The Contentious Issue Is Relating To Ram’s Birth Place, That Is Not Negotiable”: CS Vaidyanathan

At the outset of the Ayodhya hearing on Wednesday, it was contended that in view of Order VIII Rule 4 of the CPC, the instant dispute being in the nature of a representative suit, no part of the claim could be abandoned and no compromise could be effectively recorded unless the Court has given notice to all persons so interested. The Supreme Court five-judge bench had assembled to decide on the reference of the Ram Janmabhoomi-Babri Masjid dispute for mediation.

Justice Ashok Bhushan clarified that the said provision would apply in the event of court proceedings, when the court decided the matter, and not on mediation. “If the Hindus are not ready for mediation, then nobody has the right to negotiate. It is a sentimental issue and there is no position to compromise”, it was insisted.

“When the court orders mediation in a matrimonial proceeding, it is with the understanding that it may result in either divorce or conciliation . The outcome is not in the mind of the court. You are just saying that we can’t compromise so it may be not be necessary…”, interjected Justice S. A. Bobde. “Are you saying it is a failure if it is attempted even before it is attempted? That is not fair. When the court is ordering mediation, we are not led by the assumption that someone will give up something or that someone will get something. We know the dispute is not just about property or an arch of land but about sentiments and faith. Don’t think we are not conscience of it. We are aware of the impact and the gravity of the dispute and its effect on the body politic of this country.

Apart from the law, we are inspired by these factors in ordering mediation- the Mind, the heart and the feelings. We don’t understand how it is being rejected even without attempt…We have also read the history. You don’t have to argue on the history to postpone all this. You know what you are doing…We have no control over what happened in the past, whether there was a temple or a mosque. We can only undo what exists in the present, and that is the dispute!”, continued the judge. Placing reliance on the 2010 apex court decision in M/S Afcons Infra. Ltd, Senior Advocate Rajeev Dhawan (for the Sunni Waqf Board) argued that the consent of the parties is not a prerequisite for a reference to mediation- “Arbitration and conciliation require consent. But in the other forms of ADR, like Lok Adalats, it is not required.

The Nature of the mediation process is not affected by an agreement of the parties or the lack of it. It is not binding, so you are still free” “It is not necessary for the court to formulate the terms of settlement. Your Lordships may merely describe the nature of the dispute in a sentence or two”, he continued. “As for the selection of the mediator, there could be a well-trained mediator. Or alternatively, the parties may nominate the mediator”, suggested Dr. Dhawan. Justice Bobde added that there could also be a panel as in the case of arbitration. The Senior Counsel advanced that even the original record need not be sent to the mediator, unless the process is under the supervision of a judicial officer. He advanced that the proceeding may be held in-camera, the parties being instructed to not divulge any details.

Agreeing that confidentiality is a mandatory condition, Justice Bobde weighed in, “Now take a case where there is a matrimonial dispute which is sent for mediation. Or a case of partition of property between brothers. When is confidentiality breached- when someone known to the party talks. It is important that it is not printed in the media or commented on while the process is on. A gag order is not our intention or the point. But It should not be reported while the process is on because it is simple to make some comment attributing some motive to someone” Venturing that the concerned counsel ask clients to not make any revelations, Dr. Dhawan pointed out that there may even lie an action of contempt for a publication in respect of an in-camera proceeding if the court has so prohibited. At this point, Justice D. Y. Chandrachud posed a question as to how a compromise between the parties could be effectuated to dispose off the dispute- ” this is a not a dispute between just the parties, but a wider dispute between communities.

How will we bind them?” “You can’t…you will bind when the judgment comes if mediation fails”, conceded Dr. Dhawan. “One point of mediation could be- where? The Hindus on this side or the Muslims on this side? An area has to be considered”, he continued. In the light of section 89(2)(d) of the CPC, which provides that where a dispute is referred for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed, Justice Chandrachud reflected, “The desirability of a negotiated outcome cannot be understated. But what if there is no compromise? That is the issue. For adjudication, it is this side or that side, but not for mediation” On the argument of the proceedings being representative in nature, Justice Bobde noted, “Whether it is mediation or a court proceeding, if a party is recognized as representative of a community, it will bind everybody. If it is good for one, it is good for the other” “Beyond rule 8, if there is a difficulty of non-consensus, it is all between the parties and nobody else”, added Dr. Dhawan. “And parties would include those who they have been allowed to represent”, clarified Justice Bobde.

At the Hindu side, an objection was raised on account of Order XXIII Rule 3B of the CPC, which stipulates that no compromise shall be entered into in a representative suit without the leave of the court and that before granting such leave, the Court shall give notice to all such persons as may appear to it to be interested in the suit. “Suppose there is a decree, it will bind all? You know what happens to a compromise when it is presented to the court- it becomes a decree…After a public notice, we can still appoint those who would represent either side. Will it then not bind those who are not party to the proceeding?..

.A decree passed in compromise is no different from the one passed in judgment. There is no defect or lacuna in the law that it can’t be done!”, observed Justice Bobde. While the other faction- the All India Hindu Mahasabha headed by Swami Chakrapani- batted for mediation, On behalf of the Akhil Bharat Hindu Mahasabha, the need for a public notice was reiterated. Justice Bhushan asserted that that formality applies not at the appellate stage but for deciding the suit, which the Allahabad High Court should have considered.

Opposing a reference to mediation,  advanced that the contentious issue being which is the Ram Janma Sthan, the present matter is non-negotiable. “In a mediation proceedingSenior Counsel C. S. Vaidyanathan, for Ram Lalla,, nobody can agree to some other place as the birth place. An alternative place for the mosque can be considered. We are even prepared to crowdfund it”, he said. “You are assuming that this is not a point of view you can put forth in mediation. You can!”, assured Justice Bobde. Indicating the definition of ‘decree’ in Section 2(2) of the CPC, Senior Advocate Ranjit Kumar (representing Mahant Suresh Das) again argued that if a decree is to be binding, in a representative suit, the question of mediation does not arise. “It doesn’t arise because settlements can’t be effected without involving others? The compromise can’t be made a decree without notice to all?”, asked Chief Justice Ranjan Gogoi.

As Solicitor General Tushar Mehta sought to make submissions for the state of UP, Dr. Dhawan opposed him vehemently, saying that it is “unacceptable”, that the SG appears for the statutory receiver, that the state had initially said that it is not interested in the dispute. “I am not on merits. Even if it appears that there are elements of settlement, the state thinks that considering the facts, the nature of dispute and the possible fall-out, it will not be advisable or prudent to take this path”, submitted the SG.

Ayodhya Verdict: Is Mosque Essential To Islam? SC to decide today

NEW DELHI: Is namaz in mosque essential to Islam? The Supreme Court is likely to announce a verdict which could have an impact on the long-pending contentious issue of Ram temple on Ayodhya today.

A five-judge bench of the Supreme Court in its 1994 Ismail Faruqui judgment said that mosque did not constitute an essential part of Islam. In 1994, the Supreme Court said that namaz could be offered anywhere and that a mosque was not necessary for this.

The apex court is hearing appeals against the Allahabad High Court verdict of 2010, which had ordered a three-way partition of the disputed land between Muslims, Hindus and Nirmohi Akhara (a Hindu group).

The decision of the Allahabad High Court which divided the land into three parts has been challenged in the Supreme Court by Hindus and Muslims. The Babri Masjid, a 16th century mosque was destroyed in 1992 by lakhs of karsewaks or right-wing volunteers  in order to erect a temple to Lord Ram, who they said, had been born right there.

Will decide on early hearing in Babri Masjid dispute case: SC

Will decide on early hearing in Babri Masjid dispute case: SC
Will decide on early hearing in Babri Masjid dispute case: SC

The Supreme Court today said it will take a decision to list for early hearing a batch of petitions challenging the Allahabad High Court verdict in the Ram Temple-Babri Masjid land dispute case.

“We will take a decision on it,” a bench comprising Chief Justice J S Khehar and Justice D Y Chandrachud said when BJP leader Subramanian Swamy mentioned the matter for urgent listing and hearing.

Swamy said that the main appeals against the Allahabad High Court order are pending for the last seven years in the apex court and they required urgent hearing.

He also said that a separate petition had earlier been filed by him seeking enforcement of his right to worship without much hassle at the site.

He also said that he has been allowed by the apex court to intervene in the matter and is seeking expeditious disposal of the cases.

The Lucknow bench of Allahabad High Court had in 2010 ruled a three-way division of the disputed 2.77 acres area at the disputed site in Ayodhya in Uttar Pradesh.

The three-judge bench, by a 2:1 majority, had said the land be partitioned equally among three parties, the Sunni Waqf Board, the Nirmohi Akhara and ‘Ram Lalla’.

( Source – PTI )

Babri Masjid: SC irked at delay in challenging Allahabad HC order

The Centre as well as the CBI has been lambasted by the Supreme court for deliberate delay in challenging the order of Allahabad High Court dropping charges of criminal conspiracy against Sangh Parivar leaders including L K Advani in Babri Masjid demolition case. 

The Allahabad High Court had quashed the charges of criminal conspiracy against senior BJP leaders namely Mr L K Advani,Mr Murli Manohar Joshi, the then Uttar Pradesh Chief Minister Kalyan Singh, BJP MP from Faizabad Vinay Katiyar, newly appointed BJP Vice-President Uma Bharti, VHP leaders Ashok Singhal, Praveen Togadia, Sadhvi Ritambhara, Vishnu Hari Dalmia and others. 

CBI filed the appeal after a delay of about two years.

A bench comprising Justices H L Dattu and J S Khehar was not satisfied with the response of CBI on the issue of delay.

Babri Masjid was demolished by kar sevaks on December 6, 1992, at Ayodhya in district Faizabad, Uttar Pradesh.

Mosque demolition: Clean-chit for Advani challenged by CBI

The CBI Friday moved the Supreme Court challenging the Allahabad High Court verdict discharging Bharatiya Janata Party leader L.K. Advani and 20 others of the allegation of demolishing the Babri Masjid in Uttar Pradesh’s Ayodhya Dec 6, 1992.

Advani and 20 others were discharged by the high court May 20, 2010 in a case in which they were accused of conspiracy to demolish the Babri Masjid.

The move by the Central Bureau of Investigation (CBI) assumes significance as it comes on the eve of the budget session of parliament and the government, clouded by various scams, appears to be on the back foot in the wake of the opposition parties’ offensive

Full Judgement on Babri Masjid and Ayodhya Ram janambhoomi

No temple was demolished for mosque: Justice S.U. Khan

1. The disputed structure was constructed as mosque by or under orders of Babar.

2. It is not proved by direct evidence that premises in dispute including constructed portion belonged to Babar or the person who constructed the mosque or under whose orders it was constructed.

3. No temple was demolished for constructing the mosque.

4. Mosque was constructed over the ruins of temples, which were lying in utter ruins since a very long time before the construction of mosque and some material thereof was used in construction of the mosque.

5. That for a very long time till the construction of the mosque it was treated/believed by Hindus that some where in a very large area of which premises in dispute is a very small part birthplace of Lord Ram was situated, however, the belief did not relate to any specified small area within that bigger area specifically the premises in dispute.

6. That after some time of construction of the mosque Hindus started identifying the premises in dispute as exact birthplace of Lord Ram or a place wherein exact birthplace was situated.

7. That much before 1855 Ram Chabutra and Seeta Rasoi had come into existence and Hindus were worshipping in the same. It was very very unique and absolutely unprecedented situation that in side the boundary wall and compound of the mosque Hindu religious places were there which were actually being worshipped along with offerings of Namaz by Muslims in the mosque.

8. That in view of the above gist of the finding at serial no.7 both the parties Muslims as well as Hindus are held to be in joint possession of the entire premises in dispute.

9. That even though for the sake of convenience both the parties i.e. Muslims and Hindus were using and occupying different portions of the premises in dispute still it did not amount to formal partition and both continued to be in joint possession of the entire premises in dispute.

10. That both the parties have failed to prove commencement of their title hence by virtue of Section 110 Evidence Act both are held to be joint title holders on the basis of joint possession.

11. That for some decades before 1949 Hindus started treating/believing the place beneath the Central dome of mosque (where at present make sift temple stands) to be exact birthplace of Lord Ram.

12. That idol was placed for the first time beneath the Central dome of the mosque in the early hours of 23.12.1949.

13. That in view of the above both the parties are declared to be joint title holders in possession of the entire premises in dispute and a preliminary decree to that effect is passed with the condition that at the time of actual partition by meets and bounds at the stage of preparation of final decree the portion beneath the Central dome where at present make sift temple stands will be allotted to the share of the Hindus.

Accordingly, all the three sets of parties, i.e. Muslims, Hindus and Nirmohi Akhara are declared joint title holders of the property/ premises in dispute as described by letters A B C D E F in the map Plan-I prepared by Sri Shiv Shanker Lal, Pleader/ Commissioner appointed by Court in Suit No.1 to the extent of one third share each for using and managing the same for worshipping.

A preliminary decree to this effect is passed.

However, it is further declared that the portion below the central dome where at present the idol is kept in makeshift temple will be allotted to Hindus in final decree.

It is further directed that Nirmohi Akhara will be allotted share including that part which is shown by the words Ram Chabutra and Sita Rasoi in the said map.

It is further clarified that even though all the three parties are declared to have one-third share each, however if while allotting exact portions some minor adjustment in the share is to be made then the same will be made and the adversely affected party may be compensated by allotting some portion of the adjoining land which has been acquired by the Central Government.

The parties are at liberty to file their suggestions for actual partition by metes and bounds within three months.

List immediately after filing of any suggestion/ application for preparation of final decree after obtaining necessary instructions from Hon’ble the Chief Justice.

Status quo as prevailing till date pursuant to Supreme Court judgment of Ismail Farooqui (1994(6) Sec 360) in all its minutest details shall be maintained for a period of three months unless this order is modified or vacated earlier.

Ayodhya site is Lord Ram’s birthplace: Justice D.V. Sharma

 

Justice D.V. Sharma, one of the three judges who delivered the Ayodhya verdict, based his order on the findings of the Archaeological Survey of India (ASI) to say that the disputed site is the birthplace of Lord Ram.

The property in the suit is the site of the birthplace of Lord Ram and the Hindus have the right to worship at the site, he said.

The ASI had in a statement before the court said that the structure was a massive Hindu religious structure.

Justice Sharma’s key observations are:

* The disputed site is the birth place of Lord Ram.

* The place of birth is a juristic person and is a deity. It is personified as the spirit of divine worshipped as birthplace of Lord Ram as a child. The spirit of divine ever remains present everywhere at all times for any one to invoke in any shape or form in accordance with his own aspirations and it can be shapeless and formless also.

* The disputed building was constructed by (Mughal emperor) Babar, the year is not certain but it was built against the tenets of Islam. Thus, it cannot have the character of a mosque.

* The disputed structure was constructed on the site of old structure after demolition of the same.

* The idols were placed in the middle dome of the disputed structure in the intervening night of Dec 22-23, 1949.

* A suit filed in 1989 by the Sunni Central Board of Waqfs, Uttar Pradesh, Lucknow, and others vs Gopal Singh Visharad and others and another suit filed in 1989 by Nirmohi Akhara and another vs Sri Jamuna Prasad Singh and others, are barred by time.

* It is also established that the disputed structure cannot be treated as a mosque as it came into existence against the tenets of Islam.

No proof mosque was built in Babar’s reign: Justice Sudhir Agarwal

Justice Sudhir Agarwal, one of the three judges who delivered the Ayodhya judgment, in his order differed with his colleague Justice S.U. Khan that the mosque at the disputed site was built in the reign of Mughal emperor Babar.

‘The disputed structure was always treated, considered and believed to be a mosque and practised by Mohammedans for worship accordingly. However, it has not been proved that it was built during the reign of Babar,’ said Justice Agarwal.

He observed that the area covered under the central dome of the disputed structure is the birth place of Lord Ram as per faith and belief of Hindus.

‘It is declared that the area covered by the central dome of the three domed structure belong to plaintiffs (Suit-5) and shall not be obstructed or interfered in any manner by the defendants,’ he said in his order.

Some key observations of Justice Agarwal are:

* The area within the inner courtyard belongs to members of both the communities, Hindus (here plaintiffs, Suit-5) and Muslims since it was being used by both since decades and centuries.

* The disputed structure was always treated, considered and believed to be a mosque and practised by Mohammedans for worship accordingly. However, it has not been proved that it was built during the reign of Babar in 1528.

* In the absence of any otherwise pleadings and material it is difficult to hold as to when and by whom the disputed structure was constructed. But it is clear that it was constructed before the visit of missionary Joseph Tieffenthaler in Oudh area between 1766-71.

* The building in dispute was constructed after demolition of non-Islamic religious structure – a Hindu temple.

* The idols were kept under the central dome of the disputed structure in the night of Dec 22-23, 1949.

* The area covered by the structures, namely, Ram Chabutra, Sita Rasoi and Bhandar, in the outer courtyard is declared in the share of Nirmohi Akhara.

* The open area within the outer courtyard shall be shared by Nirmohi Akhara and plaintiffs (Suit-5) since it has been generally used by the Hindu people for worship at both places.

* The land which is available with the Government of India acquired under Ayodhya Act 1993 shall be made available to the concerned parties in such a manner so that all the three parties may utilise the area to which they are entitled to, by having separate entry and exit for people without disturbing each others rights.