M. SIDDIQ (D) THR. LRS. versus MAHANT SURESH DAS AND OTHERS ETC.

Citation: [2018] 11 S.C.R. 175 · Decided: 27-09-2018 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Directions issued

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Judgment (excerpt)

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M. SIDDIQ (D) THR. LRS.
v.
MAHANT SURESH DAS AND OTHERS ETC.
(Civil Appeal Nos. 10866-10867 of 2010)
SEPTEMBER 27, 2018
[DIPAK MISRA, CJI, ASHOK BHUSHAN AND
S. ABDUL NAZEER, JJ.]
Reference to Larger  Bench :  Whether Dr. M. Ismail Faruqui
and Ors. v. Union of India  reported in [1994] 5 Suppl. SCR 1 needs
reconsideration – In Para 82 of Ismail Faruqui case, the
Constitutional Bench observed “A mosque is not an essential part
of the practice of the religion of Islam and namaz (prayer) by
Muslims can be offered anywhere, even in open.” –  Held: Majority
opinion (Per Ashok Bhushan, J. [for himself and Dipak Misra, CJI.]),
the statement that a mosque is not an essential part of the practice
of religion of Islam was in context of issue as to whether the mosque,
which was acquired by Act of 1993 had immunity from acquisition
– Constitution Bench had held that while offer of prayer or worship
is a religious practice, its offering at every location where such
prayers can be offered would not be an essential or integral part of
such religious practice unless the place has a particular significance
for that religion so as to form an essential or integral part thereof –
What Court meant was that unless the place of offering of prayer
has a particular significance so that any hindrance to worship  may
violate right under Arts.25 and 26, any hindrance to offering of
prayer at any place shall not affect rights under Arts.25 and 26 –
The phrase “particular significance” was used by the Constitution
Bench only in context of immunity from acquisition – No case was
made out to refer the Constitution Bench judgment in  Ismail Faruqui
case for reconsideration – (Per S. Abdul Nazeer, J.) (Dissenting)
The questionable observations in Ismail Faruqui case certainly
permeated the impugned judgment – Thus, the impugned judgment
can be claimed to be both expressly and inherently affected by the
questionable observations made in Ismail Faruqui – Further, Ismail
Faruqui prima facie leads a different approach regarding the
application of essential and/or integral test which also needs to be
resolved as a matter of constitutional significance – Ismail Faruqui
[2018] 11 S.C.R. 175
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SUPREME COURT REPORTS
[2018] 11 S.C.R.
needs to be brought in line with the authoritative pronouncements
in Shirur Mutt and other decisions – In view of constitutional
importance and significance of the issues involved, the following
questions referred to a larger Bench: (a) Whether in the light of
Shirur Mutt and other aforementioned cases, an essential practice
can be decided without a detailed examination of the beliefs, tenets
and practice of the faith in question (b) Whether the test for
determining the essential practice is both essentiality and integrality
(c) Does Art.25, only protect belief and practices of particular
significance of a faith or all practices regarded by the faith as
essential (d) Do Arts.15, 25 and 26 (read with Art.14) allow the
comparative significance of faiths to be undertaken – Religious
institutions – Constitution of India – Arts.25 and 26 – Acquisition
of Certain Area at Ayodhya Act, 1993.
Acquisition of Certain Area at Ayodhya Act, 1993 –  Plea of
res judicata – The issues which have been framed in the suits giving
rise to these appeals were different issues which cannot be said to
be directly and substantially in issue in Ismail Faruqui’s case –
Non-fulfilment of this condition itself is sufficient to reject the plea
of res judicata.
While issuing directions for further listing, the Court
HELD:
Per Ashok Bhushan, J. (for himself and Dipak Misra, CJI.)
1. The statement “a mosque is not essential part of the
practice of religion…..” in Ismail Faruqui case was a statement
which was made by the Constitution Bench in specific context
and reference.   Whether every mosque is the essential part of
the practice of religion of Islam, acquisition of which ipso facto
may violate the rights under Articles 25 and 26, was the question
which had cropped up for consideration before the Constitution
Bench. The Court  in Ismail Faruqui case held that if the place
where offering of namaz is a place of particular significance,
acquisition of which may lead to the extinction of the right to
practice of the religion, only in that condition the acquisition is
not permissible and subject to this condition, the power of
acquisition is available for a mosque like any other place of
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worship of any rel

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