OP Gupta, IFS (Retd.)
An important point which has not been given proper weight by the Hindu litigants as well as by the Lucknow bench of the Allahabad High Court is: how come the UP Sunni Waqf Board and other Sunni Muslims are litigating on behalf of a mosque which was constructed by Mir Baqi Tashkandi, a Shia Muslim?A legal debate has started whether the bench was competent to award a portion of disputed area to a party even after having dismissed his suit claiming title over that property. Initially the Ayodhya judgement appeared satisfying everybody but now questions and disquiet are appearing to surface.
Kalima of Sunnis and Shias are different, text of their namaz, manners of offering namaz, timing of namaz are different, 'Ali un waliullah' is added by Shias to Sunni kalima of 'la-ila-il-lallah muhammed rasulallah'. A Sunni cannot claim to be an aggrieved party by demolition of a Shia mosque as a Sunni does not and cannot go to a Shia mosque for offering namaz and vice
A mosque has to be either Shia or Sunni, it cannot be both, it cannot be waqf-e-aam. Indian courts must take cognizance of this simple fact. The Lucknow bench observed that the Waqf Board did not follow correct procedure in 1936 in declaring it to be a Sunni Waqf property and in any case it was bad in law as Hindu litigants were not made a party by the Waqf Chief
Commissioner which he ought to have done as litigation had commenced in 1885.
NO doubt the Ayodhya judgment has paved the way for the construction of a new Sri Ram temple. It has also saved the 'makeshift' temple. But the judgment confers only part justice on Hindus. The post-independence judiciary of India cannot and should not go to legitimise what was illegally done before 1950 on the strength of swords because judiciary derives its
authority from the 1950 Constitution.
On September 30, 2010 a three-judge bench of the Lucknow bench of the Allahabad High Court comprising Justices Sibghat Ullah Khan, Sudhir Agrawal and Dharma Veer Sharma unanimously held that the area under the central dome of the destroyed disputed structure where Bhagwan Ram's idol is located since 1949 will remain with Hindus.
It is a historic decision as Hindus after many years of struggle got back what was illegally taken away from them on strength of Islamic swords in 1528 AD. In the process about 300,000 lakh Rambhakt Hindus have sacrificed their lives in about 78 armed conflicts to regain the Sri Ramjanambhoomi.
Last en mass killings of Ram Bhaktas took place when Mulayam Singh Yadav was the UP Chief Minister.
Justice Khan ruled: "At the stage of preparation of final decree the portion beneath the Central dome where at present makeshift temple stands will be allotted to the share of the Hindus".
Justice Sudhir Agrawal ruled: "It is declared that the area covered by the central dome of the three domed structure, i.e., the disputed structure being the deity of Bhagwan Ram Janmasthan and place of birth of Sri Ram as per faith and belief of the Hindus, belong to plaintiffs (Bhagwan Ram: Suit-5) and shall not be obstructed or interfered in any manner by the defendants".
Justice Sharma ruled: "The disputed site is the birth place of Sri Ram. Place of birth is a juristic person and is a deity. It is personified as the spirit of divine worshipped as birth place of Sri Ram as a child.
Spirit of divine ever remains present everywhere at all times for anyone to invoke at any shape or form in accordance with his own aspirations and it can be shapeless and formless also".
Since two judges out of three have held that the area covered by disputed structure was deity of Bhagwan Ram Janmasthan, it becomes civic right as well as religious duty of every Hindu to offer karseva to renovate (jirnodhar) the disputed structure. Seen in this light the FIRs registered
against Ashok Singhal, LK Advani, MM Joshi, Uma Bharati and others for 1992 demolition have become infructuous. It is not a crime for a Hindu to do karseva for jirnodhar at a deity's place.
All the three judges also agreed that a Hindu religious structure did exist where the disputed structure (Babri mosque) stood.
The bench had asked the Archaeological Survey of India to excavate the site which it did during March 12 to August 7, 2003 under the direct supervision of the High Court and in presence of representatives of all the litigants.
The ASI reported existence of massive Hindu temple underneath the disputed structure.
Perusal of judgment delivered by Justice Agrawal shows that experts and eminent historians paraded by the Sunni Board had very little knowledge of the subject and often contradicted each other.
Justice Khan held that Muslim parties could not prove their title over land and ruled: "the disputed structure was constructed as a mosque by or under orders of Babur but it was not proved (by Muslims) by direct evidence that premises in dispute including constructed portion belonged to Babur or the person who constructed the mosque or under whose orders it was constructed".
Justice Khan further held: "No temple was demolished for constructing the mosque. Mosque was constructed over the ruins of temples which were lying in utter ruins since a very long time before the construction of mosque and some material thereof was used in construction of the mosque".
Majority view of Justices Agrawal and Justice Sharma is that disputed structure was built by destroying a Hindu temple. Justice Sharma: "The disputed building was constructed by Babur, the year is not certain but it was built against the tenets of Islam. Thus, it cannot have the character of a mosque. The disputed structure was constructed on the site of old structure after demolition of the same. The Archaeological Survey of India has proved that the structure was a massive Hindu religious structure".
Justices Agrawal and Sharma dismissed suit No 4 of the Sunni Central Waqf Board claiming title over land and title suit no.3 of the Nirmohi Akhara seeking possession of the disputed site. Both judges held that O.O. suit No. 4 filed by the Sunni Board was time barred and not maintainable.
The Lucknow bench recognised Ram lalla idol as a juristic person who can own properties and can sue or be sued in a court of law through his next or best friend(s). In fact in suit number 5 the Ram lalla idol is the main party. It is not an innovation of this Lucknow bench but a well settled law of Indian jurisprudence. Order 32 of the Civil Procedure Code recognises a 'sitting
deity' as an individual. Legal experts point to various instances where Hindu deity has been considered as juristic person:
The Privy Council, which was considering Vidya Varuthi Thirthia Swamigal Versus Baluswami Aiyar, had in 1922 said that a Hindu deity can be juristic person. This view found acceptance as deity is vested with the capacity to hold property. Courts have recognised that this entity can sue or be sued.
In 1981, the Supreme Court recognised Hindu deity as a juristic person in the Radha Kanta Dev Versus Commissioner of Religious Endowments case. In the Sri Adi Vishweshwara of Kashi Vishwanath Temple Versus the State of Uttar Pradesh, the court had recognised the right of a deity to move court. In the petition that challenged the Kashi temple Act of 1983, the court had ruled that properties of endowment vest in the deity, Lord Vishwanath.
Dr Subramanian Swamy, President, Janata Party informs that the British House of Lords in a litigation [(1991) 4 AII ER 638] ruled that as a Hindu temple is owned by the deity any Hindu can litigate on behalf of deity as a de facto trustee. Thus even if a temple is in ruins, or destroyed any Hindu can sue on behalf of Sri Ram for recovery.
In the Shiromani Gurudwara Parbandhak Committee Amritsar v. Som Nath Dass and others (AIR 2000 SC 1421) delivered on March 29, 2000, the Supreme Court of India held that Sri Guru Granth Sahib is a juristic person.
In case of mosques the mutawalli is the legally recognised person to look after interests of mosque. Similar is the case in respect of properties and interests of Hindu deities which are attended by next or best friend or trustees etc.
Justice Sharma dismissed en toto property claims of the Sunni Board and that of Nirmohi Akhara over the disputed site and ruled that the entire property was exclusively owned by Sri Ram idol.
Justice Khan held the view that no party could prove commencement of his title so Hindus, Muslims and Nirmohi Akhara were joint owners of the disputed property so should be equally divided among them with condition that area under the erstwhile central dome shall vest in deity. Justice Agrawal also ruled in favour of partition of disputed area into three parts.
Both Judges thus erred in so far as they allowed Sunni Waqf Board to get land of a 'mosque' which was admittedly got constructed by a Shia Muslim, Mir Baqi.
A legal debate has started whether the bench was competent to award a portion of disputed area to a party even after having dismissed his suit claiming title over that property. Initially the Ayodhya judgment appeared satisfying everybody but now questions and disquiet are appearing to surface.
Allowing mosque and mandir to come up side by side, administratively speaking, is not a good decision as it could occasionally explode into violence and perpetually maintaining a security force there at site would cost a lot of expenditure running into crores of rupees. For this reason the British did not allow any temple to come up at Ram Chabutara in 1885.Therefore it would be wise to let a mosque come up at a few kilometers away from the janambhumi temple. Further it is learnt that there are eight mosques lying unused in Ayodhya so what is the point to raise another mosque in Ayodhya.
An important point which has not been given proper weight by the Hindu litigants as well as by the Lucknow bench of the Allahabad High Court is: how come the UP Sunni Waqf Board and other Sunni Muslims are litigating on behalf of a mosque which was constructed by Mir Baqi Tashkandi, a shi'a Muslim?
The three-Judge Lucknow Bench of the Allahabad High Court has unanimously held in Issue No. 20(b) of the Suit No. 4 filed by the Sunni Waqf Board that since the Muthwali of the Babri Masjid is the only authority or party that can file the suit, the Sunni Waqf Board representing the Sunni Muslims has no locus standi in the dispute. The Muthwali has always been a Shia Muslim
and the religious leader of Shias have expressed a willingness to build their mosque far away leaving the entire Ramjanmaboomi for constructing a Ram temple.
A protestant Christian cannot claim to be aggrieved by demolition of a Roman Catholic Church because he does not attend mass at the Catholic Church.
In UP as well as in many other states there are separate Waqf boards for Shias and Sunni; and, one Board cannot take over waqf property of another.
This statutory fact cannot be overlooked or wished away. The waqf properties are to be categorised under Sunni waqf or Shia Waqf, and, there has been many litigations between Sunni Waqf Board and Shia Waqf Board about correct classification of a property under Shia or Sunni waqf such as CA 1805 of 1989 decided by the Supreme Court on March 2, 2000;
Doshipura case of Varanasi, writ petition No 4675 of 1979 rendered on November 3, 1981, in a dispute between the members of the Shia and Sunni sects of Muslims of Varanasi, pertaining to the performance of religious rites, practices and observances by members of Shia sect on certain plots and properties situated in Mohalla, Doshipura, Varanasi, State of Uttar Pradesh, (1984) 1 SCC 81.
As we know violent clashes between Shias and Sunnis take place every year on eve of Muharram.
At one time the UP Sunni Waqf Board had declared Taj Mahal of Agra to be a Sunni Waqf property and the Shia Waqf Board claimed it to be a Shia Waqf property as Mumtaj Mahal was a Shia.
Kalima of Sunnis and Shias are different, text of their namaz, manners of offering namaz, timing of namaz are different, 'Ali un waliullah' is added by Shias to Sunni kalima of 'la-ila-il-lallah muhammed rasulallah'. A Sunni cannot claim to be an aggrieved party by demolition of a shia mosque as a Sunni does not and cannot go to a Shia mosque for offering namaz and vice
versa. Therefore the Sunni organisations have no lawful locus standi to litigate on the matter of the so called 'Babri mosque'.
In the written statements (WS) and cross-examination Sunni Waqf Board and Sunni Muslims had tried to hide the fact that the so called 'mosque' was built by a Shi'a.
Paras 12, 13 and 18 of the Justice Agrawal judgment read as under: "12. Written statement dated 21.2.1950 filed on behalf of defendants no. 1 to 5 [Jahoor, Feku, Mohmd Phayak, Mohmd Shami and Mohmd Achche Miya] states that the disputed site is not a birth place. A mosque was constructed thereat by Emperor Babur Shah. The suit has been filed by giving wrong facts
with an intention to mislead the Court and to obtain an order against the defendants which would be contrary to law. All the averments made in the plaint are denied. The plaintiff is not entitled to any relief. The additional pleas are that in the year 1528 Emperor Babur visited Ayodhya after conquering Hindustan and through its Minister/Commander Mir Baqi got a
mosque constructed called 'Baburi Masjid' and made it open to all Muslims for offering prayer through a general Waqf (Waqf-e-Aam).
The written statement further says that pursuant to UP Waqf Act no. 13 of 1936 (hereinafter referred to as "1936 Act"), a Chief Commissioner of Waqf was appointed who made a spot inspection and on verification held that the place in dispute is 'Baburi Masjid' constructed by Emperor Babur who was a Sunni. The mosque in question was held a "Sunni Waqf" and accordingly issued notification".
After impleadment, defendant no. 10, UP Sunni Central Waqf Board also filed a separate written statement dated February 24, 1989. The pleadings are similar as those in the written statement of defendants no. 1 to 5, and thus, are not being detailed herein but may be referred as and when occasion arises. Page 30. Under UP Muslims Waqf Act, 1936 (hereinafter referred to as
"UP Act, 1936"), a Chief Waqf Commissioner was appointed who made spot inspection and concluded that the building in question was Baburi Masjid.
Since Babur was a Sunni, therefore, it was held to be a "Masjid" belonging to Sunni Waqf Board.
A mosque has to be either Shia or Sunni, it cannot be both, it cannot be waqf-e-aam. Indian courts must take cognizance of this simple fact.
The Lucknow bench observed that the Waqf Board did not follow correct procedure in 1936 in declaring it to be a Sunni Waqf property and in any case it was bad in law as Hindu litigants were not made a party by the Waqf Chief Commissioner which he ought to have done as litigation had commenced in 1885.
Maulana Ateeq Ahmad, a witness of the Sunni Board told the Lucknow bench: "Babarnama does not have any mention of building the disputed structure, that is, Babri mosque." [Para 1376, J. Agrawal].
Aine-Akbari mentions about Ayodhya being birth place of Sri Ram but does not mention any Babri mosque [Vol II page 182]. "Ajodhya, commonly called 'Awadh' this distance of forty kos to the east, and twenty to the north is regarded as sacred ground. On the ninth of the light half of the month of Chaitra a great religious festival is held" (A-in-I Akbari Vol-III p.334). Thus Babarnama and Aine-Akbari do not support Sunni Muslims claim of Baburi mosque being there in 1528.
Mohammad Hashim [PW-1] informed the Lucknow bench: "this mosque was built in 1528 by Mir Baqi under instructions of Babur and that Babur was a sunni Muslim and Mir Baqi was a shia Muslim". [Para 1369, J. Agrawal]
In the Dawn, a Pakistani newspaper of December 9, 2002, Syeed Hasan Khan has written: "The mosque, which is called Babri mosque, was in fact a Shia mosque, built by a Shia general, Baqi".
Dr. Rafiq Zakaria (2002), Communal Rage in Secular India, Popular Prakashan, ISBN 8179910709, has written "... The mosque was built by one of his generals, Mir Baqi, who was a Shia; Babur was a Sunni. Mir Baqi had built it for the exclusive use of Shias; Sunnis, as a rule don't pray in Shia mosques and vice-versa ..."
But strangely the Indian courts have not taken note of these material Shia-Sunni distinctions and liberally issued stay orders on prayers of Sunni Muslim organisations (UP Sunni Waqf Board, etc.) which have no locus standi and no jurisdiction over Shia properties. Therefore it is total miscarriage of justice on part of courts to have allowed interventions by Sunni Muslims and issue stay orders as Sunni Muslims cannot claim to be aggrieved parties in this case because Sunnis do not and cannot offer namaz in Shia mosques. Therefore all interventions and prayers of Sunni Muslims or Sunni associations in the Ayodhya case should be declared by courts to be not
maintainable abinitio and dismissed without further delay paving the way for construction of a grand temple.
To summarise, for the sake of discussion and without conceding Hindu's claim on the entire property, the disputed structure at best could be said to have been a Shia mosque which the UP Shia Waqf Board has already allowed to pass onto Hindus by not filing any petition/objection. Riding on warm shoulders of secularist or jaichandi Hindus objections were filed by Sunni Muslims who have no lawful claim on Shia Waqfs. If this line is pressed as additional
argument in the Supreme Court I am sure the entire area will be restored to Bhagwan Ram Lalla, the rightful owner of the entire property.