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The patent illegality of VHP’s demand for Ayodhya land - i
By Syed Shahabuddin

By differentiating between the disputed area and the adjacent undisputed area, the Supreme Court binds the Central Government to respect the judicial verdict on the question of title and to hand over the disputed area including the disputed site only to the winner

Through boisterous campaign and media hype the VHP has been pressing the Central Government to concede its demand for transfer of ‘undisputed land’, which is part of the area in Ayodhya acquired by the Government in January, 1993.

While upholding the constitutional validity of the Acquisition of Certain Areas at Ayodhya Act, 1993, (Act 33 of 1993), in its judgement of October, 1994, the Supreme Court struck down Section 4(3) which provided for abatement of all legal proceedings relating to the disputed area and thus revived the consolidated title suit which was and is being heard by the Special Bench of the Allahabad High Court. It also placed an embargo on the transfer of any part of the acquired land, disputed or undisputed, for the sake of ‘proper management’, until the title to the disputed land was decided.

In successive statements the VHP has been raising its original demand of 2.77 acres (acquired and then said to have been leased to it by the Government of UP) to 47 acres and now all the acquired land 67 acres, minus only the disputed site i.e. the plinth of the Babari Masjid, measuring 80’ x 40’. One is grateful to the VHP for acknowledging the disputed character at least of this small area – the essential Masjid – but it ignores the disputed area, the land consisting of 22-23 revenue plots which has been in dispute and was the subject of the title suit, measuring roughly 6-7 acres in area, lying largely to the immediate east and south of the Babari Masjid. The Shilanyas was performed in 1989, at the distance of about 120’ from the main gate of the Babari Masjid, but its site lay within one of the disputed plots. No. 586. The Supreme Court judgement does not enumerate the plots which constitute the disputed area or the adjacent undisputed area but since all legal proceedings (‘any suit, appeal or other proceeding in respect of right, title and interest relating to any property, pending before any court, tribunal or other authority’) which had abated under the Act, stand revived, there can be no abridgement of the scope of the pending title suit. In fact the Conclusion of the Supreme Court Judgement (para 3) defines the ‘disputed area’ as that ‘within which the structure (including the premises of the inner and outer courtyard of such structure) stood’, without specifying any outer limits.

The VHP is pushing its demand through mass agitation and mobilization of sadhus and sants and basing its claim on selective quotations torn out of context from the Act and the Supreme Court Judgement. But a reading of the Act and the Judgement, as a whole, will convince anyone that no transfer of undisputed land (though the Central Government, has the power to do so under the Act but only at the appropriate time) can be made until the object and purpose of the acquisition as given in the Act is achieved. Any transfer at this stage, when the title to the disputed land is yet to be decided and consequently, the master plan for the acquired area is yet to be drawn, would be pre-mature and against the letter and spirit of the Act and of the Judgement.

The Statement of Objects and Reasons of the Act states that in order “to maintain communal harmony and the spirit of common brotherhood amongst the people of India, it was considered necessary to acquire the site of the disputed structure and suitable adjacent land for setting up a complex which could be developed in a planned manner wherein a Ram temple, a mosque, amenities for pilgrims, a library, museum and other suitable facilities can be set up”.

Thus what is envisaged is the construction of a religious complex and not just a Mandir or a Masjid. The Judgement justifies the acquisition of nearly 70 acres of land, including the disputed land, on the ground that whosoever wins the title suit, shall build on the disputed site (the Babari Masjid site on which the make-shift Mandir now stands) but the loser will also be accommodated within the acquired area, apart from the proposed museum, library and amenities for pilgrims and other facilities. The construction of the complex may partly be done by the Central Government and partly by ‘any authority or other body, or trustees of any trust, set up on and after the commencement of the Act’ which is willing to comply with the terms and conditions as the Government may think fit to impose’. If the Government comes to an agreement with an authority or trust, the acquired area or any part thereof may be transferred to it to the extent necessary. Thus, the Act does not rule out the possibility of the construction of the Masjid by a Muslim body or of the Mandir by a Hindu body. But the master plan, the blueprint for the development of the acquired area, has to be drawn by the Government only after and in the light of, the final judicial verdict in the title suit. Allocation of land for specific purpose can then follow.

By differentiating between the disputed area and the adjacent undisputed area, the Supreme Court binds the Central Government to respect the judicial verdict on the question of title and to hand over the disputed area including the disputed site only to the winner, while, as the absolute owner of the undisputed area, it is free to allocate it or part thereof, to one or more authorities or trusts of its choice. Obviously the choice cannot be arbitrary, if more than one are in the running.

The VHP is not the sole representative of the Hindu community. Under the Act it cannot claim a pre-emptive right to any part of the acquired area, even if it revises its site plan so as to exclude the Babari Masjid site. 

It is pertinent to note at this stage that the Trust floated by the VHP may be technically barred, if it was established before 7 January, 1993. If it is so, any attempt by the VHP to set up a new Trust but with the same trustees will amount to legal deception and its legality may be questionable.

The Supreme Court has no doubt ruled that the ‘surplus’, ‘superfluous’ or ‘unnecessary’ land must be restored to its owners. The VHP claims that many original owners had transferred their land to the VHP though they have divulged no details. It also claims that the land acquired by the Government of UP in 1991 in the vicinity of the Babari Masjid, ostensibly for promotion of tourism and providing amenities for tourists, was subsequently transferred to the VHP on long lease. Even if the claims of the VHP are true, some original owners who had petitioned the Supreme Court for return of their land may not oblige the VHP and back out from any commitment they might have made. And certainly the legal validity of the transfer by the Government of UP is highly questionable, as that would constitute a fraud on the legislature, in the light of the stated object and purpose of acquisition.

The essential question really involves around the Mandir site plan, circulated by the VHP, for which pillars and other architectural elements are being carved in Ayodhya and elsewhere. By its own admission the Mandir site plan covers the disputed site because the sanctum sanctorum of the Mandir, the Grabha Griha is proposed to be located on the Babari Masjid site. The Singh Dwar whose foundation was laid in 1989 and the concrete platform to serve as the base for two-third of the Mandir, built unlawfully in July 1992, also fall in the disputed area.

The legal position is clear. If any site-plan covers the disputed area, even a part thereof, it cannot be approved. Any construction based on an unapproved site plan is prima facie unlawful, irrespective of the place where the construction is commenced. 

In any case, the VHP has not clarified whether it desires the transfer of the disputed land on which the ‘Singh Dwar’ and the concrete platform stand. Nor has it published its Master Plan for the Mandir Complex to show which part of the undisputed land is needed for its execution. It is only shooting arrows in the dark though it is hinting that it will not begin the construction of the temple proper but only construct 4 ‘Gopuras’ or gates on the boundary of the proposed Mandir! But where?

To sum up, the disputed area and the preparation of the master plan for the development of the acquired area must precede any transfer of land. Transfer today of any part of the acquired area will defeat the very purpose of the acquisition.

Therefore, whatever be the extent of the disputed area, the Supreme Court’s embargo against transfer applies equally to the entire acquired area – disputed or undisputed. Hence both as statutory receiver of the disputed area and the owner of the undisputed area, the Central Government is, under judicial restraint to maintain the status quo till the title suit is decided.

My understanding is further strengthened by the last sentence of Conclusion 6 of the Judgement which says “The further vesting of the adjacent area, other than the disputed area, in accordance with Section 6 of the Act has to be made at the time and in the manner indicated, in view of the purpose of its acquisition.
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