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Day 18

#Ayodhya case.

Supreme Court issues contempt notice to Prof N Shanmugam for allegedly threatening Sr. advocate Dhavan for representing Muslim parties.
Senior advocate Rajeev Dhavan (RS) resumes his arguments on behalf of Sunni Waqf Board.

Dr. Rajeev Dhavan arguing for the plaintiffs in suit 4 is reading out excerpts from the written statement of Hindu Maha Sabha, represented by Adv. H S Jain to indicate the averments made therein.
Dhavan: The WS states that India is a Hindu country ruled by Hindu laws and Islamic Law cannot be created. That Bharatvarsh was divided on communal lines and pakistan was created for muslims.
Dhavan: The pleadings also read that Mahasabha is also seeking participation in the trust that will be made for the temple.
Dr. Dhavan is further referring to the provisions of Places of Worship (Special Provisions) Act.
Dhavan: What scares me is that i do not want anything in the Judgment of my lords that can he a ground to strike this Act down.
RD: What the Hindu Mahasabha says is that it can go to the Govt. Your lordships have no jurisdiction. The show should stop my lords, no more rath yatras.

Dr. Dhavan is pointing out from the pictures taken during 1990 that one of the pictures inside the structure was of the officers in 1949 K.K. Nayar and Guru Dutt Singh, the city magistrate in 1949.
J. Bhushan: Dr. Dhavan these photographs are they relevant.

RD: Of course they are. Is this a temple my lords?

RD: Is this a temple? a temple where they are worshipping the persons whi helped them? U say you never prayed there, because you didn't let them. U do not let them pray and you say limitation ends. Adverse possession is gone, limitation is gone and why? because we didn't let you.
RD: on the 16th December 1949 Mr. KK Nayar the DM sent a letter to the chief secretary stating that a grand temple existed and that was demolished by Babar.
RD: This is Mr. Nayar's contribution.
There were about 30 mosques destroyed in Delhi and Nehru ordered whatever you do, please restore them back. That was the stand of Union of India at that time.
So this is a sequence starting in March (1949). A planned attack on 22.12.1949
RD: Despite directions to remove the idol they were not removed by the Deputy Commissioner and he asked rather to be replaced.
Pointing to the report of waqf Commissioner before placing of idols which says that after 1934 Muslims were not abled to perform Namaz Isha, Justice Bobde asks does it not mean that only for the last prayer they were not able to go.
"A lock was put at some stage which was opened only on fridays, i am only inferring that they would have been scared to go", Dr. Dhavan replies.
RD: I am giving the sequence from March 1949 to show that it was a planned attack.
Dr. Dhavan is showing exhibited photographs to the bench to indicate the Inscriptions and calligraphic Allah written on the Entrance and inner courtyard of the structure.
RD: I have given the photos, i have indicated the timeline and i have shown the conspiracy. So what do you claim? You claim Limitation because you prevented me? I put a lock for self protection, open it on friday, then you capture it and when directed you refuse to remove.
RD: and then there is the final argument that there was no mosque. I will show that the pillars do not indicate belonging to any religion.
RD: The entire argument of (claiming the) whole area (in suit 5) is based on Swayambhu.
Bobde: What is the argument on swayambhu. I'll read their pleadings.
RD: What i am concerned here is what did they claim. A huge argument was made about parikrama and it was tried to show that parikrama indicates some sort of entitlement. Parikrama is a form of worship bit not necessarily will lead to entitlement.
J. Bobde: Entitled to what?

RD: Swayambhu.
RD: They said this is the exact place, the place under central dome. The entire case turns on this that this is the birth place of Lord Ram and they further say that there was a massive temple there and that in that temple this was the exact place.
Dr. Dhavan is now reading out the pleadings in Suit 3 filed by Nirmohi Akhara in 1959.

RD: Why have they filed this case? because they are impatient. We want the property back and it is not being given. By property they say it is meant management.
RD: What is their concern? that 145 attachment was in connivance with Muslim defendants.

(Pointing to the reliefs claimed in Suit 3) What do they want is management and charge.
RD: Defendants 1-5 are government officials. Their claim is from the government officials even State of UP.

RD: And of course everything depends on one factor, that is limitation.
Bench rises for the lunch.


Post lunch session.

Bench has assembled.

Senior advocate Rajeev Dhavan resumes his submissions for Sunni Waqf Board.
J..Bobde: There is one case where Uttarakhand HC has held that a river is a deity. What happened to it here.

Dhavan: It was stayed.
RD: One more thing they have to answer is that we have said in our pleading that there is another temple by the name of Janmasthan.

Dr. Dhavan is reading out the plaint in Suit No. 4.
Referring to claim of Nirmohi Akhara in the pleadings that the disputed structure ia not a mosque, Dr. Dhavan submits, 'this is to the point of ridicule. That they see Allah written all over and they deny its existence.'
RD: (Referring to Suit 3) This is really about Section 145. It is part of the pleadings and reinforced in their plaint again and again.
RD: (reading averments in the replication by Nirmohi Akahara) It was only the inner courtyard that was subject to attachment but now outer courtyard is involved too. What are they claiming now. Now comes a claim of outer courtyard which is fortified in the reliefs.
In the plaint their case was only for inner courtyard, says RD.
RD: Your lordships at some stage have to take care of all this, the 70 year business, Mr. Swamy's Petition. When i mentioned it My lord CJ had said it'll be dealt.
RD: Their relief, their admission that cause of action started in 05.01.1950. So their suit stands or goes depends on this part of the pleadings.
RD: (referring to pleadings of Nirmohi Akhara disputing the 1885 suit filed by Raghubar Das which was diamissed) Why is this? That is avoidance. They don't want to be bothered by an 1885 suit.
RD: (referring to reply by Nirmohi Akhara to Suit 5) Whats going to happen if we lose and if a big huge temple is made. Will the shebait be included? this has to be taken into account.
RD: When they wanted access to chabutra that the 1885 suit came to be filed. So they have access but did not have title.
RD: I have a suggestion too. I always keep A4 size. Whenever i have a pleading i make it A4, its more convenient. And if you look at the Madras practice pleadings are printed on both sides, it'll save an enormous amount of paper and shelf space with my lordships.
By showing this finding Dr. Dhavan points out that in Suit 5,it has been admitted that idols were placed inside in 1949 and the same has been accepted by High Court.
RD: (referring to earlier submission bh Mr. S.K. Jain for Nirmohi Akhara) This is manifest. They say even if Suit 5 is decreed, possesion must come to me, i am the shebait. So they win even if they lose.

RD: My argument is going to be that yes you are the shebait. You in Suit 3 are entitled and not suit 5. If anything is to be given it will be to the Plaintiff in Suit 3 bit not to deities in Suit 5 or the Nyas.
RD: My objection is to Limitation. But suit 3 cannot be compared to Suit 5. If i am to sustain that 1885 has some issue of estoppel for them i have to accept their shebaiti rights.
RD: Limitation and continuous wrong, their (Nirmohi) entire case depends on the answer to these questions.
Bench rises of the day.

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