JMNMCC15 A PDF

21ND
st JAGANNATH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2019

JAGANNATHMEMORIAL NATIONAL MOOTCOURTCOMPETITION,2019
MEMORIAL ONBEHALF
MEMORIALON BEHALFOF
OFAPPELLANT
APPELLANT
TEAMCODE: JMNMCC15
2nd
d
JAGANNATH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2020
IN THE HON’BLE SUPREME COURT OF BOSAMA

REVIEW JURISDICTION
IN THEMATTEROF
Board of Oswalians………………………………….APPELLANT
Versus
Others………………RESPONDENT
(UNDER ARTICLE 137 OF THE Indian Constitution )
MEMORIAL ON BEHALF OF THE APPELLANT
1
2ND JAGANNATH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2019
MEMORIAL ON BEHALF OF APPELLANT
TABLE OF CONTENT
TABLE OF CONTENT………………………………………………………………………….. 2
INDEX OF AUTHORITIES…………………………………………………………………..…. 3
• CASES CITED
• BOOKS REFERRED
• STATUTES
• LEGAL DATABASE
STATEMENT OF JURISDICTION………………………………………………………..…… 5
STATEMENT OF FACTS………………………………………………………………………..6
STATEMENT OF ISSUES……………………………………………………………………....8
SUMMARY OF ARGUMENTS………………………………………………………………....9
ARGUMENTS ADVANCED………………………………………………………………...….10
PRAYER…………………………………………………………………………………………23
2
THE INDEX OF AUTHORITIES
CASES CITED
1. A.R. Antulay vs R.S. Nayak & Anr on 29 April, 1988 Equivalent citations: 1988 AIR 1531,
1988 SCR Supl.
2. Arjun Khiamal Makhijani v. Jamnadas C. Tuliani, AIR 1989 SC 1599: (1989) 4 SCC 612
3. Ahmed Hasham, (1932) 35 Bom LR 240, 57 Bom 329
4. Ahmedabad St. Xavier College Society v. State of Gujarat [1974] A.I.R. S.C. 1389
5. Aruna Roy v Union of India AIR2002SC3176
6. Charu nayiah, (1877) 2 Cal 354
7. Desiya Murpokku Dravida Kazhagam v Election Commission of India AIR 2012 SC 2191
8. E.S.P. Rajaram v Union of India
9. Gobind Prasad, (1933) 13 Pat 268
10. Gopinath v ramchandra, (1958) Cut 485
11. His Holiness Kesavananda Bharati Sripadagalvaru vs. State Of Kerala And Another AIR
1973 SC 1461
12. Indian Young Lawyers Association and Ors v. State of Kerala and Ors 2017 6 AWC5947SC
13. Indore Development Authority v. Shailendra 2018 (127) ALR 772
14. Kewal chand v s.k. sen AIR2001SC2569
15. M S iddiq ( D ) Thr Lrs Versus Mahant Suresh Das & Ors
16. Mahendra Singh Dhoni v Yerraguntla shyamsunder AIR2017SC2392
17. Mathri, AIR 1964 SC 986

18. Naresh Shridhar Mirajkar & Ors V. State Of Maharashtra & Anr [1966] Insc 64; Air 1967 Sc
1; 1966 (3) Scr 744
19. National Textile Corporation Ltd. v. Nareshkumar Badrikumar Jagad & Ors, 2018 SCC
OnLine SC 2573
20. Narayanamma v Govindappa, 2019 SCCOnline SC 1260

21. Premchand Garg v Excise Comr Allahabad AIR 1963 SC 996 595
3
22. Ram Chandra singh v savitri devi [2003] 8 SCC 319

23. Ramji Lal Modi v. State Of U.P. AIR1957SC620
24. Ramdeo Chauhan v State of assam AIR 2001 SC 2231

25. S.R Bommai v. Union of India AIR 1994 SC 1918
26. Sivakoti Swami, (1885) 1 Weir 253
27. Suthenthiraraja v. State, AIR 1999 SC 3700: (1999) 9 SCC 323

28. Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan &Ors. AIR 1963 SC 1638
29. V. Krishnappa Naidu v Union of India AIR 1976 Mad

30. Valuappa v bheema rao, (1917) 41 Mad 156 (FB)
31. Yashwant Sinha vs Central Bureau Of Investigation(2019) AIR2019SC1802
32. Yusuf Ajij Shaikh And Others… v. Special Land Acquisition Officer No. 2, Pune And
Others AIR1994Bom327
BOOKS REFERRED
1. Batuk Lal, the Code of Criminal Procedure, 1973 (Central Law Agency, 2017).
2. Dr. J.N. Pandey, Dr. Surendra Sahai Srivastava (ed.), Constitutional Law of India
(CentralLaw Agency, 54th Edition, 2016)
3. Dr. Narendra Kumar, Constitutional Law of India (Allahabad Law Agency, 9th Edition,
Re.2016).
4. K.D. Gaur, Textbook on I.P.C. (Universal Law Publications, 6th Edition, 2016).
5. M.P. Jain, Indian Constitutional Law (Lexis Nexis, 8th Edition, 2018).
6. Mulla, the Code of Civil Procedure (Lexis Nexis, 19th Edition, 2017).
7. P.S.A. Pillai, Dr. K. I. Vibhute, Criminal Law (Lexis Nexis, 12th Edition, Re. 2016).
8. Paras Diwan & P. Diwan, Modern Hindu law, (Allahabad law agency, 23rd edition, Re.
2018).
9. Ratanlal & Dhirajlal, I.P.C. ( L e x i s N e x i s , Nagpur, 30th Ed., 2008).
10. Ratanlal & Dhirajlal, the Code of Criminal Procedure (Lexis Nexis, 22nd Edition, 2017).
11. S.N. Mishra, the Code of Criminal Procedure, 1973 (Central Law Publications, 20th
Edition,2016).
4
12. Surya Narayan Mishra, Shriniwas Gupta (ed.), I.P.C. (Central Law Agency, Allahabad, 20th
Edi, 2016).
STATUTES AND RULES
1. The Code of Criminal Procedure, 1973.
2. The Constitution of India, 1950.
3. The Indian Penal Code, 1860.
4. The Supreme Court Rules, Order XLVIII, Rule 6 (1966).
LEGAL DATABASE
1. Manupatra
2. SCC Online
5
STATEMENT OF JURISDICTION
The appellant in the present case has approached the hon’ble Supreme Court of Bosama to
initiate the present appeal under article 137 of the constitution of India. The appellant most
humbly and respectfully submits to the jurisdiction of the hon’ble Supreme Court in the present
matter.
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.”
6
STATEMENT OF FACTS
THE RELIGION STRUCTURE AT BOSAMA
The cultural and secular harmony of BOSAMA is well known since inception. The major two
communities of BOSAMA- are Oswalians and Indoos. WANKA – a state in BOSAMA shares the
border with the Oswalian Republic of Atlantis; they share a tragic history of partition, and there is a
constant rebellion. In the middle of WANKA there is a land which is Oswalian’s historical Pagoda
and place of worship built by Oswalian Emperror King Abar, but the Indoos community also claims
the land as the birthplace of Lord Gamma.
THE BEGINNING OF TUSSLE
On 3rd March 1950, a blast took place on the diputed land which led to the demolition of major part
of the pagoda. The Oswalians confirm that the pagoda was constructed by Emperor Abar in the 3rd
decade of the sixteenth century and was not constructed on the site destroyed shrine. Prayers were
uninterruptedly offered in the pagoda until 21st November when a group of Indoos discreted it by
placing idols within the structure with the intent to destroy and defile the Oswalian pagoda. The
Board of Oswalians claim declaration of title over the disputed land and a decree for possession of
the same. Before the blast, which led to demolition of part of Pagoda, on 21st November 1949 in the
middle of night an idol of Lord Gamma was found inside the Pagoda and from the next day Indoos
started offering prayer. An FIR was also registered related to the incident. The Additional City
Magistrate, State of Wanka issued preliminary order under section-145 of the Code of Criminal
Procedure. On 5th December 1949 the receiver Mr.P also the chairman of Municipal Board took
charge of the inner courtyard and prepared an inventory of the attached property under the
Magistrate order, only two or three saints were permitted to go inside the place of Pagoda where the
Idols were found to perform religious ceremonies like Puja and Bhog. Then on order of Civil Court
after some years general public were only allowed for Darshan. But in 1991, a group of Indoos
brought down the remaining of Pagoda too.
7
SUITS AND PRCOCEEDINGS
Several suits were filled including Mr.G a worshipper for enforcement of his right to worship Lord
Gamma and by Anand Ashram for handling over the management and charge of the Birthland itself.
Also a suit was filed by Oswalian Board for a declaration that the entire area including the
surrounding graveyard with the pagoda, as a public place of worship and for a decree of its
possession. Suit 4 was filled by the deity of Lord Gamma.
On June 10th, 1989 all suits were transferred to the High Court. A three Judge bench was constituted
on 21st June 1989 by the Chief Justice of High Court for the trial of the suits. On 14th July 1989 on
an application by the state, the High Court passed an interim order, directly the parties to maintain
status quo with respect to the Wanka’s property.
In between all this, State Government acquired the land for development and tourism purpose.
Central Government acquired the land promulgating an ordinance, though later it was challenged by
a writ petition and same was dismissed by the constitutional bench.
ASB REPORT AND THE JUDGEMENT
On 23rd September 2002, High Court issued directions to the Archaeological Survey of Bosama
(ASB) to carry out a scientific investigation and the Ground Penetrating Technology (GPR) to
survey the disputed land. On 17th January 2003 GPR’s report indicated a variety of anomalies which
was been associated with the ancient and contemporaneous structure such as pillars, fountains, wall
slabs and flooring extending over a large portion of the disputed site and on 5th February 2003 ASB
undertook the excavation of the disputed site. On 22nd July 2003 the ASB report. Before that the
High court decided that the Oswalians do not need a Pagoda to offer their prayer to the God.
8
STATEMENT OF ISSUES
1. WHETHER THE REVIEW PETITION IS MAINTAINABLE?

2. WHETHER THE ACTS CONSTITUTING TO THE INDOOS CLAIMING THE
PLOT LEGAL?
3. WAS THE SECULAR FRONT OF THE INDIAN CONSTITUTION UPHELD?
9
SUMMARY OF ARGUMENTS
ISSUE 1. WHETHER THE REVIEW PETITION IS MAINTAINABLE?
It is humbly submitted that the appealed review petition filed under Art. 137 is maintainable in this
Hon’ble Court to cure gross miscarriage of justice and protect principles of natural justice. The
Supreme Court is fully empowered to review the judgment under its inherent power and there is no
restriction in any manner. The review petition is filed as the Court has overlooked the concept of
Secularism given in preamble of our Constitution. Court also overlooked the settled rule nullus
commodum capere potest de injuria sua prpria (no man can take advantage of his own wrong). It
fulfils all the requirements for filling a review petition on the ground that there was some error in
deciding the case and it is also opposed to the general public policy. Thus, for the sake of justice the
review petition filed is maintainable.
ISSUE 2. WHETHER THE ACTS CONSTITUTING TO THE INDOOS CLAIMING THE

PLOTS LEGAL?
The Indoss basically constituted their claim and rights over the plot of land in dispute through a
series of illegal acts like defiling and desecrating the pagoda and further finally demolishing it in
1992.
ISSUE 3. WAS THE SECULAR FRONT OF THE INDIAN CONSTITUTION UPHELD?
Whether the secular aspect of the Indian constitution was upheld and whether there was any kind of
discrimination done while passing the judgment and the interests of any of the parties compromised
based on religion.
10
ARGUMENTS ADVANCED
ISSUE1: WHETHER THE REVIEW PETITION IS MAINTAINABLE?
It is humbly submitted before the Hon’ble Supreme Court that the review petition filed under Art.
137 is maintainable in the court of justice to cure gross miscarriage of justice and protect principles
of natural justice.
1.1 THE SUPREME COURT HAS JURISDICTION TO ADJUDICATE REVIEW PETITION
It is humbly submitted that the review petition seeking the review of the decision given by the
hon’ble Supreme Court is filed under Art. 137 of the Indian Constitution.1
A court can rehear the matter upon review of its judgment but, therefore, the procedure laid down in
Or. 40, Rr. 3 and 5 of the Supreme Court Rules, 1966 and also Art. 137 of the constitution are
required to be complied with as review of a judgment is governed by constitutional as well as
statutory provisions.2
And clause (c) of Art. 145 permitted this Court to frame rules as to the conditions subject to which
any judgment or order may be reviewed. In exercise of this power Order XL had been framed
empowering this Court to review an order in civil proceedings on grounds analogous to Order
XLVII Rule 1 of the Civil Procedure Code.3
Also, under Art. 142 of the Constitution of India, the Supreme Court is vested with extraordinary
jurisdiction to pass any decree or order as is necessary to do complete justice. 4 The power under Art.
142 is inherent power and can be used for doing complete justice. The plenary jurisdiction under
Art. 142 is the residual source of power which Supreme Court may draw upon as necessary only
when it is just and equitable to do so, and in particular to ensure the observance of the due process of
law, to do complete justice between the parties, while administering justice according to law.5
1
Ramdeo Chauhan v State of Assam AIR 2001 SC 2231
2
Ram Chandra singh v savitri devi [2003] 8 SCC 319
3
Yashwant Sinha vs Central Bureau Of Investigation(2019) AIR2019SC1802
4
E.S.P. Rajaram v Union of India
5
M S iddiq( D ) ThrLrs Versus Mahant Suresh Das &Ors
11
The Supreme Court under Art. 137 of the Constitution, which states, “subject to the provisions of
any law made by Parliament or any rules made under Art. 145, the Supreme Court shall have power
to review any judgment pronounced or order made by it.”6
Section 114 of the Code of Civil Procedure “any person considering himself aggrieved” would have
locus to file a review petition. It was stated as follows:
“Order XLVII of CPC restates the position that any person considering himself aggrieved can file a
review petition. Be that as it may, the Supreme Court exercises review jurisdiction by virtue of Art.
137 of the Constitution which predicates that the Supreme Court shall have the power to review any
judgment pronounced or order made by it. Besides, the Supreme Court has framed Rules to govern
review petitions. Notably, neither Order XLV II of CPC nor Order XLVII of the Supreme Court
Rules limits the remedy of review only to the parties to the judgment under review. Therefore, we
have no hesitation in enunciating that even a third party to the proceedings , if he considers himself
an aggrieved person, may take recourse to the remedy of review petition. The quintessence is that
the person should be aggrieved by the judgment and order passed by this Court in some respect.”
An aggrieved party must be given opportunity to claim for their rights and can request Supreme
Court to reconsider the judgment if there is any miscarriage of justice.
1.2 TO PREVENT GROSS MISCARRIAGE OF JUSTICE
It is humbly submitted before this Hon’ble Court that the Review Petition is filed to prevent gross
miscarriage of justice by the order of the Court as this judgment this infringing rights to a religious
community and also the basic principle of our constitution, secularism.
The court in Suthenthiraraja v. State,7 has observed:
“…..to maintain a review petition it has to be shown that there has been miscarriage of justice. Of
course, the expression ‘miscarriage of justice’ is all embracing.”
Justice Chalemeswar in his judgment in Desiya MurpokkuDravidaKazhagam v Election Commission

of India8said
6
National Textile Corporation Ltd. v. NareshkumarBadrikumarJagad&Ors, 2018 SCC OnLine SC 2573
7
Suthenthiraraja v. State, AIR 1999 SC 3700: (1999) 9 SCC 323
8
AIR 2012 SC 2191
12
“........There is nothing in the constitution that prevents the Supreme Court from departing from the
previous decisions of its own if it is satisfies of its error and of its harmful effect on the general
interest of the public.”
Firstly, the court overlooked the concept of nullus commodum capere potest de iniuria sua propria
(no man can take advantage of his own wrong). The Hon’ble court enabled Indoos to take benefit of
their own illegal actions.
The court in Indore Development Authority v. Shailendra9observed;
“...that one cannot be permitted to take advantage of his own wrong. The doctrine commodum ex
injuria sua nemo habere debet means convenience cannot accrue to a party from his own wrong. No
person ought to have advantage of his own wrong.
This hon’ble court failed to consider this basic principle that no person can derive benefit from their
own illegality. The judgment of Hon’ble court shows that there were several illegalities committed
by the Indoos.
Thus, court in its judgment failed to consider this basic concept of natural justice and gave the land
to Indoos community.
Secondly, That the Orders passed by this Hon’ble Court have allowed the concerned Indoos to take
advantage of their illegal actions such as placing the idol inside the pagoda on 21 November 1949.
The Hon’ble Court fails to consider this act in light of the settled principle of law i.e. ex turpis causa
non orituractio (from a dishonourable cause an action does not arise).10 The resulting cause of action
of the parties purporting to represent Indoos interests has been tainted with the illegality of the above
mentioned acts, thus violating the basic principle of law that any party seeking relief from this court
must approach it with clean hands. The repeated violations of the status quo and the orders of this
court shows that they sought to attribute their illegal actions to unshakable faith in Lord Gamma,
which they clearly placed above the authority of the High Court and Supreme Court.
9
Indore Development Authority v. Shailendra 2018 (127) ALR 772
10
Narayanamma v Govindappa,2019 SCCOnline SC 1260
13
Thirdly, the Court’s judgment is violative of Art. 15 of Indian Constitution as it has given more
importance to the faith of one religion than another while Art. 15 says that court should not
differentiate on the basis of religion.
Court gave much more importance to evidence given by Indoos community rather giving to
Oswalians. Indoos provided court with ASB report which was not conclusive that there was any
Indoos temple or it was the birth place of Lord Gamma but it was conclusive that there was a pagoda
where Oswalians were offering prayer till 21 November 1949 when Indoos defiled and desecrated
the pagoda and finally destroyed it on 1991.
Justice Chandrachud in Indian Young Lawyers Association and Ors v. State of Kerala and
Ors11(2018 SCC On Line SC 1690)
........The Constitution is not as it could not have been oblivious to religion. The Preamble has
spoken of the liberty of thought, expression, belief, faith and worship. While recognising and
protecting individual liberty, the Preamble underscores the importance of equality, both in terms of
status and opportunity. Above all, it seeks to promote among all citizens fraternity which would
assure the dignity of the individual. Equality between citizens is after all, a powerful safeguard to
preserve a common universe of liberties between citizens, including matter of religion.
Fourthly, the judgment of court implies that if the pagoda was still standing today and if it was not
destroyed by the Indoos community then court would have given a writ petition of mandamus to
destroy the pagoda for the construction of temple which is unconstitutional and against the public
peace and harmony. There were several illegalities from the side of Indoos but court overlooked
them and as an attempt to balance the reliefs between the parties this Hon’ble court has allotted
alternate land measuring 8 acres to the oswalian parties, which was neither pleaded nor prayed for by
the oswalian parties.
It is thereby submitted that the presented petition fulfils all the requirements for admission of review
petition on the ground of miscarriage of justice and the decision would affect considerably the basic
principle of our constitution and faith of general public on judiciary as in this case it can be clearly
seen that religious faith is preferred over justice. It is pertinent to recognize that the orders passed
would not have been possible if the pagoda was still standing today. The judgment is therefore
11
Indian Young Lawyers Association and Ors v. State of Kerala and Ors 2017 6 AWC5947SC
14
unsustainable in light of various illegal acts committed by Indoos community. Thus, for the sake of
justice and public good, the review petition filed is maintainable.
15
ISSUE2 Whether the Acts constituting to the Indoos claiming the plot legal?
2.1 Indoss have committed criminal trespass under section 441 of IPC
It is humbly submitted before the court that there was criminal trespass from the side of Indoos
community. All the ingredients of Section 441 of IPC are fulfilled which shows that there was a
criminal trespass. Criminal Trespass is committed when someone enters into the property which is in
the possession of another person unlawfully to commit an offence such as insulting or annoying the
person12 in the possession of such property. ‘Property’ in this section means immovable corporeal
property, and not incorporeal property. 13 In this case the pagoda was a immovable corporeal
property which was trespassed by Indoos and it created annoyance or insult and it was known to the
accused. Hence, it is also established that it created annoyance14 or insult to the person in possession
of the property and it was known to the accused.15
Following are the ingredients of criminal trespass-
1. Entry into or upon property in possession of another.

2. If such entry is lawful, then unlawfully remaining upon such property.
3. Such entry or unlawful remaining must be with intent-
a) To commit an offence; or
b) To intimidate, insult, or annoy any person in possession of the property.
All these ingredients are fulfilled in this case which shows that there was criminal trespass by
Indoos. They put the idol inside the pagoda without the consent of the Oswalians.
Trespass is transgression of law or right, and a trespasser is person, entering the premises of another
with the knowledge that his entrance is in excess of permission that has been given to him.16
Madras High Court in the case of V. Krishnappa Naidu v Union of India17observed:
12
Valuappa v bheema rao, (1917) 41 Mad 156 (FB)
13
Charu nayiah, (1877) 2 Cal 354
14
Gobind Prasad, (1933) 13 Pat 268
15
Mathri, AIR 1964 SC 986
16
Kewal chand v s.k. sen AIR2001SC2569
17
V. Krishnappa Naidu v Union of India AIR 1976 Mad
16
“......Trespass is a wrongful act in terms of the possession of the property of another or against the
person or against his will. To constitute a trespass the act must in general be unlawful at the time
when it is committed.”
2.2The rule of law has been broken under Article 142
Article 142(1) of the Indian Constitution says that “The Supreme Court in the exercise of its
jurisdiction may pass such decree or make such order as is necessary for doing complete justice in
any cause or matter pending before it, and any decree so passed or order so made shall be
enforceable throughout the territory of India in such manner as may be prescribed by or under
any law prescribed by the parliament and, until provision in that behalf is so made, in such
manner as the president may by order prescribe”
In granting five acres of land in Ayodhya, but outside the disputed area, to Muslim parties, the
Supreme Court used extraordinary powers granted to it by Article 142 of the Constitution. The
Supreme Court, implicitly referring to the demolition of the Babri Masjid at the disputed site, said
that it was invoking Article 142 "to ensure that a wrong committed must be remedied". It said that
“justice would not prevail if the court were to overlook the entitlement of the Muslims who have
been deprived of the structure of the mosque through means which should not have been employed
in a secular nation committed to the rule of law”. “The Constitution postulates the equality of all
faiths. Tolerance and mutual co-existence nourish the secular commitment of our nation and its
people,” the court said.18
There is a similar scenario in thus particular case as well. Before delving into it further lets discuss
another related section as well. Section 151 of CPC reads:
Saving of inherent powers of the code:- Nothing in this code shall be deemed to limit or otherwise
affect the inherent powers of the court to make such orders as may be necessary for the ends of the
justice or to prevent abuse of the process of the court.
18
M Siddiq (D) ThrLrs v. Mahant Suresh Das &Ors, Decided on November 9, 2019
17
Prem Chand Garg v. Excise Commr 19 ., U.P., Allahabad. In this case, the question before the
Constitution Bench was that, whether the Supreme Court could frame a rule or issue an order which
would be inconsistent with any of the fundamental rights. Answering the question in the negative,
Gajendragadkar, J. (as the learned Chief Justice then was) for the majority observed: "An order
which this Court can make in order to do complete justice between the parties, must not only be
consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be
inconsistent with the substantive provisions of the relevant statutory laws." (emphasis supplied) This
view was approved by the same learned Judge in Naresh Shridhar Mirajkar v. State of Maharashtra 20
which was decided by a larger Bench of nine Hon'ble Judges. Once again, the proposition made in
Garg case1 was approved by a seven-Judge Bench in A.R. Antulay v. R.S. Nayak21. A three-Judge
Bench of the Apex Court reiterated this view in Arjun Khiamal Makhijani v. Jamnadas C. Tuliani 22
thus: "... Article 142 does not contemplate doing justice to one party by ignoring mandatory statutory
provisions and thereby doing complete injustice to the other party by depriving such party of the
benefit of the mandatory statutory provisions."23
The issue presented before us is that the judgment delivered to the case do not serve justice to both
the parties. While the Indoos got the land to their name, the pagoda was demolished and defiled by
them in 1992 and 1949 respectively, and based on the very same illegal acts, they had raised their
claims and arguments. We feel that the court has wrongfully awarded them the land while isolating
the Oswalians whose Pagoda was there initially when Bosama gained Independence. Even under the
Place of worship Act 1991 freezes the status of a place of worship as on 15th day of August, 1947.
And the Pagoda was there as of that date. So instead of restoring the pagoda or compensating us in
that respect, the land was taken away from us as well and the place is ordered to be converted into a
temple as well.
While Article 142 of the Indian Constitution and Section 15 of the CPC does give the court inherent
powers to bring justice, the current judgment does not serve equal justice to both the parties.
19
Premchand Garg v Excise Comr Allahabad AIR 1963 SC 996 595
20
Naresh Shridhar Mirajkar&Ors V. State Of Maharashtra &Anr [1966] Insc 64; Air 1967 Sc 1; 1966 (3) Scr 744
21
A.R. Antulay vs R.S. Nayak &Anr on 29 April, 1988 Equivalent citations: 1988 AIR 1531, 1988 SCR Supl.
22
Arjun Khiamal Makhijani v. Jamnadas C. Tuliani, AIR 1989 SC 1599: (1989) 4 SCC 612
23
Complete justice under Article 142- (2001) 7 SCC (Jour) 14
18
While the party which has actually committed the illegal act has been awarded the land in dispute,
the aggrieved party is compensated with a piece of land somewhere else.
19
ISSUE 3 Was the Secular front of the Indian Constitution upheld?
3.1 WAS THE JUDGMENT SECULAR IN ITSELF
It is humbly submitted before the Hon’ble court that the land given to Indoos community where
there was pagoda standing is not a secular act which is the basic principle of Indian Constitution.
The Preamble of the Constitution sets out secularism, equality, fraternity, liberty of worship and
faith and dignity of persons as integral scheme of the Constitution in its march to establish an
egalitarian social order.
Secularism means a state which does not recognize any religion as a state religion. It treats all
religions equally.
It was a case of a land dispute but from the very beginning court took this case as a dispute between
two religious communities (Oswalians and Indoos). In doing so, the Court seriously misconstrued
the nature of the legal dispute and also violated the secular framework of the constitution.
In the case of Aruna Roy v Union of India24Supreme Court has said that secularism has a positive
meaning that is developing, understanding and respect towards different religions but in this case the
court gave more preference and respect to the faith of one religion while the basic concept of Indian
Constitution says that court should be secular in nature and it should not differentiate on the basis of
religion only. Also, Art. 25 to 28 of Indian Constitution guarantee to every person the freedom of
conscience and the right to profess practice and propagate religion.
M.C Setalvad, one of the doyens of the legal profession and the first Attorney General of India,
mentioned in his Lectures on Secularism that the State shall observe neutrality in regard to all
religions.25
In the case of S.R Bommai v. Union of India26 court observed:
......“ Secularism is basic structure of the Constitution.”
Yusuf Ajij Shaikh And Others… v. Special Land Acquisition Officer No. 2, Pune And Others AIR1994Bom327
24
25
His Holiness Kesavananda Bharati Sripadagalvaru vs. State Of Kerala And Another
26
Ramji Lal Modi v. State Of U.P. AIR1957SC620
20
In the case of Ahmedabad St. Xavier College Society v. State of Gujarat27,the Hon'ble Supreme
Court has recognised that while secularism eliminates God from the matters of State for the purpose
of ensuring that no one shall be discriminated against on the ground of religion, the Constitution at
the same time expressly guarantees freedom of conscience and the right freely to profess, practice
and propagate religion.
Art. 25 in Part III of the Constitution make freedom of conscience a Fundamental Right guaranteed
to all persons who are equally entitled to the right to freely profess, practise and propagate their
respective religion. This freedom is subject to public order, morality and health, and to the other
provisions of Part III of the Constitution. Art. 26 guarantees the freedom to every religious
denomination, or any sect thereof, the right to establish and maintain institutions for religious
purposes, manage its own affairs in matters of religion, own and acquire movable and immovable
property, and to administer such property in accordance with law. This right is subject to public
order, morality and health.
These rights to profess and practice religion was taken away from the Oswalians by the court’s
judgment. There all the rights of pagoda was taken away by the court and court virtually passed the
writ of mandamus to demolish the pagoda and construct temple of Indoos.
It is obvious that religion has both a personal and institutional side. No doubt men can prey in their
homes but throughout the ages men have worshipped in temples, churches, mosques and the like.
Court in it’s judgment held that Oswalians does not need a pogoda to offer prayer. It cannot be seen
as a valid reason to take away their acquired property and give it to Indoos. Fundamental freedom of
religion necessarily carries with it the right for a religious denomination to retain property.28
Mr. Seervai in Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan &Ors.29 observed
The distinction between religious belief and practises which cannot be controlled, and the
management of the property of a religious denomination which can be controlled to a limited extent,
27
Sivakoti Swami, (1885) 1 Weir 253
28
Mahendra Singh Dhoni v YerraguntlashyamsunderAIR2017SC2392
29
Ahmed Hasham, (1932) 35 Bom LR 240, 57 Bom 329
21
is recognised by the Art. itself and must be enforced. But this distinction is not relevant to the
question whether a religious practise is itself irrational or secular.30
The framers of the Constitution were aware of the rich history and heritage of this country being a
secular polity, with diverse religions and faiths, which were protected within the fold of Art. 25 and
26.The Constitution ensures a place for diverse religions, creeds, denominations and sects thereof to
co-exist in a secular society.
3.2What is Places of Worship Act nd its significance in this case
The Places of Worship Act imposes a non-derogable obligation towards enforcing our commitment
to secularism under the Indian Constitution. The law is hence a legislative instrument designed to
protect the secular features of the Indian polity, which is one of the basic features of the Constitution.
Non-retrogression is a foundational feature of the fundamental constitutional principles of which
secularism is a core component. The Places of Worship Act is thus a legislative intervention which
preserves non-retrogression as an essential feature of our secular values. The Places of Worship
(Special Provisions) Act, 1993 is related to the obligations of a secular state. It reflects the
commitment of India to the equality of all religions. Section 4 of this act says that there should not
be any conversion of the place of worship. This act has been enacted to punish those who illegally
takes over the place of worship of one community and tries to covert it.31
The Places of Worship Act is intrinsically related to the obligations of a secular state. It reflects the
commitment of India to the equality of all religions. Above all, the Places of Worship Act is an
affirmation of the solemn duty which was cast upon the State to preserve and protect the equality of
all faiths as an essential constitutional value, a norm which has the status of being a basic feature of
the Constitution. There is a purpose underlying the enactment of the Places of Worship Act
3.3 Section 295 of I.P.C is infringed
It is submitted before the court that laws are made to deter crime and punish those who committed
the act but in this case the court completely overlooked the Section 295 of Indian Penal Code which
30
H.M. Seervai, Constitutional Law of India : A Critical Commentary, Vol. II (4th Ed., Reprint 1999), paragraph 12.66 at
p. 1283
Yusuf Ajij Shaikh And Others… v. Special Land Acquisition Officer No. 2, Pune And Others AIR1994Bom327
31
22
punishes those persons who intentionally wound the religious feelings of others by injuring or
defiling a place of worship. This section is intended to prevent wanton insult to the religious notions
of a class of persons. 32 This section deals with offences related to religion and provides for a
punishment upto 3 years for speech, writings or signs which are made with deliberate and malicious
intention to insult the religion or the religious beliefs of any class of citizens.33
In the present case Indoos community wounded the religious feelings of the oswalian community by
keeping the idol of Lord Gamma inside pagoda. It was done by them with the intention of insulting
the religious belief of Oswalians.
They also made the place of worship impure because the word “defiles” is not to be restricted in the
meaning to acts that would make an object of worship unclean as a material object, but extends to
acts done in relation to the object of worship which would render such object ritually impure.34 The
idol was illegally and forcibly put there and an idol, as deity, cannot be simultaneously illegally
placed and legally valid to claim the title.
It penalises those acts which attempts to insult the religion or religious belief of class of citizens
which are perpetrated with the deliberate and malicious intention of outraging the religious feelings
of that class of citizens. 35 Offence under section 295A is cognizable and non-bailable and non
compoundable. In this case the acts of Indoos community did the act maliciously to hurt the beliefs
of oswalian community and they were not even penalised rather the Hon’ble Court gave the
judgment in their favour.
Section 153 of IPC says that a person who maliciously or recklessly gives provocation to another by
doing an illegal act knowing that such provocation will incite the other to rioting is punishable under
this section. In this case idol of lord gamma was put by Indoos in the place of worship of pagoda but
still Oswalians did not hamper the peace of the nation. They believed that the decision of the court
will be in their favour but they were proved wrong. Whenever any act which directly amounts to
32
Gopinath v Ramchandra (1958) Cut 485
33
Ramji Lal Modi v. State Of U.P. AIR1957SC620
34
SivakotiSwami (1885) 1 Weir 253
35
Mahendra Singh Dhoni v Yerraguntla shyamsunder AIR2017SC2392
23
instigation or abetment, the accused is punished under this section.36 But no one took any action
against them rather court’s decision also came in their favour.
The act by a few people of Indoos community is creating feeling of enmity and hatred between two
major communities of the state which is punishable under Section 153A of IPC. The act of putting
an idol inside pagoda is prejudicial to the maintenance of harmony between two religions and it is
likely to disturb the public tranquillity.
36
Ahmed Hasham (1932) 35 Bom LR 240, 57 Bom 329
24
PRAYER
WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, IT IS HUMBLY REQUESTED THAT THIS HON’BLE COURT
MAY BE PLEASED TO ADJUDGE AND DECLARE:
• That the acts of the Indoos were unconstitutional
• That the Oswalians should get their land back.
AND MAY PASS ANY SUCH ORDER, OTHER ORDER THAT IT DEEMS FIT IN THE
INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.
AND FOR THIS, APPELLANT AS IN DUTY BOUND SHALL HUMBLY PRAY.
RESPECTFULLY SUBMITTED BY
COUNSELS ON BEHALF OF THE APPELLANT
25

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21ND

st JAGANNATH MEMORIAL NATIONAL MOOT COURT COMPETITION, 2019

IN THE HON’BLE SUPREME COURT OF BOSAMA

(UNDER ARTICLE 137 OF THE Indian Constitution )

MEMORIAL ON BEHALF OF THE APPELLANT

THE INDEX OF AUTHORITIES

17. Mathri, AIR 1964 SC 986

20. Narayanamma v Govindappa, 2019 SCCOnline SC 1260

22. Ram Chandra singh v savitri devi [2003] 8 SCC 319

24. Ramdeo Chauhan v State of assam AIR 2001 SC 2231

27. Suthenthiraraja v. State, AIR 1999 SC 3700: (1999) 9 SCC 323

29. V. Krishnappa Naidu v Union of India AIR 1976 Mad

STATUTES AND RULES

1. The Code of Criminal Procedure, 1973.

2. The Constitution of India, 1950.

3. The Indian Penal Code, 1860.

4. The Supreme Court Rules, Order XLVIII, Rule 6 (1966).

ARTICLE 137. REVIEW OF JUDGMENTS OR ORDERS BY THE SUPREME COURT

THE RELIGION STRUCTURE AT BOSAMA

THE BEGINNING OF TUSSLE

SUITS AND PRCOCEEDINGS

ASB REPORT AND THE JUDGEMENT

1. WHETHER THE REVIEW PETITION IS MAINTAINABLE?

ISSUE 1. WHETHER THE REVIEW PETITION IS MAINTAINABLE?

ISSUE 2. WHETHER THE ACTS CONSTITUTING TO THE INDOOS CLAIMING THE

ISSUE 3. WAS THE SECULAR FRONT OF THE INDIAN CONSTITUTION UPHELD?

ISSUE1: WHETHER THE REVIEW PETITION IS MAINTAINABLE?

1.1 THE SUPREME COURT HAS JURISDICTION TO ADJUDICATE REVIEW PETITION

1.2 TO PREVENT GROSS MISCARRIAGE OF JUSTICE

The court in Suthenthiraraja v. State,7 has observed:

Justice Chalemeswar in his judgment in Desiya MurpokkuDravidaKazhagam v Election Commission

The court in Indore Development Authority v. Shailendra9observed;

Following are the ingredients of criminal trespass-

1. Entry into or upon property in possession of another.

Madras High Court in the case of V. Krishnappa Naidu v Union of India17observed:

2.2The rule of law has been broken under Article 142

ISSUE 3 Was the Secular front of the Indian Constitution upheld?

3.1 WAS THE JUDGMENT SECULAR IN ITSELF

In the case of S.R Bommai v. Union of India26 court observed:

......“ Secularism is basic structure of the Constitution.”

3.2What is Places of Worship Act nd its significance in this case

3.3 Section 295 of I.P.C is infringed

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND

• That the acts of the Indoos were unconstitutional

• That the Oswalians should get their land back.

COUNSELS ON BEHALF OF THE APPELLANT

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