Vishwa Hindu Adhivakta Sangh vs Union of India and others

Hari Nath Tilhari, J.—This petition has been filed by Hindu Adhivakta Sangh for issuance and grant of the following reliefs:

(a) writ order or direction in the nature of writ of mandamus commanding the opposite parties not to create hurdles and impediments or obstructions in the performance of Darshan, Pooja, Aarti and Bhog. etc. of Shri Ram Ji Virajman at Ram Janam Bhumi as well as of the place of birth of Sim Ram Ji i.e. Janam Bhumi at Ramkot Ayodhya by Hindus.

(b) writ in the nature of mandamus commanding the opposite parties to allow the Pujaris to perform Pooja, Aarti and Bhog etc. of Shri Ram Lala Virajman (the deity) at Shri Ram Janam Bhumi in Ramkot at Ayodhya in District Faizabad and also to restrain them from creating hurdles and impediments and obstructions in the performance of necessary rituals by the Pujaris and Hindus through Pujaris.

(c) writ of mandamus being issued to opposite parties to preserve and protect the material of historical and evidential importance found in the debris of demolished structure at Shri Ram Janam Bhumi, Ayodhya. The petitioner has prayed for such further relief''s as this Court may deem fit.

The petitioner claims to be a registered association of Hindu Advocates with its main object to preserve and protect the rights and interest of Hindus and to struggle and fight in accordance with law for protection and preservation of legal and constitutional rights of Hindus as well as to protect and preserve Hindu shrines and to introduce reforms in Hindu society, as well as object and legitimate goal including its further object to fight against the antinational anticonstitutional and antisocial activities and against all persons engaged therein or interested in creating antisocial activities and atmosphere.

The petitioner has asserted in this writ petition that the petitioner''s association believes and has got faith in the Majesty of Lord Shri Rama, Lord Shri Krishna and Lord Shiva etc. and has got faith and beliefs in Vedas, Shastras, Smritis, Puranas and in the cultural heritage of this country and as Hindus do as well.

The petitioner in the writ petition has further alleged that once upon a time at the birth place of Lord Shri Ram, namely, Janam Bhumi (Ram Janam Bhumi Sthan) in Ramkot at Ayodhya, District at Faizabad, there existed a glorious temple of Bhagwan Shri Ram with all allied deities. The petitioner has asserted that in 1528 a Mughal invader Babar, through his Commander Mir Baki tried to demolish the said temple and also tried to convert the said temple into mosque. But due to great resentment of Hindu public, he could not fulfil the mission of converting the structure of temple into mosque. The petitioner has alleged that from time to time there have been good number of fights between Hindus and Muslims in connection with the construction and land on which it existed i.e. land in dispute i.e. Shri Ram Janam Bhumi. Inspite of the best efforts to resolve the matter between the Hindus and Muslims, the same could not be resolved till the day of independence and thereafter, and fraction was created between the two communities. The petitioner''s case is that there were Kasautee pillars, with engraving of Hindu Gods and Goddess thereon, of the temple, everywhere used therein and three domed structure were constructed by the Britishers on the said pillars as well as to give the same shape of the mosque & so the three domes were constructed. The petitioner submits in the writ petition that the Hindus have all along been in use and occupation of disputed construction and Shri Ram Janam Bhumi and building existing thereon and have been offering Puja etc. and doing all that was necessary to perform Puja of Shri Ram Ji.

The petitioner further averred in the writ petition that some trouble arose in 1949 as well and the Muslims tried to disturb the Hindus rights of Darshan, Puja and Archana etc. This resulted in the filing of a suit by Gopal Singh Visharad, a devotee of Lord Rama impleading some Muslims and others, in which U.P. Sunni Central Board of Waqfs had applied for being impleaded and was impleaded.

The petitioner has further averred that on 1611950, the trial court in Faizabad granted an order of temporary injunction and ordered restraining the defendants of the suit from interfering as well as from causing obstruction in the Puja, Archana etc. of Bhagwan Shri Ram Lala Ji Virajman at Janam Bhumi Ramkot Ayodhya and that order was modifled on 1911950 by order dated 1911950 and it was provided that Puja etc. will not be disturbed and will go on as it is. An appeal from the said order was filed in this Court at Allahabad as First Appeal No. 164 of 1951 Zahoor Ahmad v. Gopal Singh Visharad and the Division Bench of this Court sitting at Allahabad affirmed the order of injunction passed by trial court. The order dated 1611950 was modified by order dated 1911950. The order reads as under:

�The parties are hereby restrained by means of temporary injunction to restrain from removing the idols in question from the site in dispute and from interfering with Puja etc. as at present is carried on. The order dated 1611950 stands modified.�

The Division Bench of this Court having heard the arguments of the appellants, observed as under:

�The learned Civil Judge was of the opinion that the balance of convenience was in granting injunction, he took the view that if the idols were removed one of the relief''s sought for in the suit namely perpetual injunction could not be granted even if the suit Was decided in plaintiff''s favour and then we think he was clearly right.�

The Division Bench further observed;

�Notwithstanding, the error made by the learned Judge in taking into account the certified copy of affidavit filed after arguments, have been concluded, we are not able to say that this order is one, which clearly ought not to have been made. We have considered it extremely desirable that the suit should be disposed of atonce and, we, accordingly direct that the record of proceeding be sent back to lower court forthwith with a direction to Civil Judge to expedite the hearing.�

The petitioner''s case is that thus the order passed by the Civil Judge, Faizabad, was confirmed by this Court and it was directed that deity shall not be removed and that no interference with the Puja, Archana etc. will be made, and, was allowed to continue it as present carried on, The petitioner in this writ petition has further asserted, on the application of a Hindu devotee vide order dated 121986 contained in annexure2 to the writ petition passed by the District Judge, Faizabad, ii was ordered that the locks placed on the building in dispute at Ram Janam Bhumi be removed as it was held and declared that a Hindu have the right to have Darshan and Puja etc. of Shri Ram Lala Ji Virajman in that building i.e. Hindu shrine at Ram Janam Bhumi at Ayodhya.

The petitioner has further very clearly averred that from the order contained in annexure2 to the present writ petition, Writ Petition No. 746 of 1986 was filed by one Mohd. Hashim & Writ Petition No. 31C6 of 1986 was filed by U.P. Sunni Central Board of Waqfs in this Court and both the writ petitions are still pending and further, that the order passed by the District Judge Faizabad, dated 121986 continues to be operative, and its operation has not been stayed nor has the same been set aside or cancelled.

According to the petitioner''s case, it is crystal clear that Hindus in general have a right to have Darshan, Puja and Aarti etc. of Shri Ram Lala Ji and the opposite parties have no right to create any hurdles or obstruction in the exercise of petitioners as well as of Hindus the fundamental right of religion and faith and their right to perform Puja and have Darshan of Shri Ram Lala Ji in Ram Janam Bhumi in general and the oppositeparties are not entitled to restrain or deprive Hindus of their right to have Darshan and Puja.

The petitioner has stated that the people in general among Hindus always entertained and cherished a will of renovation of old construction of the temple at Shri Ram Janam Bhumi into a new, and funds at different level were raised and an organisation was formed as Vishwa Hindu Parishad'' on the birthday of Lord Shri Krishna i.e. on Janmasthami day i,e. 2981964.

The petitioner has also averred that in 1991 the general elections were held and the peoples, will for reconstruction of the temple at the birth place of Shri Ram in Ayodhya was manifested and reflected through votes resulting in the victory of Bhartiya Janata Party in those elections with a clear mandate to construct Shri Ram Temple as declared in its election manifesto. The petitioner has further averred that Suit No. 12 of 1961 filed by U.P., Sunni Central Board of Waqfs had been transferred to this Court for being tried by a Full Bench or Special Bench of this Court in pursuance of transfer order dated 1071989.

On October 10, 1991, according to the petitioner''s case, some land adjoining the main land was acquired and thereafter Kar Sewa started over this land, which was continued upto July, 1992 but on the intervention of Shri Narasimha Rao, the Prime Minister of India, to resolve the dispute the Kar Sewa was suspended for four months but instead of his best efforts the dispute could not be resolved and thereafter ''Dharm Sansad'' declared that with effect from 61292 Kar Sewa would be resumed. The petitioner further stated that there was no declaration or movement to start Kar Sewa from Sanctum sanctorum.

The petitioner further averred that a writ petition was filed challenging the acquisition of the land in this Court and the hearing was concluded on 41192 and the judgment therein was delivered on 111292. The petitioner''s case is that during the period between 41192 in a contempt petition, pending before the Hon''ble Supreme Court for the alleged violation of interim orders passed in land acquisition case, the Kar Sewa in pursuance of the Supreme Court''s direction, could only be performed in a symbolic manner and no constructional activity was permitted. The Supreme Court''s direction was telecast every day on Radio and T.V. that symbolic Kar Sewa will be performed,

The petitioner has further alleged that when Kar Sewa was to be performed, the people gathered in lacs from distant parts of the country at Ayodhya for Kar Sewa and then it became out of control from Kar Sewa on that day and as a result of anguish and as a result of frustration the unfortunate episode resulting in the demolition of the old structure did take place though the same was neither intended or conceived nor planned by Hindus.

The petitioner''s case is that the petitioner as well as Hindus in general have got the right of Darshan and Puja etc. The petitioner has submitted in the petition that there is no doubt that State has the duty of maintaining law and order as well as has got power of regulating the entry of persons in the temple but it cannot deny the right of visiting the place of having Darshan and Puja etc. It is the duty of every one that everyone should obey law and respect the orders issued by the court including the interim orders granted and issued by the courts and to see that the said orders are not rendered nugatory nor are the citizen deprived of their fundamental and legal rights.

The petitioner''s case is that the oppositeparties are acting in violation of the order of the court issued from time to time as well as the provision of Articles 25 and 26 of the Constitution of India. The petitioner averred that the State has not taken any action in regard to the obligation to collect and. preserve the material of building which existed till 51292 and unfortunately stood demolished on 612 92, since then and to keep the same safe for being looked and considered to determine the nature of building whether the same was a temple or mosque.

The petitioner alleged that the acts of the oppositeparties in creating obstruction and hindrance in the petitioner''s as well as in the general Hindu public right to perform Darshan, Puja and also by creating of hindrance in the Hindu exercising their fundamental right and the fundamental rights of Hindus is being denied. So, the petitioner has prayed for the relief''s mentioned above being granted by public interest litigation on behalf of Hindu public and for the benefits of Hindus.

Along with the writ petition, the petitioner has filed an application for interim relief as well which are to the effect that the opposite parties be directed not to create any hurdles, impediments on Darshan and Puja, etc. as well as allow the petitioners and Hindus to perform Puja, Aarti etc. every day according to the Hindu rites and customs.

A second petition for the same or similar relief''s has been filed by Akhil Bhartiya Nehru Brigade, Uttar Pradesh through its president and by Sri Ganga Singh, State president of Nehru Brigade against Union of India, the State of Uttar Pradesh, the Home Secretary, Uttar Pradesh Government and District Magistrate, Faizabad.

The petitioner No. 1 in this second writ petition has claimed himself to be social organisation interest in protecting the rights of Indian citizens as enshrined in Constitution of India. The petitioner, in this writ petition, has asserted that the petition is being preferred seeking mandamus commanding opposite parties to remove restriction imposed on darshan and worship etc. as well as to allow people having faith in Hindu religion to have darshan etc. The petitioner of this petition has averred that the restriction imposed on darshan and worship of Shri Ram Lala Ji is quite tantamount to snatching away the fundamental rights of Indians having faith in Hindu religion as enshrined under Articles 25 and 26 of the Constitution of India. The petitioner of this petition avers that the locks of the Janam Bhumi were opened under the court''s order dated 121986, people were allowed to have Darshan and worship but since 61292 the petitioner and the people in general have been obstructed and deprived on account of the oppositeparties act, in the enjoyment and exercise of their fundamental right of the faith and religion by not allowing Hindu to perform Puja and worship of Shri Ram Lala Ji at Ram Janam Bhumi at Ayodhya.

The third writ has been filed and argued by a citizen Maharshi Avadhesh. This petition is by a person not trained in law and in the matter of drafting. It was a jumbled one as if on one hand it appears to be some action for proceeding against someone for contempt of court and then as it appears on the other hand it has been moved for the grant of writ of mandamus directing the opposite parties to allow Darshan Puja and Archana etc. being performed by Hindus and the devotees of Lord Shri Ramji. The petitioner claims himself to be a devotee of Bhagwan Shri Ram Chandra as we as to be dedicated social worker.

Keeping pace with the provisions of Article 25 of the Constitution and the order dated 1.2.1986 he has prayed the first two relief''s as others have done and has further prayed that pujari of Sheshavtar Temple be directed to be allowed to perform Puja etc. and people be allowed to have Darshan therein as well. The petitioner in this writ petition apart from other allegations similar to other has alleged that the pujari of Sheshavtar Bhagvan has been kept without offering Puja, Aarti and Archana etc., on account of the Central Police Forces under orders of opposite parties. The petitioner complains of the violation of the fundamental rights enshrined in the Articles 25 and 26 of the Constitution of himself and other Hindus.

He has also prayed that opposite parties be directed to define secularism, minority and majority in order to save Hindu religion and Hindu Temple from being destroyed or thrashed by clubbing these three expressions together as Hindus in general are being denied of their rights including right of religion and faith.

The allegations of the petition and the facts, the narration of the facts are almost identical as in the petition of Vishwa Hindu Adhivakta Sangh. As the petition was combined one as one under Article 226 of Constitution as well as for taking contempt of court proceedings, we asked petitioner to first clarify whether he presses his petition as a petition for contempt of court or as the petition under Article 226 of the Constitution of India for a writ of mandamus and other relief of that as the two cannot be jumbled into one, the petitioner Shri Maharshi Avadhesh with all submissiveness and sense of respect for the court expressed in writing that he does not want to press this petition as a contempt petition and he stated.

�YAH YAACHIKA BATAUR WRIT YACHIKA KE SAMJHI JAAI. AWMAANNAA PRAKR1YAA KE ANTARGAT ISEY NAHI KlYA GAYA HAI.�

Thus, he did not press his case for the alleged contempt and alleged to press the petition as the petition one under Article 226 of the Constitution, and the consideration thereof is confined only as a petition under Article 226 and is not as one under contempt of court and under Article2l5 of the Constitution. The petitioner was heard.

As these three petitions involve common question of law, the petitions are consolidated and are heard and being decided by one common judgment together making the writ petition filed by Vishwa Hindu Adhivakta Sangh as leading case.

Notice of all these petitions was served on Senior Standing Counsel for Central Government as well as on the Chief Standing Counsel for the State of U.P. & other State authorities.

A short Counter Affidavit has been filed on behalf of Uttar Pradesh Government & the opposite parties i.e. District Magistrate etc, i.e. opposite parties 1 to 3 on 26.12.1992 and a further affidavit in compliance of court''s order dated 26.12.1992 has been fifed on 28.12.92. The petitioner has filed rejoinder affidavit to short counter affidavit.

In course of hearing applications were made one by U.P. Sunni Central Board of Waqf, Shri Mohd. Hashim for impleadment as a party & other applications for impleadment by U.P. Muslim Advocates Forum and Shri Tayyab Khan. By separate orders passed on the applications the applications have been allowed to be heard as interveners under Chapter XXII Rule 5 A of the Rules of the Court, 1952 which reads as under:

�At the hearing of the application, any person who desires to be heard in opposition to the application and appears to the court to be a proper person to be heard may be heard, notwithstanding that he has not been served with notice under Rule 2,�

U.P. Sunni Central Board of Waqfs has filed an affidavit in opposition as an objection in the form of affidavit to the interim relief application moved by the petitioner along with the writ petition. It may be mentioned here that the petitioner has claimed interim relief in the same terms & on same facts as stated in the writ petition and the application for interim relief is based on the allegation made in the writ petition. The State of U.P. in its short counteraffidavit dated 241292 has stated that the writ petition is misconceived & not maintainable & according to the information received from the district administration, Faizabad strict prohibitory order under section 144 Cr.P.C. are in force around the disputed place & only five persons as enumerated in paragraph 5 of the counteraffidavit are permitted to go to the disputed place, out of whom three can at a time perform Puja of idols kept at the disputed place. The five persons who have been permitted to go to the disputed place in connection with the performance of Puja are: Acharya Satendra Das, Subhash Chandra Tripathi, Santosh Kumar Tewari, Vinay Kumar Pandey and Sunil Das. According to the State''s case the prohibitory orders under section 144 Cr.P.C. are in force in the disputed place and entry of persons except as mentioned in paragraph 3 of the affidavit is prohibited. On 261292 during the course of hearing we enquired from the learned Chief Standing Counsel to indicate the actual situation in Ayodhya and particularly in the area known as Ramkot, whether the curfew operates or not and if it is operating the timings of curfew and its relaxation, if any, should be indicated. The learned Chief Standing Counsel was further directed to state on affidavit if curfew was in operation or not as well as its timings. In pursuance of our order dated 261292 the oppositeparty no. 1 filed an affidavit sworn by Shri K.K. Bakshi, Principal Secretary to the Government of U.P., Home Department, Civil Secretariat, Lucknow. In paragraph 3 of the affidavit of Shri K.K. Bakshi it has been stated that District Magistrate has with due haste conveyed relevant information vide his letter dated 271292 and according to paragraph 4 it has been stated that the said letter informs that so far as mohalla Ramkot in Ayodhya is concerned it continues to remain under complete curfew from 6.12.1992 and no relaxation has been made in the said order in respect of the area lying in the said Mohalla Ramkot and thus, according to the affidavit of the State entire area lying in Ramkot in Ayodhya is under twenty four hours curfew since 6.12.1992 as per affidavit dated 28.12.1992. The affidavit further states just contradictory to what has been stated in earlier paragraph. Paragraph6 of the affidavit of Shri K.K. Bakshi reads as under:

�That in respect of the area indicated in parafraph1 of the letter of the District Magistrate the District Magistrate informed relaxation is made after 21.12.1992 between 9 a.m. to 5 p.m., to enable the general public for the performance of their normal functions and duties with the condition that during this period of relaxation persons cannot collect or carry on or raise provocative slogans. However, during this period the persons can visit such temples for Darshan which are situated in that area,�

In paragraph7 of the affidavit it has been deposed:

�''That the prohibitory order passed fey District Magistrate Faizabad on 6. 12. 1992 under Section 144 Cr.P.C., 1993 continues in Ayodhya with such modifications and relaxations as are permitted by the District Magistrate Faizabad in subsequent orders which are all filed as Annexures accompanying the letter dated 27.12.92 of District Magistrate as Annexures A 3 to A 13. If is again reiterated that so far as mohalla Ramkot is concerned there has been no relaxation in curfew after 6.12.1992 as would be evident from the perusal of the District Magistrate''s letter dated 27.12. 1992.�

The position as emerges from this affidavit that so far as mohalla Ramkot where Ram Janam Bhumi is situated in Ayodhya, there is no relaxation in curfew and the curfew prevails for twenty four hours and in other areas of Ayodhya other than Ramkot, there is some relaxation in curfew as per affidavit dated 28. 12. 1992. The fetter of the District Magistrate shows that while five Pujaris have been granted permission to go inside the disputed place where Bhagwan Shri Ram Lala is Virajman but out of five one three can perform Puja at a time. The reason for the same is not clear why out of five only three can perform the Puja. Any way this itself emerges from the affidavit filed by and on behalf of oppositeparties 1 to 4. These affidavits are being read in connection with all the three writ petitions involving common subject matter.

The affidavit sworn by Mohammad Ismail on behalf of U.P. Sunni Central Board of Waqfs dated December 23, 1992 along with the application for impleadment and Mohd. Ismail''s affidavit dated 25th December, 1992 shown and filed as tin objection by way of affidavit to the application for interim relief per se shows that according to the interveners Muslim Waqfs Board, the writ petition is not maintainable. According to the applicantWaqf Board, the writ petition is to seek tacit and implied recognisation of the �alleged� illegal and wrongful act and the alleged contempt''s of Hon''ble Supreme Court committed on 6.12.1992 and thereafter by way of demolition and encroachment. According to interveners, the question of reconstruction of the disputed building alleged to be Babri Masjid which had been demolished according to the Waqf Board illegally on 6.12.92, is receiving active consideration and the Supreme Court and Government of India had been directed to ubmit the plan of the reconstruction. The Board contention appears to be vide paragraph 4 of the affidavit that the writ petition has been filed to circumvent the direction of Hon''ble Supreme Court and proceedings before Supreme Court as it relates to same place on which the site the reconstruction of mosque is alleged by the deponent Mohammad Ismail, is to take place. The case of intervener vide the paragraph 5 appears to be that the structure in dispute was mosque known as Babari Masjid. It is alleged in paragraph 5 that the admitted case of the State Government is that the structure in dispute was a mosque and was in use of Muslim for worship. In support of this application in paragraph 5, the interveners have referred to paragraphs 12 and 13 of the written statement verified and signed by J.N, Ogra, the then District Magistrate, Faizabad on behalf of State of Uttar Pradesh in Suit No. 2 of 1950 pending before the Full Bench. The alleged admission as has been quoted in the affidavit by the deponent Mohd. Ismail reads as under

�Para 12 The property in suit is known as Babari mosque and it has for a long time been in use as a mosque for the purpose of worship by Muslims. It has not been in use as a temple of Shri Ram Chandraji.�

�Para 13 That on the night of 22/23th December, 1949, the idols of Shri Ram Chandraji were surreptitiously and wrongfully put inside�

On the above basis, the interveners'' case is that interim order may not be granted to provide an opportunity to State of Uttar Pradesh to resile from the above mentioned admissions. This is what is contained in paragraph 6. In paragraph 7 it is stated as under:

�Para 7 That the interim orders regarding the Puja and Darshan of the Civil Courts were in respect of the idols then placed in the manner mentioned above. Those were removed by the attackers of Babari Masjid on 6.12.92, hence all interim orders in respect of Puja and Darshan become infructuous.�

Thus it appears to be the case of the interveners that though prior to 6.12.92 idols of Shri Ram Chandraji were existing and were continuing to be there inside the old construction or building in dispute on Ram Janam Bhoomi in Mohalla Ramkot, the case of the Board vide the affidavit dated 25.12.92 is that when the occurrence did take place on 6.12.92 resulting in demolition of the building or disputed construction which the applicant Board referred as Babari Masjid is to demolish or was demolished, those idols have been removed and all the interim orders passed earlier did not become available to Ram Lalaji even if subsequently placed therein or after 6.12.92 i.e. after the occurrence of demolition again and the interim orders have become infructuous. The case of Board appears to be that after placement of the idols at the place where they were on or after 6.12.92 after the demolition of the building therein violation of interim directions of the Hon''ble Supreme Court dated 15th November, 1990 and the undertaking of the State Government before the Hon''ble Supreme Court and the orders of statusquo and so the placement of idols according to Board was unauthorised encroachment upon the land. The Board case in paragraph 8 is that in this view of the matter, �the interim direction cannot be given by this Hon''ble Court in the present writ petition to protect the illegality in exercise of writ jurisdiction.� The writ jurisdiction is an exercise in equity and the powers cannot be exercised in favour of law breakers. According to the allegations made in the affidavit dated 251292 made by the Board as alleged in para 9 in the following words:

�The Writ Petition is only directed to secure illegal recognisation and tacit approval of illegality and the contempt of Hon''ble Supreme Court committed on 6th December, 1992 and thereafter by demolition of Babari Mosque & by making encroachment upon the land in question.�

We have heard Shri Hari Shanker Jain (Advocate), the Secretary of Vishwa Hindu Adhivakta Sangh in writ petition of Vishwa Hindu Adhivakta Sangh as well as Shri Ganga Singh (Advocate) and President of Akhil Bhartiya Nehru Brigade, Uttar Pradesh in the Writ Petition filed by Akhil Bhartiya Nehru Brigade and petitioner Shri Maharishi Avadhesh in writ petition filed by him and the learned Advocate General representing the State as well as Dr. Ashok Nigam, Senior Standing Counsel, Central Government who had as well as assisted the learned Advocate General.

We have also heard Shri Abdul Mannan, learned Counsel for the interveners i.e. U.P. Sunni Central Board of Waqf & Mohd. Hashim, We have also heard Shri Qamer Ahmad, learned Counsel for the interveners, namely, U.P. Muslims Advocate Forum and Tayyab Ali Khan on whose behalf application has been moved by Shri Qamer Ahmad. The hearing of the writ petition commenced on 261292 and it continued up till the eve of 29121992.

Shri Hari Shanker Jain, after having taken us to the background of the facts of the case narrated earlier in the writ petition and referred to in this judgment earlier as well as having made a reference to orders dated 16101950 as modified by order dated 1911950 by the Civil Judge, Faizabad an the orders passed by a Division Bench consisting of Hon''ble Mr, Justice O.H, Mootham i.e. Hon''ble Chief Justice and Hon''ble Mr. Justice Raghuber Dayal in first appeal from Order No. 154/1951 of Shri Zahoor Ahmad and others v. Gopal Singh Visharad dated 2641955 Annexure no. 1 and he also having referred to order dated 121986 passed by the then District Judge, Faizabad (Shri K.M. Pandey) urged that in view of the injunction order passed by the Civil Judge and as affirmed by this Court in F.A. F.O. No. 154 of 1951 and the order dated 121986 passed by the District Judge Faizabad submitted and urged that parties were restrained from removing the idols from the site in dispute as well as from interfering with the Pooja etc. as carried on of the idols of Shri Sita Ram Chandraji and other deities and that the respondents of the Civil Appeal No. 8 of 1986, namely, the State of Uttar Pradesh, the District Magistrate and S.S.P. Faizabad were directed to open the locks of gates O and P forthwith. They were further directed not to impose any restriction or hurdles in the Darshan and Pooja of the applicants and other members of the Hindu Communities in general. Shri Jain further submitted, no doubt, the order further provided that respondents in the appeal i.e. State of U.P. and the District Magistrate and S.S.P. Faizabad, were allowed to take independent decisions as regards matter of controlling the law and order problems according to needs of the situation & were also empowered to regulate the entry of the pilgrims, Darshanarthies coming to have Darshan of the place of birth of Shri Ram Chandraji, namely, Janam Bhumi and deities or idols of Shri Ram Chandraji and other, Virajman on that land and under the roof of that old disputed building, which, Sri Jain submitted, was not really a mosque but a temple as engraving of the Hindu God and Goddess contained in the pillars an which three domes of the old structure building was existing. Shri Jain submitted that according to him and his understanding of law on the subject, the building though alleged to be Babari Mosque could not be mosque. Shri Jain submitted that offering of prayer before butts under Islam or under holy Quran is not permitted. Really, offering of Namaz at the place or in a building containing the human figures or containing the pictures of gods and goddesses or the deities or Buttas is against the injunctions of holy Quran and Islam. Islam refutes idols and ordains its followers do not 10 pay homage of the Butts. Shri Jain further contended that according to information available from history and other material, raider Babar through his Chieftain Meer Baki attempted to get a mosque constructed after demolition of the structure of Hindu''s temple but on account of resentment of the public of Ayodhya and nearby areas he could not completely change nature of that building into mosque and on account of the human engraving therein on the pillar on which three domes are constructed the same could not be recognized as mosque for the worship of AllaTala and for offering the Namaz. According to Shri Jain''s contention, Islam is one of the great religions which teaches and preaches obedience to the will of AllaTala. Really, it did not preach and he did not ordain use of criminal force or invasion on other countries, nations or other civilisations in order to propagate Islam. Shri Jain submitted, it really preached, let one of Eaman i.e. its followers follow own faith and religion and let others follows their own as it is will of God that those who believe in idolworship also exist in the World�. Had the God almighty i.e. Alia Tala not so willed, the idolworshippers would not have been there. But ambitious of acquiring great Empire the invaders invaded country, trampled the culture with use of swords and in the madness of power in the name of Islam & performed acts which were in defiance and in complete disobedience of ordains of Holy Quran. As in the present case, Shri Jain submitted, the Mughal invader Babar and his Chieftains demolished the Hindu temple of Shri Ram Chandraji to certain extent and on the pillars thereof which had engraving containing the human figures of Hindu Gods and Goddesses for nothing but for exhibiting the power of sword and acted in violation of real teachings and ordains of Quran, as such, Shri Jain contended that the building in dispute could not be said to be a mosque. He submitted that this was the preface of his arguments, this may be a question for decision by the Full Bench or by any of the competent authority or the Supreme Court, as interveners have stated in their affidavits, but for the present, his case is that in view of the fact that the land in dispute situated in Mohalla Ramkot is the birth place of Shri Ram Chandraji whom the petitioners and the Hindus adhere as God revealing himself in the human form and who set the great ideals of human life he had been revered by all in India in all the corners of India by Hindus as well as by Hindus living outside India. The Ram Janam Bhumi and the idols placed there are subject of faith, worship, adherence, Upasana, Pooja. Hindus have got a right of faith and of worshipping the idols of Shri Ram Chandraji placed at Janma Sthan as well as to offer homage to the land of his birth i.e. Ram Janam Bhumi as the great memorial of Lord Shri Ram Chandraji The Hindus have got the same reverence as they have got for the Samadhi Sthal of Mahatma Gandhi or other great men. He submitted that Ram is the soul and theme of the culture of India. Ram, his life and conduct as individual and as man of people is the soul and theme of concept of welfare state known as Ram Rajya of which the Father of Nation Mahatma Gandhi used to talk and conceive after the independence of India, so Shri Jain contended that Shri Ram is the part of cultural Heritage of India, the great Hindustan, and was ever revered since time immemorial as a divine power and so he has become subject of faith. Worship of Ram has become a matter of faith and religion. That worship and prayer and adoration of all places connected with Lord Shri Ram lying in this country including in Mohalla Ramkot, which name per se refers to nothing but to the ''Kota that is force of Rama which had for sometime existed and would have existed in antiquity and that adoration and the paying of homage to the placed concerned with Shri Ram including at his Janma Sthan is a matter of faith and religion of Hindus. Hindus in general are being deprived of their right of faith since 61292. Petitioners have filed this petition for enforcement of their right of faith and worship enshrined in Articles 25 and 26 of the Constitution of India, particularly when it stands recognized by the orders of the Courts, Annexures 1 and 2, may be, pending the final decision of the suits or pending further orders of this Court on matters involved in suits. Shri Jain submitted that the position as it existed prior to 61292, as regards worship. Darshan, Poojan of Lord Shri Ram Chandraji and his idols at the place of his birth, Janma Sthan, and that rights of the petitioner and Hindus as recognized and as provided under order Annexures No. 1 and 2 to the Writ Petition only are sought to be enforced by this Writ Petition. He submitted that in this petition he is not concerned with any matters of dispute involved in the suits pending or writs pending and referred by oppositeparties or interveners. He also submitted that all the relevant facts to the best of his knowledge even have been placed in Writ Petition. There has been no concealment of any fact. The oppositeparties i.e. State Authorities were not allowing the petitioners and the Hindus, Pilgrims, Darshan, Poojan etc. and so this petition in public interest has been filed.

Shri Ganga Singh appearing in the writ petition filed by Akhil Bhartiya Nehru Kendra and Shri Maharshi Awadhesh made their submissions in brief adopting the arguments of Shri Jain. Shri Ganga Singh submitted, Hindus who are sons of this soil and all those born on the land of Hindustan and devoted to cause of this Nation and in preservation of cultural heritage of this country and devoted to greatest of great men produced by this Bharat mata or Hindustan, Bhagwan Shri Ram Chandra, whose life and conduct gave concept of Ram Rajya, are entitled to seek protection of this Court to enforce their right of religion, faith and worship on Ram Janma Bhoomi in Ayodhya in reverence of God incarnation Shri Ramji and denial of such a fundamental right is obstruction in the exercise of fundamental right enshrined in Article 25 and in discharge of fundamental duty imposed by Article 51A of Constitution of the Hindus, so petitioners filed this petition. Shri Awadhesh adopting argument of Shri Jain. Shri Singh urged that state apart from being directed to remove obstruction in exercise of Hindus'' fundamental rights, be directed to define Nationalism ''''Secularism� ''�Minority� and Majority as Hindus are worst affected by user of these terms in their own way by persons and parties on authority or power at various occasion according to their own objective.

The petition was opposed by learned Advocate General on behalf of the State of U.P., Dr. Ashok Nigam, on behalf of the Union of India and Sri Abdul Mannan on behalf of interveners, U.P. Sunni Central Board of Waqf and Mohd. Hashim, while Shri Qamer Ahmad represented the other interveners. Their submissions briefly are that the petition is, not maintainable and is liable to be dismissed as petitioners have alternative remedy of suit and they may file the suit, as well as on the ground that petitioner has not referred to District Magistrate''s Order under Section 144 of the Cr.P.C. nor has challenged the said order in the writ petition so also petition should be dismissed.

It was further submitted on behalf of the interveners that the writ petition is not maintainable as the building in dispute has been demolished on 61292 and has been illegally broken and encroached upon by some law breakers and mischievous elements and the writ jurisdiction as such should not be exercised and writ petition be dismissed. It has further been submitted that petitioner'' association is not entitled to maintain the suit as Corporation is not a citizen for the purpose of fundamental rights.

The personal rights of the petitioners are not affected and as Corporation is not a citizen, so not entitled to any fundamental rights, as such, the petitioner is not entitled to seek the relief. It was further submitted by learned Advocate General as well as Shri Mannan and Shri Qamer Ahmad, Counsel for the interveners that the petition involves the determination of question of fact and complicated question of fact which cannot be decided without recording any evidence and so this Court should dismiss the petition and relegate the petitioners to the remedy of suit.

The learned Advocate General submitted that it is a case between Hindus and Muslims and Government is not much involved. The Central as well as State Government are secular & will follow the orders passed by the Court. No relief can be granted to the petitioner unless the petitioner had challenged the order passed by the District Authority under Sec. 144 Cr.P.C. The learned Advocate General submitted that petitioners had an alternative remedy.

A reference in course of arguments was also made to the provisions of Section 5 of the U.P. Act No. 42 of 1991 by the learned Advocate General. It may be mentioned that learned Advocate General submitted that petitioner should approach in view of Order under Sec, 144 Cr.P.C. and under the provisions of Section 144 Cr.P.C. it is open to petitioners or any of the Hindus to approach the Magistrate who may consider the grant of passes or permits.

The learned Advocate General invited my attention to the District Magistrate''s Press Note dated 27121992 and submitted that the District Administration is considering to allow the public to have Darshan of Ram Lala in a manner regulated by it while the learned counsel for the petitioners submitted that things are happening to the contrary. The petitioners in rejoinderaffidavit, submitted that without orders of the Court the petitioner may be deprived of any Darshan.

Shri Abdul Mannan''s relief on the allegation of para 5 of the affidavit dated 25121992 Mohd. Ismail, and urged that State had admitted the property in suit to be mosque and the matter is in active consideration for construction of a mosque on the land of Ram Janma Bhoomi by the Hon ble Supreme Court and Government of India. No writ, order or direction be issued which may provide an opportunity to State of Uttar Pradesh to resile from said admission and so similar arguments were made by Shri Qamer Ahmad. He contended that the petition is not maintainable as public interest litigation and interim order dated 121986 is subject matter of challenge of writ petition. He further submitted that there had been a mosque in Ramkot Ayodhya though it was called disputed construction by petitioner, it has been demolished but the Muslims be allowed to offer Namaz there as it is there fundamental tight.

We have considered the submissions made by learned counsels for the parties. The provisions of the places of worship (special provisions) Act, 1991, in view of Section 4 thereof do not apply to case in hand.

48A Before dealing with the .preliminary objections of the petitioners, reference may be made of a couplet of a famous Urdu Poet �Iqbal about Shri Ram Chandraji which reads as under:

�HAE RAM KE VAJOOD ME HINDUSTAN KO NAAZ. AHALEY NAZAR SAMJHTEY HA1N USKQEMAMEY HIND,�

Here it will also be proper to make in this context, a reference to concept secularism in Indian context under our Constitution of India. The expression �Secular� has been introduced in the preamble of the Constitution by Section2 of the Constitution Forty Second (Amendment) Act, 1976 w.e.f. 311977. There can be no doubt that Secularism is an essential fundamental basic structure of the Constitution as is concept of Socialism, of Democracy or Sovereign or National Integrity. Article 51(A) of the Constitution imposes fundamental duties on every citizen of India which duties are described in Clause A to J thereof. Article 51A reads as under;

�51 A. Fundamental duties

It shall be the duty of every citizen of India

(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem:

(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;

(c) to uphold and protect the sovereignty, unity and integrity of India;

(d) to defend the country and render national service when called upon to do so;

(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

(f) to value and preserve the rich heritage of our composite culture;

(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;

(i) to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement.�

The Constitution of India as originally framed enshrined the concept of secularism, though expression was introduced by Constitution 42nd (Amendment Act) and so was the concept of duties and cultural heritage as well. That in order to understand the concept of secularism and what secularism really meant in the context of India, a list of illustrations as contained in the Constitution and engraved in Chapters 1 to 22 of the Constitution of India as adopted by Constituent Assembly on the 26th Day of November, 1949 which bears the signatures of all the members of constituent Assembly including those of Dr. Rajendra Prasad, Pt. Jawahar Lal Nehru, Puttabhi Sita Ramayya, Sardar Ballabh Bhai Patel, Maulana Abul Qalam Azad, Sardar Baldeo Singh, Dr. B.R. Ambedkar, Jagjeevan Ram, Dr. K.M. Munshi, Chaudhary Haider Husain, Sayyed Abdul Raoof, Qazi Sayyad Qamruddin, Vishwanath Dass, M.M. Sayyad, M. A. Beg, Mohan Lal Saxena, Sachchidanand Sinha and many others including Feroz Gandhi and the copies of which must be available with'' Govt. Law Libraries and a copy of which must be available in the Prime Minister''s house of the First Prime Minister of India, Pt. Jawahar Lal Nehru i.e. Trimurti Bhawan, per se explains the concept of secularism and cultural heritage and the place of Rama, Krishna, Buddha, Jain Muni Mahabir, Shiva, Akbar, Guru Govind Singh, Rani Laxmi Bai and many others in that context. It indicates Shri Ram has been accepted by Constituent Assembly of India, Krishna has been accepted by Constituent Assembly, Shiva has been accepted by Constituent Assembly, Guru Govind Singh has been accepted by Constituent Assembly as National figures and figures of National cultural heritage and adoration. Those who worked for the welfare and unity and integration of this country have been loved, adored and worshipped. The birth and existence of Ram Chandra with Sita and events of their life has been accepted as realities having taken place to establish rule of law and discipline and it has not been left to be taken as mere myth. The revelation of Rama in the form of human being, his birth even cannot be denied nor events of life, as the same has always been accepted by children of this land Bharat and framers of its Constitution. The Constitution shows that the Constituent Assembly accepted the history of Rama in relation to the places as a fact, reality and to be of national pride and cultural importance. One of us, with Gods'' grace, has got the privilege of having one of the copies of the Constitution as adopted by the Constituent Assembly on November 26, 1949 and we have perused it. We are quite sure many more copies of that constitution must be available in the libraries of the Hon''ble High Courts and Hon''ble Supreme Court as well as of Government of India and the Govt. of States including that of State of Uttar Pradesh. It is a document of Historical importance and explains the concept of secularism and cultural heritage. For the purposes of this case, I may refer to the list of illustrations as contained in the Constitution as under:

SI No.

Particulars and period

Pages

MohanJodaro period

Decoration with Mohan Jodaro seal (depicting the creature, �Brashabh� i. e. Bull

Vedic period

Scene from Vedic Ashram (Gurkul)

Epic period

Scene from Ratnayan (Conquest of Lanka and recovery of Sita by Rama)

Do

scene from Mahabharat (Sri Krishna propounding Gita to Arjun

17

Mahanjanaprada and Nanda period

Scene from Buddha''s life

20

Do

Scene from Mahabir''s life.

63

Maurya period

Scene depicting the spread of Budhism by emperor Ashok in India and abroad.

98

Gupta period

Scene from Gupta Art its Development in different phases.

102

Do

Scene from Vikramaditya''s Court.

104

Do

Scene depicting one of the ancient Universities (Nalanda)

105

Medieval period

Scene from Orissan Sculptures

106

Do

Image of Natraj (Bhagwan Shanker)

113

Do

Scene from Mahabalipuram sculpture (Bhagirath''s penanne and descent of Ganga)

130

Muslim Period

Portrait Akbar with Mughal Architecture

132

Do

Portraits of Shivaji and Guru Govind Singh

British Period

Portrait of Tipu Sultan and Lakshmi Bai (Rise against British Conquest)

144

Indian Freedom Movement

Portrait of Father of Nation (Gandhiji''s Dandi March)

149

Do

Bapuji the Peace Makerhis tour in riot affected area of Noakhali.

154

Revolutionary Movement for Freedom

Netaji Subhash Chandra Bose and all other Patriots trying to liberate Mother India from outside India.

160

Natural features

Scene of Himalayas

167

Do

Scene of Desert

168

Do

Scene of Ocean

181

The depiction of various portraits at various pages of the Constitution while adopting it on 26th November, 1949, the constituent assembly expressed itself that these are the national and nationally recognized phases and features of our national life, our heritage, our culture and the source of inspiration for adopting the concept of secularism. The secularism in a Western concept may mean negation of religion, or whatsoever it may mean in the context of the west.

The great Indian Philosopher, President of India, Dr. SarvaPalli Radha Krishnan in his work, ''''Our Heritage� dealing with Pt. Jawahar Lal Nehru writes, page 148, �Secularism� is a principle which he gave us. It is a wrong read, wrongly interpreted and misunderstood by many people. It does not mean indifference to religion. It does not mean opposition to religion, it does not mean disrespect to religion. It only means the State as such is not identified within a particular religion but tolerates every religion, appreciates every religion............�When it respects all religion� it is merely a practice of the fundamental principle of Indian genius of Indian spirit itself. We said long ago in the ''Rig Veda: Ekam Sad Viprah'' and bahudha Vadanti� ............ �So it is clear, secularism is not the negation of Dharma, the fundamental and basic tenets of Dharma i.e. Ahimsa, Satya, Asteya, Brahmcharya, Parigraha etc. It is not negation of high and great qualities, virtues of life. It is not negation of truthfulness, nonviolence, sense of duty and responsibility. It is not negation of patriotism which is also a part of Dharma and is taken to be something of higher degree than material prosperity even of heavenly abode. In Balmiki Ramayan, Shri Ramji says;

�API SWA RNMOYI LANKA NAMAYROCHYATE LAKSHMAN.

JANNI JANMA BHUMI SCHA SWARGADAPI GARIYASI.�

It is said �Hubbull A Watan Minal Imaaia� i.e. Patriotism and love for motherland which gives us birth, which gives us comfort and finally the earth to sleep inclamity is part Imana �i.e. Faith. The negation of patriotism renders one lacking a part of faith and Dharma.

The Hindi version of the Constitution further clarifies what is secular and in Hindi for the expression �Secularism� the expression �PANTH NIRPEKSH� has been used i.e, nonsectarian non communal secularism, it indicates that secularisation is not negation of Dharma or the basic tenets of Dharma. It really indicates and requires of us that we should make a distinction between spirit of Dharma, the basic fundamental of Dharma i.e. which may be stated as under

Secularism is negation of Communalism. In the words of Dr. S. Radha Krishnan � we should make distinction between the spirit of religion and the forms, ceremonials, ritual, marriages, customs, food rules and social Organisation which are its forms. �

(See �Religion and Culture�)

We should take note, secularism is not negation to spirit of religion, of Dharma but it takes the colour of a panth or Communal sect when it is shrouded and encircled by ceremonials, rituals, customs, food rules and Organisation and it takes the form of Sect or school. Secularism does not favour nor does give preference to one School or the other, one sect or on panth over the other.

Here Rama, when we adopted him, and his life, as a part of our constitutional theme to depict certain ideal, he became a constitutional entity, admittedly a reality of our National Culture and Fabric and not a myth. Therefore, the claim of the petitioner to have Darshan of the places attached to Rama as Janma Bhoomi is a thing of faith and religion and a National ethos and Culture which Hindu i.e. the Children of this land which is surrounded by Himalaya in North and by Ocean Indusarovar in the South as depicted under our original Constitution, vide items numbers twenty and twenty two of this which indicates reason for the Geographical name of this land of our �HINDUSTAN'''' the claim becomes more important than mere a right of religion and faith. It also imposes a great obligation of fundamental nature on the part of the State and its authorities to allow the petitioner pay homage, have Darshan and to the constitutionally admitted and recognisation. National figure referred as ImamE Hind by ''Iqbal'' part and parcel or one deity of adoration and warship as God by Hindus and of the cultural heritage of India. Denying such a valuable fundamental and constitutional right which became a part of basic structure of the constitution is something which petitioner is entitled to enforce, may be on the basis of the orders of this Hon''ble Court passed on 2641955, contained in Annexure No. 1 or on the basis of orders contained in Annexure No. 2 dated 121986. When the Hindus and the devotees of Ram claim rights to have a Darshan and Pooja of that deity whom the devotees worship as Bhagwan and framers of the constitution treated as great national figure of this country and it''s country''s basic culture, it is something superficial to argue that the petition is not maintainable and should be dismissed on the grounds of technicalities.

In the case of Rural Litigation & Entitlement Kendra v. State of Uttar Pradesh, reported in (AIR 1988 Supreme Court page 2187), their Lordship of the Supreme Court has laid down law in clear terms:

�The writ petitions before us are not inter parties in disputes and have been raised by way of public litigation...........We may not be taken to have said that for public interest litigation procedural laws do not apply. At the same time it has to be remembered that every technicality in procedural law is not available as a defence when a matter of grave public importance is for consideration before the Court. Even if, it is said that there was a final order in a dispute of this type it would be difficult to entertain a plea of resjudicata.�

In the case of Banglore Medical Trust v. B.S. Madappa (AIR 1991 Supreme Court page 1902 at page 1915) their Lordships of the Supreme Court have observed;

�Locus standi in approach by way of writ petition and refusal to grant relief in equity jurisdiction are two different aspect, may be with same result. One relates to maintainability of the petition and ether to the exercise of discretion. Law on the former has marched much ahead. Many milestones have been covered. The restricted meaning of aggrieved person and narrow outlook of specific injury has yielded in favour of broad and wide construction in wake of public interest litigation........Law has veered round from genuine grievance against order affecting prejudicially to sufficient interest in the matter. The rise in exercise of power by executive and comparative decline in proper and effective administrative guidance is forcing citizens to spouse challenges with public interest flavour........ In fact, public spirited citizens having faith in rule of law are rendering great social and legal service by espousing the cause of public nature. They cannot be ignored or overlooked on technical or conservative yardstick of rule of locus standi or absence of personal loss or injury.�

Role of lawyers and Advocates Association in regard to public Interest matters has been recognized by the Hon''ble Supreme Court. A reference in this regard may be made to the decision in the case of S.P. Gupta and others v. Union of India reported in (AIR 1982 Supreme Court page 149). In this connection, further reference may be made to the observation of Hon''ble Mr. Justice Krishna Iyer in �Fertilizer Corporation Kamargarh v. Union reported in AIR 1981 Supreme Court page 344. At page 356 of the report, his Lordship observed:

�If a citizen is no more than awayfairer or officious intervener without any interest or concern beyond what belongs to any one of 6.60 millions people of the country, the door of the Court will not be Azar for him. But he belongs to an organisation which has special interest in the subject matter, if he has some concern deeper than that of busy body, he can not be told off at the gate, although whether the issue raised by him is justiciable may still remain to be considered.''''

Applying the above principles to the facts of the present case, it can well be said that the petitioner, Advocates Association and their members have got a claim. Apart from their own individual rights, they have responsibility towards public at large and to come forward to espouse the cause of many persons of weaker section who could not come to Court to agitate their rights enshrined under Article 25 of the Constitution of India of faith and religion and patriotism in the sense of love for nation and for the national heritage and for all those great men including the great Rama whom the people of this country worshipped as God and in the word of Iqbal as �IMAMAHIND'''' and who as well as has been recognized by the makers of constitution as a national figure of cultural heritage of India as has been mentioned above. It will not be out of place to refer to the observations made in the judgment of Hon''ble S.H.A. Raza, J in the decision while sitting in Full Bench deciding the Writ Petition No. 3546 of 91 Mohd. Hashim v. State of U.P. and others & Writ Petition No. 3541 of 1991 Panch Ramanandji Nirmohi Akhara & others v. State of U.P. and others and other connected writ petitions in which the acquisition of 2.77 acres of land by the Government of Uttar Pradesh was challenged. The relevant observations made in the said judgment read as under:

�The genesis of Ayodhya imbroglio lay in the beliefs of crores of Indian People, that Lord Shri Ram Chandra Ji was born at ''Ayodhya''. On the scale of historicity, such a faith cannot be established for the only reason that Lord Sri Ram Chandra Ji manifested Himself in the Prehistoric period. According to the scholars of Hindu Scriptures Lord Sri Ram Chandra Ji, ''filled the world with compassion and ushered in, an epoch making highest democratic order, more than five thousand years, before lord Christ.

The following words of ''Bhagvad Gita'' (ChapterX Shloka 31, translated from Sanskrit to English by Jaya Dayal Goyandka, Gita Press, Gorakhpur) shows that Lord Sri Ram Chandra Ji, revealed prior to the events of ''Mahabharat'' which according to the authors'' who have made their expertise ia Sanskrit language, dates back to about two thousand years before Lord Christ.

PAWANAH PAWTAMASMI RAMAH SHASTRA BHRITAMHAM JHASHANAM MAKRASHCHASMI STROTA SAMISMJAHVI�

Meaning thereby that Lord Krishna told Arjun �Amongst purifiers, I am wind, amongst the wielders of weapons, I am (Sri) Ram, amongst fishes I am shark and amongst the streams, I am Ganga.�

In Bal Kand Sarg3 Adhyatm Ramayan'' (Brahm Puran, Uttarakhand) great Saint Ved Vyas in the following words commented that ''Ayodhya'' was ruled by Raja Dashratha;

�ATM RAJA DASHRATHAH SHRIMAN SATYAPARAYNAH AYODHYADHIPATIRV1R SARVLOKESHU VISHRUTAH.�

As per the great epic ''Ram Charit Manas'' composed by the greatest amongst the great poet, ''Sant Goswami Tulsidas'' in the verse mentioned hereinunder, stated that ''Dashrath was the king of Avadhpuri;

�Avadhpuri Raghukulmani Rado Ved Vidit Tehi Dashrath Nado Dharamdhurandhar Gun Nidhi Gyani Hriday Bhagati Mati Sarang Pani.�

(verse 4after Doha187)

Meaning thereby that the king of Avadhpuri was the Jewel of Raghuvansh or kul. He was Dashrath, a name by which he has been known in Vedas. He was a Champion of virtues, a repository of good qualities and a man of wisdom and was a devotee of Lord Vishnu, that is weilder of SARANG BOW.

Goswami Tulsidas dealing with the birth of great Lord described the birth of the great Lord as mentioned below:

�Mandir Mahn Sab Rajahi Rani Shobha Sheel Tej Ki Khani Naumi Tithi Mahu Mas Puneeta Sukul Paksh Abhijit Haripreeta Bhaye Pragat Kripala Deen Dayala Kaushalya Hitkari Harshit Mahtari Muniman Hari Adbhut Roop Vichari Dashrath Putra Janm Suni Kana Manjhu Brahmanand Samana Jakar Nam Sunat Shubh Hoi More Grih Ava Prabhu Soi Kaikay Suta Sumitra Do Do Sunder Suit Janmat Bhai Avadhpuri Sohai Sab Bhanti Prabhuhi Milan Aai Janurani�

(Bal Kand, earlier to Doha105)

Meaning thereby that the place had shown all the Queens who were full of beauty and virtue, of glory & that time was an occasion of happiness. On the Sukul Paksha Naumi of sacred Chaitramasa the gracious Lord, who is compassionate to lowly & poor and being benefactor of Kaushalya, revealed himself. The thought of marvellous face which stole the heart of sages filled the heart of mother Kaushalya with joy. Dashrath hearing the news of the birth of a son was filled up with supreme pleasure, particularly, with the idea that the one whose name is such, hearing of which blessing would come to his house. Both Kaikayee and Sumitra also gave birth to beautiful sons. On this occasion the city of AVADHPURI wore a gala appearings. It looked, as if night had come to see and meet its Lord.

Further the following words in Uttar Kand exhibits that the great Lord was born in Avadhpuri:

�lhan Bhanukul Kamal Diwakar Kapinh Dekhawat Nagar Mann Sunu Kapis Angad Lankesh Pawan Puri Ruchir Yad Desa Jaddap Sab Baikunth Bakhana Ved Puran Vidit Jag Jana Avadhpuri Sam Priy Nahi So Do Yah Prasang Janai Koi KoDo Janmbhumi Mam Puri Suhawani Uttar Disi Bah Sarjoo Pawani.

Neither the great Saint Ved Vyas nor Goswami Tulsidas could have ever imagined that their epic by the passage of time would become an article of faith for millions of men and women. As far as ''Ram Charit Manas'' is concerned, it is regarded as the most sacred book and is widely read over throughout the country, and in the world all over, where Indians live.

Manifestation of Lord Shri Ram Chandra Ji in Avadhpuri, which according to scholars is synonymous to ''Ayodhya'' may not be established historically, but it has become an article of faith for the crores of Indian people, and it may be said that this question cannot be subjected to judicial scrutiny.�

The next contention raised on behalf of the oppositeparties is that the petition should not be entertained at the instance of the petitioners i.e. Vishwa Hindu Adhivakta Sangh spousing the cause of Hindus and devotees of Shri Rama on earth for the reason that the old disputed structure which the oppositeparties use to call the mosque or Babari Masjid has been dismantled and demolished by miscreants and breakers of law who have done unauthorised acts in utter violation of order of the Supreme Court dated 15111990 by committing illegalities and contempt of Supreme Court by demolishing the Babari Masjid and making encroachment thereon. Their case is that the then State Government did not honour the undertaking given by it to Supreme Court and so all the petitioners and the Hindus all over the country may be deprived of their fundamental right and the right to perform the duty under Article 51A as well and their petitions be dismissed as not maintainable. In the affidavit it has not been disclosed at all that the act of demolition was done by the petitioners i.e. Advocates or Member of petitioner, namely, Vishwa Hindu Adhivakta Sangh, or of Akhil Bhartiya Nehru Brigade or by Maharshi Avadesh. Further the oppositeparties in their affidavit have not made any specific allegation against any member of the petitioner or any specific individual Hindu, the acts of some unknown handful miscreants in the form of the alleged Kar Sewaks or Hindus, it is most unjust on the part of the oppositeparties to say that because some unknown miscreants have done the act and who cannot be specified, the petitioners in all the three petitions or the sons of this land, the mother land Hindustan bearing the name indicating the geographical boundry from North to South and from East to West and called Hindus adopting the name of their MotherLand Hindustan derived from the conjunction of two expressions ''HI'' of ''Himalaya'' and ''NDU'' of ''Indu Sarovar'' should be deprived of their constitutional right to worship their Lord Shri Rama, a figure constitutionally accepted as Lord of the builders of this nation and its culture is too far a big question. No person should be denied a right or relief unless it is specifically proved that all the members of the petitioner association or the petitioner or all the Hindus of the country have demolished the disputed structure which is yet to be proved and established whether it was a mosque at all and which is a subject matter of dispute in the suits pending before the Full Bench of this court and about which at times it is said that the matter may be referred to Supreme Court for decision. Such bald allegations without any proof of real culprits in order to put a defence by the oppositeparties and in particular interveners appears to be based on nonapplication of mind because if this is put in the reverse gear and as at time is being said that an invader invaded the MotherLand of the people of this country, trampled their culture and demolished the temple of Ram Janam Bhumi (when such allegations on fact have to be proved and established so far and which is subject matter of dispute in suits). The persons belonging to other sect should be deprived of their rights because they represent the cause of one who demolished the culture and heritage of this country 500 years ago, the intervener associated themselves with such a person who may stand on the same footing as the petitioners. The objection to the maintainability of the petitions on the second ground alleged by them and on basis of such bald allegations that the petitions of the petitioners who cannot be said to have either committed any act of irreverence to the Supreme Court orders, leaving aside the question of contempt by the Uttar Pradesh Government or its employees with reference to whom no observations are being made in this judgment and which is a matter to be considered by the Supreme Court is unsustainable. Thai ordinary citizens residing at distant parts of country coming for Darshan or persons pleading their cause by petitions why they should be deprived of their light to approach this Court seeking redress if and when they are denied their right to have Darshan and Puja of their Isht Dev. The denial of right to worship simply for the reason that the then Government of Uttar Pradesh or some unidentified miscreants have done some act jeopardising the prestige of the nation or some one who is alleged to have committed breach of undertaking given by him is unjust and wrong. In this view of the matter there is no substance in the objection raised as to the maintainability of the writ petition on this ground, the objection is rejected.

The third objection regarding the maintainability of the writ petition has been taken by the learned Advocate General as well as by the learned counsel for the interveners to the effect that the petitioners have got alternative remedy of filing suit or of moving application under Order 39 Rules 1 and 2 of the Code of Civil Procedure in those suits, the said objection is without substance as has been mentioned earlier. In the matter of writ of public importance in which interest of people at large is involved and in which the grave public interest is involved as observed by Hon''ble Supreme Court, rules of either locus stand or technical rules or technical objections should not be permitted to be raised and the petitioner should not be asked to leave the premises of this court and the said ground cannot be allowed to stand nor on the said ground the petitioners who are public spirited men and who are raising public cause can be refused the remedy under Article 226 of the Constitution for enforcing the constitutional rights of the people in general. However, the remedy of the suit in such cases definitely is not equally efficacious and quick as we had past experience of the suits pending since 1950 in the Civil Courts and could not be decided so far, might be, on account of dilatory tactics adopted by the parties or their counsel or on account of some other reasons so remedy of suit is not equally efficacious and secondly that the petitioners are not parties in those suits, it will not be just and proper to ask them to move application in those suits for being impleaded as defendants etc. As such, the remedy of suit not being equally efficacious is no good ground for dismissing the writ petition on the ground of alternative remedy. Further, if the applicants or petitioners are asked to move for impleadment in the suits then every time every one has to move application, seek time for filing written statement in one suit or the other and then it may result in delaying the disposal of the suits which are more than quarter century old. As such, the objection raise I by the learned Advocate General as well as by the learned counsel for the interveners on this ground is unsustainable and is rejected. The learned counsel for the oppositeside namely, learned Advocate General as well as learned counsel for the interveners submitted that the building in dispute has been a mosque, which has been admitted by state and so really Muslims have got right to offer prayer, the question is yet in dispute in the suits pending for decision before the Full Bench of this Court. In Suit No. 4 of 89 there are good many issues in which the issues involved in substance raise a question to the effect that whether the building in dispute (which had existed till 51292) was a mosque or could it be a mosque in accordance with the tenets of Islam and Holi Quran which prescribes certain ingredients in the matter of mosque even if it was by appearance a mosque as claimed to be, but it was not a mosque or in case it came in the category of Masjid Zerar which is not recognised in Quran and in respect of Masjid Zerar in Quran it is provided Allah Talah ordained his great messenger Holi Paigambar Mohammad not to recite Namaz in such mosques, the construction of which is against the tenets of Quran, should not be recognised as a mosque and even in respect of which i.e. Masjid Zerar it has gone to the extent of saying that such mosques may be given a goodbye. So, all these disputed questions of fact about the old disputed structure, which existed and as to which it is alleged to have been established or made by Babar alleged to be a Moghul invader or otherwise have not been decided and are yet pending decision before the Full Bench, in the suits it cannot be accepted as proposition of law that this court while dealing with the petition of three petitioners should hold or record a finding on the subject when the same is subject matter in the four suits or which, as the interveners say, may be referred to the Hon''ble Supreme Court for consideration, by the government. In such circumstances, there appears no substance in the application of the oppositeparties and interveners that the petitioners'' petitions be dismissed simply on the basis of the disputed question of fact to the effect whether the disputed building which had existed till 51292 was a mosque and this court also cannot at this stage hold that any right or any fundamental right of Muslims is going to be outraged or interfered with. The Constitution under Article 25 recognises right of religion. Any custom, any practice, any rule, any construction of building in the name of Allah or on the pretext of being in the name of Allah but which is in complete violation of tenets of religion or Holi Quran has no recognition under Article 25 of the constitution. Right to religion means right 10 religion and faith keeping pace with the basic and fundamental doctrines enshrined in that religion and it does not include in itself those rights, practices or customs or rights to a person or community in the name of religion which in fact run contrary to basic tenets of Islam or tenets of that particular religion so the questions of fact being involved and the same have yet to be decided. The petitioners'' petitions cannot be thrown on the ground alleged or asserted by the learned Advocate General or by the oppositeparties even on a further basis of the alleged admission of the State Government referred to in paragraph 5 of the affidavit of Mohd. Ismail dated 251292 because in such a case admission even if, of the State Government, is not going to bind the oppositeparties. The basic elements and the basic things of the religion concerned have to be applied in respect of any custom or religious property, particularly when the custom or religious nature of the property is in dispute leaving aside such questions as of faith, namely, the faith in respect of revelation of Quran to the messenger of Allah, the Holi Prophet or the faith in the identity of Shri Rama, His incarnation and appearance in the fort of Dasharath in Ayodhya and at a place to the north of which flows Sarjoo river as the various Ramayans composed by Balmiki, Ved Vyas, Tulsidas and Kamban and history riveal. History is not a collection of dates of events simplicitor or of various kingdoms, it is something which presents the cultural heritage of a country. It presents before us the characteristics of the great men that land has produced with an object to produce ethos of character building and nation building and on that test and context if we see these epics whether it be Balmiki Ramayan or that of Kamban or Ramayan of Tulsidas or Ramayan of Ved Vyas they are documents of historical and cultural importance as well. At this juncture it will not be out of place to refer to what Mahatma Gandhi has said about the importance of one of this works and in particular to the works of Tulsidas i.e., in the works of ''Gita my Mother� by Mahatma Gandhi and published by Pearl Publication Pvt. Ltd. 249, Dadabhai Naoroji Marg, Bombay and editted by Anand T Hingorani with reference to the publication (News paper) young India dated September 25, 1925:

�I find the greatest consolation from the Bhagvad Gita and Tulsidas'' Ramayan. I frankly confess that Quran, Bible & other scriptures of the world, inspite of my great regard for them, do not move me as do Gita of Krishna and the Ramayan of Tulsidas.�

It per se shows authenticity and the value of Ramayan of Tulsidas and Gita of Krishna which have been referred by my brother Justice S.H.A. Raza in the Full Bench decision relating to Land Acquisition Case and quoted hereinabove by us.

It has been argued by learned Advocate General and the counsel for the intervenes that once order under Section 144 Cr.P.C. had been passed and on account thereof the petitioners and Hindus as well as others were not allowed to go to Ayodhya or to Ram Janam Bhumi to have Darshan of Shri Ram Lala, there is nothing illegal as the order has been passed by a Competent Authority and unless the order was challenged, the contention of the learned Advocate General have been that the petitioners are not entitled to file writ petitions as well as claim the reliefs. He has referred to the provisions of Section 144 Cr.P.C. and has further contended that it will be open to the petitioner and other Hindus to go to the District Magistrate, he may allow according to situation prevailing or may not allow because in grave situations fundamental rights stand suspended. There appears to be no substance in the contention of the learned Advocate General. Courts, Civil or Criminal exist for the protection of the rights of the citizens. The authority of Magistrate under Section 144 Cr.P.C. has ordinarily to be exercised in the defence of such rights rather than in suppression thereof. The order under Section 144 Cr.P.C. if made should never be disproportionate and it should always be commensurate to the exigencies and emergencies of a particular situation. As a general rule when breach of peace is anticipated, action has to be taken against potential law breakers and not against all the peace loving and peaceful citizens whom it is expected that law breakers will molest. In the case of Sundara v. Wallnayka (2) W E T R Weir Crl. Rules. Madras, the law has been laid down to the effect that to attach a temple does not necessarily mean that temple must be closed altogether. When the third party or general communities are interested, it is the duty of the Magistrate when assuming charge of it in order to preserve public peace, to make arrangements possible to preserve the rights of such third, party or the public and to have the Puja of deity installed in the temple performed.

In this view of the matter, when situations are changed to a large extent during this period from 6th December. 1992 onwards it has been duty of the District Magistrate and the authorities to consider the question of relaxation of orders under Section 144 Cr.P.C. in the context of situation prevailing and if some restraint is required and control is yet required to be made or continued, the authorities can well make room to protect the rights of ordinary citizen to have Darshan and could pass orders allowing the people, the devotees of Shri Ram Lala to have Darshan in regulated manner and under control and vigilance keeping in view the need and requirements of the situation. The restraint should be to such an extent and of such a nature as are only necessary and as such, the opposite parties including the State authorities are required to honour the fundamental rights of the petitioner and every peace loving Hindu and public at large in this regard who wishes to offer prayer and Darshan before the deity at Shri Ram Janam Bhumi Sthan in the light of the orders contained in Annexures 1 and 2 to the writ petition. The pujaris of that temple, we have been informed, five in number are being allowed & three are being allowed to perform Puja at a time. It is the duty of the State authority to see that to the best possible extent keeping in view the needs of the time as well as keeping in view the essential and necessary security measures and the least possible restrictions, the petitioners and the general Hindu public is allowed to have Darshan in accordance with rituals and tenets of Vaishnav Sampraday and also to allow the Puja and Aarti to be performed every day in accordance with the customs or religious scriptures and principles. The petitioners have further prayed that the oppositeparties may be directed to collect and preserve debris, articles and materials which may furnish suitable evidence for being considered by the authorities deciding the disputed question of facts regarding the nature of old construction which existed prior to, on or before December 6, 1992 either by the Full Bench or by the Supreme Court in case the matter is referred by the Government as is alleged.

Thus considering, the writ petitions are allowed to this extent only that the oppositeparties are commanded by issuance of writ of mandamus directing them to allow the petitioners, the Hindus and devotees of Shri Ram Ji to have Darshan in a meaningful manner at Ram Janam Bhumi, Ayodhya from such a distance which may not be disproportionate and too far off, with reference to devotees and pilgrims view and the vision from outside but taking note of the security of the idol as well as the surrounding circumstances prevailing.

The opposite parties are further directed to consider the matter with reference to the protection of idols and the properties and articles relating to the idols as well as to take note of the conditions in which idol and Pujaris are to live and perform the Puja during this winter season as well as during summer and rainy seasons and whether a cloth canopy would be sufficient, and suitable arrangement should be made to save the idol and the property relating to idol and the Pujaris from the vagaries and agony of the weather. However, the opposite parties and other State authorities are free to take independent decision regarding control of law and order problem in accordance with the needs of situation and to regulate entry of the devotees and pilgrims with a view to maintain law and order situation and the security of the idol of Shri Ram Lala and others and the articles and properties relating thereto and that of the Pujaris. The opposite parties are further directed to preserve and protect the material & articles of historical/archaeological importance which have been or may be found on the spot in the debris of demolished structure or in the nearly area. Pillar of democracy i.e. Press may also be supplied copies today, without cost if rule so permits. The Learned counsel for the interveners, if also want to have copies they may also be supplied copies on payment of necessary charges, today. The Registry will arrange for supply to all concerned.

(Petitions allowed.)