TEAM CODE 13 P

TC-13
2ND JAGANNATH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2020

14th – 16th FEBRUARY, 2020
BEFORE THE HON’BLE SUPREME COURT OF BOSAMA
WRIT PETITION NO. ______/2020
IN THE MATTER OF
BOARD OF OSWALIANS ……………………...... PETITIONER
VERSUS
UNION OF BOSAMA ……………..………………… RESPONDENT
REVIEW PETITION FILED UNDER ARTICLE 137 OF CONSTITUTION OF

BOSAMA
P
Memorial for Petitioner
Counsels on behalf of the Petitioner

TABLE OF CONTENTS
1. LIST OF ABBREVIATIONS..............................................................................................03
2. INDEX OF AUTHORITIES................................................................................................04
3. STATEMENT OF JURISDICTION....................................................................................05
4. STATEMENT OF FACTS...................................................................................................06
5. ISSUES RAISED.................................................................................................................08
6. SUMMARY OF ARGUMENTS.........................................................................................09
7. ARGUMENTS ADVANCED..............................................................................................11
7.1. WHETHER THE REVIEW PETITION FILED BY OSWALIANS IS
MAINTAINABLE?.................................................................................................................11
(i) Circumstances warrant the exercise of jurisdiction in Article 137 of the
Constitution of Bosama............................................................................................................11
(ii) Violation of secular principles embedded in the constitution and dispute regarding
title of the land..........................................................................................................................12
(iii) Condoning serious illegalities of destruction of Pagoda.......................................12
7.2 WHETHER THE JUDGMENT IS MAJORITARIAN IN CHARACTER FOR IT

HAS PUT FAITH OF ONE COMMUNITY IN HIGH REGARD THAN THE OTHER…..14
(i) The matter is decided on Majoritarian grounds.......................................................14
(ii) Illegalities of Indoos were totally disregarded by the Hon’ble Court....................15
(iii) Constitutional validity of Pagoda..........................................................................16
7.3 WHETHER THE SUPREME COURT WAS RIGHTFUL IN BASING ITS

JUDGEMENT PRIMARILY ON THE REPORT/FINDINGS OF THE ARCHEOLOGICAL
SURVEY OF BOSAMA (ASB)?............................................................................................17
(i) Problems relating to the collection strategies as well as creating the documentary
record of the excavations..........................................................................................................17
(ii) Vague and contradictory conclusion......................................................................18
(iii) Supreme Court’s observation in Ram Janambhoomi-Babri Masjid case serves as a

precedent..................................................................................................................................18
1
MEMORIAL ON BEHALF OF PETITIONER
(iv) ASB findings not sufficient to establish title to land.............................................19
7.4 WHETHER THE COURT HAS OVERLOOKED A SETTLED LEGAL

PRINCIPLE BY LENDING ITS AID TO A PARTY WHICH HAS BASED ITS CAUSE OF
ACTION UPON AN ILLEGAL ACT?...................................................................................21
(i) Judgement against ‘right to freedom of religion’ under Indian Constitution..........21
(ii) Offence of criminal trespass under section 441 IPC has been committed.............22
(iii) Judgement contrary to the landmark S.R. Bommai case.......................................23
8. Prayer...................................................................................................................................25
2
LIST OF ABBREVIATIONS
Add. Additional
& And
AIR All India Reporter
All. Allahabad
Art. Article
ASB Archaeological survey of Bosama
GPR Geo radiology
ASI Archaeological survey of India
CrPC Code of Criminal Procedure, 1973
Ed. Edition
FIR First Information Report
Govt. Government
HC High Court
Hon’ble Honourable
No. Number
r/w Read With
SC Supreme Court
S.C.C. Supreme Court Cases
S.C.J. Supreme Court Journal
S.C.R. Supreme Court Reporter
Sec. Section
3
INDEX OF AUTHORITIES
STATUES
1. The Constitution of India, 1950

2. Oudh Laws Act, 1876
3. Uttar Pradesh Muslim Waqf Act, 1936
4. The Ancient Monuments and Archaeological Sites and Remains Act, 1958
5. The Indian Evidence Act, 1872
6. The Places of Worship (Special Provisions) Act, 1991
7. The Acquisition of Certain Area at Ayodhya Act, 1993
BOOKS
Interpretation of Statues
1. M. P. Jain, Indian Constitutional Law, Seventh Ed.

2. M. P. Jain, Indian Legal and Constitutional History, Seventh Ed.
3. Justice M. Rama Jois, Legal and Constitutional History of India
4. Durga Das Basu, Human Rights in Constitutional Law, Third Ed.
5. V.N. Shukla, Constitution of India, Tenth Ed.
6. Ratanlal & Dhirajlal, The Law of Evidence, Twenty Fourth Ed.
7. Batuklal, The Law of Evidence, Nineteenth Ed.
8. Avtar Singh, Principles of Law of Evidence, Nineteenth Ed.
9. Dr. V. Nageswara Rao, The Indian Evidence Act, Second Ed.
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STATEMENT OF JURISDICTION
The Petitioner has humbly filed a Review Petition before this Hon’ble Supreme Court
invoking its jurisdiction under Article 137 of the Constitution of Bosama-
Article 137
“Review of judgments or orders by the Supreme Court Subject to the provisions of any law
made by Parliament or any rules made under Article 145, the Supreme Court shall have
power to review any judgment pronounced or order made by it”.
5
STATEMENT OF FACTS
• State of WANKA, which lies in Republic of BOSAMA, has two major community
namely Indoos and Oswalians. In the middle of Wanka, their lies a land over which
both Indoos and Oswalians are in dispute. Indoos say that it is birthplace of lord
Gamma whereas, Oswalians say that it is the site of historical pagoda which was
constructed 400 years back.
• A suit was instituted in 1950 by Indoos worshipper belonging to Anand Ashram
seeking a declaration that he is entitled to offer prayer at the disputed land where
Oswalian pagoda stands as Anand Ashram at all material times was managing the site
believing it to be birthplace of lord Gamma.
• Later, on 3rd March 1950, blast took place inside pagoda destroying its major parts.
Board of Oswalians instituted a suit in 1961 for declaration of their title over disputed
land. They contended that prayers were uninterruptedly offered there until 21st
November 1949 when a group of Indoos desecrated it by placing idols within the
structure.
• On 21st November 1949, idols were found inside pagoda and from the very next day
Indoos started offering prayer there. F.I.R was registered, on 23rd November Addl.
City Magistrate issued a preliminary order u/s 145 Cr.PC. Simultaneously, a receiver
was appointed for inner courtyard who prepared an inventory for attached properties.
Meanwhile, 2-3 saints were allowed to go inside and perform Puja. In 1991, whole
structure was brought down by a group of Indoos that was widely acknowledged.
• There were several proceedings pertaining to this matter instituted before different
courts. Suit 1 was filed by Mr. G, a worshipper for enforcement of his right to
worship Lord Gamma at his alleged birthland. Suit 2 was filed by Anand Ashram for
handing over the management and charge of the Birthland to itself. Suit 3 filed by The
Board of Oswalians for a declaration that the entirety of the disputed site, is a public
place of worship and for a decree of its possession. Suit 4 is filed by the deity of Lord
Gamma and the ‘Janmasthan’ through a next friend.
• All suits were transferred to High Court and an order was passed to maintain the
status quo. In between all land was acquired by state govt. and same was quashed by
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High Court. Later central govt. acquired the land by promulgating an ordinance which
was challenged by a writ petition but was dismissed by constitutional bench.
• The High Court directed ASB on 23rd sept. 2002 to conduct scientific investigation of
the site through GPR. ASB submitted its report on 22nd July 2003. After concluding
all the evidence the High Court decided that the land should be equally divided
between the Indoos and Oswalians.
• Dissatisfied by the Judgment, the parties filed an appeal in Supreme Court of Bosama
where the Court decided that the disputed land should be given to the Indoos and
further directed the State to compensate the Oswalians by giving them 8 acre land,
within the State of WANKA.
• Aggrieved by this decision the Oswalians filed a review Petition.
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ISSUES RAISED
The issues presented on behalf of the Petitioner are as follows:
ISSUE 1
WHETHER THE REVIEW PETITION FILED BY THE OSWALIANS IS

MAINTAINABLE?
ISSUE 2
WHETHER THE JUDGMENT IS MAJORITARIAN IN CHARACTER FOR IT HAS

PUT FAITH OF ONE COMMUNITY IN HIGH REGARD THAN THE OTHER?
ISSUE 3
WHETHER THE SUPREME COURT WAS RIGHTFUL IN BASING ITS

JUDGEMENT PRIMARILY ON THE REPORT/FINDINGS OF THE ASB?
ISSUE 4
WHETHER THE COURT HAS OVERLOOKED SETTLED LEGAL PRINCIPLES

BY LENDING ITS AID TO A PARTY WHICH BASED ITS CAUSE OF ACTION ON
ILLEGAL ACT?
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SUMMARY OF ARGUMENTS
1. WHETHER THE REVIEW PETITION FILED BY THE OSWALIANS IS

MAINTAINABLE?
It is humbly submitted that the present Review Petition filed by Appellant in the Supreme
Court is maintainable under Article 137 of Constitution. Jurisdiction under Article 137 is to
be exercised sparingly, Circumstances in the present matter warrant the exercise of
jurisdiction in Article 137, and Inference from a pure question of fact is in itself a fact and
hence opens to review. The Osawalians has argued on the maintainability of the Review
Petition stating that there is locus standi of the party to file the Review Petition.
2. WHETHER THE JUDGMENT IS MAJORITARIAN IN CHARACTER FOR IT

HAS PUT FAITH OF ONE COMMUNITY IN HIGH REGARD THAN THE OTHER?
It is humbly affirmed before the Hon'ble Supreme court of Bosama that the Court took hard
majoritarian stance while giving the final decision in the matter related to the titile of the
disputed land in Wanka. The court decided title on the basis of faith or belief but not on the
basis of evidence. The court goes on to expressly condemn the two acts that resulted in the
very case the court was now hearing. In 1949, idols were forcefully placed inside the Pagoda.
Calling the act one of “desecration” the court went onto hold that the ouster of the Oswalians
on that occasion was not through any lawful authority but through an act which was
calculated to deprive them of their place of worship.
3. WHETHER THE SUPREME COURT WAS RIGHTFUL IN BASING ITS

JUDGEMENT PRIMARILY ON THE REPORT/FINDINGS OF THE ASB?
It is humbly submitted before this Hon’ble Court that, awarding the disputed land to the
Indoos while strictly relying on the report of ASB submitted on 22nd July 2003 is bad and
improper. The ASB’s report was ‘vague and self-contradictory’. Also, practices the ASB was
following during its dig, makes it clear that there was already a preconceived idea in the
minds of ASB archaeologists.
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4. WHETHER THE COURT HAS OVERLOOKED SETTLED LEGAL PRINCIPLES

BY LENDING ITS AID TO A PARTY WHICH BASED ITS CAUSE OF ACTION ON
ILLEGAL ACT?
It is humbly submitted before this Hon’ble Court that the basic irony of this judgment is that
it tries to honour the actions which this court found illegal and unlawful. “The biggest
damage is to the concept of rule of law. That way, the judgment is in essence antithetical to
the idea of Constitutionalism.
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ARGUMENTS ADVANCED
ISSUE 1
WHETHER THE REVIEW PETITION FILED BY OSWALIANS IS

MAINTAINABLE?
It is humbly submitted that the present Review Petition filed by Appellant in the
Supreme Court is maintainable under Article 137 of Constitution. Jurisdiction under
Article 137 is to be exercised sparingly, Circumstances in the present matter warrant
the exercise of jurisdiction in Article 137, and Inference from a pure question of fact is
in itself a fact and hence opens to review.
The Osawalians has argued on the maintainability of the Review Petition stating that there is
locus standi of the party to file the Review Petition.
1. CIRCUMSTANCES WARRANT THE EXERCISE OF JURISDICTION IN

ARTICLE 137 OF THE CONSTITUTION OF BOSAMA
1.1 The suitable remedy against the order/judgment of the Supreme Court is right to review.
The judgment/order of the Supreme Court on the basis of the recognition of the principle: ‘to
err is to human’, the Constitution provides the remedy under Article 137 in respect of
orders/judgments of the Supreme Court.
1.2 Article 137 of the Constitution says that, subject to provisions of any law and rules made
under Article 145, the Supreme Court has the power to review any judgment delivered by it.
Further, In dealing with review petitions in civil cases, the court is guided by Order XLVII,
Rule I of the Code of Civil Procedure,1908 . This deals with the grounds for review, the
most important of which is “some mistake or error apparent on the face of the record”.
1.3 Lily Thomas & Ors. v. Union of India & Ors.1 said, Rectification of an order thus stems
from the fundamental principle that justice is above all. It is exercised to remove the error and
not for disturbing finality.
1
2000 (6) SCC 224
11
Article 137 of the Constitution provides substantive power to review any judgment or order,
and here to review means to rectify or recall.
1.4 In A. R. Antulay v. R. S. Nayak, 2it was held that the superior court can always correct its
own error brought to its notice either by way of petition or ex debito justitiae. It was further
observed that, a judgment or an order passed by this Court will not be open to a writ even if
an error is apparent. But in exercise of inherent jurisdiction, the Court’s judgment shall be
amenable to correction of an error, if it comes to the notice of the Court 3(Radhey Shyam &
Anr. v. Chhabi Nath & Ors)
2. VIOLATION OF SECULAR PRINCIPLES EMBEDDED IN THE CONSTITUTION

AND DISPUTE REGARDING TITLE OF THE LAND
2.1 The petitioners in the present case have challenged the title of the land being given to
Indoos, arguing that Indoos never had exclusive possession of the entire site.
2.2 They added that the apex court’s judgement has, in fact, given directions to clear the
existing structure that remains after the Pagoda was demolished at the site on 3rd March
1950.“The de jure, indeed de facto, effect of the direction in the judgement is to destroy the
Pagoda if it still existed,".
2.3 The Oswalians petitioned for a review of certain parts of the court order, claiming that
none of the Oswalians had prayed for allotment of alternate land. The petition also stated that
the apex court’s decision to award the disputed land to the Indoos amounted to condoning
their illegal acts of demolishing the Pagoda.
2.4 The Oswalians approached the court to seek a review of the order stating that the verdict
impacted the secular culture envisaged in the Indian Constitution.
3. CONDONING SERIOUS ILLEGALITIES OF DESTRUCTION OF PAGODA
3.1 The Petitioner also alleged that the judgment was mostly based on Indoos faith than
secular principles.
2
AIR 1988 SC 1531
3
AIR 2015 5 SCC 423.
12
At the very outset, the petitioners, however, clarified that the purpose of filing the review plea
is not to disturb peace, saying Oswalians have always maintained peace, but their properties
have been the “victim of violence and unfair treatment".
3.2 The petitioners argued that the verdict “condones serious illegalities of destruction,
criminal trespass and violation of rule of law, including damaging the Pagoda and eventually
destroying it", but the “entire concept of restitution in the judgement is based on the unlawful
destruction of the Oswalian’s place of worship and condoned contrary to all norms of
restitutive justice".
3.3 The petitioners countered the judgement on three points: “Contrary to law, self-
contradictory and in violation of complete justice that it invoked."
3.4 The review petition was filed by the oswalians with the objective that “complete justice"
could only be done by directing reconstruction of the Pagoda.
3.5 The petitioner argued that “the judgement under review erred in allotting alternate land of
8 acres to Oswalians under Article 142 even though the same was not pleaded for".The
petitioner also questioned the direction of the Supreme Court to allot eight acre land for the
construction of a Pagoda at a prominent place in the State of Wanka, saying that such a
prayer was never made by the Oswalians.
3.6 “The review petitioner is conscious of the sensitive nature of the issue and understands
the need to put a quietus to the issue in dispute so as to maintain peace and harmony in our
country, however, it is submitted that there can be no peace without justice”.
3.7 Supreme Court being the highest forum and the apex court, it has to be really careful
about the final judgement and make sure that there is no miscarriage of justice in a particular
case. Justice is above all. The court should provide justice to the extent it’s within the human
procedure of the administration of justice; the wrong must be checked and corrected.
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ISSUE 2
WHETHER THE JUDGMENT IS MAJORITARIAN IN CHARACTER FOR IT HAS

PUT FAITH OF ONE COMMUNITY IN HIGH REGARD THAN THE OTHER?
It is humbly affirmed before the Hon'ble Supreme Court of Bosama that the Court took
hard majoritarian stance while giving the final decision in the matter related to the titile
of the disputed land in Wanka.
1. THE MATTER IS DECIDED ON MAJORITARIAN GROUNDS
1.1 The court decided title on the basis of faith or belief but not on the basis of evidence. The
court goes on to expressly condemn the two acts that resulted in the very case the court was
now hearing. In 1949, idols were forcefully placed inside the Pagoda. Calling the act one of
“desecration” the court went onto hold that the ouster of the Oswalians on that occasion was
not through any lawful authority but through an act which was calculated to deprive them of
their place of worship.
1.2 The purpose of law in plural societies is not the progressive assimilation of the minorities
in the majoritarian milieu. This would not solve the problem; but would vainly seek to
dissolve it.4
1.3 The 1991 destruction of the Pagoda and the obliteration of the oswalianic structure was an
egregious violation of the rule of law and when it came to actually deciding on the title suit
for the land on which the Pagoda stood, the court converted these high-minded principles into
mocking homilies. Ignoring its own talk of secularism, rule of law and the crime of mosque
demolition, the court took a hard majoritarian stance a temple to be constructed on the spot
where the Pagoda stood.
1.4 The court set up a lopsided test, making Oswalians bear the burden of proving exclusive
possession of the mosque while the Hindu side did not need to meet a similar standard of
proof.
1.5 Moreover, the court actually rewards trespass. The fact that Indoos constantly interfered
in Oswalians worship in the inner courtyard is seen as proof that Oswalians possession was
4
Dr. M. Ismail Faruqui Etc, Mohd. vs Union Of India And Others, AIR 1995 SC 605 A
14
not absolute. Ironically, the fact that Oswalians did not interfere in Indoos worship in the
outer courtyard of the mosque is seen as proof that Indoos had unimpeded possession.
1.6 The court also takes the curious position of noting that throughout history, the land in
dispute has seen a division, with Indoos able to show they held exclusive possession of the
outer courtyard, whereas the Oswalians were not able to show similar exclusive possession of
the inner courtyard. Yet, in spite of the fact that inner courtyard possession is certainly
disputed, the court maintains that ownership can only be decided for the entire parcel of land.
This, in spite of the fact that the High Court of Wanka had decided to partition of the land.
This unusual, peremptory decision helped in awarding the entire plot to the Indoos.
2. ILLEGALITIES OF INDOOS WERE TOTALLY DISREGARDED BY THE

HON’BLE COURT
2.1 It is humbly affirmed before the Hon'ble Supreme court of Bosama that the Court took no
regard of the illegalities and given space & chances to Indoos to establish their title.
2.2 The Court in one hand, held that the Oswallians had failed to prove an exclusive right
even in the inner courtyard, where the Pagoda was located, and that there were frequent
complaints of interference by indoos, and instances of contestation and disputes. At the same
time, the judgement holds that there is no evidence to establish that Oswallians abandoned
the Pagoda or ceased to perform Prayers in spite of the “contestation” over their possession of
the inner courtyard.
2.3 In other words, nowhere in the verdict is there a finding that Indoos had exclusive right of
worship or possession on the entire premises. A question then arises as to the basis of the
court awarding the whole land to one side, and offering the other only an alternative location
elsewhere5. (Refer page 883 and 884 of Judgment of Ayodhya Ram Janambhoomi case).
2.4 The Court took no regard while granting legal rights (title of land) to the "deity of Lord
Gamma" which was placed inside the disputed structure unlawfully in 1949. It can be
observed that the Indoos have been depriving the Oswalians of holding their prayers,
desecrating it and ultimately demolishing the Pagoda. It is a fact that the Lord Gamma's idols
were put inside the mosque on 21st November 1949 and the court did hold this act as illegal.
The same Lord Gamma filed a suit in 1989 and said that the Pagoda was constructed over
5
(M Siddiq (D)Thr vs. Mahant Suresh Das & Ors, Civil Appeal Nos 10866-10867 of 2010)
15
400 prior to Independence of Bosama. Lord Gamma’s followers then demolished the Pagoda
in 1991.
2.5 The first rule of equity is that one who seeks equity must come with clean hands and an
illegal act does not give a claim to equity. Though he cannot be blamed for the actions of his
followers, yet his right to title in a civil suit has to be closely examined as he is like any other
party in a civil suit.
3. CONSTITUTIONAL VALIDITY OF PAGODA
3.1 The Supreme Court accepted the plea of the Indoos parties that the whole of the Pagoda
site belongs to them not on the basis of solid evidence but on travelogues and oral
depositions. The claims of the oswallians were rejected on the ground that they could not
produce any document to prove their continuous possession. Equality before the law and
equal protection of law are the cardinal constitutional principles which stand eroded here
3.2 In Kantaru Rajeevaru vs Indian Young Lawyers Association, “it was said that
‘Religion’ is a means to express ones ‘Faith’. In the Indian context, given the plurality of
religions, languages, cultures and traditions, what is perceived as faith and essential
practices of the religion for a particular deity by a section of the religious group, may not be
so perceived (as an integral part of the religion) by another section of the same religious
group for the same deity in a temple at another location. Both sections of the same religious
group have a right to freely profess, practice and propagate their religious beliefs as being
integral part of their religion by virtue of Article 25 of the Constitution of India. It matters
not that they do not constitute a separate religious denomination. The individual right to
worship in a temple cannot outweigh the rights of the section of the religious group to which
one may belong, to manage its own affairs of religion”.6(2019).
6
R. P. (c) NO. 3358/2018 In W.P. (c)NO. 373/2006.
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ISSUE-3
WHETHER THE SUPREME COURT WAS RIGHTFUL IN BASING ITS

JUDGEMENT PRIMARILY ON THE REPORT/FINDINGS OF THE
ARCHEOLOGICAL SURVEY OF BOSAMA (ASB)?
It is humbly submitted before this Hon’ble Court that, awarding the disputed land to
the Indoos while strictly relying on the report of ASB submitted on 22nd July 2003 is bad
and improper.
The ASB’s report was ‘vague and self-contradictory’. Also, practices the ASB was following
during its dig, makes it clear that there was already a preconceived idea in the minds of ASB
archaeologists.
1.PROBLEMS RELATING TO THE COLLECTION STRATEGIES AS WELL AS

CREATING THE DOCUMENTARY RECORD OF THE EXCAVATIONS
1.1 Right at the outset, it was observed that animal bones and glazed pottery were not being
collected and instead were being thrown away. When complaints were made regarding these
practices, the court then ordered that these be collected and recorded.
1.2 The second is the creation of the documentary record. In excavations, the standard
procedure should be to maintain a detailed record of the actual process of recovery of
individual features, as is now the norm with the use of context forms in excavations. In these
forms, each dig is described, which taken overall constitutes a record of how walls, artefacts
and features were recovered.
1.3 Hence, when the various floors under the Oswalian pagoda were being excavated,
what was required was a detailed documentation of what was uncovered after each dig,
as well as the composition of the deposits between the successive floors. It was critical to
document that under each successive floor lay fill deposits of mud, brickbats and stone that
constituted the base of the floor.
1.4 Had this been accurately documented and illustrated in the report, it would have been
clear that these materials formed the base of the floor. Instead, brickbats were selectively
removed but left intact at intervals, ranging from 1.98 meters to 5.0 meters to give the
impression of “pillar bases”. A documentation strategy that shows only the end point and
17
not the intermediary stages of excavation, results not only in an incomplete but an erroneous
record.
2. VAGUE AND CONTRADICTORY CONCLUSION
2.1 If you read the entire report, there is no mention of any temple. It is a standard report.
What is missing is a chapter on bones and human skeletal remains. That is what they also
found but they never published it.
2.2 What you will also find is that the names of the people who wrote those (other)
chapters and the conclusion is not mentioned. And in the conclusion, in the last paragraph
of the report, they say foliage patters, amalaka, kapotapali doorjamb with semi-circular
pilaster, broken octagonal shaft of black schist pillar, lotus motif, circular shrine having
pranala (waterchute) in the north, fifty pillar bases in association of the huge structure, are
indicative of remains which are distinctive features found associated with the temples of
north Bosama.. Point here is to be noted is that, a circular shrine in associated with both
ancient oswalian culture and Buddhist culture which was prominent during 10 th-15th
century.
2.3 Also, the conclusion of the report is literally written in four lines. Otherwise, nowhere in
the discussion, is there any talk of a temple being found.
3. SUPREME COURT’S OBSERVATION IN RAM JANAMBHOOMI-BABRI

MASJID CASE SERVES AS A PRECEDENT
3.1 In the infamous Ayodhya case ASI report, the bench said, had not specifically opined
whether a temple was demolished for the construction of the disputed structure (mosque).
What emerged from the report was that the mosque utilized the foundation and material of an
underlying structure believed to be a non-Islamic structure.
3.2 The ASI report has left unanswered a critical part of the remit which was made to it,
namely, a determination of whether a Hindu temple had been demolished to pave way for the
construction of the mosque. A determination of title was not obviously within the remit of
ASI,” the judges said.
18
3.3 ASI also found that the pillars used in the mosque’s construction were black Kasauti
stone pillars but it found no evidence to show that these pillars are relatable to the underlying
pillar bases found during the course of excavation in the structure below the mosque.
3.4 “Between the twelfth century, to which the underlying structure is dated, and the
construction of the mosque in the sixteenth century, there is an intervening period of four
centuries. No evidence has been placed on the record in relation to the course of human
history between the twelfth and sixteen centuries,” the court said.
3.5 On usage of word “divine” in referring to sculpture recovered by the ASB.
3.6 In the ASB’s report it is mentioned that, “yield of stone and decorated bricks as well as
mutilated sculpture of divine couple” were found. However, they have not explained the
features of such sculpture any further. Similarly, the opinion of Hon’ble Supreme Court in
AYODHYA-RAM JANAMBHOOMI CASE7 in respect of word ‘Divine’ as used in ASI
report.
3.7 The Supreme Court agreed with an objection made that the usage of the word “divine” by
the ASI in referring to a mutilated statue recovered from the site was inappropriate. In this
regard, the Bench noted,
3.8 “Learned Senior Counsel criticised the use of the expression, divine couple, to depict the
recovery reflected in plate 235. The criticism advanced by counsel is not unfounded. The
sculpture reflected in the plate is (as the ASI report states) highly mutilated. According to
the ASI team, what remains of the sculpture indicates a waist, thigh and foot of a couple.
This may well be an imaginative extrapolation of archaeological experience. But, calling it
a divine couple is beyond the stretch of imagination.”
4. ASB FINDINGS NOT SUFFICIENT TO ESTABLISH TITLE TO LAND
4.1 Similar were the findings in Ayodhya- Ram Janambhoomi case where the Hon’ble
Supreme Court held that the ASI report was not conclusive on whether the ruins on which the
mosque was built was a Hindu temple dedicated to Lord Ram as claimed by the Hindu
parties.
7
(M Siddiq (D)Thr vs. Mahant Suresh Das & Ors, Civil Appeal Nos 10866-10867 of 2010)
19
4.2 Significantly, the Court also took note that the ASI has not made any findings on whether
any structure was demolished to build the mosque. As per the ASI findings, there was a time
gap of about four centuries between the age of the ruins underlying the Babri masjid (dating
to back to the 12th century) and the mosque (dating to the 16th century). As stated in the
judgment,
“Significantly, the ASI has not specifically opined on whether a temple was demolished for
the construction of the disputed structure though it has emerged from the report that the
disputed structure was constructed on the site of and utilised the foundation and material of
the underlying structure.”
4.3 In view of these aspects, although the Court did not find ground to reject the ASI
findings, the report was not sufficient to establish the title of the land in favour of the Hindu
parties. In this regard, the Bench concludes in page 907 of the judgment,
“A finding of title cannot be based in law on the archaeological findings which have been
arrived at by ASI. Between the twelfth century to which the underlying structure is dated and
the construction of the mosque in the sixteenth century, there is an intervening period of four
centuries. No evidence has been placed on the record in relation to the course of human
history between the twelfth and sixteen centuries. No evidence is available in a case of this
antiquity on (i) the cause of destruction of the underlying structure; and (ii) whether the pre-
existing structure was demolished for the construction of the mosque. Title to the land must
be decided on settled legal principles and applying evidentiary standards which govern a
civil trial.
Henceforth, the counsel most humbly submits before this Hon’ble Court that report
submitted by ASB is vague and contradictory, also it has not elaborated upon much.
The report fails to answer certain very important questions and therefore it is
inappropriate to award title of land based on ASB’s findings.
20
ISSUE-4
WHETHER THE COURT HAS OVERLOOKED A SETTLED LEGAL PRINCIPLE

BY LENDING ITS AID TO A PARTY WHICH HAS BASED ITS CAUSE OF
ACTION UPON AN ILLEGAL ACT?
It is humbly submitted before this Hon’ble Court that the basic irony of this judgment
is that it tries to honour the actions which this court found illegal and unlawful. “The
biggest damage is to the concept of rule of law. That way, the judgment is in essence
antithetical to the idea of Constitutionalism.
Mob violence or any kind of hooliganism should not be permitted to reap dividends as the
rule of law is a basic feature of any working democracy. People would ask how a verdict that
had established a breach of law went on to reward the perpetrators and not the victims.
1. JUDGEMENT AGAINST ‘RIGHT TO FREEDOM OF RELIGION’ UNDER

INDIAN CONSTITUTION
“Right to freedom of religion is not only a right guaranteed by the constitution, but also
at the same time is a duty expected to be followed, for the betterment and overall growth of
the society.”
1.1 In Kantaru Rajeevaru vs Indian Young Lawyers Assn. thr. Its Gen-sector ‘The
Sabrimala case8, Hon’ble ex-CJI Ranjan Gogoi said, “as long as the practice (ostensibly
restriction) associated with the religious belief is not opposed to public order, morality and
health or 5 the other provisions of Part III of the Constitution of India, the section of the
religious group is free to profess, practice and propagate the same as being integral part of
their religion.”
1.2 Public order and morality were disturbed in the name of religion, firstly in 1949 when
idols were forcibly placed inside the pagoda and again in 1990 when pagoda was destroyed
and brought down by the members of indoos community. A grave violation of constitutional
mandate.
Also the Hon’ble court said,
8
ibid
21
“In the public law conversations between religion and morality, it is the overarching sense of
constitutional morality which has to prevail.”
1.3 While it is undisputed that a significant section of the Hindu population believes Ayodhya
to be the birthplace of Lord Rama, it is unclear whether such belief can be grounds for legal
adjudication in what is essentially a title dispute.
2. OFFENCE OF CRIMINAL TRESPASS UNDER SECTION 441 IPC HAS BEEN

COMMITTED
2.1 Criminal trespass—Whoever enters into or upon property in the possession of another
with intent to commit an offence or to intimidate, insult or annoy any person in possession of
such property, or having lawfully entered into or upon such property, unlawfully remains
there with intent thereby to intimidate, insult or annoy any such person, or with intent to
commit an offence, is said to commit “criminal trespass”.
2.2 Important ingredients of this section is ‘intent to commit an offence or to intimidate’. In

the present case, prayers were uninterruptedly offered in the pagoda until 21 st November
1949 when a group of Indoos desecrated it by placing idols within the structure with the
intent to destroy and defile the Oswalian pagoda and consequently intimidating Oswalians.
2.3 In Mathuri & Ors. v. State of Punjab,9 Hon'ble Supreme Court has held that in order to
establish that the entry on the property was with the intent to annoy, intimidate or insult, it is
necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was
the aim of the entry; that it is not sufficient for that purpose to show merely that the natural
consequences of the entry was likely be to annoyance, intimidation or insult, and that this
likely consequence was known to the persons entering; that in deciding whether the aim of
the entry was the causing of such annoyance, intimidation or insult, the court has to
consider all the relevant circumstances including the presence of knowledge that its
natural consequences would be such annoyance, intimidation or insult and including also
the probability of something else than the causing of such intimidation, insult or annoyance,
being the dominant intention which prompted the entry.
9
1964 SCR (5) 916
22
2.4 In Babri masjid-Ram Janambhoomi judgment10, a bench led by Chief Justice of India
Ranjan Gogoi said that “Muslims have been wrongly deprived of a mosque which had been
constructed well over 450 years ago”. The court said that on December 6, 1992, the mosque
was brought down in breach of the assurance given to it that the structure would not be
affected. It added that the Muslims had not abandoned the mosque when it was destroyed.
2.5 It is also important to note that in reaching the conclusion that Muslims were not in
exclusive possession of the inner courtyard, the Court heavily relies on evidence of attempts
by Hindus to disrupt the possession of the Muslims:
“Even after the construction of the dividing wall by the British, the Hindus continued to
assert their right to pray below the central dome. This emerges from the evidentiary record
indicating acts of individuals in trying to set up idols and perform puja both within and
outside the precincts of the inner courtyard.”11.
2.6 The court, which established a breach of law in the demolition of the oswalian pagoda,
has now come up with a solution to build a temple at the spot. This contradiction will be
discussed in times to come.
3. JUDGEMENT CONTRARY TO THE LANDMARK S.R. BOMMAI CASE12
3.1 While the Bommai case is usually viewed only from the prism of the misuse or use of
Article 356, the case included the dismissals of six governments. Three of them —in
Rajasthan, Himachal Pradesh and Madhya Pradesh — were dismissed in the wake of the
Babri Masjid demolition.
“The Supreme Court had in the Bommai case said the dissolution of the BJP governments in
Rajasthan, Himachal Pradesh and Madhya Pradesh was justifiable due to their active support
to the kar sevaks who brought down the Babri Masjid.
3.2 In the Bommai decision the full constitutional bench of the Supreme Court declared the
integral importance of the place of secularism in the Constitution. In the course of lauding
the importance of secularism based on religious tolerance and equal treatment of all
10
ibid
11
(para 788, clause VII of Ayodhya- Ram Janambhoomi case )
12
(AIR 1994 SC 1918)
23
religious groups, the Supreme Court also strongly condemned the political forces
committed to undermining a more pluralistic instantiation of this constitutional ideal.
The Court remarked on the distinctness of the concept of secularism in India— that is, the
equal treatment of all religions and tolerance. For example, Justice Sawant echoed the
common view that in India secularism does not involve a complete separation of religion and
the state, but rather the notion of treating all religions equally:
“The ideal of a secular State in the sense of a State which treats all religions alike and
displays benevolence towards them is in a way more suited to the Indian environment and
climate than that of a truly secular State by which is meant a state which creates complete
separation between religion and the State”.
3.3 In that judgment, the nine-member bench had clearly said that secularism was the basic
feature of the Constitution. This judgement has turned the Bommai verdict upside down. The
spirit of secularism has been subject to extreme damage in this judgment.
3.4 I describe our Supreme Court as the world’s most powerful since all policy issues are
matters of litigation in Bosama. Therefore, all political and policy issues reach the Supreme
Court for a judicial review.
Henceforth, the counsel most humbly submits before this Hon’ble Court that, if the
court is not able to review the executive actions purely based on the principles of the
Constitution, then there is every risk of the distinction between the judiciary and the
executive getting blurred.
24
PRAYER
In the light of authorities cited, issues presented & arguments advanced, it is most
respectfully prayed before this Hon’ble Court that it may be pleased to adjudge and declare:
1. The destruction of the Pagoda by the Indoos amounted to violation of fundamental rights
of the Oswalian people, and order for the reconstruction of the Pagoda.
2. The findings of the Archaeological Survey report was not clear about the fact that whether
the structure belongs to the Indoos or Oswalians.
3. Order and direct the government to take corrective measures to restore the Pagoda in order
to protect the rights under Article 25 and 49 of the Constitution.
4. Award compensatory damages to be paid by Indoos to Oswalians for the damage caused
by desecration of Pagoda in 1950 and 1991 which constituted a serious violation of the rule
of law.
5. Order for construction of the Pagoda and grant a temporary injunction against the same
until an expert committee is appointed to assess the impact of obliteration of the Pagoda.
AND / OR
Pass any other judgement or order it deems fit in the light of justice, equity & good
conscience.
And for this the Petitioner as in duty bound shall forever humbly pray.
All of which is respectfully submitted on behalf of
The Petitioner
25

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TC-13

2ND JAGANNATH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2020

BEFORE THE HON’BLE SUPREME COURT OF BOSAMA

WRIT PETITION NO. ______/2020

BOARD OF OSWALIANS ……………………...... PETITIONER

UNION OF BOSAMA ……………..………………… RESPONDENT

REVIEW PETITION FILED UNDER ARTICLE 137 OF CONSTITUTION OF

Counsels on behalf of the Petitioner

(iii) Condoning serious illegalities of destruction of Pagoda.......................................12

7.2 WHETHER THE JUDGMENT IS MAJORITARIAN IN CHARACTER FOR IT

(i) The matter is decided on Majoritarian grounds.......................................................14

(ii) Illegalities of Indoos were totally disregarded by the Hon’ble Court....................15

(iii) Constitutional validity of Pagoda..........................................................................16

7.3 WHETHER THE SUPREME COURT WAS RIGHTFUL IN BASING ITS

(ii) Vague and contradictory conclusion......................................................................18

(iii) Supreme Court’s observation in Ram Janambhoomi-Babri Masjid case serves as a

(iv) ASB findings not sufficient to establish title to land.............................................19

7.4 WHETHER THE COURT HAS OVERLOOKED A SETTLED LEGAL

(i) Judgement against ‘right to freedom of religion’ under Indian Constitution..........21

(iii) Judgement contrary to the landmark S.R. Bommai case.......................................23

AIR All India Reporter

ASB Archaeological survey of Bosama

GPR Geo radiology

ASI Archaeological survey of India

CrPC Code of Criminal Procedure, 1973

FIR First Information Report

r/w Read With

S.C.C. Supreme Court Cases

S.C.J. Supreme Court Journal

S.C.R. Supreme Court Reporter

1. The Constitution of India, 1950

1. M. P. Jain, Indian Constitutional Law, Seventh Ed.

The issues presented on behalf of the Petitioner are as follows:

WHETHER THE REVIEW PETITION FILED BY THE OSWALIANS IS

WHETHER THE JUDGMENT IS MAJORITARIAN IN CHARACTER FOR IT HAS

WHETHER THE SUPREME COURT WAS RIGHTFUL IN BASING ITS

WHETHER THE COURT HAS OVERLOOKED SETTLED LEGAL PRINCIPLES

1. WHETHER THE REVIEW PETITION FILED BY THE OSWALIANS IS

2. WHETHER THE JUDGMENT IS MAJORITARIAN IN CHARACTER FOR IT

3. WHETHER THE SUPREME COURT WAS RIGHTFUL IN BASING ITS

4. WHETHER THE COURT HAS OVERLOOKED SETTLED LEGAL PRINCIPLES

WHETHER THE REVIEW PETITION FILED BY OSWALIANS IS

1. CIRCUMSTANCES WARRANT THE EXERCISE OF JURISDICTION IN

2. VIOLATION OF SECULAR PRINCIPLES EMBEDDED IN THE CONSTITUTION

3. CONDONING SERIOUS ILLEGALITIES OF DESTRUCTION OF PAGODA

WHETHER THE JUDGMENT IS MAJORITARIAN IN CHARACTER FOR IT HAS

1. THE MATTER IS DECIDED ON MAJORITARIAN GROUNDS

2. ILLEGALITIES OF INDOOS WERE TOTALLY DISREGARDED BY THE

3. CONSTITUTIONAL VALIDITY OF PAGODA

WHETHER THE SUPREME COURT WAS RIGHTFUL IN BASING ITS

1.PROBLEMS RELATING TO THE COLLECTION STRATEGIES AS WELL AS

2. VAGUE AND CONTRADICTORY CONCLUSION

3. SUPREME COURT’S OBSERVATION IN RAM JANAMBHOOMI-BABRI

3.5 On usage of word “divine” in referring to sculpture recovered by the ASB.

4. ASB FINDINGS NOT SUFFICIENT TO ESTABLISH TITLE TO LAND

WHETHER THE COURT HAS OVERLOOKED A SETTLED LEGAL PRINCIPLE

1. JUDGEMENT AGAINST ‘RIGHT TO FREEDOM OF RELIGION’ UNDER

Also the Hon’ble court said,

2. OFFENCE OF CRIMINAL TRESPASS UNDER SECTION 441 IPC HAS BEEN

2.2 Important ingredients of this section is ‘intent to commit an offence or to intimidate’. In