Only those places can be protected, which were erected or constructed in accordance with personal law of the person erected/constructed them, but places erected or constructed in derogation of the personal law, cannot be termed as a ‘place of worship’. Retrospective cutoff-date was fixed 15th August 1947 to legalize the illegal acts of barbaric invaders. Though, Hindu Law (Temple Character never changes) was ‘Law in force’ at the commencement of the Constitution by virtue of Article 372(1).
Hindus Jains Buddhists Sikhs have the right to profess, practice and propagate religion as provided in their religious scriptures and Article 13 prohibits from making law which takes away their rights. Moreover, the status of mosque can be given only to such structures which have been constructed according to tenets of Islam and mosques constructed against the provisions contained in Islamic law cannot be termed as Mosque. Muslims cannot assert any right in respect of any piece of land claiming to be a mosque unless it has been constructed on legally owned and occupied virgin land. It is necessary to state that property vested in Deity continues to be the Deity’s property irrespective of the fact that any person has taken illegal possession and offered namaz.
Temple’s religious character does not change after demolition of roof, walls, pillars, foundation and even offering Namaz. After the Pran Pratishtha of the idol, A Temple is Always a Temple until the Idol is shifted to another temple with the rituals of Visarjan. Moreover, Religious Character of temples (places of Worship) and mosques (places of Prayer) is totally different. So, the same Law can’t be applied to both. The mosque constructed at temple land cannot be a mosque, not only for the reason that such construction is against Islamic law, but also on grounds that the property once vested in the deity continues to be deity’s property and right of deity and devotees are never lost, howsoever long illegal encroachment continues on such property. Right to restore back religious property is unfettered and continuing wrong and injury may be cured by judicial remedy.
Barbaric invaders destroyed hundreds of places of worship and pilgrimage to make Hindus Jains Buddhists Sikhs realize that they have been conquered and have to follow the dictum of Ruler. Hindus Jains Buddhists Sikhs had suffered from 1192 to 1947. Now the Question is as to whether even after independence; they cannot seek judicial remedy to undo the barbarian acts through the process of court to establish that law is mightier than the sword.
The Act is a penal Law so it must be interpreted literally not purposively. Temple is a place of worship as God resides therein and that’s why temple is always a temple and its religious character never changes. On the other hand, Mosque is simply a place of prayer and that’s why, in gulf countries (birthplace of Islam), it is demolished/shifted even for making road school hospital and public office. Moreover, Religious Character of temples (Place of Worship) & Mosque (Place of Prayer) is totally different. So, the 1991 Act can’t be applied to Mosques.
The 1991 Act was enacted in the garb of ‘Public order’, which is a State subject [Schedule-7, List-II, Entry-1] and ‘places of pilgrimages within India’ is also State subject [Schedule-7, List-II, Entry-7]. So, the Centre cant enact the Law. Moreover, Article 13(2) prohibits the State to make law to take away fundamental rights but the 1991 Act takes away the rights of Hindus Jains Buddhist Sikhs to restore their ‘places of worship and pilgrimages’, destroyed by barbaric invaders. The Act excludes the birthplace of Lord Rama but includes the birthplace of Lord Krishna, though both are incarnations of Lord Vishnu, the Creator and equally worshiped throughout the word, hence it is arbitrary.
Right to justice, right to judicial remedy, right to dignity are integral parts of Article 21 but the 1991 Act violates them. Likewise, the right to pray and practice propagate Hinduism Jainism Buddhism Sikhism, guaranteed under Article 25, is being blatantly offended by 1991 Act. Similarly, the 1991 Act blatantly offends the rights of Hindus Jains Buddhists Sikhs to restore, manage, maintain and administer places of worship and pilgrimage, guaranteed under Article 26.
Right to restore and preserve the script and culture of Hinduism Jainism Buddhism Sikhism, guaranteed under Article 29 is also being offended by the 1991 Act. Moreover, directive principles are nevertheless fundamental in the governance of the Country and Article 49 directs the State to protect the places of national importance from disfigurement and destruction. Similarly, the State is obligated to respect the ideals and institutions and values and preserve the rich heritage of Indian culture. Applicant submits that State has no legislative competence to enact law infringing the fundamental right guaranteed to citizens in view of the embargo created by Article 13. Moreover, the Act affects the right to religion of Hindus Jains Buddhists Sikhs and snubs their voice against illegal inhumane barbarian action committed in the pre-independence period.
Section 4(1) of the Act violates the concept that ‘Temple property is never lost even if it is enjoyed by strangers for hundreds of years; even the king cannot deprive temples of their properties. The Idol/deity which is embodiment of supreme God and is a juristic person, represents the ‘Infinite- the timeless’ cannot be confined by the shackles of time. Centre neither can take away the power of Civil Courts to entertain the suit for restoration nor can take the power of High Courts and Supreme Court conferred under Article 226 and 32. The impugned Act has barred right and remedy against encroachment made on religious places of Hindus Jains Buddhists Sikhs. Moreover, the Centre has transgressed its legislative power in barring remedy of judicial review, which is the basic feature of the Constitution.
From 1192 to 1947, barbaric invaders damaged and desecrated religious places of Hindus Jains Buddhists Sikhs, depicting Indian culture from north to south, east to west. Moreover, the 1991 Act has destroyed basic doctrine of the Hindu Law relating to the deity as deity and its property is never lost and devotees have the right to sue a wrongdoer for restoration of property. It’s a well-established principle in the Hindu law, that property once vested in a deity will continue to be deity’s property.
On the touchstone of the principle of secularism read with Articles 14-15, it is very clear that the State cannot show its inclination or hostile attitude towards any religion, may be majority or minority. Therefore, the 1991 Act violates the principle of secularism as it violates the right of Hindus Jains Buddhists Sikhs for restoration of their places of worship destroyed before 15.8.1947 even through the mediation and the Court. There are many International Conventions on cultural and religious heritage and India is signatory of them. So Centre is obligated to act in accordance with the conventions- (i) Fourth Geneva Convention 1949 reinforced the protection of ‘Places of worship which constitute cultural and spiritual heritage of people (ii) Statutes of United Nations and UNESCO (iii) Hague Convention for the Protection of Cultural Property in the event of Armed conflict 1954 (iv) World Heritage Convention 1972 (v) Convention for the Protection of Architectural Heritage of Europe 1985 (vi) European Convention on Protection of Archaeological Heritage 1969 (vii) European Landscape Convention 2000 and (viii) The European Convention on Protection and Promotion of Diversity of Cultural Expressions 2005.
The 1991 Act, without resolution of dispute through the process of law, has abated the suit and proceedings, which is perse unconstitutional and beyond the law-making power of Centre. The provisions of 1991 Act cannot be implemented with retrospective effect and the remedy of disputes pending, arisen or arising cannot be barred. Centre neither can close the doors for aggrieved persons nor can take away the power of District Court, High Court and Supreme Court of India. The maxim “ubi jus ibi remedium” has been frustrated by the 1991 Act as pending suits and proceeding in respect of which cause of action have arisen and continuing wrong, the remedy of the aggrieved person for resolution of disputes through the Court have been abolished, which violate the very concept of justice and ‘Rule of law’.
Adv. Ashwani Upadhyay is an advocate practising at the Supreme Court. He has challenged The Places of Worship Act in the Supreme Court.
The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.
For the latest news Download The Daily Guardian App.
Seeking Information From States/UTs On Old Age Homes In Each District, Pension For Elderly & Geriatric Care: Supreme Court
The Supreme Court in the case Ashwani Kumar vs Union Of India And Ors. Ministry Of Social Justice and Empowerment Secretary & Ors observed and has directed that all the States and Union Territories to furnish information on their existing schemes operating for the welfare of the elderly with respect of (i) Pension for the elderly, (ii) old age homes in each District and (iii) the level of geriatric care.
In the present case, the bench also asked the State and Union Territories to file the present status regarding implementation of the Maintenance and Welfare of Parents and Senior Citizens Act and has asked them to furnish the information to the Advocate-on-Record of the Union of India and the Union shall thereafter file a revised status report within a period of one month.
The Apex Court bench comprising of Justice Aniruddha Bose and the Justice Sudhanshu Dhulia observed while hearing a petition filed under Article 32 of the Constitution of India by former Union Law Minister Dr. Ashwani Kumar regarding the enforcement of the rights of an elderly person.
It was observed that the Supreme Court had earlier in 2018 passed similar directions while passing a judgment in the matter. It was directed to Union of India for obtaining necessary information from all the State Governments and the Union Territories about the number of old age homes and medical facilities and geriatric care facilities that are available to senior citizens in each district and file a status report, also the Union of India was directed to prepare a plan of action for giving publicity to the provisions of the MWP Act and for making senior citizens aware of the provisions of the said Act and the statutory and constitutional rights of senior citizens.
Also, the court had directed that the Government of India to issue appropriate directions to the State Government for effective implementation of the MWP Act and also conduct a review for the purpose of monitoring the progress. It stated that the Government of India was also directed to revisit the schemes and overhaul them so that it may be more realistic.
The Court observed while passing the judgment and order in 2018 that there is a need to continuously monitor the progress in the implementation of the constitutional mandate to make available to the elderly the right to live with dignity and to provide them with reasonable accommodation, the medical facilities and the geriatric care and had noted that focused and more vigorous efforts were needed in the case.
Accordingly, the matter was kept open by the court.
Centre proposes to submit before Supreme Court a model builder-buyer agreement with mandatory RERA clauses
The Central Government in the case Ashwini Kumar Upadhyay versus Union of India observed and has proposed to submit before the Supreme Court a model builder-buyer agreement with mandatory clauses which cannot be altered by the Union Territories or the States.
Before the Court, Additional Solicitor General Aiswharya Bhati and amicus curiae Devashish Bharuka submitted that the Court that the model agreement will have Part A which will have core clauses with the mandatory provisions of the Real Estate (Regulation and Development) Act 2016 for the purpose of protection of the home buyers and the Part B which will contain additional clauses as per the requirements of the individual UTs /States. Thereafter, these additional clauses will not be contrary to or dilute in any manner the clauses in Part ‘A’.
The bench comprising of Justice DY Chandrachud and the Justice Hima Kohli observed and has posted the matter for further consideration on November 28, while taking the note of these submissions.
It stated that the development happened in the PIL filed by Ashwini Upadhyay seeking a model builder-buyer agreement. Earlier, it was observed by the Supreme Court that a model agreement was necessary to protect the interests of home buyers and had asked the Union to frame a model agreement after taking inputs from the States. Later, it was asked by Court to the Union to scrutinize the rules framed by the States under RERA to ascertain if essential norms have been incorporated.
Further, it was observed that on September 30, the following States have not submitted their responses:
(i)Andhra Pradesh; (ii) Gujarat; (iii) Chhattisgarh; (iv) Jharkhand;(v) Madhya Pradesh;(vi) Maharashtra;(vii) Manipur;(viii) Mizoram;(ix) Odisha;(x) West Bengal; and (xi) Uttar Pradesh.
On the other hand, the response has been filled by the thirteen States and two Union Territories.
Thus, the States which have not filed their responses were directed to do so positively within a period of four weeks and failing which the Principal Secretaries of the State Government in the Ministry of Affairs/Urban Development shall personally remain present before the Court on the next date of hearing and to explain as to why they should have not been proceeded with under the coercive arm of the law created.
The court was informed by the Haryana and Maharashtra wings of the Confederation of Real Estate Developers Associations of India (CREDAI) that they will give their responses.
Centre Appoints Delhi HC Judge Justice Dinesh Kumar Sharma As Presiding Officer Of UAPA Tribunal: PFI Ban
Delhi High Court judge Justice Dinesh Kumar Sharma has been appointed by the Central Government as the Presiding Officer of the Unlawful Activities (Prevention) Tribunal which will be reviewing the ban imposed on the Popular Front of India (PFI) and the organisations affiliated.
On 28th February, 2022, Justice Sharma was appointed as a judge of the Delhi High Court, after being elevated from the Delhi Higher Judicial Service.
On September 28, the Ministry of Home Affairs declared the PFI and its affiliates or associates or fronts as “unlawful associations” with immediate effect starting for a period of 5 years in exercise of the powers provided under Section 3(1) of UAPA. However, citing links with terrorist organizations and involvement in the terror acts, the Centre proscribed its affiliates Rehab India Foundation (RIF) and PFI, Campus Front of India (CFI), National Confederation of Human Rights Organization (NCHRO), All India Imams Council (AIIC), Junior Front, Empower India Foundation, National Women’s Front and Rehab Foundation, Kerala.
It is stated that as per Section 3 of the UAPA Act, where any association has been declared as unlawful, the Central Government shall, within thirty days from the date of the publication of the notification, while referring to the notification to the Tribunal for the purpose of adjudicating whether or not there is sufficient cause for declaring the association as unlawful.
Adding to it, as per Section 5 of the UAPA Tribunal should consist of one person and the person should be a High Court judge. On receipt of the notification, the Tribunal will be calling upon the affected association affected by notice in writing to show cause, within thirty days from the date of the service of such notice, why the association should not be declared as unlawful.
Further, the notification of the Centre will have no effect until the Tribunal has confirmed the declaration and the order is published in the Official Gazette by an order made under Section 4.
As per the notification issued by the Ministry of Law & Justice of appointing Justice Sharma and the time spent by him in performing the duties of the UAPA Tribunal will count as “actual service” within the meaning of para 11(b)(i) of Part D of the second schedule of the Constitution reading with Section 2(1)(c)(i) of the High Court Judges (Salaries and Conditions of Service) Act 1954.
Supreme Court Dismisses Plea Against EVM: ‘Party Without Recognition From Electorate Seeking Recognition By Filling Petitions’
The Supreme Court in the case Madhya Pradesh Jan Prakash Party versus Election Commission of India observed and has recently dismissed a petition challenging the use of Electronic Voting Machines in the election process with a cost of Rupees 50,000.
The Court observed while dismissing the petition filed by Madhya Pradesh Jan Prakash Party and stated that it appears that party which may not have got much recognition from the electorate now seeks recognition by filing petitions.
The bench comprising of Justice Sanjay Kishan Kaul and Justice Abhay S Oka observed and has stated in the order that the election process under the representation of the People Act, 1951 is being monitored by a Constitutional Authority like the Election Commission. Thus, in our country, the Electronic Voting Machines (EVM) process has been utilized for decades now but periodically issues are sought to be raised and this is one such endeavour in the abstract.
The Court while observing that the filing of such petitions must be deterred, the bench imposed costs of Rs.50,000 on the petitioner and which was being directed to be deposited with Supreme Court Group-C (Non-Clerical), the Employees Welfare Association within a period of four weeks.
NCLAT: Withdrawal Of Resolution Plan Will Have Disastrous Effect.
The National Company Law Appellate Tribunal (NCLAT) in the case Shardha Buildcon Pvt. Ltd v. The Dhar Textile Mills Ltd, the bench comprising of Justice Ashok Bhushan and Justice Mr. Barun Mitra observed and has dismissed the appeal filed by the Resolution Applicant seeking permission to withdraw its resolution plan and held that allowing withdrawal of a resolution plan will be having serious disastrous effect on the whole purpose of the Insolvency & Bankruptcy Code, 2016.
Before the NCLAT, the appellant filled an appeal against the order dated 21.07.2022 passed by NCLT Indore which relying upon the judgment of Supreme Court in the case Ebix v. Educomp dismissed the application filed by the Appellant wherein seeking for the withdrawal of the resolution plan.
The Appellant contended that the judgement of Ebix is not applicable as the same deals with the cases where the Corporate Debtor has undergone changes but in the present case, wherein the Appellant is seeking withdrawal due to the financial difficulty that is being faced by the Appellant.
The argument of the Appellant was rejected by the bench and has held that even if the Appellant is allowed to withdraw from the plan due to financial difficulty and the same will be amounting to go back from the commitment made in the resolution plan which is not permissible.
The bench observed that the IBC is process consists of different steps with a ultimate object of reviving the Corporate Debtor. Thus, permitting Successful Resolution Applicant to withdraw after the Plan has been approved will have serious disastrous effect on whole purpose and object of IBC.
Accordingly, the NCLAT bench dismissed the appeal filed by the Appellant and has upheld the order of NCLT, Indore.
Supreme Court: Order Of Termination Approved By Industrial Tribunal Is Binding On Parties, Labour Court Can’t Take Contrary View.
he Supreme Court of India in the case Rajasthan State Road Transport Corporation vs Bharat Singh Jhala (Dead) Son of Shri Nathu Singh, through Legal Heirs & Anr observed that the that an order of termination approved by an Industrial Tribunal is binding on the parties and a Labour Court cannot take a contrary view against it.
The bench comprising of Justice MR Shah and Justice Krishna Murari observed and has stated that once the order of termination was approved by the Industrial Tribunal on appreciation of the evidence led before it, thereafter it was stated that the findings recorded by the Industrial Tribunal were binding between the parties and no contrary view could have been taken by the Labour Court contrary to the findings being recorded by the Industrial Tribunal.
However, the court was considering an appeal plea by the Rajasthan State Road Transport Corporation.
The bench observed that a workman was subjected to departmental enquiry for not issuing tickets to 10 passengers after collecting the fare. Thus, on conclusion of the departmental enquiry, his services were terminated. The termination was the subject matter of the approval application before the Industrial Tribunal in an application under Section 33(2)(b) of the Industrial Act. In the said proceedings, it was permitted by the management to lead the evidence and prove the charge/misconduct before the Tribunal. By order, the Tribunal approved the order of termination.
It was observed that after a judgment and an award in 2019, the Labour Court, Jaipur allowed the said reference and set aside the order of termination. An order was passed by the Labour Court while awarding 50% back wages from the date of termination till his death i.e., December 10, 2018. The Award and the judgement passed by the Labour Court was challenged before both, Single and Division Benches of the High Court. However, the petitions were dismissed both the times.
The Court observed after going through the relevant facts of the case that once the order of termination was approved by the Industrial Tribunal, thereafter the fresh reference under Section 10 of the Industrial Disputes Act, wherein challenging the order of termination was not permissible.
Adding to it, the court stated that though it is required to be noted that the order dated 21.07.2015 passed by the Industrial Tribunal which as such is a higher forum than the finality has been attained by the Labour Court.
Before the High Court, though the aforesaid fact was pointed out, the court did not consider this aspect and confirmed the judgment and award passed by the Labour Court for setting aside the order of termination, which has been approved by the Industrial Tribunal.
It was held by the Supreme Court that the judgment and award passed by the Labour Court, confirmed by the High Court is unsustainable and allowed the appeal plea.
It has been committed by the High Court that a very serious error in dismissing the writ petition/writ appeal confirming the judgment and award passed by the Labour Court setting aside the order of termination.
Opinion2 years ago
South Block’s mistakes will now be corrected by Army
Sports2 years ago
When a bodybuilder breaks Shoaib’s record
News2 years ago
PM Modi must take governance back from babus
Spiritually Speaking2 years ago
Spiritual beings having a human experience
Legally Speaking2 years ago
Law relating to grant, rejection and cancellation of bail
News2 years ago
Chinese general ordered attack on Indian troops: US intel report
Royally Speaking2 years ago
The young royal dedicated to the heritage of Jaipur
Sports2 years ago
West Indies avoid follow-on, England increase lead to 219