The Allahabad High Court has ordered regular hearing in the Kashi Vishwanath Temple and Gyanvapi Masjid dispute case from March 29, 2022.

A single-judge bench of Justice Prakash Padia passed this order while hearing a petition filed by the Anjuman Intazamia Masjid, Varanasi.

Vijay Shankar Rastogi, counsel for the respondents, argued that the petitioner has initially filed application under Order VII Rule 11(d) CPC for rejecting the plaint but the petitioner did not press the same for a considerable time and instead of pressing the aforesaid application, he chose to file written statement in the plaint.

He further argued that on the basis of pleadings in the suit, the issues were framed and the trial court passed the order declaring issues No1 & 2 as preliminary issues.

It is also argued that it is clear from the averments of the plaint that the property in question, i.e the temple of Lord Vishweshwar has been in existence from ancient time, i.e, Satyug up till now and the Swayambhu Lord Vishweshwar is situated in the disputed structure, therefore, the aforesaid land in dispute is itself an integral part of Lord Vishweshwar.

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It is further argued that the temple irrespective of its shape and size, the ground floor cellar is still in possession of the plaintiff which is the structure of an old temple built prior to the 15th Century.

It is argued that the religious character of the place of worship remained the same as on the day of 15.08.1947, therefore, the provisions of Place of Worship Act, 1991 cannot be applied.

“Due to paucity of time, arguments could not be concluded. It is further made clear that the arguments shall continue thereafter on a regular basis till its conclusion,” the order reads.

The court has fixed the next hearing of the petition on March 29, 2022.

Places of Worship Act is illegal and unconstitutional because:

1. It has been enacted in the garb of ‘Public order’, which is a State subject [Entry-1, List-II, Schedule-7]. Likewise, ‘Pilgrimage, other than pilgrimages to places outside India’ is also State subject [Entry-7, List-II, Schedule-7]. Therefore, Centre has no legislative competence to enact the impugned Act.
2. Article 13(2) prohibits the State to make laws to take away the rights conferred under Part-III but the Act takes away the rights of Hindus Jains Buddhist Sikhs to restore their ‘places of worship and pilgrimages’, destroyed by barbaric invaders.
3. It excludes the birthplace of Lord Rama but includes birthplace of Lord Krishna, though both are the incarnation of Lord Vishnu, the Creator and equally worshipped all over the world, hence arbitrary, irrational and offends Articles 14-15.
4. Right to justice, right to a judicial remedy, right to dignity are integral part of Article 21 but impugned Act brazenly offends them.
5. Rights to pray, profess, practice and propagate religion of Hindus Jains Buddhists Sikhs, guaranteed under Article 25, have been deliberately and brazenly offended by the Act.
6. The impugned Act blatantly offends the rights of Hindus Jains Buddhists Sikhs to restore, manage, maintain and administer the ‘places of worship and pilgrimage’, guaranteed under Article 26.
7. Right to restore and preserve the script and culture of the Hindus Jains Buddhists Sikhs, guaranteed under Article 29 of the Constitution has been brazenly offended by the impugned Act.
8. Directive principles are nevertheless fundamental in the governance of the Country and Article 49 directs the State to protect the places of national importance from disfigurement and destruction.
9. State is obligated to respect the ideals and institutions and value and preserve the rich heritage of Indian culture.
10. Only those places can be protected, which were erected or constructed in accordance with personal laws of the person who erected/constructed them, but places erected/constructed in derogation of the personal law, cannot be termed as a ‘place of worship’.
11. The retrospective cutoff-date i.e. 15.8.1947 was fixed to legalize the illegal acts of barbaric invaders and foreign rulers.
12. The Hindu Law was the ‘Law in force’ at the commencement of the Constitution by virtue of the Article 372(1).
13. Hindus Jains Buddhists Sikhs have right to profess, practice propagate religion as provided in their religious scriptures and Article 13 prohibits from making law which takes away their rights.
14. The status of mosques can be given only to such structures which have been constructed according to tenets of Islam and all the mosques constructed against the provisions contained in Islamic law cannot be termed as mosque. Thus, Muslims cannot assert any right with respect to any piece of land claiming to be mosques unless the same has been constructed according to Islamic law. Moreover, the property vested in the Deity continues to be the Deity’s property irrespective of the fact that any person has taken illegal possession.
15. Section 4(1) violates the concept that ‘Temple property is never lost even if is enjoyed by strangers for hundreds of years; even the king cannot deprive temples of their properties. The Idol/deity which is embodiment of supreme God and is a juristic person, represents the ‘Infinite- the timeless’ cannot be confined by the shackles of time.
16. On the touch stone of the principle of secularism, read with Articles 14-15, it is very clear that State cannot show its inclination/hostile attitude towards any religion, may be majority or minority. Thus, the impugned act violates the principle of secularism as it curbs the right of Hindus Jains Buddhists Sikhs for restoration of their places of worship destroyed before 15.8.1947 even through Court.
17. The impugned act, without resolution of dispute through process of law, has abated the suit and proceedings, which is unconstitutional and beyond the law making power of the Centre. The impugned provisions cannot be implemented with retrospective effect and the remedy of disputes pending, arisen or arising cannot be barred. Centre neither can close the doors for aggrieved persons nor can take away the power of Courts of first instance, Appellate Court and Constitutional Courts, conferred under Article 226 or 32. The maxim ubi jus ibi remedium has been frustrated by the impugned Act as pending suits/proceeding in respect of which cause of action has arisen and continues wrong, the remedy of the aggrieved person for resolution of disputes through Court have been abolished, which violate the very concept of justice and ‘Rule of law’.
18. The mosque constructed at temple land cannot be a mosque, not only for the reason that such construction is against Islamic law, but also on grounds that the property once vested in the deity continues to be deity’s property and right of deity and devotees are never lost, howsoever long illegal encroachment continues on such property. Right to restore back religious property is unfettered and continuing wrong and injury may be cured by judicial remedy.
19. Barbaric invaders destroyed a number of places of worship and pilgrimage to make Hindus Jains Buddhists Sikhs to realize that they have been conquered and have to follow the dictum of the Ruler. Hindus Jains Buddhists Sikhs had suffered from 1192 to 1947. Question is as to whether even after the independence; they cannot seek judicial remedy to undo the barbarian acts through process of court to establish that law is mightier than the sword.
20. There are many International Conventions on the cultural and religious heritage and India is signatory of them. Therefore Centre is obligated to act in accordance with the conventions viz. (i) Fourth Geneva Convention 1949 reinforced the protection of ‘Places of worship which constitute cultural – spiritual heritage of people (ii) Statutes of United Nations and UNESCO (iii) Hague Convention for the Protection of Cultural Property in the event of Armed conflict 1954 (iv) World Heritage Convention 1972 (v) Convention for the Protection of Architectural Heritage of Europe 1985 (vi) European Convention on Protection of Archaeological Heritage 1969 (vii) European Landscape Convention 2000 and (viii) The European Convention on Protection and Promotion of Diversity of Cultural Expressions 2005.

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New Delhi (ILNS): A plea has been filed in the Supreme Court challenging the validity of Sections 2, 3, 4 of the Places of Worship (Special Provisions) Act 1991, contending that they not only offend Articles 14, 15, 21, 25, 26, 29, but also violate the principles of secularism, which is an integral part of the Preamble and the basic structure of the Constitution.

The petition has been filed by Advocate Ashwini Kumar Upadhyay who has submitted that the Places of Worship (Special Provisions) Act 1991, has created an arbitrary irrational retrospective cutoff date, according to which “the character of places of worship-pilgrimage shall be maintained as it was on 15.8.1947 and no suit or proceeding shall lie in Court in respect of disputes against encroachment done by fundamentalist barbaric invaders and law breakers and such proceeding shall stand abated. If suit/ appeal/ proceeding filed on ground that conversion of place of worship and pilgrimage has taken place after 15.8.1947 and before 18.9.1991, that shall be disposed off in terms of S.4(1). Thus, Centre has barred the remedies against illegal encroachment on the places of worship and pilgrimages and now Hindus, Jains, Budhists, Sikhs cannot file Suit or approach High Court under Article 226. Therefore, they won’t be able to restore their places of worship and pilgrimage including temples-endowments in spirit of Articles 25-26 and illegal barbarian act of invaders will continue in perpetuity.”

It has further been submitted that the Maxim ubi jus ibi remedium has been frustrated by the impugned provisions, in which cause of action has arisen or continue and the remedy available to aggrieved person through court has been abolished thus violating the concept of justice and Rule of Law, which is core of Article 14.

The petitioner has further pointed out that right to judicial remedy cannot be taken away by State and power of courts, and particularly constitutional courts conferred under Article 32 and 226 cannot be frustrated and such denial has been held violative of basic structure of the Constitution and beyond legislative power. Moreover, it is necessary to reiterate that places of worship and pilgrimage is a State subject [Entry-7, List-II, Schedule-7]. Hence, Centre cannot make such law.

The petitioner has stated a number of reasons holding the Act void and unconstitutional

·       offends right of Hindus Jains Buddhists Sikhs to pray profess practice and prorogate religion (Article25);

·       infringes on rights of Hindus Jains Buddhists Sikhs to manage maintain administer the places of worship and pilgrimage (Article 26);

·       deprives Hindus Jains Buddhists Sikhs from owning/acquiring religious properties belonging to deity (misappropriated by other communities);

·       takes away right of judicial remedy of Hindus Jains Buddhists Sikhs to take back their places of worship and pilgrimage and the property which belong to deity;

·       deprives Hindus Jains Buddhists Sikhs to take back their places of worship and pilgrimage connected with cultural heritage (Article 29);

·       restricts Hindus Jains Buddhists Sikhs to restore the possession of places of worship and pilgrimage but allows Muslims to claim under S.107, Waqf Act;

·       legalize barbarian acts of invaders;

·       violates the doctrine of Hindu law that ‘Temple property is never lost even if enjoyed by strangers for years and even the king cannot take away property as deity is embodiment of God and is juristic person, represents ‘Infinite the timeless’ and cannot be confined by the shackles of time.’

Petitioner has further submitted that only those Temples Mosques Churches Gurudwara can be protected under the Act, which were erected /constructed in accordance with the spirit of personal law applicable to person constructing them, but religious places, erected/ constructed in derogation of the personal law, cannot be termed as place of worship. Thus, S.2(c) is arbitrary irrational and ultra virus and unconstitutional to the extent it abridges the right to religion of  Hindus, Jains, Buddhists Sikhs protected under Articles 25, 26, 29.

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