Explained: Centre’s Plea to SC to Return Acquired Ayodhya Land

Why has the Centre asked for acquired land to be restored to owners? And will the SC grant its request?

In a major political development, the Centre filed an application before the Supreme Court on Tuesday, 29 January, asking for permission to restore the non-disputed land acquired by the government around the Babri Masjid-Ram Janmabhoomi site in Ayodhya in 1993, to the relevant owners or occupiers.

The apex court’s Constitution Bench assigned to hear the main title dispute over the site was supposed to be conducting its first hearing in the matter on 29 January, but Justice SA Bobde’s unavailability meant the hearing had to be postponed. The delay in hearing the case has led to significant discontent from the Bharatiya Janata Party (BJP) and its allies.

The new application has been filed in relation to the Supreme Court judgment of 31 March 2003, where a five-judge bench held that the status quo had to be maintained with regard to the land acquired by the central government in Ayodhya, pending the final disposal of the title suit – which was before the Allahabad High Court at the time.

As a result of that judgment, no prayers or religious activities were permitted on the entire 67.703 acres of land acquired in 1993 – not just the 0.313 acres which are in dispute. The judgment also prohibits the Centre from returning or restoring any of the land to its original owners.

The Centre’s application makes special note of the claims of the Ram Janmabhoomi Nyas (RJN), a trust which was formed by Vishva Hindu Parishad (VHP) leaders in 1993 to promote construction of a Ram Temple. The RJN owns 42 acres of the ‘superfluous/excess’ land around the disputed site, and has made several representations since 1996 for the return of their land to the Centre and the Supreme Court, which have all previously been rejected.

What is the Basis for the Centre’s Request?

The 67.703 acres of land were acquired via an ordinance and then the Acquisition of Certain Area at Ayodhya Act in 1993. The legality of this was challenged in the Supreme Court, where a Constitution Bench upheld the land acquisition in the Ismail Faruqui judgment of 1994.

The judges were specifically asked to consider whether the ‘superfluous/excess’ land acquired by the government should be returned, to which they responded that this would need to happen once it was decided what to do with the disputed site.

Subsequently, certain groups tried to continue to conduct religious activities on the superfluous land, allegedly including a bhoomi puja for the temple. A writ petition was filed in the Supreme Court asking for maintenance of the status quo, leading eventually to the judgment of 31 March 2003 (Mohd Aslam @ Bhure vs Union of India).

The Centre’s application makes the following argument:

• The SC’s Ismail Faruqui judgment identified that the Muslim parties only claimed an interest in the 0.313 acres of land involved in the title dispute (where the Babri Masjid used to stand).
• The SC’s Ismail Faruqui judgment held that the superfluous area had been acquired only to ensure that whoever succeeds in the main title dispute is not denied access to the disputed site.
• The SC in Ismail Faruqui specifically said that it was not just permissible, but also desirable, that the superfluous area be returned to the owners at a later stage, when it the exact area needed for ensuring access to the site is clear.
• The central government can determine this exact area, and should be allowed to return the land to the owners if it ensures that the successful party/parties in the title dispute are not denied access to and enjoyment of their rights in the disputed site.
• The SC’s Mohd Aslam judgment in 2003 specified in “clear categorical terms” that the status quo had to be maintained only until the suits pending before the Allahabad High Court are disposed of. The Allahabad High Court delivered its final judgment in 2010.

[The application goes on, however, to note that subsequent orders of the Supreme Court ensure that the status quo must be maintained on all of the acquired land till the Supreme Court decides the matter, so this becomes irrelevant.]

Will the Application be Successful?

The Supreme Court’s 2003 judgment in Mohd Aslam case dealt with the same issues that are at play in this application. The judges analysed the objectives of the 1993 Act and the Ismail Faruqui judgment to observe why the superfluous land adjacent to the disputed site had been acquired, coming to the conclusion that this was done to ensure communal harmony, and ensure that the party/parties who succeeded in the title dispute will be able to access the site.

On this basis, the 2003 judgment notes that “it is clear that the adjacent land, though vest[ed] in the Central Government, will have to be utilised in different manners depending on the outcome of the litigation in respect of the disputed property. Thus the manner or extent to which the adjacent land could be used would depend upon the final outcome of the pending dispute in the High Court. The acquisition of larger extent of land is incidental to main purpose. Thus, the two acquired lands are intrinsically connected with one another and cannot be separated at this stage of the proceedings for different treatment during the interregnum.” (emphasis supplied)

The 2003 judgment holds the field till the title dispute is finally decided, as the Supreme Court has clarified as recently as September 2018. Which means that the status quo has to be maintained and the superfluous land cannot be returned before the title dispute is resolved one way or another in the Supreme Court.

It might be possible to argue that the land can be returned because there has been a change in circumstances, that there is now some basis on which the two acquired lands can be separated, but the Centre’s application fails to note anything of the sort. They have tried to get around this by saying they will ensure that whoever succeeds in the title dispute will get access to the land and is able to enjoy their rights, but this was also suggested in the 2003 case, which still insisted on final disposal of the suit before anything further happened.

It should be noted that technically, this application is not part of the same case currently being heard by the Constitution Bench, but is instead filed as an application for directions in relation to the Mohd Aslam case. As a result, it may not be taken up along with the title dispute, whenever that is next heard.