urged the court to fix the hearing date today itself, CJI Gogoi told him “we have our own priorities… whether the hearing will take place in January, February will be decided by an appropriate bench”.
Senior advocate C S Vaidyanathan, representing Ramlalla Virajman (idol of the infant Ram at the Ayodhya site), also pleaded that the matter of hearing the appeals be taken up in November itself.
Appeals have been filed against the 2010 Allahabad High Court judgment that ordered a three-way division of the disputed 2.77-acre site in Ayodhya, awarding a third each to the Nirmohi Akhara, the Sunni Central Wakf Board of UP and Ramlalla Virajman.
On September 27 this year, a Supreme Court bench, comprising then CJI Dipak Misra and Justices Ashok Bhushan and S Abdul Nazeer, in a 2-1 verdict, rejected demands to send the matter to a larger bench and ordered that the title suit appeals be listed “in the week commencing 29th October” for hearing.
The plea was raised by some of the appellants who also wanted the court to reconsider its 1994 ruling in the Dr M Ismail Faruqui etc. vs Union Of India and Others. In that ruling, a Constitution Bench had observed 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 petitioners had claimed that earlier decisions in the Ayodhya case were influenced by this observation in the Ismail Faruqui verdict on a plea challenging the Constitutional validity of the Acquisition of Certain Area at Ayodhya Act, 1993, under which 67.703 acres were acquired in the Ram Janmabhoomi-Babri Masjid complex.
Rejecting the plea to refer the matter to a larger bench, CJI Misra and Justice Bhushan, in their majority verdict, said “we again make it clear that questionable observations made in Ismail Faruqui’s case… were made in context of land acquisition” and that “those observations were neither relevant for deciding the suits nor relevant for deciding these appeals”. The judges said that “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”.
“The statement ‘a mosque is not essential part of the practice of religion’ is a statement which has been made by the Constitution Bench in specific context and reference. The context for making the above observation was claim of immunity of a mosque from acquisition. 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. Thus, the statement that a mosque is not an essential part of the practice of religion of Islam is in context of issue as to whether the mosque, which was acquired by Act, 1993 had immunity from acquisition,” the judges said.
But Justice Abdul Nazeer, in a dissenting opinion, said the conclusion in the Faruqui order 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” had been “arrived at without undertaking comprehensive examination”. He favoured further examination.
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