Judgment:
M.N. Venkatachaliah, C.J.; A.M. Ahmadi; J.S. Verma; G.N. Ray ; S.P. Bhar, JJ.
1. On January 7, 1993 the President of India promulgated an Ordinance to provide for the acquisition of certain area at Ayodhya specified in the schedule to the Ordinance. By Section 3 of the Ordinance, on the commencement thereof, the right, title and interest in relation to the said area stood transferred to, and vested-in, the Central Government. Section 4(3) provided that on the commencement of the Ordinance, any suit, appeal or other proceeding in respect of the right, title and interest relating to any property vested in the Central Government under Section 3, if pending before any court, tribunal or other authority, shall abate. By Section 5 the Central Government came to be empowered to take possession of the area vested in it under Section 3. Section 8 contemplated the payment of compensation to the owner or owners of the acquired property.
2. Simultaneously on the same day, the President, in exercise of power conferred under Article 143(1) of the Constitution referred the following question to this Court for its opinion:
“Whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janma Bhumi-Babri Masjid (including the premises of the inner and other courtyards of such structure) in the area on which the structure stood?”
The Presidential reference sets out the nature of dispute, the location of its area and the adverse consequences thereof and then proceeds to state that with a view to maintenance of public order and communal harmony in the country in the area vested in the Central Government by virtue of the acquisition, it is necessary to seek this Court's opinion on the question referred under Article 143(1). The Ordinance has since become an Act.
3. On receipt of the Presidential reference this Court gave detailed directions by its order dated January 27, 1993. In that order this Court pointed out that in its opinion ‘it would be desirable to hear the preliminary objections at the threshold’ but realising the urgency of the matter we also gave directions inviting response on the merits of the reference. Thus by the said order we indicated that we will hear the preliminary objection regarding the maintainability, competence and desirability of answering the reference first in point of time.
4. After the issuance of the Ordinance it appears that in the pending suits renumbered O.O.S. Nos. 3 and 4 of 1989 the plaintiffs applied for amendment of the plaints challenging the legality and validity of the Ordinance by which the suits abated. The Full Bench of the High Court heard the said applications and passed an order on March 15, 1993. By the said order the High Court framed the question ‘whether the suit has abated or survives’ and since the said issue necessarily touched upon the validity of the Ordinance, the Court ordered notice to the Attorney General and listed the case for hearing of the issue on April 26, 1993. Although this order was passed in Suit O.O.S. No. 4 of 1989, it was also to govern the amendment application in Suit O.O.S. No. 3 of 1989. It also appears that in the meantime as many as five Writ Petition Nos. 552, 925, 1351, 1532 and 1809 of 1993 came to be filed in the High Court challenging the validity of the Ordinance, now the Act. Besides these proceedings in the High Court a Writ Petition No. 208 of 1993 also came to be filed in this Court under Article 32 of the Constitution challenging the legality and validity of the very same law.
5. The question of maintainability of the reference involves the question of the legal and constitutional validity of the impugned law as well. This is evident from the objections raised by the Communist Party of India in I.A. No. 2 of 1993. Therein it is contended that the said statute as well as the Presidential reference violate Articles 14, 15, 25 and 26 of the Constitution. It was also disclosed in the said application that the party would be filing a separate petition under Article 32 to challenge the validity of the Ordinance. It is, therefore, obvious that the constitutional validity of the said statute is one of the main issues which this Court will be required to consider when the preliminary issue regarding the maintainability of the Presidential reference is taken up for hearing. That question directly arises in the writ petition filed under Article 32 of the Constitution. The Union of India has, therefore, prayed under Article 139-A for a transfer of the proceedings or issue raised in the two suits pursuant to the grant of the amendment applications as well as the five writ petitions pending in the Lucknow Bench of the High Court.
6. On August 10, 1993 when the transfer petition came up for hearing before a Bench comprising the learned Chief Justice and Mohan, J. the first respondent, the petitioner of the Writ Petition No. 552 of 1993 Dr Ismail Farooqui stated that he had no objection to the transfer but others had. When the petition came up for hearing before this Bench on September 21, 1993 none of the other petitioners to the writ petitions pending in the High Court was present to object to the transfer. The only objection, if any, came from Mr Abdul Mannan, learned counsel representing the plaintiff in Suit No. 4 of 1989. His submissions were twofold, namely, (i) the suits had progressed for several years in the High Court and it would be unwise to abate them since the question of title will have to be gone into in any case for determining the owner/occupant entitled to compensation for the acquired land and (ii) the High Court is competent to decide the question of the constitutional validity of the impugned law and had done it on the earlier occasion when the State Government's acquisition was struck down. The question whether the Central Government's decision to abate the suits was wise or not is not germane at present and at any rate that is a policy matter on which we need not say anything at this stage. Ordinarily, we may have allowed the High Court to go ahead with the matter had the same issues not been raised in the Presidential reference and the writ petition before us. The same issue being the subject-matter in the other writ petitions in the High Court we think it would be advisable to withdraw them to this Court so that the petitioners of those petitions may also have an opportunity to participate in the hearing before this Court. As far as the second point is concerned, there is no doubt that the Full Bench is fully competent to deal with the petitions but we are withdrawing them to this Court for a comprehensive adjudication of the challenge to the statute and the maintainability of the reference.
7. In the result, we allow this application by ordering the withdrawal of the five Writ Petition Nos. 552, 925, 1351, 1532 and 1809 of 1993 to this Court to be heard along with the Presidential reference and Writ Petition No. 208 of 1993 pending in this Court. The hearing of the preliminary issue framed by the High Court ‘whether the suit has abated or survives’ in both the suits will stand stayed till further orders. In order to expedite the hearing we direct as under:
8. The hearing of the withdrawn writ petitions as well as the pending Writ Petition No. 208 of 1993 filed under Article 32 of the Constitution and of the preliminary question regarding the maintainability of the Presidential reference shall be taken up one after the other in that order. The parties and their counsel may complete the paper books of the writ petitions before October 25, 1993 so that the hearing may not be delayed.
9. The transfer petition is allowed accordingly with no order as to costs.