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A deceitful, invalid claim

Print edition : Apr 27, 2002 T+T-

The Ramjanmabhoomi Nyas and the Vishwa Hindu Parishad claim, on the basis of a March 1992 lease deed, that they own the land adjacent to the site of the Babri Masjid. When the terms of the lease deed have been brazenly violated, the violators have no claim to its restoration. In fact, any citizen can now move the court for the cancellation of the lease.

THE terms and conditions of the lease deed of March 20, 1992, knock the bottom out of the case of the Ramjanmabhoomi Nyas (RJN) and the VHP that they owned the land adjacent to the site of the demolished Babri mosque. The claim was based on deliberate falsehood. It had far-reaching consequences because of its uncritical acceptance. The majority judgment of the Supreme Court in the Ayodhya case, delivered by Justice J.S. Verma, said: "The interest claimed by the Muslims is only over the disputed site where the mosque stood before its demolition. The objection of the Hindus to this claim has to be adjudicated. The remaining property acquired under the Act (The Acquisition of Certain Area at Ayodhya Act, 1993) is such over which no title is claimed by the Muslims. A large part thereof comprises of properties of Hindus of which the title is not even in dispute" (Ismail Faruqui vs. Union of India (1994) six Supreme Court Cases 360, on page 407). He spoke of the "rights of ownership of Hindu owners of the adjacent properties" and asserted: "The adjacent area in respect of which there is no dispute of title and which belongs to Hindus" (page 411).

This was pure obiter and ipse dixit. There was no occasion or need for Justice Verma to say all that. He had absolutely no material before him in its support, but, much in the government's White Paper, which he cited, to the contrary. The VHP cashed in on his remarks and mounted a campaign for the return of the adjacent land even after the crime of December 6, 1992, was perpetrated. It was based on two propositions - the adjacent land belonged to the RJN before the acquisition and its restoration to it and to the VHP, which runs the RJN, will not prejudice the litigation concerning the site. In all 67.703 acres of land was acquired under the Act. The RJN-VHP claim return of 43 acres. The lease deed exposes both propositions to be false. The 43 acres belonged to the State of Uttar Pradesh. It was given on lease to the RJN for specific purposes only. Construction of a temple was not among them; in fact, it conflicted with them. Besides, the RJN-VHP took the land on false pretences. The object in 1992 was to build a temple on the site of the mosque. That is also the object for which its return is being sought now.

BJP president Jana Krishnamurthy claims: "The actual dispute is over 80 ft by 40 ft where the structure known as Babri Masjid was located (and) the rest of the land is not in the disputed site. This land was bought (sic.) by the VHP and the Ramjanmabhoomi Nyas... there is some basis for the demand" (The Indian Express, February 6, 2002). Prime Minister Atal Behari Vajpayee's statement in Parliament on March 14 belied that: "The Nyas is a permanent lessee of 42 out of 67 acres of this acquired land, adjacent to the disputed site in Ayodhya. It is also the owner of an additional 1 acre out of this acquired undisputed (sic.) land." Why he omitted to mention the conditions of the lease is for him to explain.

The terms of the lease blow sky-high the claim that the land is "undisputed". It was state-owned land, public property in which all citizens have an interest - Muslims included. The terms of the lease were violated, brazenly. The entire transaction was deceitful. Any citizen can move the court now for cancellation of the lease. The violators have no claim to its restoration - in order to commit further breaches.

The object of the lease was "the development as Shree Ram Katha Park for the purpose of tourism development by Government of Uttar Pradesh... The lessee has proposed to implement this project on behalf of 'Shree Ramjanmabhoomi Nyas' using its own resources. Upon which - (that is, on the basis of this representation and for this object) - it has been decided by the Government of Uttar Pradesh that the aforesaid land be given to 'Shree Ramjanmabhoomi Nyas' to implement this project of Shree Ram Katha Park..."

Clause 3 of the deed binds the lessee "to implement" that project. Clause 4 empowers the lessor, the State government, "to enter" the land for inspection - as its owner. The deed explicitly says that the land is demised under the Government Grants Act, 1895. This law was enacted to deprive lessees of state land from the protection which the Transfer of Property Act, 1882 confers on lessees. It makes grants unilateral transfers by the state terminable at will if their terms are violated. The lessee is in fact a grantee.

Deceit is written all over the transaction. The grant was given by the BJP government of Kalyan Singh. The grantee, the RJN, had no interest in the Park as such; its declared object was construction of the temple. It was not a public purpose, but a favour to one side in a litigation. It is void on this ground alone (H.M. Seervai; Constitutional Law of India; Fourth edition; Vol. I; page 933).

The grant, moreover, was part of a larger transaction which was struck down as void in a unanimous judgment of three Judges of the Lucknow Bench of the Allahabad High Court, delivered on December 11, 1992, on the acquisition of the land in 1991. This forgotten ruling has acquired great relevance today for its thorough exposure of the entire web of deceit. The Judges commented also on the deed of lease.

Justice S.C. Mathur's judgment recorded the basic facts. The RJN's Trust Deed was executed on December 18, 1985: "The first object of the trust is to reconstruct the temple of Sri Ram at Sri Ram Janmabhoomi and the beautification of the spot all around. Rest of the objects are connected with the reconstruction of the temple and re-installation of deities. From this it would follow that the trust is a religious one.... The association of the trustees with the Vishwa Hindu Parishad and Rashtriya Swayamsewak Sangh has also not been disputed."

The 1991 acquisition had a background. Some 55.674 acres of land, well beyond the Babri mosque, were acquired on January 20 and 23, 1989, and on September 27, 1989, for laying out a Ram Katha Park.

The objects of this acquisition were to use the Park "to create experience (sic.) of the cultural aspect emerging from the great epic Ramayana... The park should be integrated with the overall development of Ayodhya... in order to have wider appeal and to uphold secular ideas, the emphasis should lie on philosophic and on the unique aspect of Rama's life rather than on the ritualistic aspect."

It was designed to take the steam out of the VHP's campaign. When the BJP came to power in Uttar Pradesh on June 24, 1991, it latched on to it and perverted it to its own ends. Construction of a Ram temple was promised in the Governor's address to the State Assembly on July 31, 1991. On October 7, 1991, 2.77 acres of land around the mosque were acquired by the government dishonestly - "for the development of tourism and providing amenities to pilgrims at Ayodhya." When this acquisition was challenged in court, the BJP government, in an affidavit dated January 3, 1992, asserted in categorical terms: "No plan for development of Ram Katha Park could be completed without Shri Ram Janmabhoomi Sthal (the site and adjacent land) being included into it, as the Ram Katha Park was designed to be built around Shri Ram Janmabhoomi. With this end in view, the State government has further acquired... 2.77 acres of land of Ram Janmabhoomi Sthal so that an integrated plan can be prepared.... A part of the land of Shri Ram Janmabhoomi will be left vacant for the renovation and reconstruction of Bhagwan Shri Ram Virajman there" (the idols of Ram planted in the mosque in December 1949).

It was the lands thus acquired that were given on lease to the RJN on March 20, 1992. Justice S.C. Mathur remarked: "It is apparent that the land of Ram Katha Park and the present land are to be used for one and the same purpose. The land of Ram Katha Park has already been handed over to a trust whose aims and objects are religious and whose trust board is dominated by members of the Vishwa Hindu Parishad." Thus, the acquisition of land in October 1991 and the transfer by lease in March 1992 were part of the same transaction and had the same object - construction of the temple. Justice Mathur's remarks on the trust as a VHP body are significant. He held the acquisition in 1991 to be "camouflaged... in order to give advantage to Hindus in the litigation". He struck down the notification of October 7, 1991, as void. The other two Judges on the Bench fully concurred. The lease cannot survive the striking down of the acquisition.

Justice Brijesh Mathur noted that the acquisition was linked to the proposed temple and said "the only proper thing would have been to wait until the rights of the parties are settled as regards the title of the property." This advice is very relevant now.

Justice S.H.A. Raza recorded the petitioners' contention that the graveyard adjoining the mosque, and the mosque, are "inseparably attached to the religious practice of the Muslims". The Namaze Janaaza (funeral prayer) is said at the mosque before the burial in the graveyard which was waqf (trust) property. Muslims had a clear legal interest in the "adjacent land". He referred to the site-plan filed in the old case in 1885 which "shows the graves over all the four sides facing the outer boundary of the shrine".

The entire land in Ayodhya is "nazul land", that is, State land administered by local bodies which allot them to parties for a specific period after obtaining premium of the land. It is the nazul map of 1931 which has been cited in the case with the plot numbers as shown in the State land revenue records. But the government's notification of 1991 deliberately cited plot numbers from settlement maps of 1961 and 1937 - plots 159 (part), 160, 171 (part) and 172 (part). This created confusion. For instance, plot No.160 cited in the notification incorporated five plots of nazul land including plot No. 586 (as per revenue records) on which the shilanyas was held in 1989.

The mosque itself is on nazul plot no. 583 and falls in revenue plot nos. 146, 158 and 160. Nine of the 23 disputed plots of which the court is seized fall within the four revenue plots acquired by the government. More than half of the disputed area, including the shilanyas site, has been acquired. A jubilant general secretary of the VHP, Ashok Singhal, summed up the result for all to see on October 14, 1991 - only a mere 3,200 square feet near the mosque itself has been excluded. But included in the acquisition were the famous Ram Chabootra, within the compound of the mosque, the Sumitra Bhavan, the Sankat Mochan Mandir and the Sakshi Gopal Mandir. The RJN destroyed 16 temples.

The High Court's judgment of December 11, 1992, exposed the fraud behind the lease. Justice Verma's obiter gave the VHP some hope. The terms of the lease, read with the High Court's judgment, should dispel all misconception about the so-called "undisputed" character of the adjacent land. The deed of March 20, 1992, should be formally cancelled. If the government will not, the courts should.

However, the incontrovertible position is that the land now vests in the State of U.P. and the RJN-VHP claim to its return to them rests on the lease deed. That document is based on fraud. Its terms were broken, anyway. It cannot be acted on or enforced.

Even if the acquisition is denotified, the 43 acres should not revert to the RJN-VHP, for two reasons: the lease deed itself was a fraudulent one and the lessees violated it recently. Now nothing survives of the lease. It is state land to be used only for a public purpose; as citizens Muslims have a legal interest in the public purpose for which the land will be used hereafter.