"This will be little problematic, if we asked the judicial validity of the dedication of the land as mosque by Babur," the Bench said on Wednesday when one of the counsel of a Hindu party said the Allahabad High Court refused to deal with the issue, citing it as 500-year-old matter.
Senior Advocate P.N. Mishra, appearing for the Akhil Bhartiya Sri Ram Janam Bhoomi Punarudhar Samiti, submitted the high court erred in saying it would not go into the issue whether Babur constructed the mosque without following Shraia, Hadith and other Islamic practices. He raised the doubt if the disputed structure was a valid mosque.
Mishra told the Constitution Bench, headed by Chief Justice Ranjan Gogoi, instead of deciding on the allegations that Babur was not the owner of the land and was incapable of validly executing 'wakf' for the mosque, the high court held since almost 500 years had passed it would not deal with the issue, which might be a matter of debate for histor.
Citing the high court judgement, Mishra said majority of it held that Muslims failed to prove that the structure was built by Babur in 1528. He also claimed the inscriptions placed at entrance and pulpit of the structure, which Muslims relied to prove it as mosque were forged. He said they were first seen by a magistrate after 1934.
When the Bench asked how to deal with aspects that there was a structure in the shape of a mosque, Mishra said the structure couldn't be treated as mosque.
"If the construction is in line with Islamic tenets and Islamic law, then only it will be termed as mosque. If it's taken by force, it will be his property and go to heirs and the waqf board would have no role," Mishra said.
He cited various Islamic texts and testimonies of religious experts who had testified as witnesses in the case and said, "A mosque is not valid if it's built on the land of people of another religion." He also said the disputed structure lacked the features of being treated as a mosque.
( With inputs from IANS )