JUDGMENT S.C. Mathur, J. - These six petitions are directed against acquisition of land under the provisions of Land Acquisition Act, 1894 (Act I of 1894), for short Act. The land is situate in village Kot Ram Chandra, Pargana Plaveli Avadh, Tahsil Sadar, District Faizabad, and is comprised in the following plots : - Plot No. Area (1) 159 Part 0.3600 (2) 160 Part 1.0706 (3) 171 Part 0.4375 (4) 172 Part 0.9063 2.7744 2. The composite notification under Section 4 (1) and 17 (4) of the Act was published in the U.P Gazette dated 7-10-1991 which was followed by notification dated 10th October, 1991 under Section 6 The purpose of acquisition was disclosed in the notification as " Development of Tourism and Providing Amenities to Pilgrims at Ayodhya in District Faizabad." The first writ petition was filed in this Court on 16th October, 1991 before a Division Bench which directed it to come up before the Special Bench. After hearing the learned counsel for the parties an interim order was passed on 25th October, 1991. Between the filing of the first petition and the passing of the interim order two more petitions (3541 arid 3542) had also been filed. The interim order was made applicable to these petitions also. So far as the title to the land is concerned the case of Panch Ramanandi Nirmohi Akhara, for short Akhara, is different for that of the other petitioners but there is no difference in the grounds of challenge on account of which all the petitions have been heard together and are being decided by this common judgment. Leading arguments on behalf of the petitioners were advanced in the writ petitions of Mohd. Hashim and Mohammad Aslam and the Akhara. Counsel appearing in other petitions adopted the arguments advanced in Mohd. Hashim's case. In Writ Petition No. 4184 of 1991 filed by Mohammad Aslam @ Bhure additional point of vires of sub-sections (1) and (4) of Section 17 of the has been raised. 3. In all the petitions except that of Akhara the petitioners claim to represent the interest of Muslims. In the writ petition of Akhara the petitioners claim to represent the interest of a sect of Hindus, namely Ramanandi Bairagis. They are worshippers of Lord Rama and claim that they had their temples etc. on the acquired land. Topography : 4. 3. In all the petitions except that of Akhara the petitioners claim to represent the interest of Muslims. In the writ petition of Akhara the petitioners claim to represent the interest of a sect of Hindus, namely Ramanandi Bairagis. They are worshippers of Lord Rama and claim that they had their temples etc. on the acquired land. Topography : 4. For a proper appreciation of the facts it will be desirable to have an idea of the topography of the place where the acquired land is situate. 5. At site there is an old structure which is the centre of controversy among three communities, the Hindus, Muslims and the Ramanandi Bairagis. The Muslims claim the structure to be a mosque while the Hindus, including Ramanandi Bairagis, claim it to be a Hindu temple. They also claim it to be the birth place of Lord Rama. The difference between the orthodox Hindus and Ramanandi Jiairagis is not regarding the nature of the structure but it is regarding the right of possession and management, each laying its own claim there to. On the eastern and southern sides of the structure there is open land and on the northern and western sides there is public road and public path way. Beyond the road in the north there is again open land. Beyond the path way in the west there is a deep slope. 6. The aforesaid structure if divisible into three parts - (1) the main roofed structure, (2) the inner courtyard, and (3) outer courtyard. The public road is to the north of the structure. Immediately adjoining the roofed structure to the east is the inner courtyard. To the east of this courtyard is the outer courtyard. On the outer courtyard there is a Chabutra which has been in possession of the Hindus. There are other signs on this courtyard which are objects of reference or worship to the Hindus, like Sita Rasoi and Charan. To the east of the outer courtyard is a boundary wall having a gate. It is this gate which provides entry first to the outer courtyard, then to the inner courtyard and lastly to the roofed structure. The impugned acquisition spares the roofed structure and the inner courtyard but covers the cuter courtyard, including boundary wall and the gate. 7. To the east of the outer courtyard is a boundary wall having a gate. It is this gate which provides entry first to the outer courtyard, then to the inner courtyard and lastly to the roofed structure. The impugned acquisition spares the roofed structure and the inner courtyard but covers the cuter courtyard, including boundary wall and the gate. 7. To the east of the boundary wall and the gate is open land which the petitioners claim as a Muslim graveyard and on which, at the time of acquisition, there existed some small structures, including some temples. 8. The acquisition may shows a passage connecting the structure with the main road on the north. This passage runs right up-to the entrance to the inner courtyard. The land covered by the acquisition does not include this passage. History of Litigation : 9. Another item which deserves precedence over the statement of case of the parties is the history of litigation in respect of the aforesaid property or a portion thereof. This history starts from the year 1885 when Mahant Raghubar Das filed Suit No. 61/280 of 1985 in the Court of Sub-judge, Faziabad, against the Secretary of State for India seeking permission to construct temple on the Chabutra measuring 21 feet east-west and 17 feet north-south comprised in the outer courtyard. The suit was filed against the Secretary of State for India only. Sri Mohd. Asghar applied for his impleadment which was allowed. In the aforesaid suit the plea of Mahant Raghuber Das was thus : - He was the Mahant of Janamstan. The Chabutra was in his possession as Mahant. The Chabutra did not have a building on account of which he and the worshippers experienced hardship, especially during the rainy and the winter seasons. If a temple is constructed no prejudice will be caused to anyone as prayers which being said at present will continue to be said even after the construction of the temple. 10. The Secretary of State contested the suit inter alia on the plea that the plaintiff had not been evicted from the Chabutra and, therefore he had no cause of action for the suit. 11. The main contest in the aforesaid suit was put in by Sri Mohd. 10. The Secretary of State contested the suit inter alia on the plea that the plaintiff had not been evicted from the Chabutra and, therefore he had no cause of action for the suit. 11. The main contest in the aforesaid suit was put in by Sri Mohd. Asghar who denied the plaintiff's claim of possession and asserted that in the past also the plaintiff had been repeatedly restrained from constructing temple on the Chabutra. The trial court framed six issues. Issue No. 6 related to title and possession over the Chabutra. The Court upheld the plaintiff's claim of title and possession but dismissed the suit, on the ground that the temple would be so close to the mosque that there was every likelihood of breach of peace and there was also the prospect of riot and murder. The Judgment of the trial court was rendered by Pandit Hari Kishan, Sub-Judge on 24th December 1885. The learned Judge had observed that the idol of Thakurji was installed on the Chabutra and the offerings made to the deity were appropriated by the plaintiff and this fact was admitted to Mohd. Asghar. The learned Judge notices the fact that in the year 1855 there was a riot between the Hindus and the Muslims and to avoid recurrence of such riots in future a boundary was put up separating the place of worship of Muslims from the place of worship of Hindus. The judgment upheld the title and possession of Hindus not only over the Chabutra but over the entire outer courtyard. 12. Against the aforesaid judgment Mahant Raghubar Das filed Civil Appeal No. 27 of 1885 in the court of the District Judge, Faizabad, which was dismissed by the then incumbent of the office, Col. F. E. A. Chamier by his judgment dated 18th March 1886. In this judgment he observes - ``It is most unfortunate that a Masjid should have been built on land held sacred by the Hindus, but as that event occurred 356 years ago it is too late now to remedy the grievance ; all that can be done is to maintain status quo". In this judgment he observes - ``It is most unfortunate that a Masjid should have been built on land held sacred by the Hindus, but as that event occurred 356 years ago it is too late now to remedy the grievance ; all that can be done is to maintain status quo". Since the learned Judge was of the opinion that status quo was to be maintained he was further of the opinion that (he finding of title and possession recorded in favour of Mahanl Raghubar Das and the Hindus was redundant and the portion in the judgment of the trial court containing that finding was liable to be expunged He accordingly directed that portion to be struck off. 13. Mahant Raghuber Das took the matter in appeal to the court of the Judicial Commissioner of Avadh. Sri W. Young the Judicial Commissioner, by bis judgment dated 1st November 1886 dismissed the appeal (No. 27 of 1886) observing ``there is nothing whatsoever on the record to show that the plaintiff is in any (illegible) the proprietor of the land in question". 14. I have mentioned hereinabove that the history of litigation starts from 1885. However, the judgments in the above litigation, particularly the judgment of the trial court, refers to orders passed in certain earlier proceedings. From this it would appear that prior to the above suit also there had been litigation regarding the nature of the property in question. However, the exact nature of that litigation is not clear and, therefore, I take the suit of Mahant Raghubar Das as the starting point of litigation. 15. The above litigation followed almost immediately the collapse of the Muslim rule in India and its replacement by the British rule. On the collapse of the British rule the next litigation starts. 16. On 15th August 1947 India obtained self rule with dominion status. On 23rd December 1949 Pandit Ram Deo Dubey, Station In-charge, Police Station Ayodhya, District Faizabad lodged First, Information Report against Abhai Ram Das, Ram Sakai Das. Sudarshan Das and 50-60 other person under Sections 147/29/449, Indian Penal Code, alleging that he came to know from Constable No. 7, Mata Prasad that the said persons had broken open the locks and entered the mosque and installed therein the idol of Sri Ram Chandraji. Sudarshan Das and 50-60 other person under Sections 147/29/449, Indian Penal Code, alleging that he came to know from Constable No. 7, Mata Prasad that the said persons had broken open the locks and entered the mosque and installed therein the idol of Sri Ram Chandraji. On the basis of the first information report and the police report, proceedings under Section 145, Code of Criminal Procedure, were drawn up and preliminary order was passed on 29th December i949. The structure was attached and placed in the custody of the receiver Sri Priya Dutt Ram appointed by the Additional City Magistrate, Faizabad. The receiver was directed to submit a scheme for the management of the property in dispute during the period of its attachment. The receiver submitted the scheme on 5th January 1950 and the attached property is being managed in accordance with that scheme as modified by this Court in subsequent proceedings which will be noticed hereinafter. The worship of the idols is being ensured through a Pujari appointed by the receiver. The property continues to be in possession of the receiver although the present receiver is an appointee of this Court. 17. The venue of litigation now shifts from the criminal court to the Civil Courts. On 16th January 1950 Sri Gopal Singh Visharad filed Suit No. 2 of 1950 against Sri Zahoor Ahmad and others including the State of Uttar Pradesh, the Deputy Commissioner, Faizabad, the Additional City Magistrate, Faizabad and the Superintendent of Police, Faizabad, claiming mainly the decree of permanent injunction to restrain the defendants from removing the idols of Sri Ram Chandraji from the place where they existed at Janam Bhumi. A declaration was also sought to the effect that the plaintiff was entitled to perform Puja and Dharshan by going near Bhagwan Ram Chandra Virajman Asfhan Janam Bhumi without any hindrance from the defendants. In this suit an application for interim injunction was made and interim injunction was granted by the Civil Judge, Faizabad. By order dated 19th January 1950 the interim order was modified at the instance of the Government counsel. The modified order reads as follows : - "The parties are hereby restrained by means of temporary injunction to refrain from removing the idols in question from site in dispute and from interfering with puja etc. By order dated 19th January 1950 the interim order was modified at the instance of the Government counsel. The modified order reads as follows : - "The parties are hereby restrained by means of temporary injunction to refrain from removing the idols in question from site in dispute and from interfering with puja etc. as at present carried on ..." In the aforesaid suit written statement has been filed on behalf of the State of U.P. in which following averments have been made : - "12. That the property in suit is known as Babri mosque and it has, for a long period, been in use as a mosque for the purpose of worship by the Muslims. It has not been in use as a temple of Shri Ram Chandraji" "13. That on the night of the 22nd December, 1949 the idols of Shri Ram Chandraji were surreptitiously and wrongly put inside it." "14. That as a result of the said wrongful acta situation imperilling public peace and tranquillity was created and the public authorities had to intervene in order to prevent breaches of peace and tranquillity." This written statement was verified on behalf of the State by the then Deputy Commissioner, Faizabad Sri J. N. Ugra. 18. On 5-12-1950 Suit No. 25 of 1950 was filed by Param Hans Ram Chandra Das against Zahoor Ahmad and others including State of Uttar Pradesh and the Deputy Commissioner, Faizabad. In this suit the plaintiff has sought a declaration that he is entitled to go near Bhagwan Sri Ram Chandra Virajman at Asthan Janam Bhumi and to worship him and have his Darshan according to the customary rights of his religion without any check, obstruction or interference. A prohibitory injunction has also been sought to restrain the defendants from removing the idols. In this suit also written statement has been filed on behalf of the State of Uttar Pradesh and the Deputy Commissioner. In Paragraphs 14, 15 and 16 of the written statement the pleas raised in Paragraphs 12, 13 and 14 of the written statement filed in Suit No. 2 of 1950 have been reiterated. By order dated 1-2-1951 the Civil Judge, Faizabad consolidated the two suits. 18. On 17-12-1959 Nirmohi Akhara and its Mahant filed Suit No. 26 of 1959 against the receiver Sri Priya Dutt Ram and others including the State of U. P. and its officers. By order dated 1-2-1951 the Civil Judge, Faizabad consolidated the two suits. 18. On 17-12-1959 Nirmohi Akhara and its Mahant filed Suit No. 26 of 1959 against the receiver Sri Priya Dutt Ram and others including the State of U. P. and its officers. The suit was filed in the court of Civil Judge, Faizabad. The main relief claimed in the suit was removal of the receiver and for delivery of the property to the plaintiffs. 19. On 18-12-1961 Sunni Central Board of Waqfs and others filed Suit No. 12 of 1961 against Gopal Singh Visharad and others. The main relief claimed in the suit is declaration to the effect that the property indicated by letters A B C D in the sketch map attached to the plaint public mosque commonly known as Babri Masjid and that the land adjoining the mosque and enclosed by letters E F G H is a public Muslim graveyard. In the event of plaintiffs being found to be out of possession alternative prayer for decree of possession of the mosque and graveyard by removal of the idols and other articles has also been made. 20. With the filing of the aforesaid suit by the Sunni Central Board of Waqf and others four suits had become pending in the Civil Judge, Faizabad. By order dated 6th January 1964 the learned Civil Judge consolidated all the four suits with the consent of the parties. 21. While the aforesaid suits were awaiting trail one Sri Uinesh Chandra Pandey made application in Suit No. 2 of 1950 for unlocking the gates of the structure and for allowing free entry into the building for Puja and Darshan etc. At the time the application was made, it appears, the file of the case was in this Court. Accordingly the court directed that the file may be requisitioned from this Court. In the absence of file he did not pass any order on the application of Sri Urnesh Chandra Pandey. The order was passed by the trial court on 28th January, 1986. Against this order Sri Pandey filed appeal before the learned District Judge, Faizabad. In this appeal the petitioner Mohd. Hashim, one of the plaintiffs in Suit No. 12 of 1961, and Mohd Farooq, son of Zahoor Ahmad, defendant No. 2 in Suit No. 2 of 1950, made application for being impleaded and heard. Against this order Sri Pandey filed appeal before the learned District Judge, Faizabad. In this appeal the petitioner Mohd. Hashim, one of the plaintiffs in Suit No. 12 of 1961, and Mohd Farooq, son of Zahoor Ahmad, defendant No. 2 in Suit No. 2 of 1950, made application for being impleaded and heard. The learned District Judge by his order dated 1st February 1986 rejected the application of Mohd. Hashim and Mohd. Farooq and allowed the application of Sri Pandey. Against this order of the learned District Judge Writ Petition No. 746 of 1988 has been filed by petitioner Mohd. Hashim which is still pending. In this writ petition interim order was passed directing that the nature of the property in question shall not be changed till further of the Court. 22. On 12th May 1986 Sunni Central Board of waqfs also filed writ petition to challenge the District Judge's order dated 1st February 1986. 23. On 16th December 1987 the State of U. P. filed application before this Court under Section 24/151 of the Code of Civil Procedure, 1908 for withdrawal of all the four suits for trial by this Court. In this application it was also prayed that the hearing of the aforesaid writ petitions be deferred till the final disposal of the four suits. The application was allowed by order dated 10th July 1989. While withdrawing the suits to this Court a Division Bench of this Court also directed that the suits shall be heard by a Special Bench of three Judges. 24. While the above proceedings were going on fifth suit was filed by Sri Deoki Nandan Agarwal. This suit was also withdrawn for trial by this Court ; its Number is 236 of 1989. At first proceedings in the suit were stayed under Section 10 of the Code of Civil Procedure but later on the stay order was recalled and now this Suit is also being tried along with the other suits which are pending in this Court. 25. After all the aforesaid suits had been withdrawn to this Court the State Government made application on 7th August 1989 to restrain the parties from disturbing status quo and from organising any activity which may lead to confrontation between Hindus and Muslims. 25. After all the aforesaid suits had been withdrawn to this Court the State Government made application on 7th August 1989 to restrain the parties from disturbing status quo and from organising any activity which may lead to confrontation between Hindus and Muslims. By order dated Nth August 1989 the Special Bench directed the parties in all the five Suits to maintain status quo and to refrain from changing the nature of the property in question. 25-A. While the above suits were pending and were almost ready for recording of oral evidence, issues having been framed earlier, the impugned Notifications were issued which led to the filing of the present six petitions. As already stated the Akhara claims to represent the interest of Ramanandi Bairagis, a sect of Hindus, while the petitioners in the other petitions claim to represent the interest of Muslims. Pleas raised in the writ petitions : 26. The acquisition is challenged on the following broad grounds - (1) Mala fides, (2) Violation of Articles 25, 26, 15 and 14 of the Constitution, and (3) Non-application of mind to material facts resulting in the vulnerability of the satisfaction expressed in the impugned Notifications in respect of public purpose. 27. In elaboration of the plea of mala fides the petitioners refer to certain political developments which took place in the State prior to the issue of the impugned Notifications. These political developments, as stated by the petitioners, may also be noticed. 28. It is stated that with a view to seize Babri Masjid by force Vishwa Hindu Parishad, for short V.H.P, and Bajrang Dal launched a powerful campaign to arouse communal sentiments of the Hindus. A programme was announced by these Parties of laying foundation stone (Shilanyas) of a temple on the land which was subject matter of the aforesaid Suits. Shilanyas was actually carried out on a Plot No. 586 which was a part of the property in suit on 9th and 10th November 1989. In this the local administration and the State Government actively connived with the V.H.P. This was done in the teeth of the order of this Court which required the parties to maintain status quo. Shilanyas was actually carried out on a Plot No. 586 which was a part of the property in suit on 9th and 10th November 1989. In this the local administration and the State Government actively connived with the V.H.P. This was done in the teeth of the order of this Court which required the parties to maintain status quo. Shilanyas was performed when the Congress Party was in power at the Centre as well as in the State of U. P. After the Shilanyas had been performed the Congress Party lost power at Centre as well as in the State. The Janta Party formed Government at both the places. The Muslim petitioners assert that after formation of the new Government, some efforts were made for a negotiated settlement of the dispute but,the efforts failed on account of the obstinate attitude of the V.H.P. which insisted on constructing temple at the site of the mosque after demolishing the same. In a bid to achieve its object the V.H.P. in the year 1990 organised Bundhs, strikes and boycotts all over the Country ; aggressive campaign of hatred and intimidation was launched and scant respect was shown to the orders of the Court. Despite Court's order to maintain status quo Sri Lal Krishna Advani, a senior leader, announced his intention to go to Ayodhya on 30th October 1990 and participate in the construction of temple on the disputed Plot No. 586. Sri Advani was arrested on 22nd October 1990 and the then Prime Minister, Sri V.P. Singh was defeated in Parliament and, therefore, he resigned. He was succeeded by Sri Chandra Shekhar. 29. It is stated that on 30th October 1990 an attempt was made by a large number of V.H.P. volunteers under the leadership of Sri Ashok Singhal and Sri S.C. Dixit to demolish the mosque. The attempt, however, failed. It was repeated on 2nd November 1990 when a portion of the outer wall of the mosque was demolished. The State Government made application to the Court seeking permission to repair the damage which as allowed but the damage was not actually repaired. 30. In March 1991 fresh elections were announced for the Union Parliament and the State Assembly. This election was fought by the Bhartiya Janta Party on the issue of construction of temple at the disputed site. The State Government made application to the Court seeking permission to repair the damage which as allowed but the damage was not actually repaired. 30. In March 1991 fresh elections were announced for the Union Parliament and the State Assembly. This election was fought by the Bhartiya Janta Party on the issue of construction of temple at the disputed site. The party failed to get the requisite majority at the Centre and was unable to form Government there. However, in the State of U.P. it was able to form Government with Sri Kalyan Singh as the Chief Minister. The oath of office was administered on 24th June 1991. 31. On the very next day of the swearing in ceremony the Chief Minister Kalyan Singh and his Cabinet colleagues visited Ayodhya, entered the disputed structure and declared on oath their resolve to construct temple at the site of the structure. In support of the allegation clipping from the daily newspaper Pioneer dated 26th June 1991 has been filed as Annexure-5 to Mohd. Hashim's petition. The Muslim petitioners assert that this action of the Chief Minister and his Cabinet colleagues clearly shows that the present Government is out to demolish and destroy the mosque and to construct temple at its site. 32. The petitioners point out that in furtherance of the above intention the district administration which had earlier put up barricades to protect the structure removed the same on 1st August 1991 under instructions of the Chief Minister, Kalyan Singh. For this allegation also press report published in Dainik Jagran dated 2nd August 1991 which has been filed as Annexure-6 is relied upon. 33. Reference is made of another statement allegedly made by Sri Kalyan Singh on 21st July 1991 at the meeting of "Dharam Sansad" held at Ayodhya. Sri Kalyan Singh is alleged to have assured the gathering that the Government will take all measures to remove hurdles in the construction of temple at the site of Babri Masjid. 34. On 31st July, 1991 joint session of the State Legislature was held which was addressed by the State Governor. The Governor's address is also alleged to contain Government's resolve to ensure construction of temple at the site of Babri Masjid. Barely two months after this statement, Notification under Section 4 was issued on 7th October, 1991 followed by notification under Section 6 on 10th October, 1991. 35. The Governor's address is also alleged to contain Government's resolve to ensure construction of temple at the site of Babri Masjid. Barely two months after this statement, Notification under Section 4 was issued on 7th October, 1991 followed by notification under Section 6 on 10th October, 1991. 35. In the backdrop of the above facts the petitioners assert that the notification of land for acquisition is a step in execution of the grand design hatched by the State Government, which is hand in glove with the VHP and the Bajrang Dal, to destroy the mosque and the graveyard and build temple at the place. The purpose of acquisition disclosed in the notifications is alleged to be camouflaged. 36. The plea of camouflage is sought to be substantiated by reference to the acquisition of a nearby land in the year 1989 for construction of Ram Katha Park and its subsequent transfer by way of lease to a trust created by the VHP. Copies of the trust deed and lease deed have been filed as Annexures-10-E and 10-F. The trust deed, Annexure-10-E, is dated 18th December, 1985 and the lease deed, Annexure-10-F, is dated 20th March, 1992- It is pointed out that this acquisition was also made for the purpose of development of tourism and providing amenities to pilgrims. Reference is made to the counter affidavits filed on behalf of the State in the writ petitions filed in this Court to challenge the said acquisition. Writ Petition No. 1931 of 1989 was filed by Smt. Savitri Devi and Avdhesh Kumar and Writ Petition No. 436 of 1989 was filed by Tulsi Ram and others. In both the writ petitions counter affidavit was filed by a Junior Clerk in the office of the Regional Tourist Officer, Faizabad Region, Faizabad. In Paragraphs 4 and 5 of the counter affidavit filed in Tulsi Ram's writ petition the following averments have been made ; - "4. That Association of Lord Rama with Ayodhya is well accepted and therefore, the Government decided to create a place where tourist, pilgrims and other visitors can have special experience of being in place which carries this special aura from Lord Ram's time." "5. That Association of Lord Rama with Ayodhya is well accepted and therefore, the Government decided to create a place where tourist, pilgrims and other visitors can have special experience of being in place which carries this special aura from Lord Ram's time." "5. That a decision was taken in the year 1986 to develop Ram Katha Park keeping in view the following objectives : - (a) To create experience of cultural aspect emerging from the great epic Ramayana, particularly the aspects which have influenced the Indian way of life. (b) To create the place of the unique tourists/pilgrims interest and attraction. (c) It should attract at least two thousand tourists everyday. The attraction will include environment, landscape, in-scape components, etc. Use of traditional as well as high technology methods can be adopted for creating audio-visual and other effects depicting events from the great epic. (d) To generate direct and indirect employment for fairly large number of people. The people could be employed for maintenance, management, tourism, hotel, catering etc. which is likely to result from such a place in Ayodhya. (e) The park should be integrated with the over all development of Ayodhya. (f) No built structures should be so created as to appear out of time and place context, If at all some buildings have to be made, they should not be obviously or visibly modern. (g) In order to have wider appeal and to uphold secular ideas, the emphasis should be on philosophic and on unique aspect of Rama's life rather than on ritualistic aspect." The above averments have been repeated in the counter affidavit filed in Savitri Devi's writ petition. The petitioners point out that these averments show that earlier acquisition was also made for development of tourism and providing amenities to pilgrims. This land it is alleged, instead of being utilised for the purpose stated in the counter affidavit has now been handed over by the present Government to a trust controlled by VHP which is out to destroy Babri Masjid and the graveyard and to construct a temple at the site. 37. As another limb of the plea of malafides it is pointed out that enough vacant land is available in the vicinity of the acquired land and if the real purpose of acquisition is as disclosed in the notifications the said land could be made use of. 38. 37. As another limb of the plea of malafides it is pointed out that enough vacant land is available in the vicinity of the acquired land and if the real purpose of acquisition is as disclosed in the notifications the said land could be made use of. 38. On the basis of the above facts the Muslim petitioners assert that the acquisition is a direct attack on their religions institutions with which are interwoven their religious practices and, therefore, the acquisition is hit by Articles 25 and 26 of the Constitution. Article 14 is invoked to press the plea of arbitrariness. According to the petitioners (1) it is arbitrary to acquire land when enough vacant land is available at the spot, (2) it is arbitrary to acquire land for the purpose of appearing a particular religious group, (3) it is arbitrary to acquire land which is subject matter of litigation and thereby giving" milage to one party to the litigation over the other, and (4) it is arbitrary to acquire land belonging to one religious group for giving it over to another religious group. 39. In the counter affidavit filed on behalf of the State neither the existence of mosque is admitted nor of the graveyard. In this connection reference is made on behalf of the petitioners to several papers authorised by the State Government and its officers in which existence of both is said to have been admitted. It is submitted that the mosque and the graveyard are religious institutions of the Muslims and cannot, therefore, be acquired. Alternatively it is submitted that even if they can be acquired, before proceeding to acquire, it has to be considered whether the purpose of acquisition can be achieved without touching land containing religious institutions. It is submitted that since the State Government denies the very existence of the two religious institutions of the Muslims it is obvious that the consideration mentioned herein has not been made. Therefore, the petitioners assert that the acquisition is vitiated by non-application of mind to relevant facts. 40. The petitioners also challenge the dispensing without of the enquiry under Section 5-A of the Act. They point out that litigation in respect of the land in question is pending for the last forty-one years and there was no such urgency as warranted dispensing with the enquiry. 40. The petitioners also challenge the dispensing without of the enquiry under Section 5-A of the Act. They point out that litigation in respect of the land in question is pending for the last forty-one years and there was no such urgency as warranted dispensing with the enquiry. According to the petitioners if the enquiry under Section 5-A had not been dispensed with they would have been able to point out the vacant land available at the spot and the imprudence of acquiring the land in question which was the subject matter of litigation. It is also asserted on behalf of the petitioner that the conditions prescribed in sub-section (4) of Section 17 did not exist and, therefore also dispensing with the enquiry is illegal. 41. By way of amendment it has been stated in Paragraph 46-A that the construction of temple on the acquired land was actually started on 9th July 1992. It is pressed that what the petitioners apprehended earlier has now become a reality. 42. In Writ Petition No. 4184 filed by Mohd. Aslam & Bhure additional point of virus of sub-sections (1) and (4) of Section 17 of the Act has been raised. It is pressed that these provisions confer unfettered and arbitrary powers on the Government without laying down any guidelines and, therefore, the said provisions are hit by Article 14 of the Constitution. The constitution validity of the said provisions is challenged also by reference to Articles 21 and 300-A. 43. The pleas raised by Mohd. Hashim have been reiterated on behalf of Nirmohi Akhara also including the plea of violation of Articles 25, 26 and 14. Learned counsel for the Akhara Sri R.I. Verma has submitted that the acquisition has been actuated by political motive at the behest of VHP. According to him no public purpose is served by acquiring the land in question. It is further submitted that even if land was required for the purpose stated in the notifications it was necessary for the State Government to consider whether acquisition of the land in question was the only method of meeting the public purpose. Defence ; 44. Having noticed the plea of the petitioners, I may now come to the defence offered on behalf of the State. In the writ petition of Mohd. Defence ; 44. Having noticed the plea of the petitioners, I may now come to the defence offered on behalf of the State. In the writ petition of Mohd. Hashim there are five opposite parties-(l) State of Uttar Pradesh, (2) Collector, Faizabad, (3) Senior Superintendent of Police, Faizabad, (4) Land Acquisition Officer, Faizabad, and (5) Sri Kalyan Singh, Chief Minister. Detailed counter affidavit on behalf of the State has been filed by Sri Alok Sinha, Secretary, Department of Tourism. Despite his impleadment by name the Chief Minister, Sri Kalyan Singh has not filed any affidavit of his own. 45. In the aforesaid counter affidavit existence of mosque and graveyard is denied. It has also been asserted that the structure has not been used by the Muslims for offering prayers. Registration of the alleged mosque with the U. P. Sunni Central Board of Waqfs is also disputed. Pendency of the Suits mentioned in the writ petition has not been disputed but it is asserted that no part of the property under litigation has been acquired. It is also asserted that the impugned acquisition is not hit by any interim order of the Court. It is pleaded that the interim order of this Court does not prevent the State from the exercise of its statutory powers under the Land Acquisition Act. It is denied that the property has not been acquired for public purpose. The allegation of malafides, ulterior motive and colourable exercise of power is traversed. The applicability of Articles 14, 25 and 26 of the Constitution is challenged. It is denied that the land has been acquired for the benefit of one religious community at the cost of another. 46. The petitioner's plea that the acquisition has been made with a view to destroy the structure has been seriously disputed. The applicability of Articles 14, 25 and 26 of the Constitution is challenged. It is denied that the land has been acquired for the benefit of one religious community at the cost of another. 46. The petitioner's plea that the acquisition has been made with a view to destroy the structure has been seriously disputed. In this connection reference is made to the statement made by the Chief Minister, Sri Kalyan Singh before the National Integration Council which has been noticed in the resolution of the Council dated 2nd November 1991 The resolution as reproduced in the counter affidavit reads thus : - "The Council noted the following assurances given by the Chief Minister of Uttar Pradesh : (i) All efforts be made to find an amicable resolution of the issues ; (ii) Pending a final solution, the Government of Uttar Pradesh will hold itself fully responsible for the protection of the Rama Janma Bhumi-Babri Masjid structure ; (iii) Orders of the Court in regard to the land acquisition proceedings will be fully implemented ; and (iv) Judgments of the Allahabad High Court in the case pending before it will not be violated." Reference is made also to the order of the Supreme Court dated 15th November 1991 in Writ Petition (Civil) No. 1000 of 1991 (Naveed Yar Khan v. State of U. P and others) wherein also the statement of Sri Kalyan Singh has been taken note of. Admissibility of newspaper reports filed by the petitioners is challenged. 47. It is denied that Sri Kalyan Singh and his Cabinet colleagues are out to destroy secularism or the rule of law. The petitioner's right to make allegations against VHP and Bajrang Dal without impleading them has been challenged. 48. Justification has been offered for applying the urgency clause and for dispensing with the enquiry under Section 5-A by referring to certain events which were to take place in the months of October and November 1991 at Ayodhya. Mention has been made particularly of four events which were to take place on 30th October 1991, 2nd November 1991, 16th November 1991 and 18th November 1991. Mention has been made particularly of four events which were to take place on 30th October 1991, 2nd November 1991, 16th November 1991 and 18th November 1991. 30th October 1991 was the first anniversary of the Kar Sewa offered for construction of temple at Ayodhya and 2nd November 1991 was the first anniversary of the death of Kar Sewaks ; 16th November 1991 and 18th November 1991 respectively were the days of Hindu festivals "Brihad Parikrama" and "Panch Koshi Parikrama". On all these four days large number of pilgrims were expected to visit Ayodhya. It is stated that in the year 1990 about 98.66 lacs people visited Ayodhya. In the year 1991 the influx was expected to be greater. There was not enough time left between the date of notification and the date on which these events were to take place and, therefore, the enquiry under Section 5-A was dispensed with. 49. It is also the case of the State that Ayodhya is a holy place and pilgrims visit the place also on days other than the days mentioned above of course the influx is greater on auspicious days. 50. Selection of site for acquisition has been justified by reference to the acquisition of adjoining land for Ram Katha Park by notifications dated 20th January 1989, 23rd January 1989 and 27th September 1989. It is stated that 55-6744 acres of land around and adjoining the land in question was acquired or granted for the purpose of Ram Katha Park. The land called Sri Ram Janam Bhumi Asthal was at that time left out of acquisition. No plan for development of Ram Katha Park could be completed without Sri Ram Janam Bhumi Asthal being included therein, as Ram Katha Park is designed to be completed around Sri Ram Janam Bhumi. It is claimed that the land in question has been acquired so that an integrated plan can be prepared for development of this land and to provide amenities to pilgrims visiting Sri Ram Janam Bhumi and to develop Sri Ram Janam Bhumi as a tourist centre. 51. On aforesaid facts it is alleged that neither the acquisition nor the selection of site nor the application of urgency clause can be said to be vitiated by mala fides, colourable exercise of power or ulterior motive. 51. On aforesaid facts it is alleged that neither the acquisition nor the selection of site nor the application of urgency clause can be said to be vitiated by mala fides, colourable exercise of power or ulterior motive. It is also the case of the State that the satisfaction of public purpose and selection of site are not justifiable. The State challenges also the locus standi of the petitioners to maintain the writ petitions. Findings (1) Acquired Land subject matter of Litigation : 52. The most important question arising for consideration is whether the acquired land or any portion thereof is subject matter of litigation between the Hindus and the Muslims. 53. While the case of the petitioners is that the acquired land is subject matter of litigation referred to herein above the case of the State is that no portion of the acquired land is subject matter of the said litigation. 54. The State does not dispute the pendency of the litigation referred to hereinabove. Its plea is that the litigation is confined to the structure which is in possession of the receiver appointed in proceedings under Section 145 of the Code of Criminal Procedure. The plea of the State is entirely misconceived. Section 145 proceeding may have started with placement of idols inside the main roofed structure and the receiver may have been appointed only in respect of that portion of the structure where the idols exist but the Sunni Board's suit is not confined to that portion alone. In that suit declaration of title and possession has been sought not only in respect of the place where the idols exist but also in respect of the entire structure and the land around it which has been described as graveyard. The pendency of litigation has to be seen in respect of this property. 55. The acquired land is devisable into two parts (1) the outer courtyard, and (2) the land around the structure. 56. Annexure-A-10 is copy of the plaint in Sunni Board's suit which is the leading suit and in which steps under Order I, Rule 8 of the Code of Civil Procedure, for short CPC, have been taken. It contains a sketch map of the property in suit. The property in suit is shown in the form of a rectangle and is alleged to contain a mosque and a graveyard. It contains a sketch map of the property in suit. The property in suit is shown in the form of a rectangle and is alleged to contain a mosque and a graveyard. The mosque is delineated by letters ABCD. On all the four, sides of ABCD is shown graveyard. Within the property enclosed by letters ABCD is shown "Chabutra Masjid''. Within this Chabutra is delineated a portion of which measurements are shown as 2l'Xl7'. To the east of this Chabutra is shown a graveyard. Graveyard is shown to the west and south of ABCD also. Immediately to the north of ABCD is shown graveyard and thereafter Pacca road and again graveyard. The entire property adjoining the mosque and the graveyard is shown enclosed by letters EFGH. 57. The acquisition filed by the State is Annexure-A. The acquired land has been shown in light red colour and the property which has been left out of acquisition has been shown in yellow colour. From this map it transpires that the entire land around ABCD referred to above has been acquired except a small portion on the east which provides a passage for entry into the structure. A portion of the land comprised in ABCD has also been acquired. This portion is the same which has been referred to in the topography as outer court-yard. The structure which is claimed by the Muslims as mosque and inner courtyard have been left out of acquisition. From this it would appear that only a small portion of the land which is subject matter of litigation has been left out of acquisition, this left out portion is the structure which is claimed to be mosque or temple and the inner courtyard. From this it is apparent that the acquired property is subject matter of litigation. 58. With regard to the outer courtyard the plea of the State is two fold - (1) in 1885 suit filed by Mahant Raghubar Das it has already been held that the land of outer courtyard belongs to the Hindus and is in their possession, and (2) the Muslims have given up their claim through their counsel's statement dated 28th August 1963 recorded under Order X, Rule 2 of the CPC in Sunni Board's suit, (n respect of the graveyard it is pleaded that the petitioners have failed to establish any prima facie case in their favour. I will first examine the statement of the counsel. 59. The aforesaid statement dated 28th August 1963 reads as follows : - "Shri Mohd. Ayub states that the Chabutra mentioned in Para 5 of the Plaint 17'x 21'was part of the Mosque ever or not, he is not in a position to say. He adds that it is coming in possession of Hindus since before 1885 A.D." I am unable to agree with the submission of the learned counsel for the State that in view of the above statement the outer courtyard has ceased to be subject matter of litigation. By the above statement Sri Mohd. Ayub did not give up the plaintiffs' claim of declaration of title and possession. He, at the most, accepted the possession of Hindus over a portion of the land comprised in the outer courtyard, this portion measuring 17' x 21'. Without surrendering claim for declaration of title and decree for possession it cannot be said that the land to which the statement relates has ceased to be subject matter of litigation. Further the statement does not relate to the entire outer courtyard. It relates only to a portion thereof. The acquisition of the outer courtyard is not confined to the area of 17' X 21' ; it extends much beyond it. I am also of the opinion that the effect of this statement has yet. to be seen in the regular suit pending in this court. 60. Learned counsel for the petitioners tried to submit that the statement was not recorded in the manner prescribed in CPC and, therefore, it cannot be said to be a statement under Order X, Rule 2 and has, therefore, no binding effect upon the plaintiffs of the suit or the petitioners. In view of the fact that I am of the opinion that the statement does not amount to surrender of claim made in the plaint it is not necessary to examine the validity of the submission made by the learned counsel for the petitioners. 61. On 19th January 1885 Mahant Raghubar Das filed Suit No. 61/ 280 of 1885 referred to hereinabove. The pleadings of the parties to that suit and the judgments passed therein by the trial court and the first and second appellate courts have already been mentioned. 61. On 19th January 1885 Mahant Raghubar Das filed Suit No. 61/ 280 of 1885 referred to hereinabove. The pleadings of the parties to that suit and the judgments passed therein by the trial court and the first and second appellate courts have already been mentioned. It has been noticed that the trial court upheld the title and possession of Hindus not only over the Chabutra but over the entire court-yard. The learned Judicial Commissioner on the other hand observed - "there is nothing whatsoever on the record to show that the plaintiff is in any (illegible the proprietor of the land in question." Learned counsel for the State relies upon the observations made by the trial Judge and the learned counsel for the petitioners relies upon the quoted portion in the judgment of the Judicial Commissioner's Court. Learned counsel for the petitioners submitted that the finding recorded by the learned Judicial Commissioner operates as res judicata between the parties to the present litigation. 62. The arguments of the learned counsel for the parties in respect of the suit of Mahant Raghubar Das touch upon the title to immovable property. The question of title to the said properly is engaging the attention of this Court in the regular suits referred to hereinabove. Accordingly f do not consider it appropriate to take any observation on the merit of the claim made by the learned counsel for the parties. The plea of res-judicata may be examined in the regular suits. Accordingly reliance put by either party on the judgments relating to 1885 suit is misconceived. 63. In respect of the land around ABCD the plea of the State is that the plaintiffs have identified the same in the plaint with reference to Nazul numbers, but the said land, till date, remains unidentified on the spot. In the plaint the property in suit has not been identified by settlement numbers but by Nazul numbers. The plaintiff's got a survey commission issued. The survey commissioner submitted his report against which objections were filed on behalf of the defendants. The objections were upheld and the report was rejected. On these facts all that can be said is that till date in suit remains unidentified, it cannot be said that it has ceased to be under litigation. The plaintiff's got a survey commission issued. The survey commissioner submitted his report against which objections were filed on behalf of the defendants. The objections were upheld and the report was rejected. On these facts all that can be said is that till date in suit remains unidentified, it cannot be said that it has ceased to be under litigation. The plaintiffs still have the option to chose the next step to identify the land and establish their title and possession thereto. 64. In view of the above, the petitioners are right in submitting that the acquired land covers substantial part of the property under litigation. (2) Consequences of above finding 65. The State's consistent case has been that the acquired land is not subject matter of litigation. From this it is reasonable to infer that the State would not have proceeded with the acquisition of the land in question, if it had been informed that the acquired land was in fact subject matter of litigation. Once it is found that the acquired land is subject matter of litigation it automatically follows that the acquisition is vitiated by non-application of mind to the relevant fact or by faulty application of mind to the relevant fact. Accordingly in view of the finding recorded hereinabove it will have to be held that the acquisition is vitiated by non-application of mind to relevant fact or at any rate by faulty application of mind. This finding alone is sufficient to quash the impugned notifications as it attracts infraction of Articles 14 and 15 of the Constitution. However, we proceed to examine the other points also which were seriously canvassed before us. Nature of the Acquired land and title and possession thereto : 66. The plea of the Muslim petitioners is that structure is a mosque and the inner and outer counter courtyards are part of it while the land around the structure is graveyard. In the present case I am not concerned with the structure and the inner court-yard. I am concerned only with the outer courtyard and the land around the structure. The State does not admit that the outer courtyard is part of the mosque or that the land around the structure is Muslim graveyard. The nature of the acquired land and the title thereto and possession thereof is the subject matter of suits. I am concerned only with the outer courtyard and the land around the structure. The State does not admit that the outer courtyard is part of the mosque or that the land around the structure is Muslim graveyard. The nature of the acquired land and the title thereto and possession thereof is the subject matter of suits. Title to immovable property cannot be conveniently determined in proceedings under Article 226 of the Constitution. Accordingly 1 will have to refrain from recording any finding on this question. 67. Learned counsel for the Muslim petitioners, however, submits that there cannot be any dispute about the nature of the land and title thereto between the petitioners and the State as there are a number of documents on record authorised by the State or its officers which contain admission of the petitioner's case. According to him the State is bound by these admissions and mere change in political power cannot dilute the efficacy of the admission. The lerned counsel has propounded the theory of administrative succession. He has invited our attention to certain litigation and the written statements filed therein on behalf of the State and the correspondence exchanged between the State Government and local officers of District, Faizabad. I may examine some of these papers. 68. The first of the papers is copy of the First Information Report dated 23rd December. 1949 lodged by Sri Ram Deo Dubey, Station Officer In-charge Police Station Ayodhya, Faizabad, in respect of the alleged placement of idols inside the structure. In this report the structure has been referred to as mosque. 69. There are two letters written by the then Deputy Commissioner, Faizabad, Sri K.K. Nayar to the then Chief Secretary to U.P. Government Sri Bhagwan Sahai. The learned counsel relies upon these portions in these letters where the structure has been described as mosque. It is true that in both the letters there is reference to mosque but there is reference also to temple. In the first letter, Annexure R-12 it is stated - "The mosque can be entered only through the temple premises and is so access-able at all times." (Emphasised) In the second letter, Annexure-R-13, it is mentioned in the second paragraph - "The Commissioner returned from Lucknow and gave me and the Superintendent Police the outline of a scheme for removing the idol from the mosque surreptitiously to Janmabhoomi temple outside the mosque. (Emphasised). The temple referred to in these letters appears to be one on the outer courtyard, which alone out of the structure is the subject-matter of the impugned acquisition. The alleged mosque portion of the structure is not the subject-matter of acquisition. These letters cannot, therefore, be said to contain any admission of the title of Muslim to the acquired portion of the structure. Annexure-R-12 has been relied upon also as containing admission of graveyard. At one place it is mentioned in the letter - "Their complaints always referred to dismantling of tombs in the open grounds outside the temple." From this statement all that can be inferred is that there were graves on the land near the structure. This statement, however, docs not identify the land over which the graves actually existed. The letter also not contain any admission of a "Muslim graveyard". 70. The other set of papers relied upon by the learned counsel are Annexures-R-3, R-4 and R-5. Annexure-R-3 is copy of the written statement dated 25th April, 1950 filed by Sri J.N. Ugra, Deputy Commissioner, Faizabad in regular Suit No. 2 of 1950 filed by Sri Gopal Singh Visharad against Zahoor Ahmad and others. In Paragraph 12 of the written statement it is stated. "That the property in suit is known as Babri mosque, and it has, for a long period, been in use as a mosque for the purpose of worship by the Muslims. It has not been in use as a temple of Shri Ram Chandraji." (Emphasised) This statement appears to relate to the main roofed structure which is not the subject-matter of acquisition. Annexure-R-4 is copy of the written statement dated 1-5-1950 filed by Sri Kirpal Singh, Superintendent of Police, Faizabad, in the said suit. The statement of Sri Urga has been repeated in Paragrarh 13 of this written statement. Annexure-R-5 is copy of the written statement filed in January, 1951 again by Sri J.N. Ugra in Suit No. 25 of 1950 filed by Sri Param Flans Ram Chandra Das against Zahoor Ahmad and others. The statement made by Sri Ugra in his earlier written statement has been repealed in this written statement also. The observation made in respect of Annexure-R-3 applies to Annexures-R-4 and R-5 also. None of these pleadings contains any statement regarding the acquired portion of the structure. The statement made by Sri Ugra in his earlier written statement has been repealed in this written statement also. The observation made in respect of Annexure-R-3 applies to Annexures-R-4 and R-5 also. None of these pleadings contains any statement regarding the acquired portion of the structure. I may assume fora moment that the above Annexures contain State's admission in favour of the petitioners. An admission can be explained. Therefore, the worth of these admissions may be examined in the pending regular suits. 71. Both sides have filed a large number of extracts from Kltosra, Khitauni and Khewat. In respect of one entry in one such document the learned counsel for the State went to the extent of submitting that the same was an interpolated one. The extracts have been filed in the regular suits also. They can have better examination and appreciation in those proceedings. Some of these entries may have to be supplemented with oral evidence. A highly contentious dispute of title to immovable property cannot, as already observed, be conveniently gone into in proceedings under Article 226 of the Constitution. 72. In view of the pendency of regular title suits to which the State of U.P. is also a party, refrain from recording any finding on the nature of the acquired land and on title and possession thereof. Interim order and acquisition. 73. The petitioners allege that the impugned notifications violate this Court's interim order dated 14th August, 1989 which required the parties to maintain status quo. According to the petitioners the acquisition of land amounts to disturbance of the status quo. The interim order was passed by the Special Bench of this Court hearing the regular suits which had been withdrawn from the Faizabad Court. The order was passed on the applications made on behalf of the State in Sunni Board's suit as well as in other suits. The interim order was passed by the Special Bench of this Court hearing the regular suits which had been withdrawn from the Faizabad Court. The order was passed on the applications made on behalf of the State in Sunni Board's suit as well as in other suits. The order has been reproduced in Paragraph 5 of Annexure-R-10 which is copy of C.M.A. No. 40 (0) of 1989 filed on behalf of the State in Sunni Board's suit and reads as follows : "This is an application filed by the State of U. P. under Section 94 read with order XXXIX, Rules 1 and 2 of the Code of Civil Procedure for the grant of injunction : (i) Restraining the plaintiffs and defendants from disturbing the status quo and organising any activity which may bring about confrontation between Hindus and Muslims, and (ii) Ensuring that orders passed by the Court are strictly enforced and are not breached. "We have heard Shri S.S. Bhatnagar, learned Advocate-General in support of this application. We also heard Shri V.K.S. Chaudhary and Shri Deoki Nandan Agarwal, who submitted in their arguments that the threats expressed by the learned Advocate-General in his application and in his arguments were groundless as no such situation as stated in the affidavit filed in support of the application is in existence or is going to arise as the parties represented by them consisted of law abiding citizens and no breach of peace or any order of the court was intended by them. Shri Abdul Mannan, Counsel appearing for the other side, virtually supported the application for injunction and narrated the dire consequences if the law is taken to hands by the parties. "In this connection our attention was drawn to the following order dated 3-2-1986 passed by a learned single Judge of this Court in Civil Misc. Writ No. 746 of 1986 "Until further orders of the Court, the nature of the property in question as existing today shall not be changed." It was also brought to out notice that another learned single Judge of this Court has passed an order for appointment of receiver for the property in question in F. A. F. O. No. 17 of 1977 on 23rd July, 1987. "In view of the order for appointment of receiver and the order dated 3-2-1986 which has become final, we are not inclined to accept that any of the parties will take law to hands and do anything which may culminate in law breaking. However, since in the writ petition, in which the order dated 3-2-1986 was passed, only some of the parties to the present suits were arrayed, we consider it necessary in the interest of justice that a similar order is adopted in each of the injunction applications in the present suits, as a result whereof until further orders of the Court, the parties to Suits No. 1 of 1989 (Reg. Suit No. 2 of 1950), 2 of 1989 (Reg. Suit No. 25 of 1950), 3 of 1989 (Reg. Suit No. 26 of 1959), 4 of 1989 (Reg. Suit No. 12 of 1961) and 5 of 1989 (Reg. Suit No. 236 of 1989) shall maintain status quo and shall not change the nature of the property in question." (Emphasised). 74. The submission of the learned counsel for the petitioners is that the State is a party to the suits and, therefore, the above interim order is as much binding upon the State as it is upon the Hindus and Muslims. 75. The plea of the State on the other hand is that in the suits pending before this Court the State is a formal party and there is no "lis" between the State and the plaintiff of the suits and accordingly the interim order is not binding upon it and at any rate it does not debar the State from exercising its statutory powers. 76. It cannot be laid down as a broad proposition of law that a formal party will never be bound by an interim order. Invariably a formal party is impleaded so that the dispute raised in the suit may be finally and effectively adjudicated upon and no party may have the opportunity of saying that the adjudication is not binding upon it as it was not a party to the proceeding. The final adjudication binds the formal party to the same extent as it does the contesting party. If the final adjudication is binding on the formal party I see no reason to hold that an interim order will not be binding on such party. The final adjudication binds the formal party to the same extent as it does the contesting party. If the final adjudication is binding on the formal party I see no reason to hold that an interim order will not be binding on such party. Of course it will have to be seen in each case whether the Court intended to bind the formal party also by its interim order and the extent to which it was intended to be bound. The nature of the proceeding in which the formal party is impleaded is also relevant. It is in this background that it has to be examined whether the interim order reproduced hereinabove was intended to be directed against the State or not. 77. The nature of the suits pending in this Court has been indicated hereinabove. From that nature it would be seen that the dispute is in respect of a private property. The Muslims claim that property to be their place of worship or their graveyard and the Hindus claim the same to be their place of worship. In this dispute the State has no interest. When Muslims and Hindus fought over the possession of the property in question the State intervened only to maintain law and order. The First Information Report was lodged by an official of the State and thereafter proceedings under Section 145 of the Code of Criminal Procedure were initiated and the disputed property was attached. It is for this intervention by the State that in the suit the State of U. P. and some of its functionaries were impleaded. No relief is claimed against the State and its functionaries. The State through its application dated 23rd April, 1962, Annexure-RA-19, in Sunni Board's case informed the Court in unmistakable terms that it has no interest in the property in dispute. In Paragraph 1 it is stated "that the Government is not interested in the properties in dispute and as such the petitioners don't propose to contest the suit." From this application it is apparent that the "lis" in the suit is between the Hindus and the Muslims and there is no "lis" between the State and the Hindus or State and the Muslims. 78. 78. Learned counsel for the petitioners, however, points out that the State has been intervening in various ways and has been making applications even for obtaining interim orders and, therefore, it is not possible to say that there is no "lis" with the State. 79. It is true that the State moved applications for interim orders but thereby the State did not seek anything for itself. The interim orders were sought in the larger interest of the Society ; to ensure law and order. The interim order of which violation is alleged was also passed on the State's application as is apparent from Paragraph 5 of Annexure-R-10. In Paragraph-5 there is reference to CMA No. 3 (O) of 1989 on which the interim order dated 14th August, 1989 was passed. It it mentioned that the application was made in Suit No. 12 of 1961 filed by the Sunni Board as well as in four other connected suits. The prayer made in the application has been reproduced hereinabove from which it is apparent that the State sought interim orders against Hindus and Muslims ; it did not seek anything for itself. 80. In view of the above, I am of the opinion that the interim order dated 14th August, 1989 is directed against the Muslims and the Hindus. The said interim order is not directed against the State. I am further of the opinion that the power of acquisition of land conferred under Sections 4 and 6 of the Land Acquisition Act is a statutory power and an order restraining exercise of such power will have to be very specific. The order dated 14th August, 1989 does not show that it was intended to restrain the State from exercising its statutory powers. The interim order was passed to help the State in maintenance of law and order. 81. For the aforesaid reasons, I am of the opinion, that the impugned acquisition notifications do not violate this Court's interim order dated Nth August, 1989. Mala fide, ulterior motive and colourable exercise of power : Articles 14 and 15. 82. The interim order was passed to help the State in maintenance of law and order. 81. For the aforesaid reasons, I am of the opinion, that the impugned acquisition notifications do not violate this Court's interim order dated Nth August, 1989. Mala fide, ulterior motive and colourable exercise of power : Articles 14 and 15. 82. On behalf of the petitioners it is submitted that although in the impugned notifications the purpose of acquiring the land is stated "for development of tourism and providing amenities to the pilgrims", from the very beginning the State never intended to use the land in dispute for these purposes and from the very beginning the State intended to transfer the land to Hindus for construction of temple. In this context they point out that earlier also land was acquired for Ram Katha Park and the purpose of that acquisition was also development of tourism and providing amenities to pilgrims but that land has now been transferred to a private trust controlled by VHP. Through amendment of the writ petition, the petitioners point out that their apprehensions have materialised as construction of temple has actually started on the acquired land from 9th July, 1992. In support of the plea a large number of papers have been referred to. 83. The assertion regarding commencement of construction of temple has been made in Paragraph 46-A of the writ petition wherein it has been stated as follows : - "46-A. That the aforesaid contention of the petitioner is now borne out and established from the fact that the . construction of the temple started over the acquired land from 9-7-1992 about which reports have been appearing almost every day in almost every newspapers. The petitioner being the resident of Ayodhya has been visiting the site almost daily and he has even personally seen the said construction work of the temple being carried on over the acquired land. The construction work has been started by constructing a platform of about 120x80 feet dimension and the declaration has already been made by the leaders of the Vishwa Hindu Parishad and BJP that the main gate (Singh Dwar) of the temple will be constructed on the said Chabutra (platform). The construction work has been started by constructing a platform of about 120x80 feet dimension and the declaration has already been made by the leaders of the Vishwa Hindu Parishad and BJP that the main gate (Singh Dwar) of the temple will be constructed on the said Chabutra (platform). As such it is now fully established that the purpose of acquisition as mentioned in the notification was not the actual purpose for which the land was acquired but rather the only purpose of acquisition of the said land was the construction of temple. In this respect the averments of the application for intervention dated 11/15-7-1992 moved by Sri Devki Nandan Agarwal as well as of the newspaper reports appearing in almost all the news papers right from 10-7-1992 are very relevant. Some of these reports have already been filed as annexures to the application for direction and action moved by the petitioner on 13-7-1992 and also along-with the supplementary affidavit to the same and some of the reports appearing in different newspapers in this respect are being filed herewith as Annexures No. 10-J to 10-T." (Emphasised) This paragraph has been sworn from personal knowledge. 84. The reply to the above paragraph is contained in Paragraph-4 of the State's counter-affidavit dated 6th August, 1992 wherein it is stated - "4. That the contents of Paragraph 46-A of the writ petition as stated therein are denied. (a) The Newspaper reports are not evidence and cannot be taken into consideration at all and they give distorted facts. (b) The petitioner had mentioned his residence in some earlier documents as Faizabad but in paragraph under reply the mentioned of Ayodhya as his residence is purposive. (c) The facts regarding Kar Seva and alleged constructions are the subject-matter of other proceedings in the Apex Court. State Government have made no constructions whatsoever on the acquired land. (d) The application of Sri Deoki Nandan Agarwal is irrelevant in this connection. (e) It may be mentioned that during the levelling of land not even a single grave was found nor any bones discovered on that part of the acquired land. (f) On the other hand artifacts (Idols and parts of Temple in Nagar Style) and a pucca floor believed to be the floor of a Temple were discovered. (e) It may be mentioned that during the levelling of land not even a single grave was found nor any bones discovered on that part of the acquired land. (f) On the other hand artifacts (Idols and parts of Temple in Nagar Style) and a pucca floor believed to be the floor of a Temple were discovered. A team of Archaeologists have examined the discoveries and have so opined." There is no denial of the factum commencement of construction of temple. All that is stated is that the State Govt, have made no constructions whatsoever on the acquired land. The State Government cannot disclaim its responsibility if any construction is made on the acquired land during the pendency of the writ petition in view of the interim order dated 25th October, 1991 passed by this Court. By that interim order the State had been allowed to take possession of the acquired land and to make arrangements for the purpose notified in the notifications. From this it is apparent that after taking possession the State could make arrangements only for the purpose notified in the impugned notifications. The further direction in the interim order is "no structure of permanent nature shall be put up thereon although structures of temporary nature may be put up." Construction of temple, in my opinion, would be putting up a structure of permanent nature. Learned counsel for the petitioners is therefore, justified in submitting that the purpose of acquiring the land in question was not the one mentioned in the impugned notifications but the one which is now revealed by the actual state of affairs, namely, construction of a Hindu temple. The State was in so much hurry to get the temple constructed that it could not wait even for the disposal of the present writ petitions. 85. As mentioned hereinabove, in the year 1988 the State Government acquired land for construction of Ram Katha Park. This land adjoins the land now acquired by the impugned notifications. In respect of this acquisition, as pointed out earlier, Writ Petitions Numbered 436 and 1931 of 1989 have been filed in this Court. Paragraphs 4 and 5 of the counter-affidavit filed in the former petition have been reproduced earlier. From the averments made in these paragraphs it is apparent that the purpose of the acquisition was also development of tourism and amenities to pilgrims. Paragraphs 4 and 5 of the counter-affidavit filed in the former petition have been reproduced earlier. From the averments made in these paragraphs it is apparent that the purpose of the acquisition was also development of tourism and amenities to pilgrims. This land has now admittedly been transferred by the State through lease deed dated 20th March, 1992 in favour of a private trust known as Sri Ram Janam Bhumi Nyas, Annexure-10-F. The petitioner Mohd. Hashim has placed on record a copy of the trust deed creating the Nyas as Annexure-10-E which is dated 18th December 1985. A perusal of the trust deed shows that amongst the trustees arc Sri Ashok Singhal, Sri Vishnu Hari Dalmia and Sri Mahant Param Hans Ram Chandra Das. Hashim has placed on record a copy of the trust deed creating the Nyas as Annexure-10-E which is dated 18th December 1985. A perusal of the trust deed shows that amongst the trustees arc Sri Ashok Singhal, Sri Vishnu Hari Dalmia and Sri Mahant Param Hans Ram Chandra Das. The objects of the trusts are as follows : - U;kl ds mn~ns'; ,oa iz;kstu (1) v;ks/;k esa Jhjke tUeHkwfe] tgka fLFkr Jhjke ds efUnj] mlds ifjlj vkSj mlds fudV prqZ{ks= dk th.kksZa)kj] iqufuekZ.k] iqu% LFkkiuk ,oa lqUnjhdj.kA (2) Jhjke tUeHkwfe v;ks/;k esa fojkteku Hkxoku Jhjke dks lsok vpZuk iwtk dk ;Fkksfpr izcU/k vFkkZr iqtkfj;ksa dh vko';drkuqlkj fu;qfDr ,oa fu"dklu rFkk iwtk esa vfiZr /ku lEifRr vFkok ewY;oku oLrqvksa ds ln~i;ksx vkSj Hkxoku dks vfiZr Hkksx esa ls izlkn forj.k vkfn dk leqfpr izcU/kA (3) v;ks/;k esa Jhjke tUeHkwfe ij fLFkr Jhjke efUnj ds HkDrksa vkSj ifjlj dk fuekZ.k] lqj{kk] th.kksZ)kj rFkk vUu;uA (4) Jhjke tUeHkwfe v;ks/;k ds fudV HkDrksa vkSj ;kf=;ksa ds vkokl vkSj Hkkstu vkfn dh vUu {ks= }kjk lqpk: O;oLFkkA (5) e;kZnk iq:"kksRre Jhjke dh efgek ds xq.kxku vkSj uke ladhrZu rFkk Jhjke ,oa Jh lhrk th lEcU/kh mRloksa dk vk;kstu vkSj muesa lg;ksxA (6) Jhjke HkDr guqeku dh t;Urh vkSj muls lEcfU/kr mRloksa dk vk;kstu vkSj muesa lg;ksxA (7) ckYehfd jkek;.k ,oa Jhjke pfj= ekul rFkk Jhjke lEcU/kh vU; xzUFkksa dks izpkj&izlkj vkSj mlesa lg;ksxA] (8) fo'o esa Jhjke ds izfr fu"Bk dks ln`<+ djds fofHkUu lEiznk;ksa vkSj iaFkksa esa lkeatL; dh LFkkiuk djukA (9) /keZ ds mUu;u ds fy;s lkaLd`frd fu;e ,oa laLd`r&Hkk"kk rFkk deZdk.M dh f'k{kk esa ;ksxnku rFkk vkS"k/kky;ksa vkSj ekuo & dY;k.k dsUnzksa dh LFkkiuk] izcU/k ,oa lapkyuA (10) lekt esa vklqjh 'kfDr;ksa ds neu vkSj fouk'k ds fy;s e;kZnk iq:"kksRre Jhjke ds mnkgj.k ,oa thou&pfj= vkSj jke jkT; dh ifjdYiuk dk izLrqrhdj.k rFkk izlkjA (11) vkSj ,sls lHkh dk;Z bR;kfn djuk tks bu lHkh mn~ns';ksa vkSj iz;kstuksa dh iwfrZ ds fy;s vko';d vFkok lgk;d gks] mnkgj.kkFkZ /ku&lEifRr] Hkwfe&Hkou] fofHkUu oLrq;sa vkSj dherh inkFkZ rFkk muesa vf/kdkj bR;kfn vftZr djuk] /kkj.k djuk] mudks lqjf{kr j[kuk] fofu/kku djuk] C;kt ij yxkuk] dtZ nsuk ;k ysuk bR;kfn ,sls lHkh dk;Z djuk tks O;ogkj txr esa mi;qZDr mn~ns';ksa vkSj iz;kstuksa ds fy;s vko';d gksA (1) eSa Lokeh f'kojkekpk;Z "Jhjke tUeHkwfe U;kl" dk izFke U;klh jgwWaxk vkSj rc rd jgwWaxk tc rd fd jksx vFkok e`R;q ls blds dk;Z fuokZg esa vleFkZ u gks tkmWaA fuEufyf[kr os vU; gSa tks y[kum esa gqbZ "/keZLFkku eqfDr ;K lfefr" dh mi;qZDr cSBd esa bl /keZ fu"iknu esa eq>s lgk;rk vkSj lykg ds fy;s U;klh ukeksuhr fd;s x;s Fks rFkk bl izi= }kjk mUgsa Jhjke tUeHkwfe U;kl dk LFkk;h U;klh ?kksf"kr ,oa fu;qDr fd;k tkrk gS vkSj ;g rc rd U;klh jgsaxs tc rd fd jksx vFkok e`R;q ls blds dk;Z fuokZg esa vleFkZ u gks tk;sa] vFkkZr& (2) Jh txn~xq: ofj"B 'kadjkpk;Z Jh Lokeh 'kkUrkuUn ljLorh th egkjkt T;ksfr"k ihB] iz;kxA (3) Jh xksj{kihVk/kh'oj egUr voS|ukFk th egkjkt] xksj[kiqjA (4) Jh egUr u`R;xksikynkl th egkjkt] ef.kjke Nkouh] v;ks/;kA (5) Jh egUr ijegal jkepUnz nkl th] fnxEcj v[kkM+k] v;ks/;kA (6) lUrizoj izHkqnRr czgkzpkjh] ladhrZu Hkou] >walh] iz;kxA (7) Jh egUr jke dsoynkl th egkjkt] fueksZgh v[kkM+k] v;ks/;kA (8) Jh fo".kqgfj th Mkyfe;k] rhl tuojh ekxZ] ubZ fnYyhA (9) Jh v'kksd fla?ky] 16@10] gkf'keiqj jksM] bykgkcknA (10) Jh nkm n;ky [kUuk] 1 uUn fcgkj] flfoy ykbZu] eqjknkcknA 86. In Paragraph 15 of the State's counter-affidavit dated 15th May, 1992 execution of the lease deed in favour of the aforesaid Nyas has not been disputed. The association of the trustees with the Vishwa Hindu Parishad and Rashtriya Sewak Sangh has also not been disputed. 87. Apart from the aforesaid documents the petitioners rely upon several newspaper clippings for substantiating the plea that over since the Bhartiya Janta Party formed Government in the State of Uttar Pradesh it has been making all out effort for construction of temple at the disputed place. Learned counsel for the State challenges the admissibility of these clippings. 88. Newspaper clippings alone may not furnish reliable evidence of a statement attributed to a person but when that statement is repeated on oath and opportunity is given to the concerned person to controvert it and the opportunity is not availed of, the only conclusion that can be drawn is that he does not dispute having made the statement. Most of the newspaper clippings contain statements said to have been made by the Chief Minister Sri Kalyan Singh at some place or the other. The petitioner Hashim has repeated relevant statements on oath. He has impleaded Sri Kalyan Singh in the writ petition by name but the latter has not filed any counter-affidavit to controvert the statements attributed to him. In the absence of any controversion by Sri Kalyan Singh we cannot hold that the statements attributed to him in the newspaper clippings and repeated on oath by Hashim were not made by him. Now I may examine some of the statements contained in the said clippings. 89. Before taking up the clippings, I, may refer to a statement made in the writ petition which also remains un-controverted. In Paragraph-27 it is stated that in the State of Uttar Pradesh, Bhartiya Janata Party formed Government on 24th June 1991 with Sri Kalyan Singh as the Chief Minister and on 25th June, 1991 Sri Kalyan Singh alongwith all his Ministers visited Ayodhya and entered the disputed structure and took oath that a temple will be constructed on the site of the said structure. The portion of the paragraph relating to the visit of Sri Kalyan Singh and his cabinet colleagues and their declaration on oath has been verified in the affidavit from personal knowledge. The portion of the paragraph relating to the visit of Sri Kalyan Singh and his cabinet colleagues and their declaration on oath has been verified in the affidavit from personal knowledge. In support of the assertion, Annexure-5 has been filed which is an extract from the daily newspaper Pioneer dated 26th June 1991. The relevant report reads thus : "In an emotionally charged atmosphere the Chief Minister Mr. Kalyan Singh and the National President of the BJP Dr. Murli Manohar Joshi today took the pledge before the idol of Ram within the Ram Janam Bhumi-Babri Masjid Complex to have the temple built there only." At another place in this very report it is mentioned - "Mr. Kalyan Singh who arrived here with his Ministerial colleagues and newly elected party MLA's in ten UPSRTC deluxe buses and over 50 Government Cars, also visited Shaheed Galee, Digambar Akhara, Maniram Chavni, Balmiki Bhawan and Hanuman Garhi." At yet another place it is mentioned - "Replying to a question, Mr. Kalyan Singh stated that he took the pledge to construct the temple in his personal capacity as welt as Chief Minister." Since the above statements remain un-controverted it will have to be held that Sri Kalyan Singh, the Chief Minister and his cabinet colleagues visited the disputed structure and took pledge to construct temple of Ram at that place. This statement gives strength to the petitioner's case that from the very beginning the intention of the State Government has been to acquire the land for the purpose of constructing temple at the disputed place. It may be that as yet the construction activity has not extended up to the place where the main structure and the inner courtyard exist, but the intention to extend it up to that place is apparent from the following statement contained in Paragraph 46 of the State's counter-affidavit dated 3rd January, 1992 wherein it is stated - "46. That it may be mentioned as follows ; (a) Previously 55.6744 acres of land around and adjoining Shri Rama Janma Bhumi Sthal was acquired or granted for the purposes of RAM A KATHA PARK. The land called Shri Ram Janma Bhumi Sthal was left out. No plan for development of Ram Katha Park could be completed without Shri Ram Janma Bhumi Sthal being included into it, as the Ram Katha Park was design to be built around Shri Ram Janma Bhumi. The land called Shri Ram Janma Bhumi Sthal was left out. No plan for development of Ram Katha Park could be completed without Shri Ram Janma Bhumi Sthal being included into it, as the Ram Katha Park was design to be built around Shri Ram Janma Bhumi. With this end in view, the State Government has further acquired under the pressing notification 2-77 acres of land of Ram Janma Bhumi Sthal so that an integrated plan can be prepared for development of this land to provide amenities to pilgrims visiting Sri Ram Janma Bhumi and to develop at Shri Ram Janma Bhumi a tourist centre. (b) The plan is now being prepared after the present acquisition in which a part of the land of Shri Ram Janma Bhumi will be left vacant for the renovation and reconstruction of the temple of Bhagwan Shri Ram Virajman there and its appurtenant facilities and conveniences through agencies decided upon by the State Government. (c) In view, however, of the pendency of litigation, the status quo relating to the disputed structure shall be maintained till dispute is not settled by the Court or by any other other lawful process." (Emphasis supplied) From the above averments it is apparent that the land of Ram Katha Park and the present land are to be used for one and the same purpose. The land of Ram Katha Park has already been handed over to trust whose aims and objects are religious and whose trust board is dominated by members of Vishwa Hindu Parishad. Clause (b) refers to reconstruction of the temple of Bhagwan Sri Ram Virajman. Bhagwan Sri Ram is "virajman"within the disputed structure. 90. Apart from the newspaper clipping referred to hereinabove there are a large number of other such clippings. In view of the fact that the mala fides are established from the aforesaid evidence, it is not necessary to refer to the other newspaper clippings. 91. The aforesaid evidence abundantly establishes that the purpose of acquisition shown in the impugned notifications is camouflaged. 92. it is also established that the impugned acquisition has been made in order to give advantage to Hindus in the litigation referred to hereinabove. 93. Learned counsel for the State tries to skirt the above factual position by giving a narrow interpretation to the allegations made by the petitioners of mala fides, ulterior motive and colourable exercise of power. 92. it is also established that the impugned acquisition has been made in order to give advantage to Hindus in the litigation referred to hereinabove. 93. Learned counsel for the State tries to skirt the above factual position by giving a narrow interpretation to the allegations made by the petitioners of mala fides, ulterior motive and colourable exercise of power. According to him these allegations do not make out any case on any of the three counts. The allegations, according to him, at the most amount to saying that the actual purpose of acquisition is to destroy the mosque and against this, categorical assurance has been given in the counter-affidavit also before the National Integration Council by the Chief Minister and, therefore, there is no occasion to entertain the fanciful apprehension of the petitioner. In the same context the learned counsel asserts that construction of temple is a public purpose and it is not the case of the petitioners that it is not and, therefore, no exception can be taken against the construction of temple when it does not damage or destroy structure. In support of the plea that construction of temple is a public purpose and the State is competent to acquire land for construction of temple the learned counsel has cited a large number of authorities. 94. Before we take up the assurance of the Chief Minister and the State of U. P. we may refer to the paragraphs of the writ petition on the basis of which the learned counsel submits that the allegations of the petitioners amount to nothing more than saying that the motive behind the acquisition is destruction of the structure. 95. Preferring to the visit of the Chief Minister and his cabinet colleagues to the structure immediately after taking oath of office, the petitioner asserts in Paragraph 28 thus : - "28 the action of Sri Kalyan Singh, Chief Minister of U. P. in visiting the Babri Masjid in Ayodhya and declaration of his determination to build a temple on the site of the Babri Masjid has to other intention but to build the temple by demolishing and destroying the mosque " (Emphasis supplied). The other paragraphs are as follows : - 30. ".........on 1-8-1991 the barricading around the Babri Masjid was removed by the district administration under the instructions of Sri Kalyan Singh. The other paragraphs are as follows : - 30. ".........on 1-8-1991 the barricading around the Babri Masjid was removed by the district administration under the instructions of Sri Kalyan Singh. It is necessary to point out that the protective barricading was erected by the Security staff in order to protect the Babri Masjid from any mass-onslaught or save it from any attempt by unauthorised persons to demolish or damage it, but with a view to clear the passage for unauthorised persons to demolish the Babri Masjid the barricades have been removed by the district administration on 1-8-1991......" (Emphasis supplied). 33. the circumstances narrated above clearly indicate that the State Government led by Sri Kalyan Singh, C. P. No. 5 and his party is out to destroy the Babri Masjid by extra legal means. There is imminent danger that the Babri Masjid may be destroyed by unauthorised persons with the tacit concern of the State Government and with the active connivance of the local administration controlled by the State Government........... "(Emphasis supplied.) 35. ".. In order to achieve its motive of destroying the Babri Masjid and its design against the minority, the Kalyan Singh Government has adopted another indirect method of destroying the Babri Masjid " (Emphasis supplied.) 39. "..........The real purpose and motive of acquisition has been concealed in the said notification (Annexure-7) for the obvious reasons. It is evident from the circumstances mentioned above that the Government led by Sri Kalyan Singh, O. P. No. 5 is wholly in league with Vishwa Hindu Parishad and Bajrang Dal and out to destroy the Babri Mosque. This land is being acquired to destroy Babri Masjid " (Emphasis supplied) 40. " but this particular land which belongs to Muslims and is part of the mosque and ancient graveyard is being acquired, to deprive Muslims of their religious rights guaranteed under Article 25 of the Constitution of India. As such the said notification, Annexure-7, indicates malice, bad motive and colourable exercise of power at the face of it in the sense that the real purpose and objects has been concealed." 41. ".......The leaders of the Vishwa Hindu Parishad have already announced that they are going to start the construction work from October 18, 1991 and the crowd will be gathered to destroy the Babri Masjid with the active connivance of the State Government and the Administration." (Emphasis supplied.) 42. ".......The leaders of the Vishwa Hindu Parishad have already announced that they are going to start the construction work from October 18, 1991 and the crowd will be gathered to destroy the Babri Masjid with the active connivance of the State Government and the Administration." (Emphasis supplied.) 42. "....The real purpose for which the land, mosque and the graveyard is being acquired through Annexure-7 is to destroy both - graveyard and the mosque - and to build a temple as has already been loudly declared by the Chief Minister, Sri Kalyan Singh, C. P. No. 5, in his statement on 25th June, 1991, published in the Press on 26th June, 1991 thereby depriving Muslims of the use of the mosque and the graveyard. As such the Notification Annexure-7, is wholly mala fide and colourable. It has been openly declared by the leaders of the Vishwa Hindu Parishad and even the State Government that this graveyard, the land and the mosque are to be acquired for the construction of a temple which may start on any day after Dushera " (Emphasis supplied) 46. "..... the Notification, Annexure-7, is wholly arbitrary and mala fide and has been issued in colourable exercise of powers with the real motive of the State Government for destroying the Babri Masjid and Kabrustan around it and hand over the same to Vishwa Hindu Parishad and other Hindu organisations to build a temple over there...." (Emphasis supplied.) 96. The above averments are contained in the writ petition of Mohd. Hashim as originally filed. Through amendment allowed by court's order dated 7th August, 1992 Paragraph 46-A was added, relevant portion of which has already been reproduced hereinabove. 97. Apart from the factual averments contained in the body of the writ petition our attention has been invited to the following grounds also - 1. "II - Because the purpose indicated in the notification Annexure-7, is totally vague. The purpose is to destroy the graves and the mosque - Babri Masjid, and to deprive the Muslims of their right of religious practice." (Emphasis supplied.) 2. "V - Because the exercise of power under the Land Acquisition Act at the face of the order of status quo of the Full Bench of this Hon'ble Court itself is mala fide as the same tends to circumvent the proceedings and authority of this Hon'ble Court." 3. "V - Because the exercise of power under the Land Acquisition Act at the face of the order of status quo of the Full Bench of this Hon'ble Court itself is mala fide as the same tends to circumvent the proceedings and authority of this Hon'ble Court." 3. "XI - Because the statement of the Hon'ble Chief Minister Sri Kalyan Singh, has already referred above, dated 25th June, 1991 itself indicates that the motive of the Notifications in Annexures No. 7 and 8 is entirely different than the one indicated in the Notification, Annexure-No. 7, thus the said notification dated 7th October, 1991, Annexure No. 7 is a colourable exercise of power." 4. "XVII-Because the Notifications contained in Annexure Nos. 7 and No. 8 are a fraud upon the law and have been used to further political ends of the ruling party - Bhartiya Janta Party." and "5. "XXIV - Because there is no real purpose for the acquisition of the land in question as defined in the Act and the State Amendment and the Notifications No. 7 and 8 are totally mala fide." 98. Strong reliance has been placed by the learned counsel for the petitioners and the emphasised portion for submitting that the only ground for alleging mala fide and ulterior motive and colourable exercise of power is that the State Government intends to destroy the Babri Masjid. 1 am unable to agree with the submission. Apart from making the allegation relating to destruction of Babri Masjid it is also averred that the purpose of acquisition is to hand over the acquired land to Hindus for utilising the land in construction of a temple thereon. {See Paragraphs 42 and 46 above). The assurance given on behalf of the State extends only to protection of the structure and the inner courtyard. The assurance does not extend to the outer courtyard which, as held above, is also subject-matter of litigation. I may now take up the assurance given by the Chief Minister and the State. 99. The assurance given by the Chief Minister has been reproduced hereinabove. That assurance indeed says that pending final solution the Government of U.P. will hold itself fully responsible for the protection of Ram Janma Bhumi Babri Masjid structure. This assurance has been relied upon by their Lordships of the Supreme Court in their order dated 15-11-1991 passed in Writ Petition No. 1000 of 1991. That assurance indeed says that pending final solution the Government of U.P. will hold itself fully responsible for the protection of Ram Janma Bhumi Babri Masjid structure. This assurance has been relied upon by their Lordships of the Supreme Court in their order dated 15-11-1991 passed in Writ Petition No. 1000 of 1991. I accept the assurance given on behalf of the State that the disputed structure shall remain protected so long as litigation is pending between the two religious groups and proceed on the assumption that private land can be acquired for construction of temple as construction of temple is public purpose. Even then the impugned acquisition cannot be saved in view of our findings that (1) the purpose of acquisition of is to give advantage to one party to litigation over the other ; and (2) to give favourable treatment to one religious group over the other. The first violates Article 14 of the Constitution as it is discriminatory as well as arbitrary, and the second violates Article 15 (1) which mandates that "the State shall not discriminate against any citizens on grounds only of religion ". Since the discrimination in the present case is based on religion, Article 15 is attracted. 100. Learned counsel for the State, however, submits that the action of the State cannot be said to be arbitrary as construction of temple at Ayodhya was a part of the election manifesto of the Bhartiya Janta Party which is in power. According to the learned counsel the Bhartiya Janta Party has the mandate of the people to construct the temple at Ayodhya. Whatever is done in pursuance of people's mandate the learned counsel claims, cannot be described as arbitrary. We are unable to agree with the submission of the learned counsel. No action of the State can be justified on the basis of people's mandate if it does not pass the test of constitutional validity. Constitution has also people's mandate as it has been framed by the representatives of the people. Constitutional mandate is basic fundamental and Supreme ; all other mandates are subordinate to it. Where there is conflict between the two mandates of the people, the constitutional mandate will prevail. 101. Constitution has also people's mandate as it has been framed by the representatives of the people. Constitutional mandate is basic fundamental and Supreme ; all other mandates are subordinate to it. Where there is conflict between the two mandates of the people, the constitutional mandate will prevail. 101. By the Constitution (42nd Amendment) Act, 1976 the Indian Constitution has been amended and the "secular" has been added in the Preamble, apart from the word "socialist." This amendment highlights the fact that secularism is a basic character of the Indian Constitution. It is not as if without the amendment, it would have been otherwise. Even prior to the amendment Article 15 was already there. This Article contains the principle of secularism. The purpose of the 42nd Amendment was not to bring about any qualitative change in the character of the Constitution. It was only to highlight an existing fact. Secularism being the basic character of the Indian Constitution, no promise made by the winning political party to the electorate during election campaign can be recognised by the courts for upholding the validity of a legislative or executive action taken to give effect to that promise. The submission of the learned counsel amounts to saying that by issuing the impugned notifications the State Government has espoused a popular cause. A popular cause which does not satisfy the requirements of the Constitution cannot be upheld by the Court. In taking this view I am fortified by the decision of their Lordships of the Supreme Court in H. H. Maharajadhiraj Madhav Rao Jiyaji Rao Scindia Bahadur and others v. Union of India, AIR 1971 SC 530 : 1971 (1) SCC 85 . In Paragraph 271 of the report (AIR) it has been observed : - ".........Breach of any of the constitutional provisions even if made to further a popular cause is bound to be a dangerous precedent. Disrespect to the constitution is bound to be broadned from precedent to precedent and before long the entire Constitution may be treated with contempt and held up to ridicule Every contravention of the letter or the spirit of the Constitution is bound to have chain reaction.............." 102. Reference may also be made to 10 L Ed 2d 844 : 374 US 203, School District of Abingdon Township Pennsylvania v. Edward Lewis Schempp. Reference may also be made to 10 L Ed 2d 844 : 374 US 203, School District of Abingdon Township Pennsylvania v. Edward Lewis Schempp. At page 854 it has been observed : "The Government is neutral, and, while protecting all, it prefers none, it disparages none." This observation is applicable to the secularism enshrined in our Constitution. This judgment defines secularism thus - "In the relationship between man and religion the State is committed to a position of neutrality." 103. In 6 L Ed 2d 563 : 366 US 599, Abraham Braunfeld v. Albert N. Brown, Commissioner of Police of the City of Philadelphia Pennysylyania, it has been observed - "If the purpose or effect of law..........is to discriminate invidiously between religions, the law is constitutionally invalid even though the burden may be characterised as being only indirect; but if the State regulates conduct by enacting, within its power, a general law whose purpose and effect is to advance the State's secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish it purpose by means which do not impose such a burden." 104. The learned counsel for the State tries to get over the plea of colourable exercise of power by submitting that considering the religious importance of Ayodhya, construction of temple is implicit in the expression ``promotion of tourism". It is not necessary to examine the validity of this submission in detail because of the finding that from the very beginning motive behind the acquisition was to give advantage to Hindus in the pending litigation. 105. Before closing the chapter on mala fides, ulterior motive and colourable exercise of power I may observe that mala fide or colourable exercise of power is fraud on the exercise of power and fraud vitiates even the most solemn transaction. In view' of our findings recorded hereinabove the impugned transaction of acquisition is, therefore, vitiated. In Madliav Rao Scindia's case (supra) their Lordships have observed in Paragraph 271 AIR "Exercise of a Constitutional power for collateral reasons has been considered by this Court in several decisions as a fraud on that power". (Emphasised.) Although the observation has been made in respect of constitutional power it has full application to the exercise of statutory power also. In Madliav Rao Scindia's case (supra) their Lordships have observed in Paragraph 271 AIR "Exercise of a Constitutional power for collateral reasons has been considered by this Court in several decisions as a fraud on that power". (Emphasised.) Although the observation has been made in respect of constitutional power it has full application to the exercise of statutory power also. In the present case the impugned notifications have been issued in exercise of the statutory power conferred under Sections 4 and 6 of the Land Acquisition Act. 106. I entirely agree with the observations of Lord Denning MR in Bromley London Borough Council v. Greater London Council, (1982) 1 All ER 129, which have been quoted with approval by K. N. Goyal, J. (as he then was) in Writ Petition No. 285 of 1984, Uttar Pradesh Hindi Sahitya Sammelan, Lucknow v. Government of Uttar Pradesh and others. At page 135 of the report the noble Lord says - "A manifesto issued by a political party, in order to get votes, is not to be taken as gospel. It is not to be regarded as a bond, signed, sealed and delivered. It may contain, and often does contain, promises or proposals that are quite unworkable or impossible of attainment. Very few of the electorate read the manifesto in full. A goodly number only know of it from what they read in the newspapers or hear on television. Many know nothing whatever of it contains. When they come to the polling booth, none of them vote for the manifesto. Certainly not for every promise or proposal in it. Some may be influenced by one proposal. Others by another. Many are not influenced by it at all. : hey vote for a party and not for a manifesto, f have no doubt that in this case many rate payers voted for the Labour Party even trough, on this one item alone, it was against their interests. And vice versa, it seems to me, Labour Party can or should claim a mandate and commitment for any one item in a long manifesto. When the party gets into power, it should consider any proposal or promise afresh, on its merits, without any feeling of being obliged to honour it or being committed to it. And vice versa, it seems to me, Labour Party can or should claim a mandate and commitment for any one item in a long manifesto. When the party gets into power, it should consider any proposal or promise afresh, on its merits, without any feeling of being obliged to honour it or being committed to it. It should then consider what is best to do in the circumstances of the case and to do it if it is practicable and fair." 107. Learned counsel for the State, however, submits that the power to acquire land is legislative in character and since legislative action is immune from challenge on the ground of mala fides the impugned notifications are also immune from challenge on that ground. In support of the plea that the power is legislative in character he refers us to the acquisition of insurance business by the Life Insurance Corporation Act, 1956 (31 of 1956) and to the acquisition of banking business by the Banking Business (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) According to the learned counsel the Legislature may itself exercise the power of acquisition or it may delegate the power to the executive authority ; when the power is delegated the nature and content of the power is not changed, it remains legislative. What is changed is the agency exercising the power. When the power is exercised by the executive, it is exercise of delegated legislative power. Since the change in agency does not result in change of the nature and content of the power, all the incidents of exercise of legislative power will attach to the exercise of delegated legislative power by the executive also, including the immunity from attack on the ground of mala fide. 108. The learned counsel concedes that exercise of legislative power can be challenged on the ground of colourable exercise of power, whether the power is exercised by the Legislature or by the executive. He, however, submits that exercise of power would be colourable when it is exercised under the impression that the power is possessed when in fact and in law it is not possessed. He, however, submits that exercise of power would be colourable when it is exercised under the impression that the power is possessed when in fact and in law it is not possessed. On this basis it is submitted that since the power to acquire land was admittedly available to the State Government under Sections 4 and 6 of the Land Acquisition Act the impugned notifications cannot be challenged on the ground of colourable exercise of power. 109. We may assume all the above legal propositions to be correct. Even the impugned acquisitions cannot be saved in view of the finding recorded hereinabove. We have held that the impugned acquisition is violative of Articles 14 and 15. The mandate of Articles 14 and 15 is constitutional and cannot be ignored by the State. State which violates these Articles acts in excess of jurisdiction or without jurisdiction. In the case on hand if the claim of the State Government is accepted, it acted under the impression that it was not acquiring any land which was subject-matter of litigation. I have shown this impression to be incorrect. All that can be said is that the State Government acted under the impression that it was not violating Articles 14 and 15 while in fact it was violating these Articles. Accordingly the exercise of powers in the present case is colourable even on the law of colourable exercise of power propounded by the learned counsel. In The State of Punjab and another v. Gurdial Singh and others, AIR 1980 SC 319 : 1980 (2) SCC 471 , their Lordships upheld the quashing of notifications under Sections 4 and 6 by the High Court of Punjab and Haryana on the ground of colourable exercise of power. In Paragraph 9 of the report (AIR) it has been observed : - ".............When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived illusion." In this case the land was acquired for establishing a grain market. It was held that the purpose of acquisition was valid. It was held that the purpose of acquisition was valid. In respect of selection of land it was observed that the power to select was left to the responsible discretion of Government under the Act subject to Articles 14, 19 and 31 and the Court was handcuffed in this jurisdiction and could not raise its own hand against what it thought a foolish choice. Yet the acquisition was quashed as the selection of land was held to be actuated by bitter long election hostility. Learned counsel for the State tried to distinguish this case by submitting that it is based on its own facts as the principle of res judicata was involved and political vendetta alleged against the opposite parties was almost admitted. These distinctions may be there but there preposition contained in Paragraph-8 is that constitutional balance cannot be upset and whenever exercise of power is polluted by oblique motive, the Court has jurisdiction to interfere. It is observed in Paragraph 8. ".. .Wisdom in administrative action is the property of the executive and judicial circumspection keeps the court lock-jawed save Where power has been polluted by oblique ends or is otherwise void on well-established grounds. The constitutional balance cannot be upset." From this observation it is apparent that where acquisition violates constitutional provisions Courts have jurisdiction to interfere. 110. Learned counsel for the petitioners does not admit that the power of acquisition under Sections 4 and 6 is legislative in character. According to him the power is executive in character and is conferred upon the executive by the legislature. The discretion to exercise the power has been left to the executive which may exercise it or may not exercise it. In the present case it is not necessary to go into this controversy as the exercise of power being contrary to constitutional provisions it has to be quashed whether the same is legislative in character or administrative in character. For this the authority of the Supreme Court in Gurdial Singh case (Supra) is available. 111. On the question of basic structure of the Constitution, malafide ulterior motive and colourable exercise of power and the duty of the State to meet the allegations a large number of authorities have been cited from both sides. It is not necessary to refer to all of them. A few may be noticed. 112. 111. On the question of basic structure of the Constitution, malafide ulterior motive and colourable exercise of power and the duty of the State to meet the allegations a large number of authorities have been cited from both sides. It is not necessary to refer to all of them. A few may be noticed. 112. In AIR 1973 Supreme Court 1461, His Holiness Kesavananda Bliarati Sripadagalvaru and others v. State of Kerala and another, their lordships of the Supreme Court have indicated some of the basic constituents of the Indian Constitution. After observing that all the constituents cannot be catalogued the following basic constituents have been enumerated by way of illustration in paragraph 599 at page 1603 : - "1. The supremacy of the Constitution. 2. Republican and Democratic form of Government and sovereignty of the country. 3. Secular and federal character of the Constitution. (Emphasised). 4. Demarcation of power between the legislature, the executive and the judiciary. 5. The dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part IV. 6. The unity and the integrity of the nation." Thus secularism is a basic structure of the Constitution. Again in Paragraph 1437 at page 1859 it has been observed : - "..........It would not be competent under the grab of amendment for instance, to change the democratic Government into dictatorship or hereditary monarchy nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha. The secular character of the State according to which the state shall not discriminate against any citizen on the ground of religion only cannot likewise be done away with. Provision regarding the amendment of the constitution does not furnish a pretence for subverting the structure of the constitution nor can Article 368 be so construed as to embody the death wish of the Constitution or provide sanction for what may perhaps be called its lawful harakiri." 113. These observations show that the secular character of the Constitution cannot be tampered with by Parliament while exercising constituent power to amend the Constitution. If the secular character cannot be tampered even by Parliament it is apparent that it cannot be tampered by lesser authorities namely authorities exercising statutory power. 114. These observations show that the secular character of the Constitution cannot be tampered with by Parliament while exercising constituent power to amend the Constitution. If the secular character cannot be tampered even by Parliament it is apparent that it cannot be tampered by lesser authorities namely authorities exercising statutory power. 114. In AIR 1961 SC 1117 , R. P Kapur and others v. Sardar Pratap Singh Kairon and others, allegations of malafides had been made against the Chief Minister of the State. The Chief Minister did not file his counter affidavit. Dealing with this aspect their lordships have observed in Paragraph 19 at page 1125 thus - ``These are all matters on which the Chief Minister alone was in a position to enlighten us. In view of the allegations made against him, we consider that the Chief Minister owed a duty to this Court to file an affidavit stating what the correct position was so far as he remembered it." On the basis of these observations it was submitted by the learned counsel for the petitioners that when the petitioners' specific case was that the policy of the present Government was to destroy the mosque the Chief Minister whose public statements have been placed on record owed a duty to the Court to spell out the policy of his party. 115. AIR 1964 Supreme Court 72, S'. Pratap Singh v. State of Punjab, was also a case in which the order passed against a Government servant was challenged on the ground of mala fides of the Chief Minister. 115. AIR 1964 Supreme Court 72, S'. Pratap Singh v. State of Punjab, was also a case in which the order passed against a Government servant was challenged on the ground of mala fides of the Chief Minister. In Paragraph 5 of the report at Page 81 it has been observed - "For the purposes of the present controversy the functionary who took action and on whose instructions, the action was taken against the appellant was undoubtedly the Chief Minister and if that functionary was actuated by mala fides in taking that action it is clear that such action would be vitiated." Dealing with the jurisdiction of the court it has been observed in Paragraph 9 at Page 83 as follows : - "(9) Pausing here, we might summarise the position by stating that the Court is not an appellate forum where the correctness of an order of Government could be canvassed and, indeed, it has no jurisdiction to substitute its own view as to the necessity or desirability of initiating disciplinary proceedings, for the entirety of the power, jurisdiction and discretion in that regard is vested by law in the Government. The only question which could be considered by the Court is whether the authority vested with the power has paid attention to or taken into account circumstances, events or matters wholly extraneous to the purpose for which the power was vested or whether the proceedings have been initiated mala fide for satisfying a private or personal grudge of the authority against the officer. If the Act is in excess of the power granted or is an abuse or misuse of power, the matter is capable or interference and rectification by the Court. In such an event the fact that the authority concerned denies the charge of malafides, of asserts the absence of oblique motives or of its having taken into consideration improper or irrelevant matter does not preclude the Court from enquiring into the truth of the allegations made against the authority and affording appropriate reliefs to the party aggrieved by such illegality or abuse of power in the event of the allegations being made out." (Emphasised.) The above observation is authority for the proposition that where the allegation of mala fide is made but denied the Courts are not precluded from enquiring into the truth of the allegations. On the basis of these observations it was submitted by the learned counsel for the petitioners that the denial of mala fides in the counter affidavit of the Secretary to Government did not preclude this Court from enquiring into the truth of the allegation. 116. In AIR 1987 Supreme Court 663, P. Sambammurthy and others v. State of Andhra Pradesh and another, it has been observed in Paragraph 4 at page 667 as follows : - " It is a basic principle of the rule of law that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but must also be in accordance with law and the power of judicial review is conferred by the Constitution with a view to ensuring that the law is observed and there is compliance with the requirement of law on the part of the executive and other authorities. It is through the power of judicial review conferred on an independent institutional authority such as the High Court that the rule of law is maintained and every organ of the State is kept within the limits of the law " According to this authority observance of the rule of law is also a basic structure of our Constitution and where the action of an authority violates this basic structure the Courts have power of judicial review. 117. In M.R. Balaji and others v. The State of Mysore and others, AIR 1963 Supreme Court 649, it has been observed in Paragraph 35 at page 663 as follows : "...... When it is said about an executive action that it is a fraud on the Constitution it does not necessarily mean that the action is actuated by mala fides. An-executives action which is patently and plainly outside the limits of the constitutional authority conferred on the State in that behalf is struck down as being ultra vires the State's authority. If, on the other hand, the executive action does not patently or overtly transgress the authority conferred on it by the Constitution, but the transgression is covert or latent, the said action is struck down as being a fraud on the relevant constitutional power. If, on the other hand, the executive action does not patently or overtly transgress the authority conferred on it by the Constitution, but the transgression is covert or latent, the said action is struck down as being a fraud on the relevant constitutional power. It is in this connection that courts often consider the substance of the matter and not its form and in ascertaining the substance of the matter, the appearance or the cloak, or the veil of the executive action is carefully scrutinised and if it appears that notwithstanding the appearance, the cloak or the veil of the executive action, in substance and in truth the constitutional power has been transgressed, the impugned action is struck down as a fraud on the Constitution " This authority has been relied upon by the learned counsel for the petitioners for submitting that this Court is entitled to examine the real purpose of the impugned acquisition. 118. In Lahore Electric Supply Co. Ltd. v. Province of Punjab, MR (30) 1943 Lahore 41, a Full Bench of the Lahore High Court was dealing with the challenge against compulsory requisition of the property of an Electric Supply Co. dealing in the manufacture and supply of electricity. The requisition notice was given during the pendency of litigation between the Company and the Punjab Government, the Company pleading that is licence to manufacture and supply of electricity stood renewed and the State Government contesting the claim. Section 16 of the Defence of India Act, 1939 took away the jurisdiction of the Courts in examining the legality of action taken under the Act and the rules framed thereunder. When the action of the Government was challenged it was initially contended on behalf of the State that the action was immune from challenge. However, during the course of hearing the learned counsel for the Government had to concede that the validity of an order could be gone into by the Court if the order was challenged on the ground that the same had been made for collateral purpose. However, during the course of hearing the learned counsel for the Government had to concede that the validity of an order could be gone into by the Court if the order was challenged on the ground that the same had been made for collateral purpose. The concession of the learned Advocate General is recorded at page 44 of the report in this form : " Subsequently the learned Advocate-General admitted that if the plaintiffs could show, and the Court came to the conclusion that the orders were passed for some collateral purpose, that is, they were not made bona fide for the purposes alleged by the order, Section 16 would be no bar...." Although there was concession on the question of Court's jurisdiction but the concession appears to have the approval of the Bench. 119. The above authorities were cited by the learned counsel for the petitioners and they accord with the view taken by us. Now a few authorities cited by the learned counsel for the State may also be noticed. 120. The following observation contained in `Principles of Statutory Interpretation' by Justice G. P. Singh at page 565 (Fifth Edition) has been relied upon : "Delegated legislation is open to the scrutiny of courts and may be declared invalid particularly on two grounds : (a) Violation of the Constitution ; and (b) Violation of the enabling Act. The second ground includes within itself not only cases of violation of the substantive provisions of the enabling Act, but also cases of violation of the mandatory procedure prescribed. It may also be challenged on the ground that it is contrary to other statutory provisions or that it is so arbitrary that it cannot be said to be in conformity with the statute or Article 14 of the Constitution " These observations bring no benefit to the State as in view of our findings recorded hereinabove the impugned notifications violate Articles 14 and 15 of the Constitution. Violation of Constitution does not exclude judicial scrutiny. 121. Violation of Constitution does not exclude judicial scrutiny. 121. Reliance was placed on the definition of the term `Colore Officii" contained in `Words and Phrases' Permanent Edition, Volume 7-A. At page 296 it is stated - "Colore officii" is defined as a pretence of official right to do an act made by one who has no such right," On the same page in the second column are contained the following statements : - "An officer's acts are done "colore officii" when they are of such a nature that his official position does not authorise the doing of such acts though they are done in a form that purports they are done reason of official duty and by virtue of his office." "An officer's case are done "colore officii" when they are such a nature that his official position does not authorise the doing of such acts though they are done in a form that purports that they were done by reason of official duty and by virtue of his office." The above statements were relied upon by the learned counsel for State for submitting that the power of the State Government to acquire land under the Land Acquisition Act is not challenged by the petitioners and, therefore, it cannot be said that the exercise of power is beyond jurisdiction The Land Acquisition Act authorises acquisition of land only for public purpose. This exercise of acquiring land for public purpose has to be tampered with bona fides. Where exercise of power is stained with malafides or ulterior motive the action of the authority will have to be described as beyond jurisdiction. Accordingly the learned counsel for the State cannot deliver any benefit from the above observations. 122. The following authorities were cited for informing us about the true connotation of the term `public purpose' and for submitting that public purpose cannot be construed in a rigid manner as the concept is a changing one : (I) AIR 1952 Supreme Court 252, The State of Bihar v. Sir Kameshwar Singh. In Paragraph-10 of the report it has been observed - "In my opinion the contentions raise by Dr. Ambedkar, though interesting, are not sound because they are based on the assumption that concept of public purpose is rigid concept and has a settled meaning." From the preceding paragraph it would be seen that Dr. In Paragraph-10 of the report it has been observed - "In my opinion the contentions raise by Dr. Ambedkar, though interesting, are not sound because they are based on the assumption that concept of public purpose is rigid concept and has a settled meaning." From the preceding paragraph it would be seen that Dr. Ambedkar's contention before the Court was that public purpose was not a new concept when the Constitution of India was framed; on the other hand, it had settled meaning in the past legislative history in the country and, therefore, it must be presumed that the Constitution used the expression in the same sense is which it had been used in the earlier Acts and in the Government of India Act. This proposition was not accepted by their lordships. From this it. would appear that their lordships were of the opinion that public purpose does not have a static meaning. 2) AIR 1963 Supreme Court 151, Smt. Somawanti and others v. The State of Punjab and others. In Paragraph 29 of the report at page 162 it has been observed - "....The Act has empowered the Government to determine the question of the need of land for a public purpose or for a company and the jurisdiction conferred upon it to do so is not made conditional upon the existence of a collateral or extraneous fact. It is the existence of the need for a public purpose which gives jurisdiction to the Government to make a declaration under Section 6 (I) and make.? it the sole judge whether there is in fact a need and whether the purpose for which there is that need is a public purpose " The conclusiveness given in this paragraph is subject to fulfilment of the constitutional guarantees. In view of the fact that in the present case there is lack of fulfilment of the guarantees contained in Articles 14 & 15 of the Constitution this authority is of no assistance to the learned counsel for the State. As already held the expression of satisfaction of public purpose is vitiated by mala fides., ulterior motive and colourable exercise of power. (3) AIR 1966 Supreme Court 1988, Arnold Rodricks and another, v. State of Maharashtra and others was relied upon for the proposition that if the real purpose is public there is no question of colourable exercise of power. As already held the expression of satisfaction of public purpose is vitiated by mala fides., ulterior motive and colourable exercise of power. (3) AIR 1966 Supreme Court 1988, Arnold Rodricks and another, v. State of Maharashtra and others was relied upon for the proposition that if the real purpose is public there is no question of colourable exercise of power. In this context it was submitted that even if the petitioners' plea is accepted that the acquisition is for the purpose of constructing a temple that purpose is also a public purpose. In this case on facts it was found that the exercise of power was not colourable and, therefore, the notification of acquisition of land was upheld. In the present case of facts, we are unable to hold that the exercise of power is not colourable. As already held it is not merely colourable, it violates constitutional guarantees. Accordingly no benefit can be given to the petitioners on the basis of this judgment. 123. I need not burden the judgment with further authorities laying down that public purpose has a changing meaning and has to be liberally construed. Even by liberal interpretation of the term public purpose the impugned notifications cannot be saved on account of our finding that the notifications violate Articles 14 and 15 of the Constitution. 124. The following authorities were cited for the proposition that land can be acquired for construction of a temple and that construction of temple is also a public purpose - (1) AIR 1955 Andhra Pradesh 184, V. Harihara Prasad v. K. Jagannadham and another. In this case acquisition of land for construction of temples on behalf of a limited company was upheld as public purpose. (2) AIR 1922 Privy Council 333, Amulya Chandra Banerjee and others v. Corporation of Calcutta. In this case acquisition of land for Dharmashala near Kali's temple was upheld. 125. I need not add authorities on public purpose as I am not basing my judgment on the proposition that construction of temple is not public purpose. 126. Authorities were also cited by the learned counsel for the State in support of the proposition that the acquired land could be used for a public purpose different from the one notified in the notification. I have no doubt in my mind that this is possible. 126. Authorities were also cited by the learned counsel for the State in support of the proposition that the acquired land could be used for a public purpose different from the one notified in the notification. I have no doubt in my mind that this is possible. However, this is subject to the caveat that the acquisition itself will have to pass the test of constitutional validity. In view of the finding recorded herein above, the submission of the learned counsel does not need examination. 127. To sum up my conclusions : the purpose of acquisition mentioned in the impugned notifications is a public purpose, construction of temple is also a public purpose ; a land acquired for one public purpose can be used for another public purpose, but it cannot be used for a private purpose ; in the context of the religious importance of Ayodhya, construction of a Hindu temple is not beyond the connotation of the expression `development of tourism and providing amenities to pilgrims at Ayodhya in District Faizabad" ; but the present acquisition is vitiated as under the garb of the notified purpose the intention from the very beginning was to give advantage to one group of litigants over the other and to one religious group over the other, attracting violation of Articles 14 and 15 ; in a private dispute, the State is required to observe neutrality ; neutrality is implicit in Article 14 ; the impugned action lacks the neutrality and is, therefore, constitutionally invalid. Public purpose, selection of site, availability of other land, urgency dispensing with enquiry and their justifiability : 128. There was some debate at the Bar on the question of public purpose, selection of site for acquisition, availability of other land in the vicinity,' applicability of urgency provisions contained in sub-sections (1) and (4) of Section 17 of the Land Acquisition Act and dispensing with the enquiry, the learned counsel for the State submitting that these questions were beyond judicial scrutiny and the learned counsel for the petitioners challenging him, each counsel citing authorities in respect of his respective plea. In view of the finding that the impugned notifications are vitiated by the vice of mala fides. ulterior motive and colourable exercise of power and the legal position emanating from the decision of the apex court in Gurdial Singh's case (Supra) the debate raised is of mere academic interest. In view of the finding that the impugned notifications are vitiated by the vice of mala fides. ulterior motive and colourable exercise of power and the legal position emanating from the decision of the apex court in Gurdial Singh's case (Supra) the debate raised is of mere academic interest. I, therefore, do not consider it expedient to enter into this debate in the present proceedings. Some of the authorities cited on public purpose and its justifiability have been noticed hereinabove. Nothing more is required to be said. Place of Worship ; Endowed Property ; Acquiribility ; Articles 25 (1) and 26 : 129. Apart from challenging the acquisition on the ground of mala fides, ulterior motive and colourable exercise of power, Muslim petitioners as well as Nirmohi Akhara challenge the right of the State to acquire place of worship and endowed property. 130. About the nature and character of the acquired property there is factual dispute between the Muslim petitioners and the State but there is no such dispute between the State and the Akhara. If the dispute were between the Muslim petitioners and the State alone I might have refrained from expressing opinion on the points under consideration as the factual dispute is involved in the title suits also but I have to express opinion as the State Government and Akhara both are agreed that the acquired property is the birth place of Lord Rama and a temple exists on the outer courtyard. 131. Sri Lala Ram Gupta, Senior Advocate, appearing for the State Government submits that to acquire land of whatever character, including place of worship and subject of endowment, is the sovereign legislative power of the State and this power can be curtailed only by the Constitution. He points out that the Indian Constitution does not take away this sovereign power ; rather it recognises the power. The power, according to him, is the power of eminent domain which inheres in every sovereign State. Regarding the nature and content of the power of "eminent domain", he has invited our attention to certain passages from American Jurisprudence (2d) Volume 26 and Corpus Juris Secundum, Volume 29-A. He has cited precedents to show that the concept of "eminent domain" has been accepted by Indian Courts. 132. Regarding the nature and content of the power of "eminent domain", he has invited our attention to certain passages from American Jurisprudence (2d) Volume 26 and Corpus Juris Secundum, Volume 29-A. He has cited precedents to show that the concept of "eminent domain" has been accepted by Indian Courts. 132. Learned counsel for the petitioners, on the other hand, submits that the theory of "eminent domain" has no application in our country which is governed by a written Constitution wherein the powers of the various organs of the State have been clearly enumerated and defined. According to him we should look only to the Indian Constitution to find out the ambit and scope of the State's power to acquire private property. In this context he points out to various Articles in the Constitution which guarantee right to citizens, particularly Articles 25 and 26. 133. In American Jurisprudence (supra) the term "eminent domain" is defined as the power of the nation or a sovereign state to take, or to authorise the taking of, private property for a public use without the owner's consent, conditioned upon the payment of just compensation.." (Page 638 Item I). Later in the same paragraph it is observed. "It embraces all causes where, by the authority of the State and for the public good, the property of the individual is taken without consent to be devoted to some particular use, by the state itself, by a corporation, public or private or by a private citizen for welfare of the public" (Emphasised). Under Item 2 at page 639 it is stated - "It is fundamental that the power to appropriate private property for public use is an attribute of sovereignty and exists in a sovereign state without any recognition thereof in the Constitution." The reason for conceding this power to a sovereign State is stated thus : "It is founded on the law of necessity." (Page 640). The statement goes on to mention - "The power of eminent domain is inalienable, and no legislature can bind itself or its successors not to exercise this power when public necessity and convenience require it. A statutory provision that the power of eminent domain shall not in whole or in part at any future time be exercised is therefore invalid. The statement goes on to mention - "The power of eminent domain is inalienable, and no legislature can bind itself or its successors not to exercise this power when public necessity and convenience require it. A statutory provision that the power of eminent domain shall not in whole or in part at any future time be exercised is therefore invalid. The power of eminent domain is so inherently governmental and so essential to the public welfare that it cannot be abridged or restricted be agreement..." (Pages 640-641 - Emphasised). Under Item 3 at Pages 641-642 the rationale behind the rule advanced by various philosophers has been discussed and then it is stated - "it is now generally considered that the power of eminent domain is not a property right or an exercise by the State of an ultimate ownership in the soil, but that it is based on the sovereignty of the State. "The consequence of this basis is stated thus - "Since that sovereignty includes the right to enact and enforce as law anything not physically impossible and not forbidden by some clause in the Constitution, and the taking of property within the jurisdiction of the State for public use on payment of compensation is neither impossible nor prohibited by the Constitution, a statute authorising the exercise of eminent domain needs no further justification." (Page 642 Emphasised). 134. Under Item 5 at Page 643 it is stated that the power of eminent domain may be exercised by the legislature itself or it may be delegated to another. The statement runs thus - ``Generally, the legislature may itself exercise the power of eminent domain or it may delegate the power to another. Indeed, under the customary division of governmental power into three branches, executive, legislative and judicial, the right to authorise the exercise of the power is wholly legislative, and there can be no taking of private property for public use against the will of the owner without direct authority from the legislature. Subject to constitutional limitations, it is the province of the legislature to prescribe how and by whom the power of eminent domain is to be exercised, and the discretion to exercise the sovereign power of eminent domain is in the legislature and those to whom it delegates such function by statute". (Emphasised). 135. Subject to constitutional limitations, it is the province of the legislature to prescribe how and by whom the power of eminent domain is to be exercised, and the discretion to exercise the sovereign power of eminent domain is in the legislature and those to whom it delegates such function by statute". (Emphasised). 135. Under Item 10 the law prevailing in United States of America has been stated at pages 649-650 thus - "In other words, the power of the Unites States to acquire and hold land which is needed for the use of the Government in the execution of any of its powers is unquestioned, and when property cannot be acquired by voluntary arrangement with its owner, it may be taken against his will by the United States in the exercise of its power of eminent domain, the only limitation being the payment of just compensation It is not necessary that power to condemn land be expressly given to the United States by the Constitution. Such an authority is essential to independent existence and perpetuity." 136. In Corpus Juris Secundum (supra) the following observation is contained at Page 245 - "In the absence of constitutional authorisation, private property may not be taken for a strictly private use." Again it is observed - "Unless otherwise authorised by the constitution, private property, or an interest therein, can be taken only for a public use or purpose, and the legislature cannot authorise a taking for a strictly private use or purpose, without the owner's consent, even on making compensation." At Page 259 it is stated - "In the determination of the question whether a use is public, the courts will look to the substance rather than to the form, and to the end rather than to the means." At Pages 257-258 the following statement is contained - ".....where the legislature declares a particulars use to be a public use, the presumption is in favour of its declaration, and the courts will not interfere therewith unless the use is clearly, plainly, and manifestly of a private character, or the declaration by the legislature is manifestly arbitrary or unreasonable, or was induced by fraud, collusion, or bad faith, or is a perversion of the power of eminent domain. The judgment of the legislature is to be recognised and respected by the courts, and is entitled to great weight, as are, generally, the determinations of public use by the state or its agencies, legislative findings on the question of what is a public use are significant. The role of judiciary in determining whether the power of eminent domain is being exercised for a public purpose has been said to be an exceedingly narrow one." (Emphasised) Again at page 350 it is observed - "The exercise of the power of eminent domain is vested in the legislative branch of the government. In the absence of some constitutional or statutory provision to the contrary, where the use for which property is sought to be taken under the power of eminent domain is public, the necessity expediency, or property of exercising the power ordinarily is a legislative or political, and not a judicial, question." (Emphasised). 137. From the above observations the position of the State in respect of acquisition of private property may be stated thus : private property cannot be acquired by the State for a private purpose unless there is specific authorisation in that behalf by the Constitution ; private property can be acquired for public purpose by the State unless specifically debarred by some provision of the Constitution ; the legislature may itself exercise the power of acquisition for public purpose or it may delegate that power to some other authority ; in the absence of law framed by the legislature the executive will not be competent to acquire private property for public purpose. 138. In my opinion, the power as envisaged in American Jurisprudence and Corpus Juris Secundum is necessary to be possessed by a State for the discharge of its governmental functions whether that power be called sovereign or it may be called by any other name. A sovereign State may require property for the welfare of the citizens. The State may not be in possession of sufficient property to discharge this obligation. In such a situation it will have to fall back on private property. In a developing nation which has to embark upon a number of developmental project the need to acquire private property may be greater. If right to acquire private property is not conceded to the State welfare of the citizens may be put in jeopardy. 139. In such a situation it will have to fall back on private property. In a developing nation which has to embark upon a number of developmental project the need to acquire private property may be greater. If right to acquire private property is not conceded to the State welfare of the citizens may be put in jeopardy. 139. The above statement may now be put to test in respect of a place of worship or endowed property. For the welfare of the people a State may have to lay railway track. On the railway track demarcated by the State may be a temple, a mosque or a church. The railway track cannot be properly laid except be demolition of place of worship. Public purpose will suffer if the State is denied the right to acquire the place of worship so that the railway track may be properly laid. Similarly, the State may have to dug an irrigation canal for the purpose of supplying water to agricultural fields. The course of the proposed canal may be interrupted by a place of worship. Public purpose will again suffer if right is denied to the State to acquire the place of worship. What applies to place of worship applies also to endowed property. In my opinion, therefore, unless the Constitution specifically takes away the right of acquiring a place of worship or endowed property it will not be possible for the Courts to say that a place of worship or endowed property cannot be acquired. 140. The law' of eminent domain mentioned in American Juris prudence and Corpus Juris Secundum (supra) has been adopted to a very great extent by Indian Courts also. In Syed Abdul Gaffar v. State of West Bengal and others, 73 Calcutta Weekly Notes 649, it has been observed in Paragraph 3 of the report thus : "The power of eminent domain of the State is sovereign power which overrides all other rights." 141. Similar view has been taken by a Division Bench of the Gujarat High Court in Ishwarlal Girdliarlal Joshi v. The State of Gujarat and another, 1967 (8) Gujarat Law Reporter 729, at Pages 739 and 740 of the report it has been observed - ".... Similar view has been taken by a Division Bench of the Gujarat High Court in Ishwarlal Girdliarlal Joshi v. The State of Gujarat and another, 1967 (8) Gujarat Law Reporter 729, at Pages 739 and 740 of the report it has been observed - ".... Moreover it must be remembered that the power of acquisition for a public purpose is the power of eminent domain as the American jurists call it and is a power which is the necessary concomitant of sovereignty Against this decision appeal was taken to their lordships of the Supreme Court but the decision of the Gujarat High Court was not set aside ; it was rather affirmed. (See AIR 1968 SC 870 , Ishwarlal Girdliarlal Joshi v. The State of Gujarat and another). 142. In support of his proposition that the principle of eminent domain has no application to a State governed by written Constitution the learned counsel for the petitioners relies upon the observation of Bose, J. in Dwarkadas Shriniwas v. Sholapur Spinning & Weaving Co., AIR 1954 SC 119 . In Paragraph 54 of the report at Page 137 Bose, J, has observed - " With utmost respect I deprecate, as I have done in previous cases, the use of doubtful words like "police power", "social control", "eminent domain', and the like. 1 say doubtful not because they are devoid of meaning but because they have different shades of meaning in different countries and because they represent powers which spring from widely differing sources." "In my opinion, it is wrong to assume that these powers are inherent in the State in India and then to see how far the Constitution regulates and fits in with them. We have to interpret the plain provisions of the Constitution and it is for jurists and students of law, not for Judges, to see whether our Constitution also provides for these powers and it is for them to determine whether the shape which they take in India resemble any of the varying forms which they assume in other countries." 143. In the above passage Bose, J. has merely deprecated the use of expressions of doubtful meaning in judgments of Courts but he has not laid down that there is no power under the Indian Constitution to acquire land for pub lie purpose which may involve acquisition of a place of worship or endowed properly. In the above passage Bose, J. has merely deprecated the use of expressions of doubtful meaning in judgments of Courts but he has not laid down that there is no power under the Indian Constitution to acquire land for pub lie purpose which may involve acquisition of a place of worship or endowed properly. What he has laid down is that the source of power of the various authorities should be found in the Constitution itself. Our country indeed has a written Constitution and the powers of the legislature, the executive and the judiciary are enumerated therein. It may now be examined whether the Indian Constitution concedes power of acquisition of private property for public purpose or not. 144. In the Indian Constitution the matters on which the Union Parliament and the State Legislatures may legislate are enumerated in Lists i, II and IU of the Seventh Schedule. Entry 42 of Lists III (Concurrent List) reads - "Acquisition and requisitioning of property." Thus, the Union Parliament and the State Legislature both are competent to make law relating to acquisition of property. 145. Articles 31-A and 300-A also speak of acquisition of property by the State. Article 300-A provides - "No person shall be deprived of his property save by authority of law." This provision contemplates that there will have to be a law framed by the appropriate Legislature for acquiring private property. In India we have the land Acquisition Act, 1894 which is law for acquisition of private property. Neither the Constitution of India nor the Land Acquisition Act contains any provision putting embargo on the power of the State to acquire a place of worship or an endowed property. 146 Learned counsel for the petitioners reads the aforesaid embargo in Articles 25 and 26 of the Constitution. These Articles have been interpreted in a number of decisions and it has been held that no such embargo has been placed by these Articles. Reference may be made to some of these authorities. 147. In Chintamoni Pratihari and others v. The State of Orissa, AIR 1958 Orissa 18 (DB), it has been observed that the plea of violation of Article 26 is not available when land is acquired under the provisions of Orissa Estates Abolition Act, 1951. Reference may be made to some of these authorities. 147. In Chintamoni Pratihari and others v. The State of Orissa, AIR 1958 Orissa 18 (DB), it has been observed that the plea of violation of Article 26 is not available when land is acquired under the provisions of Orissa Estates Abolition Act, 1951. After referring to the decisions of Full Bench of this Court in Suryapal Singh v. State of U.P., AIR 1951 All 674 , and of their lordships of the Supreme Court in State of Bihar v. Kameshwar Singh, AIR 1952 SC 252 , it has been observed in Paragraph 7 thus : "It was pointed out that if the property of a religious endowment is acquired under the provisions of the Zamindari Estate Abolition Act, there is only a change in the form of the property, namely, from immovable property into money, and that the fundamental rights guaranteed under Article 26 of the Constitution are not in any way affected " 148. In Syed Abdul Gaffar (supra) it has been observed in Paragraph 4 of the report at page 651 - "Accordingly, it is competent for the State to acquire properties appertaining to religious endowments Article 26 enables a religious denomination to acquire, hold and manage property like a private individual, but it has nowhere been said that the religious denomination, so holding property, shall be immune from legal or constitutional limitations to which all other property owners are subject." 149. In Khajamian Wakf Estates v. The State of Madras, AIR 1971 Supreme Court 161, it has been observed in Paragraph 12 at Page 165 thus : "12. It was next urged that by acquiring the properties belonging to religious denominations, the legislature violated Article 26 (c) and (d) which provide that religious denominations shall have the right to own and acquire movable and immovable property and administer such property in accordance with law. These provisions do not take away the right of the State to acquire property belonging to religious denominations. Those denominations can own, acquire properties and administer them in accordance with law. That does not mean that the property owned by them cannot be acquired. As a result of acquisition they cease to own that property. Thereafter their right to administer that property ceases because it is no longer their property. Those denominations can own, acquire properties and administer them in accordance with law. That does not mean that the property owned by them cannot be acquired. As a result of acquisition they cease to own that property. Thereafter their right to administer that property ceases because it is no longer their property. Article 26 does not interfere with the right of the State to acquire property." 150. To the same effect is the proposition of law laid down in Acharya Maharajshri Narendra Prasadji v. The State of Gujarat and others, AIR 1974 SC 2098 . In Paragraph 26 at Page 2103 it has been observed - "... .One thing is, however, clear that Article 26 guarantees inter alia the right to own and acquire movable and immovable property for managing religious affairs. This right, however, cannot take away the right of the State to compulsorily acquire property in accordance with the provisions of Article 31 (2).." Reference may also be made to Mohammad Ali Khan v. The Special Land Acquisition Officer, Lucknow Nagar Mahapalika, Lucknow and others, AIR 1978 Allahabad 280 (DB). In Paragraph 20, it has been observed as follows : - "....The law of acquisition of land does not either directly or indirectly affect the rights about the maintenance of institutions for religious and charitable purposes. It only takes away a certain property for public purpose, but does not either deprive the institution of its existence or make impossible its functioning. There is thus no conflict between Article 31 (2) and Clause (a) of Article 26 of the Constitution " Again in Paragraph 21 it has been observed - "... .No restriction can be placed by an owner of the land on the right of the State to acquire land which he proposes to dedicate by creating a Waqf." 151. Again in Ashurkhana Nalsahahgadda at Sangareddy and others v. District Collector, Medak and another, AIR 1980 Andhra Pradesh 205 (DB), the acquisition of property was challenged on the ground of violation of Articles 25 and 26 of the Constitution. Again in Ashurkhana Nalsahahgadda at Sangareddy and others v. District Collector, Medak and another, AIR 1980 Andhra Pradesh 205 (DB), the acquisition of property was challenged on the ground of violation of Articles 25 and 26 of the Constitution. The plea was negatived observing in Paragraph 5 as follows : - "In view of these authoritative pronouncements of the Supreme Court, the first of which is with reference to Waqf property, the contention of the petitioners that the present acquisition violates Article 25 and Article 26 of the Constitution of India, does not merit acceptance and it is accordingly rejected." This view was reiterated in Sadar Anjuman Ahmediyya Muslim Mission v. State of Andhra Pradtsh and others, AIR 1980 Andhra Pradesh 246 (See Paragraph 6 at Page 252). 152. The Andhra Pradesh High Court has stuck to its earlier view as is apparent from the decision in M. Padmanobha Iyengar v. The Government of Andhra Pradesh and others, AIR 1990 Andhra Pradesh 357. After referring to Supreme Court decisions and other decisions it has been observed in Paragraph 28 - "28. A contention based on Article 26 (c) is also raised in Writ Appeal Nos. 1781/89, 185/1990, 1613/89, 1847/89 1409/89, and Appeals it is stated that the property concerned is owned by a particular religious denomination, and that the acquisition of the said property would disable the denomination from carrying on its activities at Tirumala. As already indicated, for the mere acquisition of the property of the denomination at Tirumala when its other properties are not acquired, nor its right to own property elsewhere in the country is defeated it cannot be said that Article 26 (c) is attracted, or that it invalidates the acquisition. Moreover it is stated by the Devasthanams that all these religious institutions will be provided alternate sites, as far as possible, so as to permit them to carry on their activities." 153. Akhara Shri Braham Buta, Amritsar v. State of Punjab and others, AIR 1989 Punjab and Haryana 198, was also a case in which the acquisition of property was challenged on the ground of violation of Articles 25 and 26 of the Constitution. Akhara Shri Braham Buta, Amritsar v. State of Punjab and others, AIR 1989 Punjab and Haryana 198, was also a case in which the acquisition of property was challenged on the ground of violation of Articles 25 and 26 of the Constitution. The Division Bench negatived the plea observing in Paragraph-10 of the report as follows : - "10 The institution is quite apart from the brick and mortar which has gone to make the Shiv Mandir and the building in the complex known as Akhara Shri Braham Buta. Descriptively it is said to contain a few Samadha, some pictures and idols of Hindu deities, besides in the Shiv temple, the Shilling. The avowed object of the impugned notification is not to preserve the Golden Temple at the pain of death of other surrounding institutions but the effort is founded in larger public interest as seen in Smt. Dal jit Kaur's case, AIR 1989 Punj & Har. 159 (supra). The petitioner being a religious denomination cannot, as held by the Supreme Court in Acharya Maharajshri Narendra Prasadji, Anand Prasadji Maharaj v. State of Gujarat, AIR 1974 SC 2098 , claim itself to be a citizen so as to invoke the protection of Article 25 of the Constitution and squally the protections of Articles 14 and 19 of the Constitution in the limited arena of the present set of facts. Article 26, however, confers on every religious denomination, or any section thereof, the right to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire movable and immovable property ; and to administer such property in accordance with law, but subject to public order morality and health of the society. These rights for the religious denominations were also earlier spelled out in Khajamian Waqf Estates v. State of Madras, AIR 1971 SC 161 . Article 26, however, does not guarantee the freedom to establish and maintain a religious and charitable institution at the particular place or to make it immune from acquisition under the provisions of the Land Acquisition Act. The free practice of religion presupposes the poetising of it any where and not at any particular place. The acquisition of land of such institution does not by itself destroy or completely negative the right of any denomination to establish or maintain any institution for religious purposes. The free practice of religion presupposes the poetising of it any where and not at any particular place. The acquisition of land of such institution does not by itself destroy or completely negative the right of any denomination to establish or maintain any institution for religious purposes. On the receipt of compensation payable on account of the acquisition, the religious denomination can always acquire any other property for the same purpose for which the acquired land was being utilised. In this sense neither is the institution killed nor destroyed, merely by acquisition of its properties, it can achieve the same purpose by moving elsewhere like a natural person. Thus, for the aforesaid reasoning, we are of the considered view that by the acquisition of the afore-specified properties neither is the institution destroyed or annihilated nor is the action of the respondents violative of Article 14, 19, 25 or 26 of the Constitution. We hold it accordingly." 154. In view of the above authorities Article 25 may be attracted when all places of worship of a particular religious group are acquired. It will not be attracted when only one of such places is acquired. It is not the petitioners case that all their places of worship have been acquired by the impugned notifications or that the acquired place was their only place of worship. Article 26 is available so long as the property belonging to the religious denomination remains with it. Once the property is acquired the right to manage it automatically ceases. Accordingly, it cannot be held that the impugned notifications are hit by Articles 25 and 26 of the Constitution. 155. Learned counsel for the petitioners, Sri A. Mannan, cited a large number of authorities but none relates to acquisition of land under the provisions of Land Acquisition Act. Some of these authorities may merely be noticed. They do not require detailed examination. 156. In Lala Jhao Lal v. Ahmudullah and others, AIR 1934 Allahabad 335, it was held that where a land has been used as a graveyard from time immemorial, a dedication of the land as Waqf for this purpose is to be presumed and it is not necessary in such cases to prove dedication as Waqf. 157. 156. In Lala Jhao Lal v. Ahmudullah and others, AIR 1934 Allahabad 335, it was held that where a land has been used as a graveyard from time immemorial, a dedication of the land as Waqf for this purpose is to be presumed and it is not necessary in such cases to prove dedication as Waqf. 157. In The Remains Foundation v. Union of India and others, AIR 1977 Delhi 261, the question was whether the expression "Waqf property' included the property which was a charitable trust according to the notions of Hindu Law. It is also not a case of acquisition of endowed property or a place of worship. 158. Sri R. L. Verma, learned counsel for Akhara has cited the following decisions : - (1) XXV11 Indian Appeals 69, Gnanasainbanda Pandora Sannadhi v. Velu Pandaram and another This is a case of sale of endowed property by trustees. It is not a case of acquisition of property by the State. (2) XXXVII Indian Appeals 147, Damodar Das v. Adhikari Lakhan Das. This is a case of acquisition of title by adverse possession. (3) Indian Law' Reporter (XXIII) Madras 271, Gnanasambanda Pandara Sannadhi v. Velu Pandaram and another. This is a case of sale of property belonging to a religion foundation by hereditary managers of the property. (4) AIR 1955 Supreme Court 781, Bhikaji Narain Dhakras and others v. State of Madhya Pradesh and another, and this is not a case of acquisition of land under the provisions of the Land Acquisition Act. (5) AIR 1957 Allahabad 77, Mukuiulji Mahraj v. Persotam Lalji Mahraj. This case deals with the duty of the Mahant to preserve property. It lays down that the property dedicated to idol cannot as a rule be alienated. This authority is also irrelevant. 159. To sum up : Articles 25 (1) and 26 of the Constitution do not take away the right of the State to acquire place of worship and endowed property of public purpose in accordance with the provisions of the Land Acquisition Act. However, the acquisition must not transgress the provisions of Articles 14 and 15. Section 52, Transfer of Property Act 160. In view' of the pendency of the litigation referred to hereinabove the petitioners submit that the impugned acquisition is hit by Section 52 of the Transfer of Property Act, 1882 (Act 4 of 1882). However, the acquisition must not transgress the provisions of Articles 14 and 15. Section 52, Transfer of Property Act 160. In view' of the pendency of the litigation referred to hereinabove the petitioners submit that the impugned acquisition is hit by Section 52 of the Transfer of Property Act, 1882 (Act 4 of 1882). This section reads as follows : - "During the pendency in any court having authority within the limits of India. of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose." (Emphasised). The learned counsel for the State contests the applicability of the above section. He first submits that there is no `lis' between the State and the petitioners and therefore the section is inapplicable. His next submission is that Section 52 applies to transfer inter vivos and does not apply to acquisition of land in exercise of statutory power. 161. There are two significant expressions in the above Section viz. "by any party to the suit" and "so as to affect the rights of any other party thereto under any decree or order which may be made therein". The section relates to a suit in which "any right to immovable property is directly and specifically in question". From this it is reasonable to infer that the "party to suit" referred to in the Section must be one claiming right to immovable property involved in the suit. A formal party claiming no interest in the property in suit is not contemplated by the Section. This becomes apparent from the succeeding clause - "So as to affect the rights of any other party thereto". The word "thereto" refers to the suit. Therefore, the section protects the rights of parties to the suit. What is protected is right which may be adjudicated upon under the decree or order. Right under the decree or order will be adjudicated upon between the contesting parties. There will be no adjudication of right either in favour of a formal party or against him. Therefore, the section protects the rights of parties to the suit. What is protected is right which may be adjudicated upon under the decree or order. Right under the decree or order will be adjudicated upon between the contesting parties. There will be no adjudication of right either in favour of a formal party or against him. I am, therefore, of the opinion that Section 52 has no application a person who is formally impleaded and who despite impleadment does not claim any interest in the immovable property involved in the suit. By the decree or order passed in the suit his rights are not affected because he has none in the immovable property. If such a person transfers property it will have no effect on the title of actual owner of the property, even apart from Section 52. 162. From the above discussion it follows that Section 52 hits only a voluntary inter vivos transfer. It does not embrace exercise of statutory power. An exercise of such power does not require Court's authorisation under Section 52. 163. We have held hereinabove that in the suits pending before this Court there is no `lis' between the plaintiffs of the suits and the State j although the State and some of its officers have been impleaded as defendants. This observation has been made in view of the fact that it is not the case of the plaintiffs in the said suits that the State is denying their title and also because the Stale has specifically disclaimed its interest in the property in suit by making applications therein informing the Court that it has no interest in the subject-matter of the suits. Accordingly I the impugned acquisition is not hit by Section 52 of the Transfer of Property Act. The view I am taking has the support of a Division Bench authority of others. In Paragraph 4 of the Report of page 420 it has been observed : "Another point urged was that Section 52 of the Transfer of Property Act vitiated the impugned notifications because these notifications were issued during the pendency of the civil suit. We are unable to agree with this submission. Section 52 of the Transfer of Property Act applies only to voluntary transfers. We are unable to agree with this submission. Section 52 of the Transfer of Property Act applies only to voluntary transfers. This section does not apply to acquisition by the State in exercise of its statutory powers.'' The above view finds support from the decision of their Lordships of the Supreme Court in AIR 1973 Supreme Court 569 Jayarani Mudaliar v. Ayyaswami and others. In Paragraph 50 of this Report, the following observation is contained : - " 50. It is evident that the doctrine as stated in Section 52, applies not merely to actual transfers of right which arc subject-matter of litigation but to other dealings with it "by any party to the suit or proceeding, so as to affect the right of any other party thereto". Hence, it could be urged that where it is not a party to the litigation but an outside agency, such, as the tax Collecting authorities of the Government, which proceeds against the subject-matter of litigation, without anything done by a litigating party, the resulting transaction will not be hit by Section 52. Again, where all the parties which could be affected by a pending litigation are themselves parties to a transfer or dealings with property in such a way that they cannot resile from or disown the transaction impugned before the Court dealing with the litigation, the Court may bind them to their own acts. All these are matters which the Court could have properly considered. The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward." This observation shows that the doctrine of lis pendens cannot be applied to a sale of property effected for recovery of Government Revenue. 164. Learned Counsel for the petitioners, however, cited AIR 1981 Allahabad 149 Suraj Bhan v. Gaj Raj Singh and others. In this case the facts are as follows ; A suit for specific performance of contract was pending in Court. During the pendency of this suit the property which was the subject-matter in suit for specific performance was put to auction in execution of decree passed in a suit for recovery of money advanced on the strength of Promissory Note. The suit for specific performance was decreed. During the pendency of this suit the property which was the subject-matter in suit for specific performance was put to auction in execution of decree passed in a suit for recovery of money advanced on the strength of Promissory Note. The suit for specific performance was decreed. The decree-holder in this case put his decree into execution. The auction purchaser filed objection asserting that he had acquired title to the property on the basis of court sale and therefore no saleable interest was left with the judgment-debtor in the suit for specific performance of contract. Holding that Section 52 of the Transfer of Property Act was applicable a learned Single Judge of this Court negatived the plea of the auction purchaser. The actual question involved in this case was as to what right is acquired by an auction purchaser in a court auction. In a court auction the auction purchaser purchases no more than the right possessed by the judgment-debtor. Since the judgment-debtor himself was subject to the liability of conveying the property to the plaintiff in the suit for specific performance the auction purchaser in the money suit was also subject to the said liability. It is not a case of acquisition of title under statutory provisions. This authority has, therefore, no application to the facts of the present case. 165. Learned counsel has cited M/s. Vishnu Agencies (Pvt.) Ltd., v. Commercial Tax Officer and others for submitting that compulsory sale is also a sale. This is not a case under Section 52 of the Transfer of Property Act. At the most this authority lays down that a compulsory transfer of property under statutory provision is also sale. This authority is, therefore, of no assistance in the present case. In view of the above I am of the opinion that the impugned notifications are not hit by Section 52 of the Transfer of Property Act. Locus Standi : 166. Learned counsel for the State challenges the right of Mohd. Hashim and other Muslim petitioners to maintain the writ petition. According to him acquisition of land under the Land Acquisition Act can be challenged only by a person competent to claim compensation in respect of the acquired land. For making the statement he relies upon Section 3(b) of the Land Acquisition Act which defines the expression "person interested". Hashim and other Muslim petitioners to maintain the writ petition. According to him acquisition of land under the Land Acquisition Act can be challenged only by a person competent to claim compensation in respect of the acquired land. For making the statement he relies upon Section 3(b) of the Land Acquisition Act which defines the expression "person interested". The learned counsel points out that the said petitioners do not claim ownership of the acquired property and, therefore, they cannot claim compensation for the acquisition of the property. 167. The next iamb of the argument is that the petitioners claim violation of Articles 25 and 26 of the;Constitution when in-fact either there is no violation of these Articles or an individual is not entitled to claim violation of these Articles. It is submitted that Article 25 guarantees freedom of conscience and the right freely to profess, practise and propagate religion. It is asserted that the observance or performance of the right is not related to any property and, therefore, by acquisition of immovable property the right guaranteed under Article 25 is not affected ; religious practices if they were actually being performed or observed on the acquired land can be performed or observed on any other land. 168. Regarding alleged violation of Article 26 it is submitted that the right is guaranteed not to an individual but to religious denominations and, therefore, infraction of Article 26 may be alleged by the Sunni Board but it cannot be alleged by the petitioners who are individuals. The Sunni Board also, the learned counsel contends, will not be able to maintain writ petition as the waqf is not registered. In this respect the order passed by the learned Judge before whom the suits were earlier pending has been referred to. 169. According to the learned counsel if the waqf is registered the right to maintain writ petition will vest in the Waqf Board. The position will be the same even if it is not registered as duty to protect an unregistered Waqf may be conceded to the Waqf Board. The learned counsel submits that the allegations made in the writ petition make out only a right of passage to reach the mosque and since the alleged mosque has not been acquired there is no infraction of the right. 170. The learned counsel submits that the allegations made in the writ petition make out only a right of passage to reach the mosque and since the alleged mosque has not been acquired there is no infraction of the right. 170. The learned counsel criticised the pleadings of the petitioner also on the ground that they were vague. 171. The challenge of locus standi was made also on the basis that no part of the alleged mosque had been acquired and no part of the acquired land had been shown to be graveyard. 172-177. Mohd. Hashim has claimed to be a resident of Faizabad. He has claimed himself to be a Muslim which claim is undisputed. He has pointed out that he has been fighting for the preservation of the structure and the graveyard for the last more than thirty years. Reference is made to the suit filed by the Waqf Board in which he is one of the plaintiffs. Reference is also made to his conviction for violating Order under Section 144 of the Code of Criminal Procedure. Copy of the judgment dated 3rd July, 1954 in Criminal Appeal No. 139 of 1954 has been filed as Annexure D-10. 178. In my opinion the plea of locus standi is without substance. Section 3 (b) does define the expression "person interested" to include all persons claiming an interest in compensation to be made on account of the acquisition of land under the Act but thereby the right of a person claiming infraction of Articles 14 and 15 of the Constitution is not taken away. The present petitioners do not derive their right to approach this Court under Article 226 of the Constitution on the basis of the provisions of the Land Acquisition Act, 1894. They derive their right by being Muslims and by alleging that they are interested in preservation of their places of worship and other places which are of religious importance to them. This is exactly the claim of all the Muslim petitioners in their petitions. For pressing this claim it is not necessary that the person approaching this Court should be interested in compensation to be awarded under the Act. 179. This is exactly the claim of all the Muslim petitioners in their petitions. For pressing this claim it is not necessary that the person approaching this Court should be interested in compensation to be awarded under the Act. 179. Learned counsel for the petitioners is correct in submitting that the locus standi of Mohd Hashim arises also from the fact that he has been non-suited in the suit filed by him along with the Waqf Board inasmuch as a portion of the property in respect of which the suit has been filed has now been acquired under the impugned notifications. By virtue of the impugned notifications his position in the suit is affected. 180. In respect of the plea of locus standi learned counsel for the State cited AIR 1968 Supreme Court 366, Sunderlal v. Paramuskhdas and others, and placed reliance upon the observations contained in Paragraph-13 of the report at page 370 wherein it is stated - "The scheme of the Land Acquisition Act is that all disputes about the quantum of compensation must be decided by resort to the procedure prescribed by the Act ; it is also intended that disputes about the rights of owners to compensation being ancillary to the principal dispute should be decided by the Court to which power is entrusted. Jurisdiction of the Court in this behalf is not restricted to cases of apportionment, but extends to adjudication of disputes as to the person who are entitled to receive compensation, and there is nothing in Section 30 which excludes a reference to the Court of a dispute raised by a person on whom the title of the owner of land has, since the award, devolved." This authority only lays down that the authorities referred to in the Land Acquisition Act are entitled not only to settle disputes relating to quantum of compensation and apportionment thereof but they are competent also to decide dispute relating to entitlement to receive compensation. In other words on reference to Court the dispute of title to acquired property can also be decided. In the present case the dispute of title is already pending before the Civil Court. This authority does not lay down that on the issue of notifications under Sections 4 and 6 a title suit pending before a competent court shall abate. In other words on reference to Court the dispute of title to acquired property can also be decided. In the present case the dispute of title is already pending before the Civil Court. This authority does not lay down that on the issue of notifications under Sections 4 and 6 a title suit pending before a competent court shall abate. Accordingly the title suit remains and the title to the acquired property between the contesting claimants shall be decided in the said suit. In the present proceedings we are not concerned either with the question of quantum of compensation or with the title to the acquired property. We are concerned only with the legality of the acquisition with reference to the provisions of the Act and the Constitution. For determination of these disputes the petitioners are not lacking in locus standi. For the same proposition, learned counsel for the State cited (1978) 1 MLJ 223 , Padmavathi and Bheema Raja v. The State of Tamil Nadu, and submitted that the Land Acquisition Act was a complete Code and the right claimed by an individual or by an institution must flow from the provisions of the Act. The observations made by me hereinbefore apply to this authority also. 181. Learned counsel for the State has tried to submit that there is no dispute between the parties in respect of the acquired land. He has `referred to the statement of Sri Mohd. Ayub in the title suit and non-identification of the plots claimed by the petitioners to be graveyard. We have indicated hereinabove that the dispute in respect of the outer courtyard and the land surrounding the structure survives. Accordingly the locus standi of the petitioners cannot be denied on the basis that the acquired land does not have the character claimed by the petitioners. Ordinarily a plea of locus standi is decided as preliminary issue. In the present case I did not take up this plea as the first one as 1 considered it appropriate to record finding on the plea of the learned counsel for the State that in respect of the acquired land no dispute was surviving between the parties. Vires of Section 17 (1) (4) of the Land Acquisition Act 182. In the present case I did not take up this plea as the first one as 1 considered it appropriate to record finding on the plea of the learned counsel for the State that in respect of the acquired land no dispute was surviving between the parties. Vires of Section 17 (1) (4) of the Land Acquisition Act 182. The normal procedure for acquiring land for public purpose prescribed in the Land Acquisition Act, 18 4 (Act 1 of 1894) is as follows : The first step is to publish notification under Section 4 (1). Under Section 5-A interested person is entitled to file objection before the Collector against the proposed acquisition within thirty days from the date of publication of notification. The Collector has to make report on the objection to the Government after giving opportunity of hearing to the objector. Final decision on the report of the Collector is to be taken by the Government. If the Government decides to proceed with the acquisition it publishes its declaration through notification under Section 6 (1). After declaration under Section 6 (1) has been published the Government or its authorised officer directs the Collector under Section 7 to take order for acquisition of land. The Collector then in exercise of power conferred by Section 8 measures and marks out the notified land and gets a plan of the same prepared if one has not already been made earlier. The Collector then issues notice under Section 9(1) inviting claims to compensation. Once claims have been preferred the Collector holds enquiry under Section 11 (1) and makes Award specifying therein the true area of the land and the compensation payable therefor. After the Award has been made the Collector takes possession of the land under Section 16. Once the Collector takes possession of the land the acquired land vests absolutely in the Government free from all encumbrances. From this procedure it would be seen that the right to take possession of the acquired land arises only after Award has been made under Section 11. Prior to that the Collector is not competent to take possession of the land notified under Sections 4 and 6 of the Act. For taking possession prior to the Award the procedure prescribed in Section 17 will have to be followed. Prior to that the Collector is not competent to take possession of the land notified under Sections 4 and 6 of the Act. For taking possession prior to the Award the procedure prescribed in Section 17 will have to be followed. Sub-sections (1), (2) and (4) of this Section read as follows : - "(1) In cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, sub-section (1), take possession of any land needed for a public purpose. Such land shall thereupon vest absolutely in the Government, free from all encumbrances. (2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or access to any such station, or the appropriate Government considers it necessary to acquire the immediate possession of any land for the purpose of maintaining any structure or system pertaining to irrigation, water supply, drainage, road communication or electricity, the Collector may, immediately after the publication of the notice mentioned in sub-section (1) and with the previous sanction of the appropriate Government, enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances : Provided that the Collector shall not take possession of any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eight hours' notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without necessary inconvenience. (3) ................................................ (4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or subsection (2) are applicable, the appropriate Government may direct that the provisions of Section 5-A shall not apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the date of the publication of the notification under Section 4, sub-section (1)." 183. To the impugned acquisition sub-sections (1) and (4) of Section 17 have been applied and enquiry under Section 5-A has been dispensed with. Therefore, the Government became entitled to take possession even prior to the making of the award and the Collector was not obliged to hold enquiry under Section 5-A. The submission of the learned counsel is that the enquiry under Section 5-A is an important stage in the acquisition of land for public purpose. He points out that by holding such enquiry the holder of land gets an opportunity to place before the Government through the Collector material on the basis of which the Government may take decision on the question of acquiring the land or not acquiring it. It is asserted that when the enquiry is dispensed with the Government gets no basis for taking a proper decision on the question whether to acquire the land or not to acquire the same. The incorporation of Section 5-A, the learned counsel points out, complied with the requirements of natural justice. When its compliance is dispensed with there is denial of natural justice. For such a drastic consequence, the learned counsel submits, there should be proper guidelines as to when the urgency clause will be invoked and when the enquiry will be dispensed with. In this connection it is pointed out that sub-section (2) contains guidelines while sub-section (1) does not contain any guideline. Accordingly it is submitted that the power conferred under sub-section (1) is arbitrary, unfettered and un-canalised and it has no nexus with the object sought to be achieved. 184. According to the learned counsel for the petitioners, holders of land whose land is acquired constitute one class and they cannot be invidiously classified one class getting opportunity of hearing and the benefit of normal procedure prescribed in the Act and the other class being subjected to the onerous burden of being deprived of their properly without getting a hearing. For this classification it is submitted that there is no basis. 185. In the above context it is pointed out that prior to the amendment of the Act by Act No. 68 of 1984 guidelines were available in subsection (1) inasmuch it was provided that the urgency clause could be applied in respect of waste or arable land only. For this classification it is submitted that there is no basis. 185. In the above context it is pointed out that prior to the amendment of the Act by Act No. 68 of 1984 guidelines were available in subsection (1) inasmuch it was provided that the urgency clause could be applied in respect of waste or arable land only. The guidance under the unamended Act, the learned counsel submits, was provided by the word" "take possession of any waste or arable land." "By the Amending Act the words "waste or arable', have been deleted, the consequence of which is that land of whatever nature and quality can be taken possession of before the Award is made if the State Government is so inclined in its sole discretion. The submission of the learned counsel is that with the deletion of the words "waste and arable" there is no guidance and the acquiring authority is left with unfettered and un-canalised power to dispense with enquiry before taking possession of the land proposed to be acquired. 186. Relevant clauses of Section 17 reproduced hereinabove are as they exist today after the amendment effected in the year 1984. Prior to that amendment sub-section (1) of Section 17 contained the words "waste and arable" between the words "any" and "land" before the clause "needed for public purpose". The consequence of this amendment is that the right to apply urgency provisions is not confined to "waste and arable land" alone ; it can be applied to lands of other nature also. 187. The submission of the learned counsel, though attractive is without substance. The expressions still remain in sub-section (1) to provide the required guidance. They are "urgency" and "public purpose". The urgency requiring waiver of enquiry before delivery of possession will, therefore, have to be related to public purpose. The expression "public purpose" is not vague. It has well defined meaning. Apart from that the definition clause, Section 2 (f) contains illustrations of "Public Purpose". Therefore, even after deletion of the words "waste and arable" the Act contains sufficient guidance to control the invocation of the urgency provisions and 1 am unable to hold that the power conferred under sub-sections (1) and (4) of Section 17 is arbitrary to unfettered. Apart from that the definition clause, Section 2 (f) contains illustrations of "Public Purpose". Therefore, even after deletion of the words "waste and arable" the Act contains sufficient guidance to control the invocation of the urgency provisions and 1 am unable to hold that the power conferred under sub-sections (1) and (4) of Section 17 is arbitrary to unfettered. It also needs to be pointed out that the power to invoke the urgency clause and dispensing with enquiry has been conferred on the highest administrative authority, namely, the appropriate Government. The conferment of power on the highest administrative authority contains assurance against arbitrary use of the power. 188. Learned counsel for the Union of India Dr. Ashok Nigam has rightly submitted that the term "urgency" contemplates a situation which cannot bear delay and such situations may arise from a variety of circumstances and it is not possible to visualise and catalogue all such circumstances. 189. Learned counsel also rightly points out that notification under Section 1 7 (1) (4) does not precede notification under Section 4 (1) and the notification under Section 4 (1) is issued only after some preliminary investigation. Such Investigation will be necessary to enable the Government to take a decision whether land proposed to be acquired is needed or is likely to be needed for public purpose. The material obtained during this investigation will also be available to the Government for taking a decision on the question of applying the urgency clause. 190. Learned counsel has urged the Bench to consider the question of vires from the following stand-points, (1) whether an urgency provision is necessary or desirable to be contained in a law relation to acquisition of land for public purpose, (2) if such a provision is necessary or desirable, whether it is possible to visualise and catalogue all urgent situations ; and (3) the mischief that is likely to be caused by either deleting the urgency clause or by codifying the urgent situations. Each of the three points may be examined by visualising situations which may arise at a given point of time. 191. There is land-slide or floods or devastating fire rendering hundreds of people homeless. In such a situation it will be the obligation of Government in a welfare State to provide succour to the up-rooted persons, The first step towards providing succour would be to provide them shelter. 191. There is land-slide or floods or devastating fire rendering hundreds of people homeless. In such a situation it will be the obligation of Government in a welfare State to provide succour to the up-rooted persons, The first step towards providing succour would be to provide them shelter. For this land or houses will be required. The Government may not be possessing enough houses or land. It will naturally have to fall back upon private houses or land. If the normal procedure of acquisition is followed, it may be time consuming. In such a situation urgent steps will be required to be taken to take possession of land belonging to private owners. This will be possible only if there is provisions for taking possession urgently. Accordingly the need for urgency clause in a law relating to compulsory acquisition of private property cannot be over-stressed. 192. I have in the preceding paragraph visualised three situations in which urgency to take possession of land may arise. Such urgency may arise in a variety of situations and circumstances and 1 am therefore of the opinion that, it is neither possible nor desirable to catalogue the situations in which urgency provision may be applied. Cataloguing of situations would exclude the power to take possession without award in a situation which, though urgent, is not catalogued. 193. By deleting the urgency clause or codifying the urgency situations or circumstances the citizen standing in need of succour may be the ultimate sufferer. I am, therefore, of the opinion that from all the three stand-points no exception can be taken to the provision contained in sub-sections (1) and (4) of Section 17. Now a few authorities cited at the bar may be examined. 194. In support of his plea of ultra vires Sri Qamar Ahmad cited a large number of authorities in a which principles against arbitrariness enshrined in Article 14 have been laid down. Sri Ashish N. Trivedi, the learned Chief Standing Counsel, has rightly pointed out that out of the several authorities cited by Sri Qamar Ahmad there is only one which relates to compulsory acquisition of land under the Land Acquisition Act and that is, AIR 1967 SC 1081 , Raja Anand Brahma Shah v. The State of Uttar Pradesh and others. 195. Dr. 195. Dr. Ashok Nigam supporting the vires of the aforesaid provisions cited AIR 1962 Allahabad 221, Sarju Prasad Sahu v. The State of Uttar Pradesh and others (DB), and AIR 1963 Allahabad 24, Ram Sewak v. State of Uttar Pradesh and others. 196. Sri Ashish Narain Trivedi, the learned Chief Standing Counsel has cited (1) 1959 ALJ 17 : AIR 1958 Allahabad 872 (DB) R. L. Aurora v. The State of Uttar Pradesh and others, (2) AIR 1962 Allahabad 221 (DB) Sarju Prasad Sahu v. The State of Uttar Pradesh and others, (DB) ; (3) AIR 1965 Allahabad 433, Baldeo Singh and others v. State of Uttar Pradesh and others, (4) AIR 1959 Punjab 538, Major S. Arjan Singh and another v. The State of Punjab and others, (5) AIR 1965 Bombay 224 (DB) ; Sadruddin Suleman Jhaveri v. J. H. Patwardhan and others (6) 1967 Gujarat Law Report 729 : ILR 1967 Gujarat 620 Ishwarlal Girdhari Lal Joshi etc. v. State of Gujarat and another, (7) AIR 1968 Supreme Court 870 Ishwarlal Girdharilal Joshi etc. v. State of Gujarat and another and (8) AIR 1972 Andhra Pradesh 19, Velighati Lakshminarayana and others v. State of Andhra Pradesh and another. 197. All the above authorities are under the Land Acquisition Act and deal with the vires of sub-sections (1) and (4) of Section 17. 198. In R. L. Aurora (supra) it was observed at page 24 as follows : "With regard to sub-sections (1) and (4) of Section 17, the argument is that these sub-sections confer an arbitrary power on the State Government to determine when a state of urgency exists and thus to deprive a person of his right under Section 5-A to object to the acquisition of his property. No criteria, it is said, are laid down by which the State Government is to be guided in determining whether a state of urgency exists. Land can however be acquired even for a Company, only when such acquisition is for a public purpose, and in this background we think it to be sufficiently clear that the urgency which in the opinion of the State Government must exist before it can under sub-section (4) the sub-section with which we are concerned in this appeal declare that the provisions of Section. 5-A shall not apply, means an urgency in the public interest. 5-A shall not apply, means an urgency in the public interest. We think that the Act contains a clear indication that the powers conferred on the State Government by the two subsections in question are to be exercised only when it is in the public interest that the acquisition of waste or arable land should not be delayed. The powers are not unfettered and the sub-sections do not in our judgment contravene the provisions of Article 14." According to this judgment the guidance is provided by the use of the term "public interest". Accordingly the urgency clause will be applied when it is in public interest to do so. 199. In Paragraphs 11, 12, 13 and 16 of the report in Sarju Prasad Sliau (Supra), it has been observed thus ; "(11) It is true that sub-section (4) confers a discretionary power on the Government but discretion does not necessarily amount to discrimination. All provisions which confer a discretion on some authority or person are not necessarily void. From the very nature of things the Legislature cannot be expected to deprive the authority administering an act from all discretion and to enact only compelling provisions which have to be used in all cases. Whether a particular power is to be exercised in a particular case or not will naturally depend on many facts and circumstances which cannot always be visualised by the Legislature or laid down by it in all its details. An analysis of sub-section (4) of Section 17 will show that : (1) The powers conferred by the sub-section can be exercised only by the appropriate Government and not by a subordinate authority ; (2) The Government has to form an opinion that it is necessary to exercise the powers conferred by the sub-section ; (3) The case should be of land to which the provisions of subsection (1) or (2) are, applicable. The last requirement refers back to sub-sections (1) and (2). ...................................... The power conferred by these sub-sections is, therefore, not entirely unguided. Adequate safeguards have been provided and the power can be exercised only under the limitations and conditions specified in these sub-sections. The last requirement refers back to sub-sections (1) and (2). ...................................... The power conferred by these sub-sections is, therefore, not entirely unguided. Adequate safeguards have been provided and the power can be exercised only under the limitations and conditions specified in these sub-sections. The very fact that a high authority like the Government has to make up its mind on the question of urgency under sub-section (1) and on the question whether a case has been made out for taking action under subsection (2) prevents all likelihood of the powers under the sub-sections being misused. The purpose for which these two subsections as well as sub-section (4) have been enacted and the fact that they are to be utilised only in case of urgency provide the necessary guide for deciding when action is to be taken under these provisions and when the provisions are not to be utilised. In cannot, therefore, be said that the power conferred is naked or arbitrary or that the authorities concerned are left without any guide." (Emphasised). ``(12) No reasonable exception can, in our view, betaken to the use of the word "may" in sub-section (4). It is true that on account o^ the use of that word it is open to the Government not to exclude the application of the provisions of sub-section 5-A in any particular case even if sub-section (1) or sub-section (2) are applicable to it. But the discretion conferred by the use of that word appears to have been advisedly conferred by the Legislature. It is not at all difficult to conceive of cases in which the urgency contemplated by sub-sections (1) and (2) may be there but may not be so acute that it may be necessary to exclude the application of Section 5-A. The Legislature could not, therefore, be expected to make it compulsory for the Government to exclude the application of Section 5-A in all cases covered by sub-sections (1) and (2). "(13)................................................................... It is to be noticed that this power has. been given to the Government itself and not to any petty official. This assures fair use of the power. If this power is, however, abused, then the aggrieved party may seek remedy in Courts of law, but on that ground Section 17 cannot be considered to be ultra vires of the Constitution." (Emphasised.) 200. been given to the Government itself and not to any petty official. This assures fair use of the power. If this power is, however, abused, then the aggrieved party may seek remedy in Courts of law, but on that ground Section 17 cannot be considered to be ultra vires of the Constitution." (Emphasised.) 200. Dealing with the question whether there is excessive delegation of essential legislative power it has been observed in Paragraph-16 as follows : - "(16) It has been delegated to the Government. The only power which has been delegated to the Government is to apply the policy to particular cases as the occasion arises the Legislature has given the necessary guidance to the Government enabling it to decide when action is to be taken under subsection (4). It has also provided the conditions which are necessary and must be present before action can be taken under that section. 201. In Baldeo Singh and others (Supra) a learned single Judge of this Court has observed in Paragraph-3 of the report as follows ; - "(3) The words used are not `in the opinion of the Government' but `in cases of urgency' with the result that the policy of law and legal principles have been provided for by the Legislature. The statute having provided the policy of law and the legal principles having been enacted by the Legislature itself, it cannot be said that there has been any delegation of essential Legislative functions. The question of urgency has got to be decided objectively and has not been left to the subjective satisfaction of the appropriate Government. It is therefore, clear that Section 17 of the Act is not violative of Article 14 of the Constitution." 202. In the same paragraph it is observed at page 435 thus : "It is again a mistake to think that power to make the provisions of Section 5-A of the Act inapplicable in cases of urgency flows from executive and not from the Legislature. In fact it flows from Section 17 of the Act which has been framed not by the executive but by the Legislature " 203. In fact it flows from Section 17 of the Act which has been framed not by the executive but by the Legislature " 203. In Major S. Arjan Singh (supra) it is observed by a learned single Judge of the Punjab High Court as follows in Paragraph-14 of the report at page 543 - "It is to be noticed that this power has been given to the Government itself and not to any petty official. This assures fair use of the power. If this power is, however, abused, then the aggrieved party may seek remedy in Courts of law, but on that ground Section 17 cannot be considered to be ultra vires of the Constitution.." 204. Upholding the constitutional validity of sub-sections (1) and (4) of Section 17 it has been observed by a Division Bench of the Gujarat High Court in Ishwarlal Girdhar Lal Joshi v. The State of Gujrat and another (supra) as follows :- "6. While considering this question it is necessary to bear in mind that Section 17 sub-section (4) was introduced in the Act at the same as Section 5-A...............The Legislature, therefore, while conferring the right of objecting on the owner of land under Section 5-A thought that in a case of urgency, this right should not be available to the owner and for that reason provided in Section 17 sub-section (4) that if in the opinion of the Government there was emergency and the land was waste or arable land, the Government could dispense with the inquiry under Section 5-A. Section 17 sub-section (4) thus on the face of it made a classification between lands of which acquisition was urgent and lands of which acquisition was not urgent and this classification of lands on the basis of urgency of acquisition was based on an intelligible differentia which had a reasonable relation to the object sought to be achieved by the Act, namely, acquisition of land for a public purpose for compliance with the provisions of Section 5-A might well impede the urgent acquisition of land. Section 17 sub-section (4) therefore, satisfies the test of permissible classification and would clearly fall within the first category of cases set out in Ram-krishna Dalmia v. Justice Tendolkar (supra). Section 17 sub-section (4) therefore, satisfies the test of permissible classification and would clearly fall within the first category of cases set out in Ram-krishna Dalmia v. Justice Tendolkar (supra). But even if the view be taken that Section 17 sub-section (4) does not on its face make a classification but leaves it to the discretion of the Government to select lands for applying the provisions of the sub-section, we are satisfied that there is a policy or principle laid down by the Legislature for the guidance of the exercise of the discretion by the Government in the matter of selection of land for applying the provisions of the sub-section. That principle or policy is furnished by the requirement that there should be urgency in regard to acquisition of land. It is by reference to this standard furnished by the Legislature that the Government would have to decide whether or not to apply the provisions of Section 17 sub-section (4) to any particular land and it is not possible to say that Section 17 sub-section (4) provides for the delegation of arbitrary or uncontrolled power to the Government so as to enable it to discriminate between owners of lands similarly situate. Section 17 sub-section (4) would, therefore, in any event fall within the fourth category of cases set out in Romkrishna Dalmia v. Justice Tendolkar (supra) and must be held to be outside the inhibition of Article 14." "7. But it was contended on behalf of the petitioners that the question whether there was urgency or not in any given case was left to the subjective determination of the Government and it was, therefore, open to the Government to select any particular land for discriminatory treatment under Section 17 subsection (4) by deciding in the exercise of its discretion that there was urgency and this rendered the differentia or principle of classification incapable of regulating or controlling the discretion of the Government in the exercise of its power under Section 17 sub-section (4) and did not save Section 17 subsection (4) from the vice of conferring unguided and uncontrolled discretion on the Government in the" exercise of power under that sub-section. This contention plausible though it may seem is wholly unsustainable. This contention plausible though it may seem is wholly unsustainable. It is defective in that it overlooks several important considerations which must weigh with us in determining the question of constitutionality of Section 17 sub-section (4) with reference to Article 14. It must be remembered that the object of the Legislature in enacting Section 17 sub-section (4) was to enable the Government to dispense with the inquiry under Section 5-A in a case where urgent acquisition of land is necessary. As is evident from Section 5-A the inquiry under Section 5-A would be likely to take a fair amount of time and the Legislature, therefore, thought it necessary to give power to the Government to eliminate this inquiry in case of urgent acquisition of land. Now urgency may arise in innumerable ways and many different and diverse factors may enter into the determination of the question of urgency and quite often it may be a matter of policy decision and, therefore, the Government would be the authority best fitted for the purpose of deciding whether acquisition of land in any particular case is urgent. In the tempo of prevailing conditions in modern society events occur which were never foreseen and it is impossible for the Legislature to anticipate all events or to provide for all eventualities and it cannot possibly lay down conditions determining urgency and it must, therefore, leave the question of urgency to the determination of the Government." The writ petition was dismissed by the Gujarat High Court. 205. Against the above judgment of the Gujarat High Court the petitioner preferred appeal before their lordships of the Supreme `Court. Their lordships dismissed the appeal and confirmed the observations reproduced hereinabove, as is apparent from the observation made in AIR 1968 Supreme Court 870 (Supra) at page 881. In Paragraph 26 it is observed - "(26) Finally there remains the question of the constitutionality of sub-sections (1) and (4) of Section 17. On this point very little was said and it is sufficient to say that the High Court judgment under appeal adequately answers all objections." Thus the validity of sub-sections (1) and (4) of Section 17 has been upheld even by Apex Court. All the points raised on behalf of the petitioners have been met in the judgment of the Gujarat High Court which has been confirmed by the Apex Court. 206. All the points raised on behalf of the petitioners have been met in the judgment of the Gujarat High Court which has been confirmed by the Apex Court. 206. The view taken by the Gujarat High Court has been confirmed by a Decision Bench of the Andhra Pradesh Court in V. Lakshminaryana (Supra). 207. The above authorities support the view taken by me and clearly negative the challenge raised on behalf of the petitioners. In the above judgments the validity of sub-sections (1) and (4) was not upheld on account of the existence of the word "waste and arable" but on the ground that there is no delegation of essential legislative functions and whatever power has been given to the executive is neither unfettered nor arbitrary. 208. There was some debate at the Bar regarding the difference in the language of sub-sections (1) and (2). It was asserted that while subsections (2) contains guidelines no guidelines are contained in sub-section (1). In view of the fact that sub-section (1) has been found to be intra vires on its own language it is not necessary to compare its language with the language of sub-section (2). 209. In view of the fact that the vires of sub-sections (1) and (4) of Section 17 has been upheld even by the Apex Court it is not necessary to examine the large number of cases cited by the learned counsel for the petitioners which are not under the Land Acquisition Act and which do not deal with the vires of Section 17 (1), (4). The only case under the Land Acquisition Act referred to by the learned counsel is Raja Anand Brahma Shah (supra). In this case the question of vires was not involved. 210. Sri Trivedi, learned Chief Standing Counsel, challenged the right of the petitioner to argue the question of vires on account of the vagueness in his pleading. He has cited AIR 1964 Supreme Court 1781, V. S. Rice and Oil Mills and others v. State of Andhra Pradesh, in support of the proposition that a pleading of violation of Article 14 must be specific. He has cited AIR 1964 Supreme Court 1781, V. S. Rice and Oil Mills and others v. State of Andhra Pradesh, in support of the proposition that a pleading of violation of Article 14 must be specific. It has been observed in this authority in Paragraph 22 at page 1788 thus : "(22) This Court has repeatedly pointed out that when a citizen want to challenge the validity of any statute on the ground that it contravenes Article 14, specific, clear and unambiguous allegations must be made in that behalf and it must be shown that the impugned statute is based on discrimination and that such discrimination is not referable to any classification which is rational and which has nexus with the object intended to be achieved by the said statute." By application of this law the petition of Mohd. Aslam @ Bhure (4184 (MB) of 1991) does suffer from the infirmity of vagueness. The writ petition as originally filed did not contain any challenge against vires of sub-sections (1) and (4) of Section 17. By way of amendment Ground XII was added which reads as follows ; - "XII. Because Section 17 (1) and Section 17 (4) of the Land Acquisition Act confer unfettered and arbitrary powers on the State Government without laying down any criteria or guideline to adjudge the urgency or when and under what circumstances enquiry under Section 5-A of the Act is to be dispensed with. As such the said provisions are ultra vires to the Constitution of India and violative of especially Articles 14, 21 and 300-A of the Constitution of India." This averment, in my opinion, does not at all pass the test laid down by their lordships of the Supreme Court in V.S. Rice and Oil Mills and others, (supra). 211. Sri Trivedi has pointed out that in Paragraph-1 of the writ petition the petitioner has stated that the petition is being filed as public interest litigation. Learned counsel submits that a question of vires cannot be raised in a writ petition filed in public interest. He has invited the attention of the Bench to S. P. Gupta and others v. President of India and others, AIR 1982 Supreme Court 149. Learned counsel submits that a question of vires cannot be raised in a writ petition filed in public interest. He has invited the attention of the Bench to S. P. Gupta and others v. President of India and others, AIR 1982 Supreme Court 149. In Paragraph 17 of the report at page 189 it has been observed as follows : - ".................we may also point out that as a matter of prudence and not as a rule of law, the Court may confine this strategic exercise of jurisdiction to cases where legal wrong or legal injury in caused to a determinate class or group of persons or the constitutional or legal right of such determinate class or group of persons is violated and as far as possible, not entertain cases of individual wrong or injury at the instance of a third party, where there is an effective legal aid organisation which can take care of such cases." I have already discussed the question of vires and I do not propose to rest my judgment on the plea of petitioners' lack of entitlement to file the petition. 212. Sri Qamar Ahmad had also submitted that the urgency clause was applied for mala fide reasons. In view of the fact that I have upheld the plea of mala fides in respect of the acquisition itself it is not necessary to go into the question of mala fides in respect of the enforcement of urgency clause. 213. In view of the above all the writ petitions are allowed with costs and the impugned notifications dated 7th October 1991 and 10th October 1991 are hereby quashed. Post script : 1. The above opinion had been framed prior to 6th December 1992 and in view of the events which have been taken place on that day some of the observations now require explanation. I have used the term "present Government" hereinabove. This expression does not mean the Government functioning today, namely the Government under the President's rule. That expression denotes the Government headed by Sri Kalyan Singh as Chief Minister, 2. Hereinabove I have observed "I accept the assurance given on behalf of the State that the disputed structure shall remain protected so long as litigation is pending between the two religious groups." This observation has become irrelevant in as much as on 6th December 1992 the structure has been demolished. Hereinabove I have observed "I accept the assurance given on behalf of the State that the disputed structure shall remain protected so long as litigation is pending between the two religious groups." This observation has become irrelevant in as much as on 6th December 1992 the structure has been demolished. Of course no affidavit has been filed by either side to bring this fact to our notice but the fact has been so widely broadcast through official media that we cannot fail to take notice of it. 3. I clarify that the entire opinion is based on the position obtaining prior to the demolition of the structure on 6th December 1992. 4. The Bench has been accused of inordinately delaying pronouncement of judgment and thereby contributing to the destruction of the structure. I do not propose to offer any justification for my "lethargy" through the present post script. I only wish to place on record a fact and the procedure of pronouncing judgment in a case which has been heard by a Bench of three Judges. First the fact which has bearing on the allegation that the delay has contributed to the destruction of the structure : - (a) The present writ petitions have nothing to do with the roofed structure which has been demolished. In the writ petitions the dispute is confined to the open space ground the said structure which was required by the State Government through the impugned notification. The demolished roofed structure was subject matter of litigation on the regular suits in which even recording of evidence has not commenced and in which the State Government has filed application in the year 1992 for permission to file written statement after informing the Court in the year 1962 that it had no interest in the subject matter of litigation and was, therefore, not contesting the suit on merit. (b) Further, the aforesaid roofed structure was not lacking the protection of Court order. In the regular suits in which the roofed structure was subject matter of litigation an interim order had been passed on 14-8-1989 on State Government's own application requiring the parties to maintain status quo. Court's interim orders have the same efficacy as its final order or judgment. The structure also had the protection of the solemn undertaking given by the State Government to the Court and to the National Integration Council. Court's interim orders have the same efficacy as its final order or judgment. The structure also had the protection of the solemn undertaking given by the State Government to the Court and to the National Integration Council. (c) In a case of the present nature the Court could not have done more. (d) The Court has no police force or para military force to enforce compliance of its orders on the spot. (e) Protection of private property against vandalism is the function of the executive, especially a property which has the protection of a Court's order, final or interim. (f) Protection of private property against vandalism is related to enforcement of law and order. (g) In the above context I wonder what improvement would have been brought about by the pronouncement of judgment prior to 6th December 1992. (h) It is easy to release gene from the bottle but it is difficult to put it back. 6. Now the procedure : (a) After the case has been heard by a Bench of three Judges and the judgment has been reserved, all the three Judges engage themselves in examining the effect of the arguments advanced by the learned counsel for the parties. This examination includes examination of authorities cited at the Bar. (b) After the above study or simultaneously therewith the senior most member of the Bench or the Hon'ble Judge nominated by the senior most Judge dictates his opinion. (c) The above opinion is then circulated to the other two Judges. (d) Each Judge may agree with the opinion or he may disagree therewith or agree on some points and disagree on others. (e) Each Judge, even when concurring with the opinion of the first Judge, is entitled to append his note. (f) the additional note or the dissenting note is again circulated to the other Judges so that they may, if they desire, modify their earlier opinion. (g) When all the opinions are already the registry is directed to list the case for pronouncement of judgment. It is possible to make assessment of the time when the final judgment would be ready, direction for listening may be given even before the final opinion or opinions is or are ready. (h) In the present case arguments spread over several weeks. They covered not only the points discussed in the judgment but others too. It is possible to make assessment of the time when the final judgment would be ready, direction for listening may be given even before the final opinion or opinions is or are ready. (h) In the present case arguments spread over several weeks. They covered not only the points discussed in the judgment but others too. Quite a few points which would not have tilted the balance have been left out for consideration. For the same reason quite a few authorities cited at the Bar have been left out from the judgment after studying them. (i) The arguments concluded on 4-11-1992. (j) The leading opinion was framed by me. My brethren Brijesh Kumar and S. H. A. Raza have added their own separate opinions. Both have concurred with my final conclusion. However, brother Raza has differed on certain points. Brijesh Kumar, J. - I join brother Mathur, J. in his opinion on different questions involved in this case as well as in the final order, as proposed. I am aware that the bulk of a judgment should not be unnecessarily increased; but somehow the matter has assumed considerable importance, which impels me to say a few words on some of the aspects involved in the present proceedings. 2. The matrix of this case is interwoven with religious matters having loud political over-tones. Such matters often become disproportionately sensitive and many are swept away by intensity of waves of sentiments. 11 is strange that though all religions preach good things and stand for orderly society and peace in life, yet when it comes to inter religious clash of interest, often all is forgotten by the followers of different faiths, leaving no play for adjustment of any kind and one fines a lot of heat generated all around, This is perhaps not, that any religion stands for. Swami Vivekatiand one of the most awakened persons of the present civilisation, said once "The secret of religion lies not in theories but in practice. To be good and do good, that is the whole of religion." 3. So far as the Courts of law are concerned their role is well defined and the path is definite. Untouched and unaffected by any tide or wave, they have to wade through the turbulence and turmoil to the safe shore of Rule of Law. Ours is a society which is governed by Rule of Law. So far as the Courts of law are concerned their role is well defined and the path is definite. Untouched and unaffected by any tide or wave, they have to wade through the turbulence and turmoil to the safe shore of Rule of Law. Ours is a society which is governed by Rule of Law. People of this country have given unto themselves a Constitution. All, without any exception are governed by it. All powers which any authority wields, howsoever high or low it may be, flow from the Constitution. The Government of a State is Constitutional functionary. Citizens claim and enjoy rights, source of which is also the Constitution. Claim of supremacy over the Constitution by anyone, in any circumstances and for any reason whatsoever, is not envisaged. Any authority which exercises powers, source of which is the Constitution, has to exercise it with circumspection as prescribed under the Constitution. 4. Though points raised and involved in this matter are many in number, but the pivotal controversy revolves round the question as to whether the state has exercised its power within the permissible limits while acquiring the land in question or it has crossed the "Lakshman Rekha" as drawn by the Constitutional provisions which provides safe guard to the citizens against arbitrary and discriminatory state actions. 5. I would confine the consideration of the above question from the point of view of Secularism. Secularism is ethos of our society and is also one of the basic features of framework of our Constitution. It is needless to cite authorities on the above proposition however, Kesavananda Bharti's case reported in AIR 1973 SC 1461 , may be referred, specifically paras 293, 599 and 1437 of the report, and many other paras where it has been observed that there has been a common understanding that fundamental features of the Constitution namely secularism, democracy and freedom of individuals etc. would always subsist in welfare state and that secular character of the State is one of the basic elements of Constitutional structure. would always subsist in welfare state and that secular character of the State is one of the basic elements of Constitutional structure. Yet at another place, it has been observed, "The Secular character of the State according to which the State shall not discriminate against any citizen on the ground of religion only, cannot likewise be done away with." In the case of Smt Indira Nehru Gandhi v. Raj Narain, reported in AIR 1975 SC 2299 , the Hon'ble Supreme Court while considering the question of amendment of fundamental rights, observed, "The amendment of the Constitution cannot have the effect of destroying or abrogating the basic structure of framework of the Constitution" for instance ; the secular character of States, according to which "The State shall not discriminate against any citizen on the ground of religion only." The relevant observations are to be found in para 251 of the judgment. The judgment in the case of Sardar Syendu Taker Sajiuddin Saheb v. State of Bombay, reported in AIR 1962 SC 853 , at page 871 also contains relevant observations as follows, "............. These articles embody the principle of religious toleration that has been the characteristic feature of Indian civilisation from the start of history, the instances and period when this feature was absent being merely temporary aberrations. Besides, they save to emphasise the secular nature of Indian democracy which the founding fathers considered should be the very basis of the Constitution. 6. Ethos of society and system is amply reflected in various provisions of the Constitution as well as in the Preamble, which begins with, saying - "We, the People of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure all its citizens : Liberty of thought, expression, belief faith and worship ; .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. give to ourselves this constitution." 7. This is how the People of India thought of society and system in this country. Article 15 of the Constitution prohibits discrimination on the ground of religion. Article 25 provides freedom of conscience and free profession, practice and propagation of religion. .. .. .. .. .. .. .. .. .. .. .. .. .. give to ourselves this constitution." 7. This is how the People of India thought of society and system in this country. Article 15 of the Constitution prohibits discrimination on the ground of religion. Article 25 provides freedom of conscience and free profession, practice and propagation of religion. According to Article 26, every religious denomination has the right to establish and maintain institutions for religious and charitable purposes, having a right to acquire property and to administer the same in accordance with law. Article 27 safeguards against any compulsion to pay taxes/for meeting expenses for the promotion and maintenance of any particular religion or religious denomination. Similarly Article 28 (I) of the Constitution specifically provides that no religious instruction shall be provided in any educational institution wholly maintained out of State funds. The State thus kept itself away from imparting any religious instructions. All this is on the part of the State. What is expected from the citizens to be found under Part IV-A of the Constitution, namely, Article 51-A, which lays down the fundamental duties of every citizen of India saying - "It shall be the duty of every citizen of India.......... .. .. .. .. .. .. .. .. .. (e) to promote harmony and the spirit of common brother-hood amongst all the people of India transcending religious, linguistic and regional or sectional diversities " 8. "Secularism" has been chosen as one of the goals of the society for the obvious reason. It was but necessary to maintain balance in the society, comprising of citizens, having belief in different faiths and religions. It must have been felt that the even balance must not tilt in favour of one against the other due to any State action, which may create dis-balance in the social life. This is the inspiration of the people and ethos of the society which is reflected in the provisions referred to above. The safeguard was provided not against the State alone but the citizens of the country have also been made duty-bound to promote harmony and common brotherhood amongst all people of India having faith in different religions. The Chapter of Fundamental Duties was added by 42nd Amendment in 1976. It appears to be a need which was felt later by passage of time. The Chapter of Fundamental Duties was added by 42nd Amendment in 1976. It appears to be a need which was felt later by passage of time. Though in a different context, the Hon'ble Supreme Court while considering the question of public policy in relation to Section 23 of the Indian Contract Act, 1872, in the case of Rattanchand Hirachand v. Askar Nawaz Jung, 1991 (3) SCC 67 , observed, "So long as the Courts keep themselves tethered to the ethos of the society and do not travel off its course, so long as they attempt to furnish the felt necessities of the time and do not refurnish them, their role in this respect has to be welcomed." 9. The question is whether the State Government while issuing the impugned Notification dated 1-8-1991 acquiring the land have acted in arbitrary and discriminatory manner, affecting the secular ethos of the society. In my view, to understand the meaning of `Secularism', which is to be practised by the State, here it is not necessary to go deep into it or to consider its wide implications but for the purposes of present controversy, suffice it to say that it means that the State has to observe `neutrality' on its part in the matters relating to religion ; that is to say, its actions have to be neutral, favouring none as against the others. It does not mean that the State is debarred from providing some facilities to any religious denomination for the convenience of those observing a particular religion or the other. For example, there have been cases, where to remove congestion around an important religious place of worship, land has been acquired for providing easy access to the place of worship, or for the purposes of providing amenities to the pilgrims visiting a particular place of religious importance or for construction of Dharamshala etc. But the crux of the matter lies in the fact that the State cannot prefer, while providing such facilities or amenities, to those practising one religion, at the expense of or to the detriment of another, or for the purposes of providing advantage to one religious denomination over the other. 10. Article 14 of the Constitution does not permit discrimination by the State between two citizens in general and Article 15 prohibits discrimination on the ground of religion, in particular. 10. Article 14 of the Constitution does not permit discrimination by the State between two citizens in general and Article 15 prohibits discrimination on the ground of religion, in particular. In my opinion, neutrality on the part of the State is an off-shoot of mandate against discrimination on the ground of religion. The concept of neutrality is to be found in the American judgments while interpreting provisions of First Amendment which also provided that the State shall make no laws prohibiting free exercise of religion, in the present case, however, concept of neutrality becomes relevant when it comes to conflict of interest between two religious denominations. The question is, "has the State Government been able to maintain neutrality in the matter in hand or not ?" in this connection, 1 may refer to the findings recorded by brother Mathur, J. that a part of the property acquired under the impugned Notification is subject-matter of dispute in the suits which are pending decision. The suits are being contested vigorously on behalf of two religious communities, namely, the Hindus and the Muslims Both claim their rights over the property. The fight is quite contentious. In this background and circumstances, how far it could be said to be justified, on the part of the State Government to step in and acquire a part of such property for the hidden purposes of one of the contesting religious community. It may not be possible to say that the State has maintained neutrality in the matter. The State action could not be made instrumental for the benefit of one of the contesting parties. It tilted in favour of one as against the other. The `religion' factor did definitely play a role in this discriminatory State action. 11. Undisputedly selection of a site for acquisition is a matter which is exclusively in the discretion of the State. Such executive decisions can hardly be justiciable but in case, facts and circumstances show that the selection of site has not been made in good faith or in bona fide exercise of discretion, the Courts are not obliged to refrain from interfering in the matter. This proposition finds full support from a decision of the Hon'ble Supreme Court reported in AIR 1980 SC 319 , State of Punjab v. Sardar Gurdial Singh. This proposition finds full support from a decision of the Hon'ble Supreme Court reported in AIR 1980 SC 319 , State of Punjab v. Sardar Gurdial Singh. It has been held that in such case, selection of site for acquisition is subject to the provisions of Article 14 of the Constitution ; that is to say, the exercise of power has to be fair, bona fide, reasonable and not discriminatory. Learned counsel for the petitioner has placed reliance upon a case reported in AIR 1964 SC 72 , Pratap Singh v. State of Punjab, where it has been held that every power vested in a public body or authority has to exercise honestly, bona fide and reasonably. In para 6 of the judgment, the Hon'ble Supreme Court has referred to 1925AC 338, Municipal Council of Sydney v. Campbel. In that case, the allegation was that the statutory power vested in the municipal council to acquire property had been used in bad faith. The observations made in that case have been quoted by their lordships of the Supreme Court as follows : "A body such as Municipal Council of Sydney authorised to take land compulsorily for specified purpose will not be permitted to exercise its power for different purpose and if it attempts to do so, the Courts will interfere." 12. It is clear from the above that if an authority exercises power not in good faith and unreasonably, it would be hit by Article 14 of the Constitution having been exercised in an arbitrary manner. If discrimination also results by reason of "religion" factor, it would be hit by Article 15 of the Constitution as well. In the case in hand, one of the parties to the litigation has been given preferential treatment over the other by means of the State action in derogation of the rights which are being claimed by the other religious community over a part of the property in the suits, pending in the Court. The hidden purpose of acquisition is also not much too concealed It may not be possible for the State to explain the reasonableness and bona fides of such an action. 13. The hidden purpose of acquisition is also not much too concealed It may not be possible for the State to explain the reasonableness and bona fides of such an action. 13. One thing more, which cannot escape notice, is that in para 26 of the Counter Affidavit, filed on behalf of the State on January 3, 1992, it is averred in sub-para (a), "The number of pilgrims reaching Ayodhya was so much that it was necessary to acquire the land round about the place where "He sits" for providing amenities to pilgrims and for development of tourism." 14. From the above, it is clear that the site of the acquired land was selected on the consideration that it is the land round about the place where "He sits". Obviously the indication is about the idols of Sri Ram Lala Ji Virajman in the disputed structure. There has been a dispute about the idols installed in the disputed structure, which gave rise to proceedings under Section 145 Cr. P. C. as well as civil litigation in the shape of Regular Suits which are pending in this Court. On behalf of the Hindu plaintiff's, a temporary injunction was sought, which was also granted against removal of idols from the disputed structure. All that matter is still to be decided in the suits. Against the apprehended removal of the idols, the temporary injunction is operating in favour of the Hindu plaintiffs. Yet the site of acquired land has been selected keeping in view the place where "He sits". Perhaps the only proper thing would have been to wait till the rights of the parties are settled as regards the title of the property. The affairs are still being governed by interim injunctions granted pending decision of the suits. Perhaps the above is the reason for acquiring the land which forms part of the subject-matter of the title suits, namely, a part of the outer courtyard of the disputed structure and the land around it. It also appears that a temple is intended to be constructed over the land indicated above. No doubt, the purpose as indicated in the impugned Notification for acquisition of the land in question is for providing amenities to the pilgrims and to develop tourism, but in the Counter Affidavit filed on behalf of the State, we find that in para 47 (b), it is averred. No doubt, the purpose as indicated in the impugned Notification for acquisition of the land in question is for providing amenities to the pilgrims and to develop tourism, but in the Counter Affidavit filed on behalf of the State, we find that in para 47 (b), it is averred. "The plan is now being prepared after the present acquisition in which a part of the land of Sri Ram Janma Bhoomi will be left vacant for the renovation and reconstruction of the temple of Bhagwan Sri Ram Virajman there and its appurtenant facilities and conveniences through agencies decided upon by the State Government." 15. It is evident from the above that right from the very beginning i.e. at the time of acquisition of the land, the opposite parties had in mind the renovation and reconstruction of the temple (structure) over part of the land acquired, described as land of Sri Ram Janma Bhoomi. This purpose was not mentioned in the Notification. It seems to have been kept hidden. It has however, been argued by the learned counsel for the opposite parties that construction of a temple is a public purpose. He has I relied upon the averments made in para 43 of the writ petition by the petitioners where it has been averred - "That the existence of mosque and the graveyard which is being used by the Muslim community as their place of worship, itself is a public purpose...." On this basis, it is argued that since existence of mosque is a public purpose, then construction of temple is also a public purpose. Learned counsel I for the opposite parties has placed reliance upon certain decisions to contend that if land acquired for one public purpose is utilised for another I public purpose, K is permissible under law. According to the opposite parties, the acquisition of land will not be vitiated unless it could be shown that the land acquired for the public purpose has actually been acquired for private purpose and has been used for such a purpose. 1 don't think that the submission made by the learned counsel for the opposite parties holds water in the facts and circumstances of the present case. 1 don't think that the submission made by the learned counsel for the opposite parties holds water in the facts and circumstances of the present case. Without ; going into the question as to whether the existence of mosque or construction of temple is public purpose or not, even if it is so assumed, it will not help the opposite parties. There may have been different situation where I land may have been acquired for one public purpose and for certain reasons it may not have been utilised for that purpose and may have to be utilised I for another public purpose. But in the present case, I find that the purpose of renovation and reconstruction of the temple, as admitted in the Counter Affidavit, was there right from the very beginning but for reasons best known to the opposite parties, this purpose was not indicated and a different purpose was notified. Apart from the above aspect of the matter, I it may be observed that acquisition for any public purpose by the State will not be permissible if acquisition is against the provisions of the Constitution and it is not in fair and bona fide exercise of power. 16. I may like to clarify that it is open to a Government to acquire I land for the purposes of providing amenities to the pilgrims visiting a religious place and for development of tourism, that purpose would certainly be a public purpose. Perhaps, it might not have been possible for the petitioners to successfully assail the present acquisition, had it not included the land which is part of the subject matter of property in the Regular Suits, which are being fought between the two religious communities. 17. In a Secular State, the Government has to deal all religious denominations with even hands, may be in minority or in majority. The State is not debarred from considering the grievances of religious denomination in majority on the equal footing as that of other religious denominations. 18. Another question, on which I would like to advert briefly, is that on behalf of the opposite parties, it has been tried to be argued that programme of construction of temple was included in the "election manifesto" of the Bhartiya Janata Party, on the basis of which it secured the votes of the majority of the voters in the general elections. It is thus mandate of the majority which is available to the Bhartiya Janata Party, for construction of a temple. It is further submitted that keeping in mind the principle of democracy, the Bhartiya Janata Party, which is in majority and has formed the Government, is bound by the mandate of the electors. Therefore, it would be in furtherance of the principles of democracy that a temple is constructed in Ayodhya. At the very outset, it may be observed that the argument is fallacious. Manifesto of any political party, which is fighting elections, cannot attain a higher status as compared to the Constitutional provisions. Supremacy of the Constitution is one of the features of basic structure and framework of our Constitution. It cannot be said that the said promise, as indicated above, was the only point contained in the manifesto of the Bhartiya Janata Party. It is no doubt good, if a political party makes an endeavour to fulfil the promises made to the voters in its election campaign, but it cannot be equated with a Constitutional mandate. Very often, election manifestoes are prepared as vote-catching devices and many promises are made which may or may not be possible to be fulfilled. 19. It will be interesting to quote the observations made by Lord Denning regarding promises held out in the election manifesto of a political party in `Bromley London Borough Council v. Greater London Council, 1982 1 All E.R. 129 at 135 as under - "A manifesto issued by a political party, in order to get votes, is not to be taken as gospel. It is not to be regarded as a bond, signed, sealed and delivered. It may contain, and often does contain, promises or proposals that are quite unworkable or impossible of attainment. Very few of the electorate read the manifesto in full. A goodly number only know of it from what they read in the newspapers or hear on television. Many know nothing whatever of it contains. When this they come to the polling booth, none of them vote for the manifesto Certainly not for every promise or proposal in it. Some may be influenced by one proposal. Others by another. Many are not influenced by it at all. They vote for a party and not fora manifesto. Many know nothing whatever of it contains. When this they come to the polling booth, none of them vote for the manifesto Certainly not for every promise or proposal in it. Some may be influenced by one proposal. Others by another. Many are not influenced by it at all. They vote for a party and not fora manifesto. I have no doubt that in this case many ratepayers voted for the Labour Party even though, on this one item alone, it was against their interests. And vice versa. It seems to me that no party can or should claim a mandate and commitment for any one item in a long manifesto . When the party gets into power, it should consider any proposal or promise afresh, on its merits, without any feeling of being obliged to honour it or being committed to it. It should then consider what is best to do in the circumstances of the case and to do it if it is practicable and fair." 20. Even though a promise held out in election manifesto of a political party may be legal and capable of being fulfilled, yet what is equally important to be considered is that if such a promise can be fulfilled through `means' which are not legal. Validity of means to achieve an object cannot be totally ignored. A political party who claims the mandate of the majority and forms Government under the provisions flowing from the Constitution, cannot ignore or act in violation thereof. A State action employed as means to achieve an end, has to stand the test of Constitutionality providing safeguards to the people of the State, as the majority cannot use the machinery of the State to practise its belief in derogation of rights ensured under law to the other sections of the society. In a country, where there is diversity of religions and religious opinions which are protected under the Constitution, the Government while protecting all, shall not prefer one against the other. While considering this aspect of the matter in reference to the First Amendment of the American Constitution guaranteeing freedom of worship, Mr. Justice Jackson observed in `West Virginia State Board of Education v. Barnette, 319 US 624,638, 87 L Ed 1628, 1638, 63, SCt. While considering this aspect of the matter in reference to the First Amendment of the American Constitution guaranteeing freedom of worship, Mr. Justice Jackson observed in `West Virginia State Board of Education v. Barnette, 319 US 624,638, 87 L Ed 1628, 1638, 63, SCt. 1178, 147, ALR 674 (1943) as quoted at page 860 in U. S. Supreme Court Reports, 10 L Ed 2d Abington School District v. Schempp.' "The very purpose of a Bill of Rights was to withdraw certain subjects from vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the Courts. One's right to freedom of worship............and other fundamental rights may not be submitted to vote. They depend on the outcome of no elections". (Emphasis supplied). 21. Securing are votes on a given election manifesto will not give an authority to a Government to act against the Constitutional mandate. Election manifesto neither supersedes, nor substitutes the Constitutional provisions. Object to be achieved in accordance with the election manifesto as well as the means to achieve the same have to be lawful and in conformity with the Constitutional provisions. As rightly observed in the case of Abington School (supra), the fundamental rights depend upon the outcome of no elections. 22. No sooner I had completed the preparation of the judgment as above, the news arrived what happened in Ayodhya. Neither I am in a position to make any comments about it, nor it is required to be made in this judgment. However, I may only like to observe that whatever has been found by us about the purpose of acquisition and it being mala fide, stands substantiated. 23. I would, therefore, allow the writ petition and quash the impugned Notification. S. H. A. Raza, J. - To begin with, I quote Nissim Ezekiel "1 am standing for peace and Non-Violence. Why world is fighting, fighting. Why all people of the world. Are not following Mahatma Gandhi." (Extracted from the poem `The Patriot') 2. 23. I would, therefore, allow the writ petition and quash the impugned Notification. S. H. A. Raza, J. - To begin with, I quote Nissim Ezekiel "1 am standing for peace and Non-Violence. Why world is fighting, fighting. Why all people of the world. Are not following Mahatma Gandhi." (Extracted from the poem `The Patriot') 2. In the last decade of this Century, when out modded ideas, ideologies had myths have exploded and new ideas to save the Universe from the calamity of animosity and hatred, rivalry and superiority over each other have germinated, and era of dentate and re-approachment in international affairs has heralded, `Ayodhya' an epicentre of an earthquake sepalled disaster, shaking the democratic and secular character of this Country, where hundreds of the religious customs, culture, language and dialects bloomed, in-spite of the diversities an disparities, inherent in such a big Country peo of different faith, rituals and customs have, since centuries lived together, peacefully and amicably. 3. Mr. H.R. Khanna, J. in the case of Ahmad St. Xaviers College v. State of Gujarat (A. I. R. 1974 S. C. 1389), in a most beautiful language deal with the aspect of the matter: - "India is the second most populous country of the world. The people in-halting this vast land profess different religious and speak different languages Despite the diversity of religion and language, there runs through the fabric of the nation the golden thread of a basic innate unity. It is a mosaic of different religions, languages and cultures. Each of them has made a mark on Indian Polity and India today represent a synthesis of them all. The closing years of the British rule were marked by communal riots and dis-sessions. There was also a feeling of distrust and the demand was made by a section of the Muslims for a separate homeland. This ultimately resulted in the partition of the country. Those who led the fight for independence in India always laid great stress on communal amity and accord. They wanted the establishment of a secular State wherein people belonging to the different religions should all have a feeling of equality and nondiscrimination. Demand had also been made before the partition by sections of people belonging to the minorities for reservation of seats as separate electorates. They wanted the establishment of a secular State wherein people belonging to the different religions should all have a feeling of equality and nondiscrimination. Demand had also been made before the partition by sections of people belonging to the minorities for reservation of seats as separate electorates. In order to bring about integration and fusion of the different sections of the population, the framers of the Constitution did away with separate electorates and introduced the system of joint electorates, so that every candidate in an election should have to look for support of all sections of the citizens. Special safeguards were guaranteed for the minorities and they were made a part of the fundamental right with a view to instill a sense of confidence and security in the minorities. Those ' provisions were a kind of a Charter of rights for the minorities so that none might have feeling that any section of the population consisted of first class citizens and the others of second class citizens. The result was that minorities gave up their claim for reservation of seats. Sardar Patel, who was the Chairman of the Advisory Committee dealing with the question of minorities, said in the course of his speech delivered on February 27, 1947." "This Committee forms one of the most vital parts of the Constituted Assembly and one of the most difficult tasks that has to be done by us is the work of this committee. Often you must have heard in various debates in British Government that they have a special responsibility a special obligation for protection of the interests of the minorities. They claim to have more special interest than we have. It is for us to prove that it is a bogus claim, a false claim, and that nobody can be more interested than us in Indian in the protection of our minorities. Our mission is to satisfy every interest and safeguards the interests of all the minorities to their satisfaction." (The Framing of Indian's Constitution, B. Shiva Rao, Select Documents, Vol. II, P. 66)." 4. Our mission is to satisfy every interest and safeguards the interests of all the minorities to their satisfaction." (The Framing of Indian's Constitution, B. Shiva Rao, Select Documents, Vol. II, P. 66)." 4. Before I deal with the contentions of the parties to the dispute, "Well let me dive into the depths of the time, and being from out the ages that have rolled A few small fragments of those wreak sublime, which eyes may never behold, And let the guerdon of my labour be My fallen Country, one kind wish from thee." (Extracted from Henry Lowis Vivian Derozio's Poem "O India My motherland.) "The genesis of `Ayodhya' imbraglio lay in the beliefs of crores of Indian People, that Lord Sri 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 Pre-historic 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 `Bhagwat Gita' (Chapter X Shloka 31, translated from Sanskrit to English by Java 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's in Sanskrit language, dates back to about two thousand years before Lord Christ: - "Pawanah Pawtamasmi Ramah Shastra Bhrita-Maham Jhashanam Makrashchasmi Strota Samismjahvi." Meaning thereby that Lord Krishna told Arjun "Amongst Purifiers, I am wind, amongst the wielded of weapons, 1 am (Sri) Ram. Amongst fishes I am shark, and amongst the streams, I am Ganga" 5. In `Bai Khand (Sic) Puran Uttarakhand) great Saint Ved Vyas Jee the following words commented that `Ayodhya' was ruled by Raja Deshratha : - "Ath Raja Dashrath Shri Man Satyaparanah Ayodhyadhipatirvir Sarvlokeshu Vishrutah " 6. As per the great epic `Ram Charit Manas' composed by the greatest amongst the great poet, `Samt Goswami Tulsidas' in the verse mentioned here-in-under, stated that `Dashratah was the king of Avadhpuri : - "Avadhpuri Raghukulmani Rado Ved Vidit Tehi Dashrath Nado Dharamdhurandhar Gunnidhi Gyani Hriday Bhagati Mati Sarang Pani." (Verse 4-after Doha-187). Meaning thereby, that the King of Avadhpuri was the Jewel of Raghuvansh or Kul. 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 virtuous, a repository of good qualities and a man of wisdom and was a devotee of Lord Vishnu, that is wielder of SARANG BOW. 7. 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 Kl Khani Naumi Tithi Mahu Mas Puneera Sukul Paksh Abhijit Hari Preeta Bhaye Pragat Kripala Deen Dayala Kaushalya Hitkari Harshit Mahtari Muniman Hari Adbhut Roop Vichari Dashrath Putra Janm Suni Kana Manjhu Brahamnad Samn Jakar Nam Sunat Shubh Hoi Moregrih Aava Prabhu Soi Kaikay Sutsumitra Do Do Sunder Sut Jahnat Bhai Do Do Avadhpuri Sohai Ehi Bhanti Prabhuhi Milan Aai Janurani (Bal Kand, earlier to DOHA-105) Meaning thereby, that the place had shown all the Queens who were full of beauty, and virtue, of glory, and that time was an occasion of happiness. On the Sukul Paksha Naumi of sacred Chaitramasa the gracious Lord, who is compassionate to lowly and poor and being be factor of Kaushalya, revealed Himself. The thought of marvellous face which stole the heart of sages filled the heart of mother Kaushaliya 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 were a gala appearing. It looked, as if night had come to see and meet its lord. 8. Further the following words in Uttar Kand exhibits that the great Lord was born in Avadhpuri : - "Ihan Bhanukul Kamal Diwakar Kaplnh Dekhawat Nagar Manch Sunu Kap1s Angad Lankesh Pawan Puri Ruchir Yah Desa Jaddapi Sab Ba1-Kunth Bakhana Ved Puran Vidit Jag Jana Avadhpuri Sam Priy Nahi So-Do Yah Prasang Janai Koi Ko-Do Nanmbhumi Mam Puri Suhawant Uttar Disi Bah Sarjoo Pawan. 9. 9. Neither the great Saint Ved Vyas or Goswami Tulsidas, could have ever imagined, that their epic by the passage of time w'ould 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 w idely read over throughout the Country, and in the world all over, where Indians live. 10. Manifestation or Lord Sri 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. 11. In view of the aforesaid circumstances, the Special Bench while disposing of the Miscellaneous Application No. 48 of 1989 on 7-11-1989 in Original Suit No. 4 of 1989 in re : the Sunni Central Board of Waqfs and others v. Sri Gopal Singh Visharad and others had remarked:- "It is doubtful that some of the questions involved in the suit are solvable by judicial process." 12. The question as to whether Lord Sri Ram Chandra Ji has ever revealed or born in Ayodhya may not be gone into by the Court, but it remains to be seen, as to whether other questions, regarding faith and belief involved in the suite can be subjected to judicial scrutiny or not. 13. Muslims, all over the World believe in oneness of the ALLAH. They do not identify with ALLAH, any being or material. They avoid worship of any material object. Whether in the modern times, a die-hard Muslim, raising a sword in his right arm, believing in the Sunnah of the Prophet, who demolish the idols kept in Mecca, the House of Almighty, be permitted to demolish the idols kept in any Temple or Church ? Whether a devout Christian would be permitted to launch a cru-cade, as their forefathers had done in the past ? Whether a devout Christian would be permitted to launch a cru-cade, as their forefathers had done in the past ? Whether a staunch Sikh believing in the teachings and philosophy of Guru Govind Singh, with a Kripan in his right hand, would be permitted to launch a campaign for the establishment of the KHALSA Whether a devout Hindu armed with a `Trishul' or a Chakra or an bow and arrow, would be permitted to kill the present day demons (evil doors) as Lord Shiv Lord Krishna and Lord Rama, did thousand years before. 14. The article of faith cannot be stretched to such an extent, which threatens the Rule of Law. The contention that faith is beyond the jurisdiction of the Court, is centred round the application to theocratic ideas in the governance of the country. Such a view recklessly expresses the fundamentalist and reactionary idea, that matters of faith must prevail over the Constitution, the jurisdiction of the Court, the Parliament and the Government and other democratic institutions. Such ideas unfold the dangerous implications which are contrary to pluralises and diverse character of Indian History, its civilisation and culture and the philosophy of Mahatma Gandhi, who sacrificed his life at the alter of communal strife and hatred. Such an argument reasserts the principle of sedireval politics, the politics of violence repression and revenge. 15. After attainment of freedom and promulgation of Constitution, India cannot revert back to medieval period. The wrong perpetuated in that period was set at naught by the establishment of a system which ad-hers to a paramountcy of Rule of Law. 16. No sane or sober citizen of the Country can ignore that the very existence of our republic has been threatened by the forces of religious sectarianism, bigotry, dogmatism, fundamentalism and revivalism. Parochial and fissiparous tendencies have spread its venom to such an extent that voice of reason echo, only in oblivion. 17. It is unfortunate that in the last decade of this Century, not only the secular character of the Indian Constitution has been challenged but also the democratic principles of equality of every citizen before law, and Rule of Law, which the Constitution of India has structured has (sic) to be throttled. 18. 17. It is unfortunate that in the last decade of this Century, not only the secular character of the Indian Constitution has been challenged but also the democratic principles of equality of every citizen before law, and Rule of Law, which the Constitution of India has structured has (sic) to be throttled. 18. Freedom of conscience and free profession, practice and propagation of religion and freedom to manage religious affairs, on enshrined in the Constitution of India are subject to Public Order, morality and health and to the other provisions contained in Part III of the Constitution of India. No person whether he has taken the oath of allegiance to the Constitution or not, can be permitted to exercise the right of freedom of religion of faith if it to contrary to Public Order, morality and health and to any other provisions contained in Part III of the Constitution of India. Every belief and faith which has counter to the Constitutional Mandate, cannot claim paramountcy over the Constitution. 19. With this preclude, the factual matrix as set out in these writ petitions, would be dealt with. But before doing so. I would be failing in my endeavour, if I fail to concede that I fully subscribe to the conclusions, arrived at by my esteemed brothers Hon'ble S. C. Mathur, J. and Hon'ble Brijesh Kumar, J. on the certain questions, but would like to elucidate further on questions of facts and law, which either still remain untouched, or require further explanation, or dissent. 20. Ayodhya tangle dates back to 1528 A. D , when Meer Baqui, a Commander of 1st Moghal Ruler laid the foundation of a shrine, which is claimed by the petitioners, except the petitioner Nirmohi Akhara, to be a mosque and the respondents, as Sri Ram Janam Bhumi Temple. 21. History failed to re-call any dispute, till 1855 between Hindus and Muslims over the shrine. Mughal Emperor Baber himself wrote his memoir, which are known as Baber-Nama or Tuz-ke-Babri. Goswami Tulsidas, who was contemporary to Mughal Emperor Akbar, in his epic, did not refer to any dispute, regarding said Shrine. Abul Fazal, a courtier of Akbar and Badayuni, the great historian, who was also a contemporary of Akbar era, did not attach any significance to the said shrine and did not refer about, any feud between the two communities, over the issue. Abul Fazal, a courtier of Akbar and Badayuni, the great historian, who was also a contemporary of Akbar era, did not attach any significance to the said shrine and did not refer about, any feud between the two communities, over the issue. But the year 1855 left behind a trail of disturbances, riots and war, over the said shrine, between the warlords of both the communities, which is evident from the judgment dated 24-12-1985 passed in Regular Suit No. 61/280/1985 in Re : Mahant Raghubar Das, Mahant, Janam Asthana, situated in Ayodhya v. Secretary of the State in India and Mohammad Asghar, Pandit Hari Kishan, Sub-Judge, Faizabad indicated:- "In between the Mosque and the "Chabootra" where "Charon" i. e. foot is embraced on the "Chabootra", which is being worshipped and idol of "Thakur Ji" is installed. There is a walk, which can be fully evident from the perusal of the corrected plan map prepared by Amin, and it is clear that there are separate boundary between Mosque and the Chabootra, and this fact is also supported by the fact that there is boundary line built by the Government before recent dispute. Before this Hindus and Muslims, both used to offer prayer and worship at that place. In 1855 after the fight amongst Hindu and Muslim, a boundary wall was constructed to avoid future dispute. So that Muslims should worship inside that wall and Hindus should worship outside that w'all, and hence the Chabootra and the land, which is situated outside the boundary wall, belonged to Hindus and the plaintiff." 22. Pramhans Mahant Ram Chandra Das in his counter-affidavit filed in writ petition No. 746/1986 filed by Mohammad Hashim `against un-locking of the lock of said shrine by the District Judge, Faizabad in para-6 `d' indicated ; the contention raised about effect of the said judgment being conclusive, that present premises is a Mosque and there has been even no claim against the same by Hindu community, is wholly incorrect and false. The judgment, itself, mentioned dispute of 1855 between Hindus and Muslims about building at Sri Ram Janam Bhumi that is not admissible in evidence, but it reminds the historical battle, which was fought between Hindus and Muslims in 1855, in which about 100 of Muslims were killed by Hindus outside of the gate of Sri Rama Janam Bhumi and those being Muslims were burried nearby `what Muslim terms' `GANJ-E-SHAH1DAN' or the Mohalla of martyrs. There has been, however, no trace of those grave or grave-yard, admittedly since November, 1949, although in fact they dis-appeared long before, that and there has been no grave-yard any where near Sri Rama Janam Bhumi at Ayodhya. 23. On 19-1-1985 Mahant Raghubar Das being aggrieved against the order passed by Deputy Commissioner, Faizabad in March-April, 1983, refusing to grant permission over the said "Chabootra", 17 ft. wide towards North and South and 21 ft. wide from East to West, filed a regular suit bearing No. 6/280/1985 before the Court of Sub Judge, Faizabad praying for award of sanction to construct a temple over the said "Chabootra" or platform, and restraining the defendants from prohibiting or obstructing the plaintiff in the construction of the temple It was mentioned in the plaint that the "Chabootra" i. e. the Janam Asthan, situated in Ayodhya in the City of Faizabad was an old and sacred place of worship of Hindus and the plaintiff was the Mahant of that place of worship. "Chabootra of Janam Asthan is 21 ft towards East to West and 17 ft. towards North to South and there is "Charan" embraced. There exists also a small temple on in, which is being worshipped. Said Chabootra is in possession of the plaintiff and around there, being no building over it, the plaintiff and other persons experience great difficulty and hard-ship on account of excessive heat in summer and excessive cold in winter and rainy season. There will be no harm to any one, if the temple is constructed over the Chabootra. If the temple is constructed the plaintiff and other Faqeers and pilgrim will get facilities of every sort. There will be no harm to any one, if the temple is constructed over the Chabootra. If the temple is constructed the plaintiff and other Faqeers and pilgrim will get facilities of every sort. The Deputy Commissioner, Faizabad in March-April, 1983 on account of objections raised by some Muslims prohibited construction of the temple, there-upon the petitioner submitted representation to the local Government, but when no reply was received the plaintiff gave notice under Section 414 of the C. P. C. on 18-8-1984 to the office of Secretary, local Government, but no reply of that also was received, hence the cause of action of filing the suit arose on the date of prohibition at Ayodhya within the local limit of the jurisdiction of this Court. 24. One Mohammad Asghar, claiming him, to be the Mutwalli of the said shrine, which he claimed to be the "Babri Mosque", was impleaded as the defendant. On behalf of the Secretary of the State as well as Mohammad Asghar the suit was contested. The Court appointed Sri Gopal Sahay, as a Commissioner to prepare site plan of the site and to submit his report. Sri Gopal Sahay inspected the site and prepared a site plan in the presence of Mahant Raghubar Das and Mohammad Asghar Khan and on 6-12-1985 the Commissioner submitted his report alongwith site plan signed by him, Mahant Raghubar Das, as well as, Mohammad Asghar. The said site-plan has been filed in the present writ petition as well. The site plan shows that graves over all the four sides, facing the outer boundary of the shrine. Just after the outer wall towards East Ganj-E-Shahidan i.e. abode of Martyrs and `Qabristan' finds mention. On the main gate of the outer wall of the said shrine towards East the word `Allah' finds mention in the report. In the outer courtyard of the said shrine towards East and South a platform that is Chabootra 17' ft.x21 ft. finds mention. Upon the said platform a temple cridol finds place. The word `Qabristan' that is grave-yard finds mention on all the four sides of the outer portion of the said shrine. Towards the East in the outer portion of the shrine a thatch for the residence of Chela Mahant finds place. finds mention. Upon the said platform a temple cridol finds place. The word `Qabristan' that is grave-yard finds mention on all the four sides of the outer portion of the said shrine. Towards the East in the outer portion of the shrine a thatch for the residence of Chela Mahant finds place. Towards North in the outer portion of the shrine, "Sita Rasoi" finds mention and towards South of the outer portion of the shrine within the outer-wall or Hauz or Gusulkhana finds mention at-least two places. 25. On 24-12-1985 Pandit Hari Kishan, Sub-Judge, Faizabad recorded a finding that on seeing of the spot it was evident that `Charan' i.e. foot was embraced on `Chabootra', which was being worshipped, and over that `Chabootra' an idol of `Thakur Ji' was installed. The `Chabootra' was in possession of the plaintiff and whatever offering was made it was taken away by the plaintiff, and this fact was also admitted by Mohammad Asghar, the defendant. The witnesses of the plaintiff also proved the possession of the plaintiff. For that reason a Pakka wall like fence has been constructed to fix the boundaries of the land held by Hindus and Muslims. The suit was dismissed on the ground, that if a temple was constructed on the Chabootra, then there would be sound of bells of the temple and Sankh, when both Hindus and Muslims pass from the same way, and if the permission was given to Hindus for constructing the temple, then one day or the other criminal case would be started, and thousands of the people would be killed and for that reason, the Officer has restrained the parties from making any new construction. The Court also considered it to be proper that the word permission to construct a temple at that juncture was to lay the foundation of riot, and murder, between Hindus and Muslims, which were two different religion. In view of the policy and also in view of the justice, relief claimed by the plaintiff could not be granted. On seeing law of contract the Court was aware of the fact that no party could be directed to perform contract, which was contrary to public policy. In view of the policy and also in view of the justice, relief claimed by the plaintiff could not be granted. On seeing law of contract the Court was aware of the fact that no party could be directed to perform contract, which was contrary to public policy. For the reasons given above the view of that Court was the reliefs claimed by the plaintiff were not according to law and that issues was decided in favour of the defendant and other issues were decided in favour of the plaintiff. It was, thereby, ordered that under Section 198 of the C. P. C. suit of the plaintiff be dismissed. Being aggrieved against the aforesaid order Mahant Raghubar Das referred an appeal bearing No. 27 of 1986, before the learned District Judge, Faizabad, which was dismissed on 18-2-1986. While dismissing the said appeal by means of judgment dated 18-3-1986 the Court reversed the finding of the title and possession recorded in the said suit by the trial judge as the same was found to be redundant and the finding with regard to the possession and title cover the outer-portion of the land of the shrine, except the Chabootra was expunged. 26. Similar observations were made in second appeal bearing No. 27/ 86 filed by Mahant Raghubar Das before the judicial Commissioner of the Court of Awadh, where in it was indicated that there existed nothing, whatsoever, on record to show that the plaintiff was proprietor ot the land in question. 27. Describing the events, alleged to have occurred between the night of 22/23. 12, 1949 Paramhans Mahant Ram Chandra Das in Para-5 (C) of his return, against W. P. bearing No. 766/86 filed by Mohammad Hashim, which has been annexed as Annexure-D-15 in the present writ petition, stated ; "As regards the statements that, in the night of 22/23-12-1949, idols were put mischievously and surreptitiously as an abuse and insult to those who had sacrificed for the independence of their mother land, for their cherished dream of establishing Ram Rajya. The fact that it has been hurted by antinationalist Muslims, who regard Pakistan to be their home while enjoying citizenship of Bhartiyata, makes it more difficult to bear the insult. 1 again seek protection of the Court and pray, that such allegations against the Hindus, of their faith and belief be ordered to be struck-of. The fact that it has been hurted by antinationalist Muslims, who regard Pakistan to be their home while enjoying citizenship of Bhartiyata, makes it more difficult to bear the insult. 1 again seek protection of the Court and pray, that such allegations against the Hindus, of their faith and belief be ordered to be struck-of. I reiterate that according to the Hindus faith and belief Bhagwan Sri Ram manifested himself in the form of Bhagwan Sri Rama Lalla Brijmeni within the building at Sri Rama Janam Bhumi at Ayodhya, on the night between 22/23-12-1949, which was 3rd day of bright face of moon of the month of Poush of the Vikram Sanwat 2006 and the day has been celebrated ever-since as the Parkat Diwas of Bhagwan Sri Rama by Hindus all over Ayodhya." 28. Describing the events further, the statement of Hawaldar, namely Abdul Barkat, who was alleged to be on duty at the police out post out side of the premises of Rama Janam Bhumi, which was given before the District Magistrate, Faizabad was annexed, which reads as under : - I was posted on duty when at about 2 a.m. I saw light amending from Babri Masjid. I peeped into it, with concentration. Later on, it transpired as a divine light when unfed the entire Mosque slowly, slowly, light looked golden, and in that light, I saw the fare of a very hand some chilled aged about five years. His hair on the head were curly. The body was fleshy, and beautiful. 1 had never seen such a beautiful child, throughout my life. After seeing him I remained in the State Coma (for a while). 1 cannot describe how long my condition remained as such. When I became conscious, I saw that lock of the main gate had fallen on the ground, and within the mosque, a large section of Hindus had congregated, before the Singhasan, upon which an idol was placed. The people were singing loudly `Bhaya Parkat Kirpala Dina Dayala' and were offering Aarti". 29. When I became conscious, I saw that lock of the main gate had fallen on the ground, and within the mosque, a large section of Hindus had congregated, before the Singhasan, upon which an idol was placed. The people were singing loudly `Bhaya Parkat Kirpala Dina Dayala' and were offering Aarti". 29. In the morning of 13-12-1949 Pandit Ram Deo Dubey State- Officer-in-Charge, police station Ayodhya, Faizabad lodged an F. I. R- against Sarwshri Mahant Abhaya Ram Das, Ram Sakai Das, Sudharshan Das and 50 to 60 other persons, whose names were not known under Section 147, 449 of the Indian Penal Code, as follows:- "At about 7 a.m. when I reached Janam Bhumi. I came to know from the constable No. 7 Mata Prasad who was on duty 50-60 persons in the night have entered into the Mosque by breaking lock and by scaling walls and establishing there Idol of Sri Ram Chandra Ji and have also written on the walls inside and outside, the words `Sita Ram' etc. by Geru and yellow colour. Constable Hans Raj who was on duty at that time told them not to act in that manner, but they failed to listen him P.A.C. which was posted there was called out, but by that time, the P.A.C. reached there they had already entered into the mosque. 30. It appears that the District Authorities were confronted by the Chief Secretary,............Sri Bhagwan Shahi, l.C.S. the then Secretary, to the Government of U. P. Lucknow as to why the District Authorities did not take precaution to prevent the planting of the idol in the Mosque and why the idol was not being removed on 23-12-1949 morning Mr. K. K. K. Nayar, l.C.S. the then Deputy Commissioner, Faizabad, and who was also the scribe of the future events that followed later on in reply to the quarries made by the Govt, of U.P. addressed a communication to the Chief Secretary on 26-12-1949 (Annexure R-12 to the writ petition), in which he stated that installation of the idol was carried out in the night of 22nd and 23rd instant. It was an act of which there was no force warning The last C. I. D. report which was received regarding Ayodhya affairs was on 22-12-1949. It was an act of which there was no force warning The last C. I. D. report which was received regarding Ayodhya affairs was on 22-12-1949. Neither in that report, nor in any previous report, it was ever indicated that, there was a move to install an idol in the mosque either surreptitiously or by force. Neither through official nor through non official channel they had even received any report of such a move, with the erection that during Naumi Path there was a rumour that Mosque would be entered on Pooranmasi Day. But that attempt was not made. 31. He further indicated that Mosque could be entered only through the temple premises and was so access-able at all times. The temple premises were occupied at all hours and the mosque was deserted all the times except for one hour during Friday prayers. To prevent determined Hindus from getting into mosque either by force or in secret mosque could have permanently policed with a force, which must cost exchequers thousands of rupees a month. And in the absence of any such arrangement, local authorities, who had no information from any source, whatever that such mischief, as that was contemplated, could not have made out a case before the Government for the policing a deserted and unused mosque permanently at tremendous cost to the tax-payer. "Why the idol was not removed on 23rd morning the Deputy Commissioner replied that ; "The removing of the idol by force is possible though at some cost with the police force now available. Removal surreptitiously in the night against weaker resistance is also possible. But that such removal without un-careful consideration of the consequences, would in my view have been a step of administrative bankruptcy and tyranny. The short term reactions on public tranquillity can be guarded against, with the force now available, though it was not possible on 23rd with our limited resources. But now J doubt if we can do much, if communal roit affaires up in places remote from the head quarter, but the reactions on public position which this illegal act has created but because I fully believe that its solution must he found without tremendous cost in life and property as also in country wide reactions on peace and policy." 32. He further stated : "I would therefore emphasise question of removing idol is not one that Superintendent of Police and I can agree with or carry out on our initiative. The alternative solution which I nave proposed to Government has a fair chance of success in preserving peace and policy. If this solution is not accepted and if the Government decided to remove the idol and face the consequences then it is only fair that I having lost Government's confidence in this matter and being of the view that the solution dictated to me is neither correct, necessary, advisable not legally justifiable, should not be asked to put into effect. 1 would, if the Government decided to remove idol at any cost request that I be relieved and replaced by an officer no may be able to see in that solution a merit, which I can not discern. For my part, I cannot in my discretion, which is only the legal sanction behind my action in ffiis matter easy to enforce such a solution as I am fully aware of the wide spread suffering which it will entail to many innocent lives." 33. Again on 27-12-1949 in a letter addressed to chief secretary to Govt, of U.P. Mr. K.K.K. Nayar, the then Deputy Commissioner, Faizabad, stated : "The Commissioner returned from Lucknow and gave me and the Suptd. of Police out line of a scheme for removing idol from the mosque surreptitiously to Janam Bhumi Temple outside the mosque. The scheme was discussed yesterday before the Commissioner, D.I.G., S.P. and myself, and later on in the evening before I. G., 13. I.G, (P.A.C.) and myself. It was discussed again this morning by all of us. "The idea of removing of idol is not one, which 1 can agree with or wish to carry out on my initiative for it is brought with the gravest danger to public peace, over the entire District and must lead to a conflagration of horror unprecedented in the annals of this controversy. The district is aflame and it is reported that licence holders for fire-arm have promised support with their arms in a fight against police and officers, if it becomes necessary. The district is aflame and it is reported that licence holders for fire-arm have promised support with their arms in a fight against police and officers, if it becomes necessary. The Deputy Commissioner further remarked:- "Installation of the idol in the mosque has certainly been an illegal act and it has been placed not only the local authorities, but also the Government in a false position." Thereafter he suggested to a solution "Mosque should be attached, and both Hindus and Muslims should be excluded from it with the exception of the minimum number of Pujaris I am attempting^to reduce the number of Pujaris from three to one without creating another impasses who would offer Pooja and Bhog before the idol which could continue inside. The Pujari and Pujaris will be appointed by the order of the Magistrate. The parties will be referred to Civil Court for adjudication of their rights. No attempt would be made to hand over the possession to Muslims until the Civil Court, if at all, decrees the claim in their favour. 34. He further emphasised ; This solution is open to the critisim that it perpetuates an illegal position created by force and subterfuge and that it does not immediately restore the status quo, which existed before illegal act. But it has the following merits, which are worth careful consideration : - 1. If the Civil Court decide the dispute in favour of the Hindus a terrible amount of suffering blood-shed and country wide reactions would have been avoided. 2. During the pendency of the civil proceedings, it may be possible (I sincerely hope it will be achieved) to reach compromise of some kind. The Muslims, of whom a small number are even now of this way of thinking could be induced to give up the mosque voluntarily to the Hindus in return for another mosque built for them at no less cost. But, if the present situation is forced into a riot even these Muslims would afterwards be unwilling to reach this solution. And the situation would continue to be pregnant with the possibility of future riots. 3. If no compromise were reached, if finally the civil Court decreed the claim in favour of the Muslims, the position which would then result would be no worse than that which now exists and the head of present re-actions would have dis-appeared by then in some measure. 3. If no compromise were reached, if finally the civil Court decreed the claim in favour of the Muslims, the position which would then result would be no worse than that which now exists and the head of present re-actions would have dis-appeared by then in some measure. 4. Although the Government might be accused of not having resorted the status quo immediately, they have perfectly legal and valid excuse that the matter of civil rights is before a civil Court for decision, that the property has been attached by a Magistrate, who has excluded the general body of Hindus and Muslims from it and that the question of immediately restoring the status quo which existed recently was a matter of judicial discretion of attaching the Magistrate, which the Government could not lawfully influence or dictate. 35. Although Sri K. K. K. Nayar, the then Deputy Commissioner, Faizabad' was sacked but what therefore told, saw the light of the time. On 29-12-1949, Addl. City Magistrate, Faizabad attached the shrine by passing a preliminary order of attachment under Section 145 of the C. P. C. He appointed Sri Priya Datt Ram, a Receiver, for the purposes of the management of the shrine. In accordance with the directions given by the Magistrate, the receiver submitted a scheme of management and assumed the charge on 5-1-1950. 36. Sri Gopal Singh Visharad on 16-1-1950 filed a regular suit on the nature of injunction and declaration, bearing Suit No. 2 of 1950 against Zahoor Ahmad and others,' praying that defendants 1 to 6 and 7 to 9 and defendant No. 10 be restrained from removing idols of Sri Ram Chandra Ji, from the place where they are at Janam Bhumi and they be restrained from stopping entry and creating any hurdle in Pooja and Darshan. It was further prayed that by means of decree in the nature of declaration it may be declared that the petitioner was entitled to perform Pooja and Darshan by going near Bhagwan Ram Chandra Ji Asthan, Ram Janam Bhumi described in the plaint without any hindrance and it also be declared that respondent 1 to 6 and 7 to 9 and 10 and their successor were not entitled to create any hurdle in the plaintiff's right to perform Pooja etc. The State of U. P., Deputy Commissioner, Faizabad. Addl. The State of U. P., Deputy Commissioner, Faizabad. Addl. City Magistrate, Faizabad and Superintendent of Police, Faizabad were also arrayed as the defendants in the suit. On 19-1-1950 Civil Judge, Faizabad passed an ad-interim order of injunction, restraining the defendants from removing the idols in question from the site in dispute and from interfering with the Pooja etc. as at then carried out. 37. On behalf of the State of U. P., which has been arrayed as defendant No. 6, on 25th day of April, 1950 Deputy Commissioner, Faizabad filed a written statement. In the said written statement he averred : "that the property in suit is known as Babri mosque and it has for a long period been knew to be a mosque for the purposes of worship by Muslims. It has not been used as a temple to Sri Ram Chandraji. On the night of 22-12-1949 idols of Sri Ram Chandra Ji were surreptitiously and wrongly put inside it, as a result of said wrongful act a situation of public peace and tranquillity was created and the public authorities had to intervene in order to prevent the breaches of peace and tranquillity." It was further indicated in written statement: - "In view of the state of following situation between Muslims and Hindus, the City Magistrate Sri Guru Datt Singh passed an order under Section 145 Cr.P.C. dated 23-12-1949, prohibiting to carry out the fire arms swords etc. and assembling more than five persons with the local limit of Faizabad and Ayodhya municipality. On the same day, Additional City Magistrate Markandey Singh, on police report and other information, passed an order under Section 145 Cr.P.C. calling upon the claimants to the premises to appear and file their written statement by 17-1-1950 in his Court. The City Magistrate being of the opinion that case was one of the emergency, attached the said property and appointed Sri Priya Datta Ram, Chairman Municipal Board, Faizabad Ayodhya as Receiver of the said property and further authorised him to arrange for the care of the same and further directed him to submit a scheme for the management there of. The authorities have throughout acted in the manner warranted by law and in a situation brought with the serious danger to peace, any interference with their discretion would be prejudicial to the maintenance of the public order. The authorities have throughout acted in the manner warranted by law and in a situation brought with the serious danger to peace, any interference with their discretion would be prejudicial to the maintenance of the public order. Answering defendant No. 6 is the U. P. State and this Court has no jurisdiction to grant any injunction, which may interfere with the performance of public duties by the department of the Government. On the same day i. e. 25th April, 1950 Deputy Commissioner, Faizabad on behalf of himself filed a similar written statement. 38. In the said suit filed by Sri Gopal Singh Visharad one Bashir Ahmad Khan an Advocate Commissioner was appointed to get the photographs of the disputed building under his supervision and to submit a report. In his report the Commissioner stated that Photo No. 1 is the photograph of the disputed building from out side of the main entrance. A little above the arch of the main gate towards the right and left there are small circles in which the word `ALLAH' is inscribed in Arabic. A little above it there now hangs a picture of Hanuman Ji and beneath the frame of picture `ALLAH-O-AKBAR' is inscribed in the Arabic character, He further stated that No. 2 is the Photo of the lying adjacent to the Northern Gate of the building, there are several pacca graves on this land. There is a gate of corrugated iron sheets towards the north of the building and it was found closed at the time when the photo was taken. Photo No. 8 is a photo taken from the court yard of the building in suit of the middle arch in the eastern side. A little below the arch at the three places `A.LLAH' in Arabic character is inscribed. Below the `ALLAH' in middle the inscription `TUGHRA' which is blurred in photo but at the spot it can be read. Photo No. 9 is a photo of inner central mihrab (arch). In the western wall of the building on the top of the arch calligraphic `ALLAH' in Arabic character is inscribed in the wall and below it `Bismillah-ir-rahman-ir rahim' and still below it `LA-ILAHA-ILLALLAH-MOHAM M ADAR-RASUL-ALLAH' is inscribed. Photo No. 10 is the photo of pulpit (Member), on which idols are placed. On the left side of the `Member' there is a Persian Inscription which is blurred in the photo. Photo No. 10 is the photo of pulpit (Member), on which idols are placed. On the left side of the `Member' there is a Persian Inscription which is blurred in the photo. Number 11 is the photo of inner northern arch in the west wall towards the north of (illegible) `ALLAH' in the Arabic character is inscribed in the wall. Number 12 is the photo of southern arch inscribed with similar Arabic character `ALLAH'. 39. In another suit bearing Regular Suit No. 25/50 filed by Param Hans Ram Chandra Das v. Zahoor Ahmad and others, two written statements were filed by Deputy Commissioner, Faizabad raising similar pleas. 40. The Deputy Commissioner, Faizabad in his objection to the application of Sri Gopal Singh Visharad for grant of temporary injunction, opposed the grant of temporary injunction. On 1-2-1951 both the aforementioned suits were consolidated by Civil Judge, Faizabad. On 26-4-1955 the first appeal from the order (bearing No. F. A. F. O. 154/ 51) filed against the grant of injunction order dated 3-3-1951 was dismissed by the High Court. 41-42. On 7-12-1959 Nirmohi Akhara through its Mahant, filed regular suit bearing No. 26 of 1959 against Babu Priya Datta Ram, the Receiver and others including State of U. P. and his officers in the Court of Civil Judge,`Faizabad praying removal of the defendant No. 1 (Receiver) from the management and charge of the said temple of Janam Bhumi and for delivering the same to the plaintiff No. 2 on behalf of plaintiff No. 1. 43. On 18-12-1961 Sunni Central Board of Waqf and others filed a Regular suit bearing No. 12 of 1961 against Gopal Singh Visharad and others praying for the grant of a decree in the nature of declaration to the effect that the property in dispute indicated by letters A B C D in the stretch plan attached to the plaint is a public mosque commonly known as Babri Masjid and that the land adjoining the mosque shown in the stretch gap by letters E F G H is a public Muslim grave-yard. As specified in Para-2 of the plaint it was further prayed that in case the opinion of the Court for delivery of possession was deemed to be proper remedy, a decree for delivery of possession of the mosque and the grave yard in suit by removing the idols and other articles, which the Hindus might have placed in the mosque, as object to their worship be passed in favour of the plaintiff against the defendant. 44. Later on all the suits were consolidated and Suit No 12 of 1961 was made the leading suit which is a representative under Order 1 Rule 8 of the C. P. C. 45. It has been contended on behalf of the petitioners, that neither in Suit No. 26 of 1959, filed by Nirmohi Akhara nor in any other suit filed by Gopal Singh Visharad, Suit No. 2 of 1950 or the suit filed by Paramhans Ram Chandra Das (Suit No. 25 of 1950), the plaintiff in their plaint have taken a plea that any temple on the site in dispute was ever demolished or destroyed or that the mosque in question was built over the same site or it was previously a temple. 46. It was also submitted that neither Sri Abhaya Ram Das, who was originally defendant No. 13, nor any other defendant, in their written statement filed in Reg. Suit No. 12/61 filed by Sunni Central Board of Waqf, alleged that site in dispute was ever demolished or destroyed and on the same site any temple was built. However, after the death of Abhaya Ram Das, his Chela, who was substituted in his place, in his written statement dated 2-12-1989 for the first time alleged that Meer Baqi, who was Shia, who commanded Babar's Army demolished ancient Hindu temple of the time of Maharaja Vikrama Datta at Sri Ram Janam Bhumi and tried to raise mosque-like structure in its place with its material. The Babar was not Emperor, but was a murderer. 47. On 5th of March, 1964 the issues were framed in the leading suit /. e. Suit No. 12 of 1961 by Civil Judge, Faizabad. 48. On 21-1-1986 one Sri Umesh Chandra Pandey, a stronger, preferred an application in Suit No. 2 of 1950 for un-locking gale of the mosque and for allowing free entry into the building for Pooja and Darshan etc. e. Suit No. 12 of 1961 by Civil Judge, Faizabad. 48. On 21-1-1986 one Sri Umesh Chandra Pandey, a stronger, preferred an application in Suit No. 2 of 1950 for un-locking gale of the mosque and for allowing free entry into the building for Pooja and Darshan etc. As the file of regular Suit No. 12 of 1961 was remitted to, Lucknow' Bench of High Court, in first appeal from the order, the Munsif did not pass any such order, but, requested the High Court to send the file. On 13-1-1986 Sri Umesh Chandra Pandey being aggrieved against the order of Munsif, preferred an appeal before the District Judge, Faizabad. Mohammad Hashim, one of the plaintiff of Suit No. 12 of 1961 and Mohammad Farooq, the defendant No. 2 of Suit No. 2 of 1950 requested the District Judge, to be impleaded in the appeal and they may be heard, to contest the said appeal, The applications were rejected and the appeal was allowed by the District Judge, Faizabad. Mohammad Hashim, thereafter invoked the jurisdiction of the High Court under Articles 226 and 227 of the Constitution of India, by filing Writ Petition No. 746 of 1988, assailing the order passed by District Judge on 1-2-1986. On 12-5-1986 another writ petition against the same order dated 1-2-1986 passed by District Judge, Faizabad was filed by Sunni Central Board of W'aqf, which is still pending. On 3-1-1986 the Court passed the following order in the said writ petition : - "Until further orders of this Court, the nature of the property in question as existed today, shall not be changed." The order still subsists. 49. On 16-12-1987 the State of U. P. preferred an application purporting to be one under Section 24 read with Section i5 of the C. P. C. before a bench consisting of myself and Hon. Mr Justice U.C. Srivastava, (as he then was) praying for the with-drawl of all the cases from Faizabad to that Court for being tried over by the High Court. It was also prayed that hearing of the aforesaid writ petitions be deferred till the final disposal of the above four suits. On 10-7-1989 the division bench consisting of the judges mentioned above, ordered the with-drawl of the cases from Faizabad Court to Lucknow' Bench of Allahabad High Court, for being heard and disposed of by a special bench consisting of three judges. On 10-7-1989 the division bench consisting of the judges mentioned above, ordered the with-drawl of the cases from Faizabad Court to Lucknow' Bench of Allahabad High Court, for being heard and disposed of by a special bench consisting of three judges. The papers were ordered to be placed before Hon'ble the Chief Justice, who nominated himself, alongwith afore-mentioned two judges, to constitute the special bench. As before the said order, the suit bearing No. 236 of 1989 was also filed by Sri Devki Nandan Agrawal as the next friend of Bhagwan Sri Rama Birajman at Sri Rama Janam Bhumi and others before the Civil Judge, Faizabad on 1-7-1989, the division bench also ordered for the withdrawl of that suit. 50. On 7-8-1989 the State of U. P., which was the defendants in all the suits, preferred an application for restraining the parties to all the suits from disturbing status quo or any activity which might result into confrontation between Hindus and Muslims. On 14-8-1989 Special Bench consisting of Mr. Justice K. C. Agrawal, Mr. Justice U.C. Srivastava and myself directed the parties to all the suits to maintain status-quo and not to change the nature of the property in suits. 51. In the aforesaid suits all the applications were disposed of, except the one, which has been preferred in the previous month by the State of U. P. seeking permission of this Court, after the lapse of 42 years, for filing written statements in all the suits. The issues were re-cast. The cases were ordered to be listed for final hearing a year before, but the hearing could not be started due to the applications preferred in the suits. 52. In the last week of November, 1989 the State of U. P. came forward with an application before special bench to declare and clarify that the word "property in question" mentioned in the interim order dated 14-1-1989 referred to the property mentioned in the stretch map and Schedule-A annexed to the plaint, expressly mentioning Plot No. 586 as one of the plots in dispute. It was averred that a perusal of the relief claimed and the Schedule-A appended to the plaint reproduced in Para-2 to the application, would show that Plot No. 586 was in dispute alongwith the pother plots. It was averred that a perusal of the relief claimed and the Schedule-A appended to the plaint reproduced in Para-2 to the application, would show that Plot No. 586 was in dispute alongwith the pother plots. The application was preferred on behalf of the State only for the reason that members of Vishwa Hindu Parished had hoisted `Kesarya Flag' on the spot at the said Plot No. 586 and had barricaded, said place for `Shilanyas' of the temple. 53. As the said Nazul Khasra Plot No. 586 was included in the schedule annexed to the plaint of regular Suit No. 12 of 1969 filed by Sunni Central Board of Waqf, LT. P. and a relief for declaration and possession was prayed for, over several Nazul Khasra numbers, the Court clarified that order dated 4-8-1989 was in respect of entire property mentioned in the suit including Plot No. 586, in so far, as included within the boundaries described by letters F. FGH in the site plan. That order still subsists. 54. On October 7, 1991 the Governor of Uttar Pradesh was pleased to notify under sub-section (1) of Section 4 of the Land Acquisition Act, 1894 that Khasra Plot Nos. 159 `Part', 160 `Part', 171 `Part', 172 `Part', village Kotsarai, Tehsil Sadar, District, Faizabad, was needed for public purposes, namely for the development of the tourism and providing facilities to the pilgrims at Ayodhya, Faizabad. It was also provided that as the Governor was of the opinion that provision of sub-section I of Section 17 of the Land Acquisition Act, 1894, were applicable to the said land and as the land was urgently required for public purposes, namely for tourism and providing amenities to the pilgrims, it was necessary to eliminate the delay, and so the enquiry under Section 5-A of the said Act was dispensed with under sub-section-4 of the Section 17 of the Act, and the provisions of Section 5-A of the said Act would not apply. 55. Being aggrieved against the said notification Mohammad Hashim, a resident of Mohalla Suthali, Ayodhya City Paragna Haweli, who was also the plaintiff of regular Suit No. 12 of 1961 filed present writ petition bearing No. 3540 (MB)/1991 before a division bench of this Court, which was ordered to be listed on 21-10-1992 before the Special Bench. 56. 55. Being aggrieved against the said notification Mohammad Hashim, a resident of Mohalla Suthali, Ayodhya City Paragna Haweli, who was also the plaintiff of regular Suit No. 12 of 1961 filed present writ petition bearing No. 3540 (MB)/1991 before a division bench of this Court, which was ordered to be listed on 21-10-1992 before the Special Bench. 56. On 25th October, 1991 ofter hearing the parties of the writ petition, the Court passed the following interim order : - (1) The State shall take possession of the notified land and may make arrangement for the purposes notified in the notification, but no structure of permanent nature will be put of thereon, although structure of temporary nature may be put up. (2) The taking-over of the possession shall be subject to the further orders of this Court. (3) The required land shall not be transferred or alienated. 57. The Special Bench further directed that the order passed would apply to Writ Petition No. 351 (MB)/ 1991 filed by Panch Ramaswarni Ji, Nirrnohi Akhara and Writ Petition No. 3542 (MB)/199l filed by Khalid Yousuf. 58. Mohammad Hashim in his Writ Petition Bearing No. 3540 (MB)/ 1991 assailed the notification on the ground of colourable exercise of power, arbitrariness, violation of Article 14, 16, 25 and 26 of the Constitution of India, violation of Courts' order, want of urgency to dispense with the procedure contained in Section 5-A of the Land Acquisition Act, availability of alternative site, adjacent to the land in question, which was already acquired and was available to the State, violation of Section 52 of the Transfer of Property Act, purpose and object other than mentioned in the notification, violation of seculer character of the Constitution, which forms the basic structure of the Constitution, fraud upon the law and the Constitution, abuse of power conferred by sub-section (I) (A) of Section 4 of the Land Acquisition Act, destruction of the rights of Muslims, derogation to the secular character of the Constitution, curtailment and denial of the rights of Muslims at the behest of another community etc. 59. 59. Before dealing with the other questions involved in these writ petitions, it would be proper for me to express my opinion over the affect of the interim order with relation to the Notifications dated 7th October, 1991 and 10th October, 1991 under Section 4(1) and sub-section (1) of Section 17 of the Land Acquisition Act. 60. The argument of the petitioners is that powers of the Legislature, Executive and judiciary have been enumerated in the Constitution of India. No limb of the State can encroach upon the powers vested to other organ of the State. 61. The Law on this subject is well settled. According to the Law laid down in His Holiness Kesavananda Bharti Sripadacalwaru and others v. State of Kerala and another, AIR 1973 SC 1461 , the basic structure of the Constitution consists of the following features : 1. The supremacy of the Constitution. 2. Republican and Democratic from of Government and sovereignity of the Country. 3. Secular and federal character of the Constitution. 4. Demarcation of power between the legislature the executive and the judiciary. 5. The dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State coniained in Part IV. 6. The unity and the integrity of the nation. The above structure is built on the basic foundation i.e. the dignity and freedom, of the individual. This is of Supreme importance. This cannot by any form of amendment be destroyed." 62. In the case of Smt. Indira Nehru Gandhi v. Sri Pal Narain, AIR 1975 SC 2299 , a question arose as to whether the Legislature can deciare a judgment of the Court void. It was urged that the Constitutional Authority can only indicate a Law in general. The Constitutional Authority may also, if so it seems proper, change the Law which is the basis of a decision and make such change with retrospective affect, but it cannot declare void the judgment of this Court. The declaration of the of void-ness of the judgment is a judicial act and cannot be taken over by the Constitutional Authority. Although Legislators and the Constitutional Authorities can made Laws including those of creation of Courts, they cannot, exercise judicial functions by assuming the powers of a super Court in the same way as the Courts cannot act as super powers. On this question Mr. Although Legislators and the Constitutional Authorities can made Laws including those of creation of Courts, they cannot, exercise judicial functions by assuming the powers of a super Court in the same way as the Courts cannot act as super powers. On this question Mr. Khanna, J. remarked : - "It is. in my opinion, not necessary to dilate upon this aspect and express the final opinion about the rival contentions because of the view I am taking of. In Paragraph 198 Mr. Khanna, J, observed as under : - "This Court in the case of Kesavananda Bharati, AIR 1973 SC 1461 (Supra) held by majority that the power of amendment of the Constitution contained in Article 368 does not permit altering the basic structure of the Constitution. All the seven Judges who constituted the majority were also agreed that democratic set up was part of the basic structure of the Constitution." 63. In the case of Municipal Corporation of the City of Ahmadabad New Shorock S P G. v. Weaving Company Ltd, 1970 AIR 1292 SC the facts were that the High Court as well as the Supreme Court had held that proper tax collected for certain years by Ahmadabad Municipal Corporation was illegal. In order to nullify the affect of the decision, the State Government introduced Section 152-A by amendment to Bombay Provincial Municipal Corporation the affect of which was to command the Municipal Corporation to refuse to refund the amount illegally collected despite the orders of the Supreme Court and the High Court. Supreme Court held that the said provisions make a direct en-route into the judicial powers of the State. The Legislators under the Constitution have within the prescribed limit power to make laws prospectively as well as retrospectively. By exercise of those powers a Legislature can remove the basis of a decision rendered by a competent Court and thereby rendering the decision ineffective, but no Legislature in the Country has the power to ask the instrumentality's of the State to disobey or disregard the decisions given by the Court. Consequently, the provisions of sub-section (3) of Section 152-A were held repugnant to the Constitution and were struck down. 64. Consequently, the provisions of sub-section (3) of Section 152-A were held repugnant to the Constitution and were struck down. 64. In the case of Madan Mohan Pathak and another v. Union of India and others, AIR 1978 SC 803 , a settlement arrived at between the Life Insurance Corporation and its employees had become the basis of a decision of the High Court. This settlement was sought to be scuttled by the Constitution on the ground that they have received instructions from the Central Government that no payment of bonus would be paid by the Corporation to its employees without getting the same cleared by the Government. The employees, therefore, moved the High Court and the High Court allowed the petition. Against that a letters patent appeal was filed and while it was pending the Parliament passed the Life Insurance Corporation (Modification of Settlement) Act. 1976, the affect of which was to deprive the employees of bonus payable to them in accordance with the term of the settlement and the decision of the Single Judge of the Hon'ble High Court. On this amendment of the Act, the Corporation withdrew its appeal and refused to pay bonus. The employees approached the Supreme Court challenging the Constitutional validity of the said Legislation ; the Court held that it would be unfair to adopt Legislative Procedure to undo a settlement which has become the basis of a decision of the High Court. Even if Legislation can remove the basis of a decision, it has to do it by alteration of a general right of a class, but not simply excluding the specific settlement which had been held to be valid and enforceable by a High Court. The object of the Act was in effect to take away the force of the judgment of the High Court. The rights in the judgment would be said to arise independently of Article 19 of the Constitution. 65. In the impugned Act which was challenged before Hon'ble Supreme Court, there was nothing, which set at naught the effect of the judgment of the High Court or the binding character of the writ of mandamus issued against the Life Insurance Corporation. Accepting this fact Mr. P. N. Bhagwati, J. on his behalf as well as on behalf of Mr. V.R. Krishna Iyer and Mr. D. A. Desai, JJ. Accepting this fact Mr. P. N. Bhagwati, J. on his behalf as well as on behalf of Mr. V.R. Krishna Iyer and Mr. D. A. Desai, JJ. indicated as under : - "It is significant to note that there was no reference to the judgment of the Calcutta High Court in the Statement of Objects, and Reasons, nor any non obstinate clause referring to a judgment of a court in Section 3 of the impugned Act. The attention of Parliament does not appear to have been drawn to the fact that the Calcutta High Court had already issued a writ of mandamus commanding the Life Insurance Corporation to pay the amount of bonus for the year 1st April, 1975 to 31st March, 1976. It appears that unfortunately the judgment of the' Calcutta High Court remained almost unnoticed and the impugned Act was passed in ignorance of that judgment. Section 3 of the impugned Act provided that the provisions of the Settlement in so far as they relate to payment of annual cash bonus to Class III and Class IV employees shall not have any force or effect and shall not be deemed to have had any force or effect from 1st April, 1975. But the writ of mandamus issued by the Calcutta High Court directing the Life Insurance Corporation to pay the amount of bonus for the year 1st April, 1975 to 31st March, 1976 remained untouched by the impugned Act. So far as the right of Class III and Class IV employees to annual cash bonus for the year 1st April, 1975 to 31st March, 1976 was concerned, it became crystallised in the judgment and thereafter they became entitled to enforce the writ of mandamus granted by the judgment and not any right to annual cash bonus under the Settlement. This right under the judgment was not sought to be taken away by the impugned Act. The judgment continued to subsist and the Life Insurance Corporation was bound to pay annual cash bonus to Class III and Class IV employees for the year 1st April, 1975 to 31st March, 1976 in obedience to the writ of mandamus. The error committed by the Life Insurance Corporation was that it withdrew the letters patent appeal and allowed the judgment of the learned Single Judge to become final. The error committed by the Life Insurance Corporation was that it withdrew the letters patent appeal and allowed the judgment of the learned Single Judge to become final. By the time the letter patent appeal came up for hearing, the impugned Act had already come into force and the Life Insurance Corporation could, therefore, have successfully contended in the letters patent appeal that, since the Settlement, in so far as it provided for payment of annual cash bonus, was annihilated by the impugned Act with effect from 1st April, 1975 to 31st March, 1976 and hence no writ of mandamus could issue directing the Life Insurance Corporation to make payment of such bonus. If such contention had been raised, there is little doubt, subject of course to any constitutional challenge to the validity of the impugned Act, that the judgment of the learned Single Judge would have been upturned and the writ petition dismissed. But on account of some inexplicable reason, which is difficult to appreciate, the Life Insurance Corporation did not press the letters patent appeal and the result was that the judgment of the learned Single Judge granting writ of mandamus became final and binding on the parties. It is difficult to see how in these circumstances the Life Insurance Corporation could claim to be absolved from the obligation imposed by the judgment to carry out the writ of mandamus by relying on the impugned Act." It was further indicated : "If by reason of retrospective alteration of the factual or legal situation, the judgment is rendered erroneous, the remedy may be by way of appeal or review, but so long as the judgment stands, it cannot be disregarded or ignored and it must be obeyed by the Life Insurance Corporation. We are, therefore, of the view that, in any event, irrespective of whether the impugned Act is constitutionally valid or not, the Life Insurance Corporation is bound to obey the writ of mandamus issued by the Calcutta High Court and to pay annual cash bonus for the year 1st April, 1975 to 31st March, 1976 to Class III and Class IV employees." 66. After considering the question as to whether the impugned Act is violative of Clause (2) of Article 31 of the Constitution it was observed : "It was not competent to the Central Government thereafter to issue another contrary direction which would have the effect of compelling the Life Insurance Corporation to commit a breach of its obligation under Section 18, sub-section (I) of the Industrial Disputes Act, 1947 to pay annual cash bonus in terms of Clause 8 (ii) of the Settlement." It was further indicated : "It is, therefore, clear that Class III and Class IV employees had absolute right to receive annual cash bonus from the Life Insurance Corporation in terms of Clause 8 (ii) of the Settlement and it was not competent to the Central Government to issue any directions to the Life Insurance Corporation to refuse or withhold payment of the same." In the case of P. Sambamurthy v. State of Andhra Pradesh, 1987 (1) SCR 879 : AIR 1987 SC 663 , what was called in question was the insertion of Article 371-D of the Constitution. Clause (5) of the Article provided that the order of the Administrative Tribunal finally disposing of the case would become effective upon its confirmation by the State Government or on the expiry of three months from the date on which the order was made, whichever was earlier. The proviso to the clause provided that the State Government may by special order made in writing for reasons to be specified therein, modify or annul any order of the Administrative Tribunal before it became effective and in such a case the order of the Tribunal shall have effect only in such modified form or be of no effect. This Court held that it is a basic principle of the rule of law that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but must also be in accordance with law, and the power of judicial review is conferred by the Constitution with a view to ensuring that the law is observed and there is compliance with the requirement of the law on the part of the executive and other authorities. It is through the power of judicial review conferred on an independent institutional authority such as the High Court that the rule of law is maintained and every organ of the State is kept within the limits of the law. If the exercise of the power of judicial review can be set at naught by the State Government by overriding the decision given against it, it would sound the death-knell of the rule of law. The rule of law would be meaningless as it would be open to the State Government to defy the law and yet get away with it The proviso to Clause (5) of Article 371-D was, therefore, violative of the basic structure doctrine. 67. In the matter of Cauvery Water Disputes Tribunal, AIR 1992 SC 522 , on July 27, 1991 the President, under Article 143 of the Constitution referred to this Court three questions for its opinion. 67. In the matter of Cauvery Water Disputes Tribunal, AIR 1992 SC 522 , on July 27, 1991 the President, under Article 143 of the Constitution referred to this Court three questions for its opinion. The reference reads as follows : "Whereas, in exercise of the powers conferred by Section 4 of the Inter-State Water Disputes Act, 1956 (hereinafter referred to as the Act), the Central Government constituted a Water Disputes Tribunal called" the Cauvery Water Disputes Tribunal" (hereinafter called "the Tribunal") by a notification dated 2nd June, 1990, a copy whereof is annexed hereto, for the adjudication of the Water Dispute regarding the Inter-State River Cauvery ; Whereas, on 25th June, 1991, the Tribunal passed an interim Order (hereinafter referred to as "the Order)", a copy whereof is annexed hereto ; Whereas, differences have arisen with regard to certain aspects of the Order ; Whereas on 25th July, 1991, the Governor of Karnataka promulgated the Karnataka Cauvery Basin Irrigation Protection Ordinance, 1991 (hereinafter referred to as "the Ordinance"), a copy whereof is annexed hereto ; Whereas doubts have been expressed with regard to the Constitutional validity of the Ordinance and its provisions ; Whereas, there is likelihood of the constitutional validity of the provisions of the Ordinance, and any action taken thereunder, being challenged in Courts of law involving protracted and avoidable litigation ; Whereas the said differences and doubts have given rise to a public controversy which may lead to undesirable consequences ; And whereas, in view of what is hereinafter stated, it appears to me that the following questions of law have arisen and are of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court of India thereon ; Now, therefore, in exercise of the powers conferred upon me by Clause (1) of Article 143 of the Constitution of India, 1, Ramaswamy Venkataraman, President of India, hereby refer the following question to the Supreme Court of India for consideration and report thereon, namely : (1) Whether the Ordinance and the provisions thereof are in accordance with the provisions of the Constitution ; (2) (i) Whether the Order of the Tribunal constitutes a report and a decision within the meaning of Section 5 (2) of the Act;and (ii) Whether the Order of the Tribunal is required to be published by the Central Government in order to make it effective ; (3) Whether a Water Disputes Tribunal constituted under the Act is competent to grant any interim relief to the parties to the dispute." 68. Hon'ble Mr. Justice P.B. Sawant, speaking on his behalf as well as Mr. Justice Rangnath Misra, Mr. Justice K.N. Singh, Mr. Justice A.M. Ahmadi, Mr. Justice Kuldip Singh observed as under : "The Ordinance is unconstitutional because it affects the jurisdiction of the Tribunal appointed under the Central Act, viz., the Inter-State Water Disputes Act which legislation has been made under Article 262 of the Constitution. As has been pointed out above, while analysing the provisions of the ordinance, its obvious purpose is to nullify the effect of the interim order passed by the Tribunal on 25th June, 1991. The Ordinance makes no secret of the said fact and the written statement filed and the submissions made on behalf of the State of Karnataka show that since according to the State of Karnataka the Tribunal has to power to pass any interim order or grant any interim relief as it has done by the order of 25th June, 1991, the order is without jurisdiction and, therefore, void ab initio. This being so, it is not a decision, according to Karnataka, within the meaning of Section 6 and not binding on it and in order to protect itself against the possible effects of the said order, the Ordinance has been issued. The State of Karnataka has thus arrogated to itself the power to decide unilaterally whether the Tribunal has jurisdiction to pass the interim order or not and whether the order is binding on it or not. Secondly, the State has also presumed that till a final order is passed by the Tribunal, the State has the power to appropriate the waters of the river Cauvery to itself unmindful of and unconcerned with the consequences of such action on the lower riparion States. Karnataka has thus presumed that it has superior rights over the said water and it can deal with them in any manner. In the process, the State of Karnataka has also presumed that the lower riparian States have no equitable rights and it is the sole judge as to the share of the other riparian States said waters. What is further, the State of Karnataka has assumed the role of a judge in its own cause. In the process, the State of Karnataka has also presumed that the lower riparian States have no equitable rights and it is the sole judge as to the share of the other riparian States said waters. What is further, the State of Karnataka has assumed the role of a judge in its own cause. Thus apart from the fact that the ordinance directly nullifies the decision of the Tribunal dated 25th June, 1991, it also challenges the decision dated 26th April, 1991 of this Court which has ruled that the Tribunal had power to consider the question of granting interim relief since it was specifically referred to it. The Ordinance further has an extra-territorial operation inasmuch as it interferes with the equitable rights of Tamil Nadu and Pondicherry to the waters of the Cauvery river. To the decision of this Court and of the Tribunal appointed under the Central legislation, it is clearly unconstitutional being not only in direct conflict with the provisions of Article 262 of the Constitution under which the said enactment is made but being also in conflict with the judicial power of the State." It was further indicated as under : "The principle which emerges from these authorities is that the Legislature can change the basis on which a decision is given by the Court and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter parties and affect their rights and liabilities alone. Such an action the part of the Legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or Tribunal." The effect of the provisions of Section 11 of the present Act, viz., the Inter-State Water Disputes Act read with Article 262 of the Constitution is that the entire judicial power of the State and, therefore, of the courts including that the Supreme Court to adjudicate upon original dispute or complaint with respect to the use, distribution or control of the water of, or in any inter-State river or river valleys has been vested in the Tribunal appointed under Section 4 of the said Act. It is, therefore, not possible to accept the submission that the question of grant of interim relief falls outside the purview of the said provisions and can be agitated under Article 131 of the Constitution. It is, therefore, not possible to accept the submission that the question of grant of interim relief falls outside the purview of the said provisions and can be agitated under Article 131 of the Constitution. Hence any executive order or a legislative enactment of a State which interferes with the adjudicatory process and adjudication by such Tribunal is an interference with the judicial power of the State. In view of the fact that the Ordinance in question seeks directly to nullify the order of the Tribunal passed on 25th June, 1991, it impinges upon the judicial power of the State and, is, therefore, ultra vires the Constitution." It was further indicated : "The Ordinance is also against the basic tenets of the rules of law inasmuch as the State of Karnataka by issuing the Ordinance has sought to take law in its own hand and to be above the law, such an act is an invitation to lawlessness and anarchy, inasmuch as the Ordinance is a manifestation of a desire on the part of the State to be a judge in its own cause and to defy the decisions of the judicial authorities. The action forebodes evil consequences to the federal structure under the Constitution and opens doors for each State to act in the way it desires disregarding not only the rights of the other states, the orders passed by instrumentalities constituted under an Act of Parliament but also the provisions of the Constitution. If the power of a State to issue such an Ordinance is upheld it will lead to the breakdown of the constitutional mechanism and affect the unity and integrity of the nation. (Emphasis mine). 69. It was vehemently argued by M. Lala Ram Gupta appearing on behalf of the State of U. P. that there existed to `lis' against the State of U. P. in the suits filed by the plaintiff's. The State has been arrayed only as a formal party and no relief have been sought against the State of U. P. and its officers. The dispute is confined in between the private parties that is Hindu and Muslims over a private party. The interim orders or the injunctions passed by this Court are operative only against the private parties and the same are not directed against the State. 70. The dispute is confined in between the private parties that is Hindu and Muslims over a private party. The interim orders or the injunctions passed by this Court are operative only against the private parties and the same are not directed against the State. 70. In this regard it has to be examined as to who are the parties and reliefs sought in the suit and whether it has any nexus or `lis' against the State. 71. Sri Gopal Singh Visharad in Regular Suit No. 2 of 1950 has arrayed State of U. P. Deputy Commissioner, Faizabad, Additional City Magistrate, Faizabad and Superintendent of Police, Faizabad as defendant Nos. 6, 7, 8 and 9. He belongs to Ayodhya and belief in the tenet of Sanatan Dharma Valambi and in this regard used to visit Janam Bhumi to worship the idol of Sri Ram Chandra Ji and Charan Paduka without any hindrance. He is entitled to offer such Puja and Darshan even in future. On 14th January, 1950 when he went to offer Puja and Darshan, defendant No. 6 that is the State of U. P. and its officers did not allow him to enter the place where the idol of Sri Ram Chandra Ji was installed. Thereafter it transpired that the State of U. P. and its officers defendants 7 and 8 had put up a ban upon such Puja and Darshan. The cause of action arose to him on 14th January, 1950 when defendants put a restraint upon his religious rights. In the relief clause he has prayed that it may be declared that in accordance with Dharmaniyam and Customs, he is entitled for Puja and Darshan by going near to the idol of Bhagwant Ram Chandra Ji at Janam Bhumi without any restrictions and the defendants 1 to 6 and 7 to 9 and 10 have no right to put up any restriction. It was further prayed that a decree of permanent injunction restraining the defendants 1 to 6, 7 to 9 and 10 be passed from interfering the right of the plaintiff to offer Darshan and Puja near the idol and they also be restrained from closing the door etc. or hurdle in Puja and Darshan. It was further prayed that a decree of permanent injunction restraining the defendants 1 to 6, 7 to 9 and 10 be passed from interfering the right of the plaintiff to offer Darshan and Puja near the idol and they also be restrained from closing the door etc. or hurdle in Puja and Darshan. 71-A. From the above it is evident that the order attaching of the property under Section 145, Cr.P.C. has been challenged and the grievance of the plaintiffs is against the State and its officers, hence it cannot be said that there is no lis against the State in the said suit. 72. Similar is the position in Suit No. 26 of 1959 tiled by Nirmohi Akhara. Plaintiff No. 1 claiming to be the religious establishment of Public Order has asserted that the birth place of Lord Sri Ram Chandra Ji situate at Ayodhya belongs and always belongs to plaintiff No. 1, who through its Mahant and Sarbarakar had been managing it and receiving earnings made there in form of money, sweets, flowers and fruits and other things. The said temple had been in their possession since time in memory but in the year 1950 the City Magistrate, Faizabad defendant No. 4 without any lawful cause and with the connivance of defendants 2, 3 and 5, namely, Deputy Commissioner, Faizabad, Superintendent of Police, Faizabad and under the wrong persuasion of defendants 6 to 8, namely, Haji Phhikkoo, Mohammad Faiq and Mohammad Achhan Miyan who claimed to be the representatives of Muslim Community attached EFGFI1JKLE in the said sketch map with all the articles mentioned in list `A' appended thereto in a proceeding under Section 145, Cr. P.C. and placed the said temple and articles under the charge of Babu Priya Dutt Ram defendant No. 1 the receiver on 5-1-1990. It was further asserted that the proceedings under Section 144, Cr. P.C. were unduly prolonged and lingered with the connivance of all the defendants and since no immediate termination of the same seemed to be inside and since defendant No. 4 the City Magistrate, Faizabad refused in connivance with other defendants to hand over the charge and management of the plaintiffs to the plaintiffs from the hands of receiver the institution of the suit became inevitable. 73. 73. In the relief clause it was prayed that a decree be passed in favour of plaintiff against the defendants for removal of defendant No. 1 from the management and charge of Janam Bhumi and for delivering the same to plaintiff No. 2, namely, Mahant Rameshwar Das Dala, Baba Ishwar Das on behalf of plaintiff' No. 1 Nirmohi Akhara. 74. From the above it is clear that the main grievance of the petitioner is against the State and it cannot be said that there is no lis against the State in the suit. 75. It is pertinent to mention here that the property in question still remains in custodia legis in view of the fact that it is under the control, management, and supervision of a Receiver appointed by the Court. ' Further more the proceedings under Section 145, Cr. P. C. wherein a preliminary order of attachment was passed has not been dropped finally, but final orders should be passed by the Magistrate concerned after the decision of the regular suits. 76. Similar is the position in Regular Suit No. 12 of 1961, in which the State of Li. P., the Collector, Faizabad, the City Magistrate, Faizabad, Superintendent of Police, Faizabad have been arrayed as opposite parties 5 to 8; wherein the main grievance of the petitioner is against the attachment order dated 29-12-1949 passed by the City Magistrate, Faizabad which is alleged to be illegal and fraud with injustices to the plaintiffs having affect of depriving large section of Muslim Community in India. In Paragraph 23 of the plaint it have been averred that the cause of action of the suit against the Hindu Public which according to them unlawful and illegally entered the mosque by placing idols in the mosque and thus causing interference with the rights of the Muslims in general. It was further indicated that the cause of action arose to the plaintiff on 29-12-1949 the date on which the District Magistrate attached the mosque of the suit and handed over possession of the same to defendant No. 9 the Receiver, who assumed charge of the same on January 5, 1950. In the relief clause a decree for possession in their favour was also prayed. The petitioners have also claimed a relief of possession over the said premises by removing the idols kept in it. 77. In the relief clause a decree for possession in their favour was also prayed. The petitioners have also claimed a relief of possession over the said premises by removing the idols kept in it. 77. Thus the main grouse of the plaintiffs of this suit is also against the State of U. P. and its officers. 78. In the IVth suit bearing Suit No. 5 of 1989 filed by Bhagwan Sri Ram Birajman and others through its next friend Sri Deoki Nandan Agarwal; the State of U.P., the Collector and District Faizabad, the City Magistrate, Faizabad, the Senior Superintendent of Police, Faizabad had been arrayed as defendants Nos. 7 to 10. In Paragraph 36 of the plaint it has been averred that the cause of action for the suit had been accruing from day to day particularly after the plans of temple reconstructions were being sought to be obstructed by violent action from the side of certain Muslims. In the relief clause the plaintiff has prayed a grant of decree of declaration that the entire premises of Ram Janam Bhumi at Ayodhya as described in Annexures-I II and III belonged to plaintiff's deities. A decree for perpetual injunction against the defendants prohibiting them from interfering with or raising any objection to or placing any objection in the construction of the new' temple buildings as Sri Ram Janam Bhumi at Ayodhya after demolishing and removing the existing buildings and constructions etc. situate there at, in so far as it may be necessary or expedient to do so for the said purpose. The relief sought for cannot be given to the plaintiffs until and unless it remains in receivership. 79. Here it would be necessary to point out the vacillating, wavering and ever changing stand of the State Government. In all the' suits the plaintiffs asserted their right of worship into the shrine thereby in one way or the other challenging the rights of the State and its officers who had put in an embargo into their religious rights by attaching the property. At-least in two suits filed in the year 1950 the written statements as well as the objections against the grant of injunctions w;ere filed on behalf of State and its officers. From the order sheets of the suit filed by Gopal Singh Visharad beginning from 14-10-1950 to 25-11-1961 the District Government Counsel has put in his appearance. 80. At-least in two suits filed in the year 1950 the written statements as well as the objections against the grant of injunctions w;ere filed on behalf of State and its officers. From the order sheets of the suit filed by Gopal Singh Visharad beginning from 14-10-1950 to 25-11-1961 the District Government Counsel has put in his appearance. 80. On 23-5-1962/28-5-1962 an application was moved by D. G. C. (Civil) in Regular Suit No. 61 filed by Sunni Board of Waqfs stating that the Government was not interested in the property in suit and as such it did not propose to contest the suit. It was mentioned that in the aforesaid circumstances the State and its officers be exempted from costs. It was further averred that defendants 6 to 8 were State Officers and their action in respect of the property in dispute were bona fide and in due discharge of their official duties. It was also stated in the application and that they did not want to contest the plaintiff's application for treating the suit as a representative suit under Order 1, Rule 8, C. P.C. They prayed that the defendants be exempted from costs of the suit. This application was allowed an order proceeding ex parte against the State and its officers was passed. 81. On the basis of the aforesaid averment's, it was contended on behalf of the State Government that the role of State Government was neutral. There existed no lis against the State of U. P. The dispute was confined between the private parties over a private party. The interim orders or injunctions are only operative against the private parties and are not directed against the State. 82. The argument on the face of it appears to be misconceived. It was the State of U. P. and its officers who attached the property in question by means of a preliminary order passed under Section 145, Cr. P. C. On behalf of State of U. P. as well as its officers, written statements were filed in some of the suits. Objections were filed against the application for grant of injunction. The order of injunction was modified at the behest of the District Administration that the idols kept in the Janam Bhumi would not be removed, which order was upheld by the High Court. Objections were filed against the application for grant of injunction. The order of injunction was modified at the behest of the District Administration that the idols kept in the Janam Bhumi would not be removed, which order was upheld by the High Court. It was the State Government which approached this Court to withdraw the cases from various courts of Faizabad and try the same by itself. It was on the application of the State that interim orders were passed and later on clarified that it extends to all the plots in suit including the plot No. 586 but suddenly after June 1, 1991 the stand of the State under went a complete change. The Government identified itself with one community against another. The counsel who was conducting the cases on behalf of one community after becoming the Advocate-General identified the interest of one community with the interest of the State Government. Application for the recall of the orders passed by this Court earlier, were moved when it were rejected special leave petitions were filed in the Supreme Court. After a lapse of about 42 years from the date when the suits which were filed in 1950, the State Government preferred applications for amending its written statements and after a lapse of about 31 years from the date of filing of Regular Suit No. 12 of 1961, application for seeking permission to file written statement were filed. The contents of those applications indicate that the State Government completely identified itself with one community against the interest of another community. 83. In view of the aforesaid situation, it cannot be said that the State Government and its officers are only the formal party in the suits and there is no `lis' between the State or plaintiffs in the suit, means, a suit, cause of action, controversy or dispute. Nobody would deny that there are about four suits, there is definitely cause of action against the State in most of the case. A controversy or dispute exist in which the State is not only a party but certain action of the State has been challenged. Subsequent events that led to demolition of shrine and the masterly inaction of the State Government proved beyond any shadow of doubt, that the State Government was an accomplice of that shameful and dastardly act, which has desecrated the democratic and secular character of Indian Constitution. 84. Subsequent events that led to demolition of shrine and the masterly inaction of the State Government proved beyond any shadow of doubt, that the State Government was an accomplice of that shameful and dastardly act, which has desecrated the democratic and secular character of Indian Constitution. 84. Brother S.C. Mathur, J. while observing that it cannot be laid down as broad proposition of law; that a formal party will never be bound by an interim order inasmuch as invariably a formal party is impleaded, so that the dispute raised in the suit may be finally adjudicated upon and no party may have the opportunity of saying that the adjudication is not binding upon it as it was not a party to the proceeding, thereafter expressed an opinion that the interim order dated 14th August, 1989 is directed against the Muslims and Hindus. The said interim order is not directed against the State. With all aspects to Brother Mathur, J I failed to understand the said reasoning. My judicial conscience does not permit me to agree with the formulations, arrived by Brother S. C. Mathur, J. in this respect. Recent events have proved that reluctance or vacillation's whether it is on the part of the Executive, Legislature and Judiciary results into catastrophe. All the important limbs of the State were misled into believing that the forces of fanaticism would abide by their promises and assurances. The disastrous results of reposing such trust had resulted into a tragedy, which has been attributed to second, after the gruesome and ghastly murder of Mahatma Gandhi. In one of the orders passed in these writ petitions 1 had remarked : - "Seldom an occasion arises when the Court is called upon to adjudicate the vital issues affecting the secular and democratic character of the Nation and when it comes, the Court with firmness, clear perspective and vision must uphold the unity and integrity of the Nation." 85. Mere technicalities of law should never come in the way of the Court to deal with such questions. 86. Assuming for the argument sake that the State Government and its officers are formal parties to the suits even then the interim order passed by the Court would be binding upon the State Government and its officers. 87. Mere technicalities of law should never come in the way of the Court to deal with such questions. 86. Assuming for the argument sake that the State Government and its officers are formal parties to the suits even then the interim order passed by the Court would be binding upon the State Government and its officers. 87. I fully agree with the observation made by Brother Mathur, J. that the petitioners of the writ petition are right in submitting that the entire land covers substantial part of the property in dispute. 88. It is evident from the map of the acquired land prepared by the Government Officials, that the outer portion of the land of the Shrine, which falls within the main boundary of the Shrine has been acquired on all the sides, which were subject-matter of the suits. 89. Besides the above, plot No. 586 where the alleged the `shila-niyas' took place, which according to the State itself is subject-matter of the suit, and the order of maintaining status quo, still subsists over this plot, of well as other plots, mentioned in the suit, have been acquired. It has to be seen as to whether the State Government by acquiring the said portion can nullify the effect of the interim orders or injunctions. 90. In my opinion, in view of the law laid down by Hon'ble Supreme Court the State cannot nullify the effect of the interim orders by acquiring the said portion as it would amount to, destroying the basic structure of the Constitution. 91. The interim orders passed in suits as well as in writ petitions were between the parties and in which the rights and liabilities of the parties were affected. Undoubtedly, the Legislature can change the basis on which a decision is given by the Court and thus changed the Law in General (emphasis mine), which will effect a class of persons and even at large, as observed in Cauvery Waters case (Supra), but it cannot. however, set aside an individual decision between the parties. As observed by Hon'ble Supreme Court such an act on the part of Legislature amounts to exercise the judicial power of the State. 92. It may be submitted that the State Government under its delegated power has only issued a notification, without interfering or infringing upon the power of the Court, which has given a decision. As observed by Hon'ble Supreme Court such an act on the part of Legislature amounts to exercise the judicial power of the State. 92. It may be submitted that the State Government under its delegated power has only issued a notification, without interfering or infringing upon the power of the Court, which has given a decision. Similar was the position in the case of Madan Mohan Pathak (Supra), hence the plea cannot be accepted. 93. Next main question to be determined in these writ petitions is, as to whether impugned notification is against the principle of secularism enshrined in the Preamble of the Constitution and against the social ethos of this Country. 94. The word `Secularism' was added into the Preamble of the Constitution by `The Constitution (Forty-Second Amendment) Act, 1976. Even before the Forty-Second Amendment, principle of Secularism were enshrined in Chapter-Ill of the Constitution, which provides to all the citizen, equality before law and equal protection of the laws, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, equality of opportunity in matters of public employment protection of rights regarding, freedom of speech and expression, to assemble peaceably and without arms, to form association or unions, to move freely throughout the territory of India, to reside and settle in any part of the territory of India, and, to practice any profession, or to carry on any occupation, trade or business, protection of life and personal liberty to all persons, freedom of conscience and free profession, practice and propagation of religion, freedom of to manage religious affairs etc. 95. As it is well known that `Secularism' has been held to be the basic structure of the Constitution, which cannot, even, be changed, altered or abrogated, I do not consider it necessary to increase the bulk of this judgment, by citing various precedents, on this point. 96. Constitution has not defined the meaning of the word `Secularism' often it is misread and misinterpreted and those who strictly adhere, to follow and practice secularism in this Country are labelled as "PSUEDO SECULARISCS". 97. It is needless to mention that where any Legislation or the Statute has not defined the meaning of a word, then it is left to the Courts to define the same. 98. 97. It is needless to mention that where any Legislation or the Statute has not defined the meaning of a word, then it is left to the Courts to define the same. 98. In the case of T. Krishnan v. G. D. M. Committee reported in AIR 1978 Kerala page 68 a Division Bench of Kearala High Court put he following meaning of the word `Secularism' : - There is no mysticism in the secular character of the State. Secularism is neither anti-God nor Pro-God; it treats alike the devout, the agnostic and the atheist. It eliminates God from the matters of the state and ensures that no one shall be discriminated against on the ground of religion. The Constitution makers were conscious of the deep attachment the vast masses of our country had towards religion, the sway it had on their minds and the . significant role it played in their lives. To allay all apprehensions of interference by the Legislature and the executive in matters of religion, the rights mentioned in Articles, 25 to 30 were made a part of the fundamental rights and religious freedom contained in those Articles was guaranteed by the Constitution. 99. In the case of 'School District of Abington Township, Pennsylvania v. Edward Lewis Scheopp, 374 US 203, it has been observed that ; "A State may not establish a religion of secularism' in a sense of affirmatively opposing or showing hostility to religion, thus preferring those who believe in no religion over those, who do believe." 100. The following excerpt from the U. S. Supreme Court Reports apply to this Country as well ; - "This freedom to worship was indispensable in a country whose people came from the four quarters of the earth and brought with them a diversity of religious opinion. Today authorities list 83 separate religious bodies, each with membership exceeding 50,000, existing among our people, as well as innumerable smaller groups." 101. What role the State should play under these circumstances, the Judges observed : - "The Government is neutral, and, while protecting all, it prefers none, and it disparages none." It was further observed under Headnote 4 that - "Almost 20 years ago in Ever-son, (Suprat 330 US at 15, the Court said that neither a State nor the Federal Government can set up a Church. Neither can pass laws which aid one religion, aid all religions, or prefer to one religion over another." 102. Dealing with the First Amendment, which is known as `Establishment Clause', In short the Court held : "that the Amendment requires the State to be a neutral in its relations with groups of religious believers and non-believers ; it does not require the State to be their adversary. The State power is no more to be used so as to handicap religious than it is to favour them." (Id. 330 US 14 and 15). It was further observed ; "The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognise through bitter experience that it is not within the power of Government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality." 103. In the case of Abraham Braunfeld et al, v. Albert N. Brown, Commissioner of Police of the Philadtlphia, Pennsylvania et. a 366 US 599 Mr. Chief Justice WARREN on behalf of himself and with Mr. Justice BLACK, Mr. Justice CLARK, and Mr. Justice WHITTAKER laid down: "If the purpose or effect of a law is to impede the observance of one or all religions or to discriminate invidiously between religious, the law is constitutionally invalid even though the burden may be characterised as being only indirect ; but if the State regulates conduct by enacting, within its power, a general law whose purpose and effect is to advance the State's secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden." 104. In this regard the following extract from the Judgment which has been quoted by the Chief Justice is relevant:- "Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of Government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American People which declared that their Legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof ; thus building a wall of separation between church and State. Adhering to this expression of the Supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, conceived he has no natural right in opposition to his social duties." 105. In the case of United States of America v. Edna W. Ballard and Donald Ballard, 322 US 78-95, it was observed : "The Constitutional guarantee of religious freedom does not select any one group or any one type of religion for preferred treatment, but puts them all in that position." It was further indicated : "The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect." 106. In the light of the aforesaid precedents now it has to be seen as to what was the purpose of acquisition of land in question. 107. It was vehemently argued by Sri Lal Ram Gupta, counsel appearing on behalf of the State of U. P., that the public purpose, for which the land was acquired, has been indicated in the notification, which is "the development of tourism and providing amenities to pilgrims at Ayodhya in District, Faizabad." The petitioners have contended that the real purpose for the acquisition was to encircle the shrine and to destroy it and build a temple over the said shrine as declared by Sri Kalyan Singh, `the then Chief Minister'of the State, who just after swearing in as the Chief Minister of the State declared it in the shrine. Various statements and press-cuttings were annexed to support his contention, which have been dealt by brother S. C. Mathur J. in detail, which need not be repeated. 108. Various statements and press-cuttings were annexed to support his contention, which have been dealt by brother S. C. Mathur J. in detail, which need not be repeated. 108. In Para 26-A of the counter-affidavit filed by the State Government it has been mentioned that number of pilgrims reaching at Ayodhya at Sri Rama Janma Asthan was so large that it was necessary to acquire the land around about the place where he sits and for providing amenities to pilgrims and for the development of tourism. In Para 46-A of the said counter-affidavit, the following has been averred : (A) Previously 55.7444 acres of land around and adjoining to Sri Ram Janam Bhumi was acquired or granted for the purposes of Ram Katha Park. The land of Rama Janam Bhumi was left out. No plan for the development of Ram Katha Park could be completed without Srj Ram Janam Bhumi Asthal being included in it. As Ram Katha Park was designed to be built around Sri Ram Janam Bhumi with this and in this favour the State Government has further acquired under present notification 2.77 acres land of Sri Ram Janam Bhumi Asthal so that the plan can be prepared for the development of this land to provide amenities to pilgrims visiting at Sri Ram Janam Bhumi and to develop at Sri Ram Janam Bhumi, a tourist centre. (B) The plan is now prepared in the present acquisition, in which portion the land of Ram Janam Bhumi will be left vacant for the renovation and re-construction of the temple of Sri Rama Beraj-man Janam Asthan, Ayodhya and its appurtenant facilities and convenience through the agency decided upon by the State Government. 109. A perusal of the counter-affidavit filed on behalf of the State Government in writ petition No. 436 of 1989 in Re : Tulsi Ram and another v. State of U. P. and in writ petition No. 1931/89 in Re : Saveta Devi and others v. State of U. P., extracts of which have been quoted by brother S.C. Mathur, J. shows that real purpose of the acquisition was the construction of a temple over the shrine in question. 110. Now it has to be seen that whether such an exercise can be initiated or carried out or completed by the State Government ? The answer to this question would be an emphatic `No'. 110. Now it has to be seen that whether such an exercise can be initiated or carried out or completed by the State Government ? The answer to this question would be an emphatic `No'. The role of each limb of the State according to the mandate of the Constitution is confined to secular activities. The State has been mandated by the Constitution to play neutral role in the matter of religion. The Constitution has built a wall between religion and the State. Nobody be permitted to scale, cross or break that wall. No Government worth the name, can be permitted to involve itself into a religious activity. The Constitution has guaranteed the right to freedom of religion to all persons and a right to manage religious affairs to every person or denomination subject to the local laws. Every person or religious denomination has a right to build place of worship whether it is temple, Church, Mosque or Gurudwara. But the State cannot be permitted to drain out its fund or machinery for the purposes of construction of a place of worship. If the events which have culminated into the destruction of the Shrine on 6th December, 92 is analysed, in its real perspective then a lesson for the future can be drawn, that the State in no case, should lean in favour of one religious groups against another, but always play a role of neutral empire, a mediator, a conciliator and a referee to keep the warring groups away from each other and if any person or the group crosses the boundaries erected by law, then he should be hauled up and prosecuted. While concurring with Brother S. C. Mathur, J that the real purpose behind the notification was not, which has been indicated, but it was for the collateral purpose i. e. to build a temple over the land acquired, although that purpose was camouflaged and couched into a language, which was not the real purpose of acquisition, - I may add further that the impugned notifications were against the principle of Democracy and Secularism enshrined in the Constitution of India, which are basic structure of the Constitution and the purpose of the impugned notification were to destroy the secular fabric of the Constitution and to lay down the edifice of a theocratic State. 111. 111. Except Nirmohi Akhara, the plaintiff's of suit No. 12 of 1961 who are also defendants in other suits, have asserted that the Shrine is mosque, the land around it on three sides that is East, North and South, following within the outer boundary wall, except, the `Shri Ram Janam Asthan Chabuttra, is an adjunct or part of the mosque and had been used as such till 1949 and the land on all the four side of the mosque has been a graveyard. The plaintiff of the suits, except the plaintiff of suit No. 12 of 1961) and the defendants in Reg. suit No. 12 of 1961, have claimed that the Shrine in question is Sri Ram Janam Sthan, land around it which fall within the outer boundary wall has been in their possession, since the time immemorial, and an idol and Charan Paduka, or a temple existed there. Beside the above there exist `Sita Rasoi Ghar' towards North side of the shrine. 112. While this contentious issue, under litigation in various suits, was being adjudicated upon by the Special Bench, the State Government by issuing the impugned notification embarked upon itself the right to adjudicate the controversy involved in the suit. The underlined portion of Paras 26-A and 46 of the counter-affidavit and certain averments made in the counter-affidavits filed on behalf of the State Government in the writ petitions filed by Tulsi Ram and Savitri Devi and the trust deed executed by the State Government in favour of Trust mostly comprised of the leaders, belonging to Vishwa Hindu Parishad (which have been referred to by Brother Mathur, J,) shows that even before the decision of this contentious issue by the Court, the State Government declared the land acquired as Ram Janam Bhumi Asthal, knowingly fully well that a dispute regarding the land around the shrine still persisted before the Court. The State Government did not conceal its design to re-construct a temple or renovate a temple over a portion of the land which has been reserved for the said purpose. By doing so, the State Government exposed itself before the civilised people of this Country and the World, that they have no faith in principles of Democracy, Secularism and the principles of `Rule of Law', which are the basic structure of the Constitution. 113. By doing so, the State Government exposed itself before the civilised people of this Country and the World, that they have no faith in principles of Democracy, Secularism and the principles of `Rule of Law', which are the basic structure of the Constitution. 113. In the present case the order passed by this Court almost remain unnoticed and the notifications were issued in violation of the interim orders passed by this Court. The notifications have been issued in order to destroy and make ineffective the interim orders passed by this Court directing to the parties to maintain status quo. Hence, the notifications by means of which the disputed land was acquired cannot be sustained. 114. Mr. Lala Ram Gupta appearing on behalf of the State Government has carved out a novel argument by contending that the then BJP Government came to power on the specific mandate of the people to construct a Ram Mandir at `Ayodhya'. The construction of a Mandir on the acquired land is a relatable purpose with the purpose mentioned in the Notification. The will and mandate of the people is supreme and cannot be subjected to judicial scrutiny. This argument short falls for two reasons firstly on the ground that it is not the vote, will or mandate of the people which are reflected in the elections which is supreme or paramount. It is the Constitution which reflects the mandate of the people. Secondly, the party headed by Prime Minister Mr. Narsimha Rao at Centre, canvassed in its manifesto that while the mosque would remain at its place a Ram Mandir would be constructed, Whether such a mandate should be followed or not, may be a matter for academic debate, but the question as to whether a State Government elected on the basis of certain promises, which are against the Constitution of India, can implement that mandate which is contrary to the mandate of the Constitution. This question was effectively answered by Mr. Justice Jackson for the Court in West Virginia State Board of Education v. Barnette, 219 US 624, 638, 87 L. ed. 1628, 1638 : 63 SC 1178 : 147 AIR 674 (1943):- "The very purpose of the Bill of right was to withdraw certain subjects vicissitudes to political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the Courts. 1628, 1638 : 63 SC 1178 : 147 AIR 674 (1943):- "The very purpose of the Bill of right was to withdraw certain subjects vicissitudes to political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the Courts. One's right, .freedom of worship, .and other fundamental; may not be submitted to vote rights they depend on the out come of no elections. In 374 US (Head Note-16)-203 (226) it was further indicated : - "Finally, we cannot accepted that the concept of neutrality, which does not permit a State to require a religious exercise even with the consent of the majority of those affected collides with the majorities right to free exercise of religion." "While the free exercise clause clearly prohibits the use of State action to deny the right of free exercise to any one, it has never meant that a majority could use the machinery of State to practice its beliefs." The worth of electoral promises made during the ejections Lord Denning M R. in his Inimitable style, in the case of Bromlay London Borough Council v. Greater London Council, (1982) 1 All English Report 129 at 135, dealt with every legislator, Parliamentarian and Politician should keep in mind "A manifesto issued by the party in order to get votes is not to be taken as gospel. It is not to be regarded as a bond, signed sealed and delivered. It may contain and often does contain promises or proposals, that are quite unworkable or impossible of attainment. Very few of the electorates read the manifesto in full. A goodly number only know, from it from what they read in the newspaper or heard on television. Many know- nothing whatever of it contents. When they come to the polling booth none of them vote for the manifesto. Certainly not for every promise or proposal in it. Some may be influenced by one proposal, others by another many or not influenced by it at all. They vote for a party and not'for a manifesto. I have no doubt that in this case many tax players voted for the labour party, even though, on this, one item alone. It was against their interest. And vice versa. Some may be influenced by one proposal, others by another many or not influenced by it at all. They vote for a party and not'for a manifesto. I have no doubt that in this case many tax players voted for the labour party, even though, on this, one item alone. It was against their interest. And vice versa. It seems to me that no party can or should claim a mandate and commitment for anyone item in a long manifesto. When the party gets into power it should consider any proposal or promise afresh on its merits without any feeling of being applied to honour it or being committed to it. It should then consider, what is the best to do in the circumstances of the case and to do it, if it is practicable and fair". 115. More or less, similar views were expressed in AIR 1971 SC 30 (Paragraph 271:- "Breach of any of the Constitutional provisions even if made, to further a popular cause is bound to be a dangerous precedent." 116. Whether a party elected on a manifesto, to annul the democratic secular republic can be permitted to scuttle the Constitution, if it comes to power. The answer would be emphatic `NO'. In this regard I am fortified by the observations made in paragraph 1437 at page 1859 in the case of His Holiness Kesavananda Bharti v. State of Kerala, (supra), which need not requires repetition. Even the Parliament has no power to abrogate or annul the basic structure of the Constitution, meaning thereby that words `secularism' and democracy appearing in the preamble of the Constitution cannot be amended or abrogated. 117. During the course of freedom struggle Nationalism swept the entire country and the people of India under the leadership of Mahatma Gandhi liberated the Country from the yoke of British Imperialism, but Nationalism was later on distorted by the forces of religious dogmatism and sectarianising, as a result of which the great Mahatma ; `Hey Ram' on his lips was felled by a chauvinist. `Chauvinism' and `aggressive nationalism' which has nothing in common with true nationalism, corresponds to `Fascism'. It breeds extravagant attachment to one race or religion and contempt and hatred for the other race or religion. After being defeated in 1945 such forces have not been routed completely. `Chauvinism' and `aggressive nationalism' which has nothing in common with true nationalism, corresponds to `Fascism'. It breeds extravagant attachment to one race or religion and contempt and hatred for the other race or religion. After being defeated in 1945 such forces have not been routed completely. They have again risen up to spread the venam of hatred and violence, not only in Germany but in several parts of the World including this sub-continent. Rise of Sinhala and Tamil chauviaism in Ceylon has engulfed the entire Nation into chaos and War. Countries on the west and northern can be cited as other examples where ethnic, rational and linguistic disputes have resulted into bloody clashes, due to rise of religious fanaticism `Religious begotism' has reached to such an extent that non-believers (according to them) including `Ahmadias' and `Bahai's besides Hindus and Christians have been directed to carry an identity card showing their religion to single them out from the national main stream. After the fall of USSR, forces of fundamentalism are rising their heads in some of the central Asian newly formed States. Whether this Country, which imbibed democracy and secularism since the beginning can allow such forces to rise their heads in India ; this is for the Parliament and Politicians of this Country to decide. As for as the Judges are concerned, while dispensing justice, instead of any divine book, they keep only one book at their table and that is the `Constitution of India', which is most sacred for all who swear by it before they are called upon to dispense justice. The theory propounded by Mr. Lala Ram Gupta is brought with dangerous and disastrous consequences and the same is in derogation to the mandate of the Constitution. 118. I fully concur with the conclusions of Brother S. C. Mathur, J. that the impugned Notifications are vitiated by non-application of mind also for the following reasons : - (a) By means of the impugned Notifications the outer portion of the Shrine falling within the main boundary of the Shrine has. been acquired. Whether the State Government before acquiring the same has applied its mind that it is adjunct to or part of the `mosque' as claimed by the petitioners. (b) Whether the State Government has applied its mind to the judgment passed in Regular Suit no. been acquired. Whether the State Government before acquiring the same has applied its mind that it is adjunct to or part of the `mosque' as claimed by the petitioners. (b) Whether the State Government has applied its mind to the judgment passed in Regular Suit no. 61/280 of the 1985 filed by Mahant Raghubar Das, as well as the map prepared by the Commissioner in that case. (c) Whether the State Government before acquiring the land in question has applied its mind over the report of the Commissioner dated 3rd August, 1950 flied in Regular Suit No. 2 of If 1949 of Gopal Singh Visharad. (d) Whether before issuing a Notification, the Government of Uttar Pradesh has applied its mind over the entries made in the revenue records relied upon by the petitioners and the admissions made by some of the plaintiffs in all the three suits, which according to the petitioners show that on all sides of the outer boundary of the Shrine their existed graveyard including "Ganje Shahidan" just after the main gate of the Shrine on the eastern side. (e) Whether the State Government has applied its mind over the letters written by Sri K.K.K. Nair the then District Magistrate at Faizabad in the 3rd and 4th week of December, 1949, the F.I.R. dated 23rd December, 1949, the written statements filed at-least in two Regular Suits filed before issuing the Notifications. The State cannot be permitted to say that the aforesaid documents were not available because some of the documents were the records of the State Government and some of the documents were filed in the cases in which the State and its officers were parties. (f) Whether the State Government before acquiring the land in question applied its mind towards the claim of the plaintiffs of suit No. 12 of 1961 that the land falling within the outer boundary wall of the Shrine is adjunct and part of the alleged mosque. (g) Whether the State Government had applied its mind towards the claim of the petitioners, also plaintiff of Regular Suit No. 12 of 1961 that the land falling within the outer boundary wall of the Shrine in question and the land around it, which has been acquired is in inseparably connected with religious practice. (g) Whether the State Government had applied its mind towards the claim of the petitioners, also plaintiff of Regular Suit No. 12 of 1961 that the land falling within the outer boundary wall of the Shrine in question and the land around it, which has been acquired is in inseparably connected with religious practice. (h) Whether the State Government had applied its mind before acquiring the land, that the acquired land|was the subject-matter of the litigation and the parties including the State of U. P. were directed to maintain status quo. (i) Whether the State Government before issuing a Notification has applied its mind towards this aspect of the matter that the acquisition would give unfair advantage to a party to litigation over the other, meaning thereby that it would give unfair advantage to one religious group over the other. (j) Whether the State Government before issuing the aforesaid notifications applied its mind that 55.6744 acres of the land adjoining the land in question was acquired earlier for the same purpose and whether that land was not sufficient for providing amenities to the tourists and pilgrims visiting Ayodhya. (k) Whether the State Government applied its mind before issuing the impugned notifications that acquisition of the land encircling the Shrine all around and even blocking one gate of the Shrine would ultimately result into discrimination to a particular religious group, which ultimately would result in the destruction of the Shrine itself. (1) Whether the State Government addressed itself and applied its mind that over the plots in question which have been acquired, there existed several temples, (which were demolished after the acquisition against which several writ petitions were tiled). 119. The provisions of paragraphs 411 to 415 of the `Manual of Orders of the Government of Uttar Pradesh in the Revenue Department' Volume 1, which contains several Government Orders have been referred, which provides certain guidelines to avoid the places of religious practice like graveyards and tombs etc., which are reproduced hereunder : - "411. (1) A Collector is frequently requested to assist departmental and other officers in the selection and demarcation of sites for the erection of buildings, or to advise in the selection of an alignment for a railway, canal or similar work. (1) A Collector is frequently requested to assist departmental and other officers in the selection and demarcation of sites for the erection of buildings, or to advise in the selection of an alignment for a railway, canal or similar work. Such assistance or advice should be freely given and any material objections should be ascertained and recorded, with alternative suggestions, at the earliest possible may be no obstruction after it has been commenced. Even if not called upon directly, it is still the Collector's duty to represent material objections to any proposed site or alignment when they come to his knowledge (2) When land is selected for acquisition every endeavour should be made to avoid religious buildings or tombs if this can be done by a slight alteration of the alignment or site chosen. (emphasis mine) (3) In the case of extensive railway, canal or other projects, the Collector will be furnished with a sketch map of the land the acquisition of which is contemplated (vide paragraph 418,500 and 559). If such a map be not furnished, the Collector should, before proceeding to prepare an estimate or taking any action towards acquisition of land, ask to be supplied with such a map. On its receipt the Collector will submit it to the Commissioner with a report as to whether the project is open the objection by reason of unnecessary interference with public roads and lines of drainage, or on other public grounds. The Commissioner will consider such objections, if any and where necessary make further enquiries. If he finds that there is valid ground for objection and the matter cannot be settled in direct correspondence with the department concerned he will report to the Government. If he is satisfied that no valid objection exists he will report to the Government. If he is satisfied that no valid objection exists he will sign the land plans in token of his approval and return to Collector. Where areas to be acquired are isolated plots the Collector after satisfying himself that there is no objection to the acquisition will himself sign the land plans in token of his approval. The countersigned land plans will then be returned to the department concerned. Where areas to be acquired are isolated plots the Collector after satisfying himself that there is no objection to the acquisition will himself sign the land plans in token of his approval. The countersigned land plans will then be returned to the department concerned. 411-A. In all cases where it is proposed to acquire land under actual cultivation the Collector should ask for a map showing areas as banjar or uncultivated land lying within a radius of half a mile of the site proposed to be acquired. The Collector should then consider and record whether it is reasonable to acquire the land under cultivation in preference to the banjar or uncultivated land available in the vicinity. 412. Before an application for the acquisition of land for public purposes is submitted to Government - (1) the necessity for the appropriation must be clearly established, and an estimate made of the compensation to be paid and of the revenue to be reduced, Note. - When land is required for the erection of buildings by the Public Works Department prior to final sanction being accorded to the building estimate, its cost should be covered by a special estimate prepared by the Executive Engineer, with District Officer's help, and administratively approved by the head of the department concerned and finally sanctioned by the Executive Engineer. Such land estimates, however, in connection with building works likely to cost more than Rs. 5,000 can only be funded through the annual demand schedules, or in pressing cases, by means of supplementary estimates. (2) it must be shown that formal acquisition under the Act is considered preferable to purchase by private contract, or that the latter course is impracticable. Note. - (i) It should be borne in mind that an indefeasible title is secured by proceeding under the Act, and that the procedure therein provided seems in most cases calculated to save Government from the risk of paying more than the true market value plus the addition of 15 per cent as directed in Section 23 (2) for the land. - (i) It should be borne in mind that an indefeasible title is secured by proceeding under the Act, and that the procedure therein provided seems in most cases calculated to save Government from the risk of paying more than the true market value plus the addition of 15 per cent as directed in Section 23 (2) for the land. It may, however, occur, especially in localities where the tenure of land is of a simple character, that there is no risk in respect of title in securing land by private bargain, that the price which would have to be paid in this way would be less than that likely to be awarded under the Act, and that more speedy acquisition of the land would thus be secured. (ii) Where easements are found to exist, purchases by private contract should not ordinarily be accepted. Enquiry should, thereof, invariably be made into the existence of easements, and the result of the enquiry reported in the application for acquisition. (emphasis mine) 413. To enable the departmental officer concerned to comply with the first of the requirements stated in paragraph 412, the Collector may be called upon to frame estimates of the cost of acquiring the necessary land, and of the consequent reduction (if any) in the land revenue demand. In framing such estimates for small areas, a rough computation should be made of the probable total amount of the award admissible in accordance with the directions contained in Chapter XV, and of the amount of land revenue payable on the land in question. The maps furnished under paragraph 418 should form the basis of the estimate. For larger projects preliminary estimates cannot be framed in as great detail and the Collector must be guided by the instructions laid down in Chapter XVI. Particular attention is invited to paragraph 503 in which the importance of avoiding under estimates in the preliminary stages is insisted on. In all preliminary estimates 15 per cent should be added to the estimated market value as directed in Section 23 (2). 414. It is necessary in every case of intended acquisition to publish in the official Gazette a notification (in Form I) under Section 4 stating that the land is needed or is likely to be needed for a public purpose. 414. It is necessary in every case of intended acquisition to publish in the official Gazette a notification (in Form I) under Section 4 stating that the land is needed or is likely to be needed for a public purpose. Every proposal for the acquisition of land for a public purpose or for a company should, therefore, be accompanied by a draft notification specifying the purpose for which the land is required, the name of the district, paragana and village and (approximately) the area required. It should also be accompanied by a statement giving full particulars of any religious buildings, tombs and graveyards on the land. It should at the same time be explained whether, in the event of acquisition the demolition of the buildings or obliteration of the tombs will be necessary. (A note dealing with the nature of, and weight to be attached to, objections which are likely to be raised by persons directly or indirectly interested or by any section of the public, should also be prepared by, or in consultation with, the Collector and submitted confidentially, through the Commissioner to the Government. If no such objections are likely to be raised, the note should say so. (emphasis mine) 415. After publication in the official Gazette of a notification under Section 4, stating that land is, or is likely to be, needed for any public purpose in any district, the Collector is required to take measures for informing the residents in the locality that such land may be required for that purpose. To this end, a notice in Form I-A (R. D. Form No. 169) should be posted at Convenient places in the locality, e.g. in a town at the police station, and in a village at the Chaupal, and should also be published by proclamation in the neighbourhood of the land. The notice should also be served so far as possible on every person who is known or believed to be interested in the land proposed to be acquired." 120. Although the aforesaid orders lay down a general policy or guidelines, but it was incumbent upon the State Government to have addressed' itself to that aspect while applying its mind to acquire the land in question. But the same do not appear to have been done. Although the aforesaid orders lay down a general policy or guidelines, but it was incumbent upon the State Government to have addressed' itself to that aspect while applying its mind to acquire the land in question. But the same do not appear to have been done. Inspite of an application preferred by the petitioners to produce the relevant record pertaining to the acquisition in questions, the learned Standing Counsel failed to produce the record before this Court to show as that before acquiring the land in question, the State Government has addressed itself to the aforementioned aspect of the matter. As the record was not produced an adverse inference may be drawn against the State Government. 121. A perusal of the counter does not indicate that the State Government has ever applied its mind over the issues involved in these writ petitions. The impugned notifications cannot be sustained due to non-application of mind by the State Government. 122. In view of the fact Brother S. C. Mathur, J. for cogent reasons has held that the impugned notifications are hit by Articles 14 and 15 of the Constitution of India and the impugned notifications have been issued for collateral purposes, in order to give advantage to one religious group under litigation against the other and was actuated by mala fides and the same were issued extraneous to the purpose for which the power was vested and the petitioners have locus standi to file the present writ petitions, I need not stroll into the field which has been covered by S.C. Mathur, J. 123. The question as to whether the structure in question and the land around it within the outer boundary wall in a mosque or it is a Ram Janam Asthal or Ram Janam Chabutra or whether the land all around the boundary wall which has been acquired is a muslim graveyard or not or it has ceased to be so after lapse of considerable time or whether the acquired land or any portion thereof is a place of worship for the Muslims or Bairagis or a place connected for the purpose to perform religious practices by them under Article 25 and 26 of the Constitution of India or not are subject-matter of the suit. 124. 124. Regarding applicability of Articles 25 and 26 of the Constitution, the aforesaid observations were made when draft judgment prepared by Brother Mathur, J. was before me. It appears that later on Brother S. C. Mathur, J. revised his draft, hence it is necessary for me to say a few words about the same. 125. According to the petitioners, except Nirmohi Akhara the graveyard and the mosque is inseparably attached to the religious practice of the Muslims. In Kabristan the burial of dead take place according to the religious practices Before the burial, Namaz-e-Janaza `burial prayer' is performed. Thereafter Muslims offer Fateha on the graves. It has been pointed out on the basis of certain authorities on Muslim Law that Burial, Fateha and Namaz-e-Janaza are the religious practices, which are traced from the practice of Prophet as `Sunna'. 126. The petitioners of writ petition No. 3541/M B/91 in Re : Punch Ramanand Ji Nirmohi Akhara v. State of U. P.. contended that the land acquired also includes Ram Janam Asthal i. e. Chabootra,, upon which Charan Paduka and an idol exist. Besides the above, the place where Sita Rasoi exists also has been acquired. The viragoes have, since the time immemorial, been, offering Darshan and Pooja over the said place. The practice of Darshan and Pooja and Offering etc. are inseparably attached to the religious practice of viragoes. 127. In the case reported in AIR 1954 SC 282 and AIR 1954 SC 380, it was laid down that there is distinction between the land and property for secular and general use and the land and property inseparably attached to religious practice. This distinction is obvious available in AIR 1934 SC 1055. This distinction is also available in the language of Article 25 of the Constitution itself, which makes a difference between the secular activities connected with the religious practice and religious practice itself. This distinction has further been clarified in AIR 1962 SC 853 . In another case, the land on which Samadhi existed were left out by Hon Supreme Court from acquisition. ( AIR 1984 SC 1767 ). The another case in that regard that is reported in AIR 1981 SC 1576 , which is also relevant. 128. It cannot be laid down that religious parctice itself, can be controlled or denied by acquisition or religious practice can be abridged. ( AIR 1984 SC 1767 ). The another case in that regard that is reported in AIR 1981 SC 1576 , which is also relevant. 128. It cannot be laid down that religious parctice itself, can be controlled or denied by acquisition or religious practice can be abridged. In AIR 1962 SC 853 and AIR 1954 SC 282 , their Lordship of Hon. Supreme Court have clarified that the religious practice has to be taken and accepted according to the tenets of that religion. The language of Articles 25 and 26 clearly indicated that secular practice connected with the religious practice can be regulated or controlled by the State, but the religious practice cannot be destroyed. 129. On the question of right of denomination, it was asserted by Mr. Lala Ram Gupta, the counsel appearing on behalf of the State of U P. that the Muslim cannot be deemed to be denomination. In the case of Aziz Badshah v. Union of India, reported in 1968 SC page 662 Hon' ble Supreme Court held that the Muslims constitute a denomination. Religious denomination has further been dealt with in the case reported in AIR 1978 Kerala Full Bench, page-68 as well as in AIR 1962 SC 853 . The case of Aziz Badshah was in relation to Aligarh Muslim University and in that case it has been held that Muslim community as a whole is a denomination. It was further asserted by Mr. Lala Ram Gupta, that graveyard cannot be termed to be an Institution. In AIR 1969 SC 653 Hon'ble Supreme Court held that a tank was held to be an Institution. In AIR 1940 Privy Council `Masjid'.............has also been held to be an Institution. In AIR 1938 Privy Council page 202, a `Takia' that is graveyard has been held to be an Institution. Moreover the right essentially belongs to them and religious denomination under Articles 25 and 26 of the Constitution and the institution is the structural or operational instrument of that denomination. Institution cannot be separated from the denomination, if it is attached to the religious practice of a particular community. 130. The right to acquire the property by the State is a part of eminent domain and it constitutes sovereign powers of the State. But it can not be said that it is above the Constitution. Every powers of the State is subject to the Constitution. 130. The right to acquire the property by the State is a part of eminent domain and it constitutes sovereign powers of the State. But it can not be said that it is above the Constitution. Every powers of the State is subject to the Constitution. The power of the State to acquire the land is also subject to the Fundamental rights enshrined in Part III of the Constitution. This question has been elaborately dealt with by Hon'ble Supreme Court in Privy Purses Cases, AIR 1971 SC 530 paras 270 to 276. It has been held by Hon'ble Supreme Court that the Constitution of India only recognises three type of powers, Legislative, Executive and Judicial and no other. From this it follows that the power of eminent domain, the sovereign powers or police powers all are misnomers. Hon'ble Supreme Court has clarified that the political sovereignty rest in the people of India and the legal sovereignty rests with the Constitution. Thus, nothing is above the Constitution and there are no powers whether Sovereign or eminent domain beyond the scope of the Constitution. 131. In this view of matter, the argument of learned counsel for the State Mr. Lala Ram Gupta, are wholly misplaced. Neither the powers can be exercised by any wing of the State in any of the three heads beyond the scope of the Constitution, nor these powers can be exercised in derogation to the objects and policy of the Constitution. Police and Preamble of the Constitution has been explained by Hon'ble Supreme Court in the case reported in AIR 1973 SC 1451 and AIR I'.81 SC 271. Along-with this, the basic structure has been further defined in Indira Gandhi's case reported in AIR 1975 Supreme Court 2299, wherein the question of separation of judiciary and executive has also been explained. It has been laid down that even the Parliament in the exercise of the law making powers, cannot travel beyond the frame-work of the distribution of powers, which is the part of the basic structure of the Constitution. 132. It has been laid down that even the Parliament in the exercise of the law making powers, cannot travel beyond the frame-work of the distribution of powers, which is the part of the basic structure of the Constitution. 132. In view of the above 1 find myself unable to concur with the view' of Brother S. C. Mathur, J to the extent that Articles 25 and 26 of the Constitution do not take away the right of the State to acquired the place of worship and endowed property for public purposes in accordance with the provisions of Land Acquisition Act. 1 also do not concur with Brother Mathur, J. on the question that power of eminent domain is Sovereign powers of the State, it is absolute and in-derogation of the provisions contained in Articles 25 and 26 of the Constitution. The State has the power to acquire religious place of worship of any denomination or the Institution. It has been rightly observed by Hon'ble Vivim J, In AIR 1954 SC 119 that it is wrong to assume that these powers are inherent in the State in India and then to see how for the Constitution regulates and fits with them. Undoubtedly, the State has been vested with the powers to acquire the land, but it is subject to the Part III of the Constitution. 133. Relying on the law laid down by Hon'ble Supreme Court in the case of Syed Mohd. Sailie Labbai by L. Rs. and others v. Mohammad Hanifa (dead) by LRs. and others, AIR 1976 SC SC 1569. Learned counsel for the petitioners submitted that adjunct to the mosque which are also used for religious purposes become as much a part of the mosque as itself and the burial ground mentioned as a public graveyard, either in revenue or historical paper that would be the conclusive proof to show the public character of the graveyard and the same cannot be subjected to alienation or transfer. On the basis of the aforesaid precedent Mr. On the basis of the aforesaid precedent Mr. A. Mannan submitted that where the disputed questions of facts ; involve the fundamental rights of citizens, this Court under Article 226 of the Constitution can hold an inquiry to determine that question as well particularly when there exists admissions on the part of the State that the disputed structure and the land around it, is adjunct to the mosque, and all around the said disputed structure there are graves even according to revenue records. Placing reliance, on the cases AIR 1947 SC 295 ; AIR 1965 SC 1303 and AIR 1984 SC 903 Mr. A. Mannan contended that the Court can go to determine that question. 134. No doubt, this Court even in exercise of the jurisdiction under Article 226 of the Constitution of India has a power to adjudicate upon certain questions of fact, in certain circumstances, but taking in view that the Reg. Suits for title are pending, which are ripe for hearing I agree with Brother S. C. Mathur, J. that it would not be proper for this Court to adjudicate such contentious issues in these writ petitions. 135. The observations of Brother S. C. Mathur, J. with regard to alleged admissions made by Sri K. K. K. Nair in his letters addressed to Sri Bhagwan Sahai the then Chief Secretary of the State Government, could have been looked into at the stage of the trial of the case, no finding whether the alleged admissions amount to an admission need not be given in these writ petitions because it would prejudice the case of the parties in the suit. To that extent do not concur with the observations of Brother S. C. Mathur, J. in that regard. 136. I also do not agree with the observations of Brother S. C. Mathur, J. that in secular Country like ours private land can be acquired for construction of a temple as construction of a temple is a public purpose. Certainly the State Government has a power to provide amenities and facilities to the tourists and pilgrims of religious places by constructing roads providing facilities for hygiene and health as well as shelter i.e. guest houses and hotels etc. Certainly the State Government has a power to provide amenities and facilities to the tourists and pilgrims of religious places by constructing roads providing facilities for hygiene and health as well as shelter i.e. guest houses and hotels etc. and providing security to the religious places of worship and the persons visiting such places etc., but acquisition of land for purposes of construction of a place of worship in my opinion, amounts to a religious activity which can certainly be carried out by any person religious group or denomination by acquiring or purchasing land either from private individuals or from the Nazul Department of the State Government, but the State Government itself cannot invoke the provisions of Land Acquisition Act by acquiring a land for purposes of construction of a religious place of worship. 137. I fully agree with Brother S. C. Mathur, J. that Section 52 of Transfer of Property Act hits only a voluntary inter vivos transfer. It does not embrace in exercise of statutory power and an exercise of such power does not require acquisition, but I find himself unable to concur with him that there is no `lis' between the plaintiffs of the suit and State, although the State and some of his officers have been impleaded as defendants. This aspect of the matter has already been dealt with, in the judgment, which do not require any further elucidation. 138. In of the fact that I have already held that the impugned Notifications are not sustainable on the grounds mentioned in the judgment, I do not consider it necessary to express my opinion on the question of vires of the Act, selection of site, availability of other land, urgency and dispensing with the enquiry etc. 139. Before concluding I cannot resist myself by saying few more words. 140. India has sprouted a remarkable unfolding of a composite culture as the fruit of over a thousand year of Hindu and Muslim encounter and co-existence of religion and faith. There are countless symbols, ritual, shrines and epics, underlying wonderful symbols of unity, defying all philistinism. The venom of the so-called two nation theory led to the partition of our motherland. Let not, the hangover of the same pernicious theory, lead to the desecration of the integrity of the Country and its Constitution. 141. There are countless symbols, ritual, shrines and epics, underlying wonderful symbols of unity, defying all philistinism. The venom of the so-called two nation theory led to the partition of our motherland. Let not, the hangover of the same pernicious theory, lead to the desecration of the integrity of the Country and its Constitution. 141. With the 21st Century, round the corner, India should prepare and gear itself to face the new challenges. A reckless and adventure on 6th December, 1992, had left indelible scar on the democratic and secular character of India that can be wiped of, by a relentless united effort, to heal the wounds, already inflicted, by uniting the people on secular lines. Mahatma Gandhi, who sacrificed his life for Hindu Muslim unity evolved a sythesis i. e. "Ram and Rahim are one name". Let the shrine Ram and Rahim co-exist side by side. 142. To sum up I quote Guru Dev : - "Where the mind is without fear and the head is held high where knowledge is free ; Where the world has not been broken up into fragments by narrow domestic walls ; Where words come out from the depth of truth ; Where tireless striving stretches its arms towards perfection ; Where the clear stream of reason has not Lost its way into the deary deserts sand of dead habit ; Where the mind is led forward by the into ever-widening thought and action - Into that heaven of freedom, my Father, let my country awake. (Rabindranath Tagore) 143. The writ petitions deserve to be allowed and the impugned Notification, which are illegal, void and non est deserve to be quashed. Final Opinion S. C. Mathur, Brijesh Kumar and S. H. A. Raza, JJ. - For the reasons recorded in our respective opinions we allow the writ petitions with costs and quash the impugned notifications dated 7th October, 1991 and 10th October, 1991.