A retired army officer on Tuesday filed a fresh petition in the Supreme Court to quash the Places of Worship (Special Provisions) Act, 1991, which mandates that the character of a place of public worship cannot be changed from what it was on August 15, 1947, except for the Ram Janmabhoomi-Babri Masjid plot.

Colonel Anil Kabotra, who has challenged the legislative competence of the Centre to enact the 1991 law, joins a batch of petitioners such as advocate Ashwini Upadhyay, BJP leader Subramanian Swamy, Vishwa Bhadra Pujari Purohit Mahasangh, advocates Rudra Vikram Singh and Chandra Shekhar and Varanasi-based Swami Jitendranand and Deveevkinandan Thakur.

According to Col Kabotra only those places that were constructed in accordance with the spirit of personal law applicable to the person who built them can be protected. Places constructed in derogation of personal law cannot be termed a “place of worship” and the Centre lacks the legislative competence to deal with the issue, which is purely under the State list, the petitioner maintains.

“Retrospective cut-off date was fixed August 15, 1947 to legalise the illegal acts of barbaric invaders. Though, Hindu Law (Temple Character never changes) was ‘Law in force’ at the commencement of the Constitution by virtue of Article 372(1). Hindus, Jains, Buddhists, Sikhs have the right to profess, practice and propagate religion as provided in their religious scriptures and Article 13 prohibits from making law which takes away their rights,” the petition filed through advocate Ashwani Kumar Dubey stated.

“Moreover, the status of mosque can be given only to such structures which have been constructed according to tenets of Islam and mosques constructed against the provisions contained in Islamic law cannot be termed as mosque. Muslims cannot assert any right in respect of any piece of land claiming to be a mosque unless it has been constructed on legally owned and occupied virgin land. It is necessary to state that property vested in deity continues to be the deity’s property irrespective of the fact that any person has taken illegal possession and offered namaz,” the petition added.

The petitioner has pleaded that a temple’s religious character does not change after the demolition of roof, walls, pillars, foundation and offering namaz.

“After the pran pratishtha of the idol, a temple is always a temple until the idol is shifted to another temple with rituals of visarjan. Moreover, religious character of temples (places of worship) and mosques (places of prayer) is totally different. So, the same law can’t be applied to both. The mosque constructed at temple land cannot be a mosque, not only for the reason that such construction is against Islamic law, but also on grounds that the property once vested in the deity continues to be deity’s property and right of deity and devotees are never lost, howsoever long illegal encroachment continues on such property,” the petitioner has argued.

It was submitted that a mosque “is simply a place of prayer and that’s why, in Gulf countries (birthplace of Islam), it is demolished/shifted even for making road school hospital and public office. Moreover, religious character of temples (place of worship) & mosque (place of prayer) is totally different. So, the 1991 act can’t be applied to mosques”.

The plea further said: “The 1991 act was enacted in the garb of ‘public order’, which is a State subject (Schedule-7, List-II, Entry-1) and ‘places of pilgrimages within India’ is also State subject (Schedule-7, List-II, Entry-7). So, the Centre can’t enact the law. Moreover, Article 13(2) prohibits the State to make law to take away fundamental rights but the 1991 act takes away the rights of Hindus, Jains, Buddhist, Sikhs to restore their ‘places of worship and pilgrimages’, destroyed by barbaric invaders.

“The act excludes the birthplace of Lord Rama but includes the birthplace of Lord Krishna, though both are incarnations of Lord Vishnu, the Creator and equally worshiped throughout the word, hence it is arbitrary.”

On Monday, the Jamiat Ulama-i-Hind had approached the Supreme Court arguing that quashing the law that stipulates status quo at religious places would “open floodgates of litigation against countless mosques” and widen “the religious divide from which the country is recovering in the aftermath of the Ayodhya dispute”.