Sambhal Masjid A Protected Monument; Hindu Plaintiffs Only Seek Access, Religious Character Not Being Changed: Allahabad HC

For context, before the HC, the Mosque committee, inter alia, argued that that the Civil Judge (Junior Division) had passed the survey order hastily, without issuing notice to them and that the survey of the mosque was undertaken on the same day (Nov 19), and again on Nov 24, 2024.

The bench essentially framed three questions and dealt with them in its 45 page order:

I. Whether the court below was correct in granting leave to institute the suit before expiry of period of notice under Section 80 (2) CPC?

II. Whether the court below was correct to direct for local investigation and appoint Commission exercising power under Order XXVI Rule 9 and 10 CPC, and necessary compliance of Rule 68 and 69 of the General Rules Civil was made or not?

III. Whether the court below could have proceeded with the matter under the Act of 1958, once the institution of suit was barred by the Act of 1991?

Answering the first query, the bench noted that the plaintiff filed an application under Section 80(2) CPC on November 19, 2024 seeking leave to institute the suit before the expiry of the two-month notice period. In para 5 of the said application, it was stated that notice under Section 80 was sent on October 21, 2024 to defendant nos. 1 to 5, the Government and its officers. This notice has not been denied.

In the written statement filed by defendants nos. 2 to 4, no objection was raised regarding Section 80 CPC. Defendant no. 5 (respondent no. 13), the District Magistrate, represented by the Chief Standing Counsel, also did not object to the suit's maintainability on this ground. Thus, the Court said, Government and its officers effectively waived the requirement of notice expiry and did not oppose the grant of leave.

In this regard, the Court noted that Section 80(1) CPC mandates a two-month notice before instituting a suit against the Government or its officers, however, Section 80(2) provides an exception where the court may grant leave to institute the suit without waiting for notice expiry. In this case, notice was served, and although the period had not expired, leave of the court was sought and not objected to by the concerned defendants.

“…there is no infirmity in the order dated 19.11.2024 granting leave to institute the suit before expiry of period of notice. Moreover, the notice under Section 80 was already sent by plaintiff on 21.10.2024 which was never objected by defendant nos. 1 to 5 either in their written statement or before this Court. Revisionist being a private individual cannot object for want of notice under Section 80 which is for the benefit of Government and its officers,” the Court remarked deciding the first question in favour of the plaintiffs.

On the second question- as to whether the trial court was correct to direct for local investigation and appoint Commission exercising power under Order XXVI Rule 9 and 10 CPC, the Court observed that where it appears to the court that a local investigation is required or proper for adjudicating any dispute it may order for the same.

“The object of Rule 9 of Order XXVI is not to assist a party to collect the evidence where the party can get the evidence itself, but in the same time the court cannot prevent a party from adducing the best evidence if such evidence can be gathered with the help of a Commission,” the court noted.

The Court factored in that since the plaintiffs had alleged in their application that the defendants were trying to remove the artefacts, signs and symbols of the Hindu Temple hurriedly, as such, a local investigation was necessary.

Therefore, the court had only appointed the Advocate Commissioner in terms of its power under Order XXVI Rule 9 and allowed the application for making the local investigation, and this order neither affect any of the parties nor any prejudice was caused to anyone.

The Court was of the further view that such a Commission can be appointed even ex parte in appropriate cases without any notice to either of the party as the rule does not provide for presence of both the parties when the order of appointing a Commission is made.

Regarding rule 10 of the order XXVI, the bench opined that a Commissioner's report and evidence become part of the record but must first be examined by the court suo motu or on party request (with court's permission) as per Sub-rule (2). If unsatisfied, the court may order further inquiry under Sub-rule (3).

“Composite reading of Rule 9 and 10 of Order XXVI make it abundantly clear that the court where the suit is tried in case requires for proper adjudication of the matter direct for local investigation. The Commissioner, so appointed, during investigation has to give notices to the parties. After completing the investigation the Commissioner has to submit report alongwith the evidence, so collected, before the court. The report alongwith the evidence is put to test either by the court itself or on the application of the parties. Further, if the court is not satisfied with the proceedings of the Commissioner it may direct for further inquiry.”

In view of this, it upheld the trial court's order, noting that it was passed after due satisfaction and in full compliance with procedural requirements under Order XXVI CPC and the General Civil Rules.

On the question of the suit being barred by the Places of Worship Act 1991, the bench noted that the structure in question has been a protected monument since 1920 under the Ancient Monuments Preservation Act 1904, and is now governed by the Ancient Monuments and Archaeological Sites and Remains Act, 1958.

The Court discarded the objection raised by the revisionist that the suit, seeking public access to the monument, amounts to a violation of the 1991 Act, which prohibits the conversion of religious places as they existed on 15 August 1947.

The Court noted that the suit merely seeks enforcement of the right of public access under Section 18 of the 1958 Act and does not involve any change in the religious character of the site.

The Court traced the legal history of the site in question to note that a 1920 government notification had declared the Juma Masjid a protected monument, and this was followed by a 1927 agreement between the mosque's mutawallis and the then Collector of Moradabad, which authorised the ASI to maintain and repair the structure.

The Court added that this agreement does not establish ownership of the revisionist over the structure; it merely recognises the ASI's authority over it and the Mutawallis as its custodians.

The Court emphasised that the revisionist cannot now invoke the 1991 Act after having accepted the structure's protected status under earlier laws and entering into the 1927 agreement.

“…present suit is not prima facie barred by provisions of the Act of 1991, in fact, it has been filed seeking right to access to property in dispute under Section 18 of the Act of 1958 being a protected monument,” it said.

It clarified that the issue of maintainability under the 1991 Act may still be raised during the trial, but said hat the current objection was premature and misplaced.

Accordingly, the Court ruled against the revisionist and upheld the maintainability of the suit by the plaintiffs pending before the trial court.