Muslim parties will be allotted alternative land of five acres for constructing a mosque in Ayodhya, the Supreme Court held on Saturday while observing that it is necessary to provide them restitution for the "unlawful destruction" of their place of worship.
In a historic verdict which cleared the way for construction of Ram Temple at the disputed site in Ayodhya, a five-judge constitution bench headed by Chief Justice Ranjan Gogoi said there was no abandonment of mosque by the Muslims and the court must ensure that a "wrong committed must be remedied".
While exercising its extraordinary jurisdiction under Article 142 of the Constitution in directing allotment of land to the Sunni Central Waqf Board, the bench noted that during the pendency of suits in the title dispute, "the entire structure of the mosque was brought down in a calculated act of destroying a place of public worship".
"Justice would not prevail if the court were to overlook the entitlement of the Muslims who have been deprived of the structure of the mosque through means which should not have been employed in a secular nation committed to the rule of law," said the bench, also comprising Justices S A Bobde, D Y Chandrachud, Ashok Bhushan and S Abdul Nazeer.
In its 1,045-page verdict, the top court said the Constitution postulates the equality of all faiths and "tolerance and mutual co-existence nourish the secular commitment of our nation and its people".
"While determining the area of land to be allotted, it is necessary to provide restitution to the Muslim community for the unlawful destruction of their place of worship," it said.
The bench dealt with the one of suits instituted on December 18, 1961 by the Sunni Central Waqf Board and nine Muslim residents of Ayodhya seeking declaration, including that the disputed structure is a public mosque, commonly known as 'Babri Masjid' and adjoining land there is a public Muslim graveyard.
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The suit had claimed that Babri Masjid was constructed by Mughal ruler Babur more than 433 years ago for the use of the Muslims in general as a place of worship and for performing religious ceremonies.
They claimed that the cause of action for the suit arose on December 23, 1949 when the Hindus allegedly wrongfully entered the place and desecrated it by placing idols inside the mosque.
In its verdict, the apex court noted that no documentary evidence has been placed on record indicating the conferment of title in a form of grant of the land underlying the mosque.
"The documentary evidence on which reliance has been placed essentially consists of grants which were made by the British Government for the upkeep and maintenance of the mosque," the bench said.
Referring to the documentary evidence, the bench said it emerges that prior to 1856-57, when a communal riot took place, there was no exclusion of the Hindus from worshipping within the precincts of the inner courtyard.
"The conflagration of 1856-7 led to the setting up of the railing to provide a bifurcation of the places of worship between the two communities," the bench noted.
"The immediate consequence of the setting up of the railing was the continued assertion of the right to worship by the Hindus who set up the 'Chabutra' in the immediate proximity of the railing," it added.
It said from the documentary evidence, it cannot be said that Muslims have been able to establish their possessory title to the disputed site as a "composite whole".
The top court also noted that though the Sunni Central Waqf Board has argued that the mosque was constructed in 1528 by or at the behest of Babur, there is no account by them of possession, use or offer of 'namaz' in the mosque between the date of construction and 1856-7.
"For a period of over 325 years which elapsed since the date of the construction of the mosque until the setting up of a grill-brick wall by the British, the Muslims have not adduced evidence to establish the exercise of possessory control over the disputed site. Nor is there any account in the evidence of the offering of namaz in the mosque, over this period," it said.
Referring to travelogues by British surveyor Montgomery Martin and Jesuit missionary Joseph Tiefenthaler, the bench said they provide a detailed account both of faith and belief of the Hindus based on the sanctity which they ascribed to the place of birth of Lord Ram and of actual worship by Hindus at the 'Janmasthan' (birth place).
It said that English merchant William Finch, who visited India in 1608-1611 and Tieffenthaler, who visited India between 1743-1785, provides references to worship by Hindus to Lord Ram.
The bench also noted that the last namaz was offered there on Friday i.e December 16, 1949.
In its verdict, the bench said, "The allotment of land to the Muslims is necessary because though on a balance of probabilities, the evidence in respect of the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing than the evidence adduced by the Muslims, the Muslims were dispossessed upon the desecration of the mosque on 22/23 December 1949 which was ultimately destroyed on December 6, 1992."
It clarified that either the central government can give the 5-acre land to the Sunni Waqf Board from the nearly 68 acres land which it had acquired in 1993 under the Acquisition of Certain Area at Ayodhya Act or the state government could hand over the piece of land at a "suitable prominent place in Ayodhya".
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