J Sudhir Aggrawal
Vol 18
Page 4410-4413( 161-163/251) para 4053
The only one question which has specifically been considered and decided that was necessary in the light of
challenge thrown to the power of acquisition of land over which a mosque existing. It appears that pro-mosque parties raised a contention that a mosque cannot be acquired because of special status in Mohammedan Law irrespective of its significance to practice of the religion of Islam. This argument in the context of acquisition of land was considered from para 68 (AIR) and onwards in the judgement. The Court has held that the right to worship of Muslims in a mosque and Hindus in a temple was recognised only as a civil right in British India. Relying on the Full Bench decision of Lahore High Court in Mosque Known as Masjid Shahid Ganj Vs. Shiromani Gurdwara Prabandhak Committee, Amritsar, AIR 1938 Lahore 369 where it was held that a mosque if adversely possessed by non muslims it will loose its sacred character as mosque, the Apex Court held that, "the view that once a consecrated mosque, it remains always a place of worship as a mosque was not the Mahomedan Law of India as approved by Indian Courts." The Lahore High Court also held that, "a mosque in India was an immovable property and the right of worship at a particular place is lost when the right to property on which it stands is lost by adverse possession." Both these views were approved by the Privy Council and the Apex Court followed the said view. Besides, independently also the Court took the view that the sovereign power of the State empower it to acquire property. It is a right inherent in every sovereign to take an appropriate private property belonging to individual citizens for public use.
This right is described as eminent domain in American Law and is like the power of taxation of offering of political necessity and is supposed to be based upon an implied reservation by the Government that private property acquired by its citizens under its protection may be taken or its use can be controlled for public benefit irrespective of the wishes of the owner. The Court also considered the right of worship whether a fundamental right enshrined under Article 25 or 26 of the Constitution and observed,
"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. Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of the religion, stand on a different footing and have to be treated differently and more reverentially". ( read that mosque can be lost by adverse possession but RJB having special significance cannot as it forms core of the essential of Hindu religion. Now this has been decided by Apex court long back and how one can accuse HC to rely on faith)
Ultimately the law has been laid down by the Constitution Bench by majority that under the Mohammedan Law applicable in India title to a mosque can be lost by adverse possession. If that is the position in law, there can be no reason to hold that a mosque as a unique or special status, higher than that of the places of worship of other religions in secular India to make it immune from acquisition by exercise of the sovereign or prerogative power of the State. A mosque is not an essential part of the practice of religion of Islam and namaz (prayer) by Muslims can be offered anywhere even in open. The Court also held that unless the right to worship at a particular place is itself an integral part of that right, i.e., the place is of a particular significance, its alienability cannot be doubted. The Apex Court having answered the various questions on the validity of the Act 1993 decline to answer the reference and return the same as such as it is. The suits having been revived due to striking down of Section 4(3) of the Act, this Court trying the original suits has to decide the entire matter on merits unless it can be shown that a particular issue which is engaging attention of this Court in trial of the original suit has already been raised, argued and decided by the Apex Court. The learned counsels for the parties have not been able to show any such finding in respect to the matters which are involved in various issues before this Court and, therefore, we are not in agreement with the counsels for the parties as argued otherwise.
The circumstances of Valmiki’s own birth are obscure enough, with legend linking it with supernatural phenomena. Whether Ram was a historical figure or a character imagined by the author or authors of the Ramayan is a debate which is far from resolved. To identify the birthplace of a character who may be a figment of the poetic imagination might indeed be reckoned by many as a piece of black humour. The Ayodhya judgment nonetheless dares where scholarly angels fear to tread. Assuming — or, rather, presuming — the historical actuality of Ram as a settled fact, it shifts attention to examining the authenticity of the claim of the prior existence of a temple on the site where the now-demolished Babri mosque stood. The judgment wobbles considerably at this point. It refers to the assertion of a scatter of historians concerning the prior existence of the temple. No need to question the credentials of these scholars — but a formidable array of the most highly 
The decisive factor to resolve the controversy should have been concrete archaeological evidence. This simply is not there, whatever the yet-to-be-revealed surmise of the Archaeological Survey of India. 
} Judicial decision on the case could well hinge on the acceptance or otherwise of the precedent of the Allahabad High Court judgment. There could even be a grotesque situation where twenty thousand-odd citizens vouchsafe before a judge their non-belief in the due process of law as set out in official civil and criminal procedure codes and seek permission to follow their own community code. Since such non-belief could be reckoned as a matter of faith, they too might rest their case by referring to the Ayodhya judgment.