Allahabad HC Upholds Trial Court's Order For Survey of Sambhal's Shahi Jama Masjid

New Delhi: The Allahabad high court has upheld a trial court’s order for a survey of the Mughal-era Shahi Jama Masjid in Sambhal and ruled that the suit by a group of Hindu plaintiffs seeking access to the mosque was prima facie not barred by the The Places of Worship Act, 1991. The court on Monday (May 19) dismissed a plea filed by the caretakers of the mosque challenging the Sambhal court’s order dated November 19, 2024.

A civil court in Sambhal had in November 2024 ordered a survey of the mosque by an advocate commissioner. A hurried survey of the mosque took place after the lower court took cognisance of an application filed by some Hindu activists as part of their suit claiming that the Islamic religious site built during the time of the first Mughal Emperor Babur was originally a prominent Hindu temple dedicated to the prophesied avatar of Vishnu, Kalki.

After conducting an initial survey of the mosque in a controversial manner within a few hours of the court’s orders, the survey team led by advocate commissioner Ramesh Raghav reached the mosque for a second round of photography and videography on the morning of November 24.

However, things turned violent that day, as at least four Muslim men were killed in violence that broke out in the lanes near the Shahi Jama Masjid during the second round of the survey, which local Muslims felt was unwarranted.

Counsel for mosque said that dispute was already settled in 1878

The managing committee of the historical mosque challenged the Sambhal court’s order on three main grounds. It said that the trial court granted leave to institute the civil suit by the Hindu parties before expiry of the period of notice. The mosque also raised objection to the fact that the court allowed the application for a survey by an advocate commissioner and ordered for its execution on the same day itself even though there arose no urgency.

Senior counsel S.F.A Naqvi, appearing for the mosque, submitted that the mosque was a protected monument under the Ancient Monuments Preservation Act, 1904.  An agreement was executed between the Collector of Moradabad acting on behalf of the secretary of state for India in Council and Mutawallis of ‘Juma Masjid’ in the year 1927, and the agreement, so executed, governs the field, said Naqvi.

The lawyer also said that the dispute in regard to the mosque was already settled in 1878 and cannot be adjudicated in the civil suit filed by the Hindutva activists. Also, Naqvi argued that after the 1991 Act came into force there was a prohibition on the conversion of any place of worship, and the religious character of a place of worship, as it existed on August 15, 1947 would have to be maintained.

A bench of Justice Rohit Ranjan Agarwal dismissed all three arguments; the question of period of notice, the appointment of an advocate commissioner and the maintainability of the suit.  Justice Agarwal said he found that the court below “had not committed any error, irregularity or illegality” in granting leave to institute the suit before the expiry of the period of notice under Section 80(2) CPC, as it was never objected by the government or its officials.

The managing committee of the mosque, being a private person, was not covered under the canopy of Section 80, said the court. Justice Agarwal also ruled that the appointment of an advocate commissioner “has not caused any prejudice” to the mosque’s managing committee as it can question the same at a later stage before the report was confirmed and admitted as evidence.

'No interference required in trial court's order'

Justice Agarwal said that an inspection report filed by the Archaeological Survey of India on February 27 “prime facie proves the apprehension of the” Hindu plaintiffs that the caretakers of the mosque could remove the artefacts signs and symbols of Hindu Temple hurriedly, making a  local investigation necessary.

In its report, the ASI had said that the managing committee of the mosque had in the past undertaken several works of repair and renovation resulting in “addition and alteration” of the historical structure.  The floor of the monument has been completely replaced by tiles and stones. The interior of the mosque has been painted with thick layers of enamel paint of sharp colours like golden, red, green and yellow concealing the original surface of the monument, the ASI report said.

“Thus, allowing the local investigation in no way affects the right of the revisionist, only the ground reality which exist will be brought on record by the Advocate Commission through his report, which can be objected by the revisionist before it is accepted and made part of the record under Rule 10 (2) of Order XXVI CPC,” said Justice Agarwal.

The high court also said that the present suit was not “prima facie barred by provisions of the Act of 1991.” In fact, said Justice Agarwal, the suit had been filed seeking right to access to the mosque under Section 18 of the Ancient Monument and Archaeological Sites and Remains Act, 1958. This was not a case where any conversion of place of worship was taking place or any religious character of place of worship was being changed, said the judge.

“Considering the facts and circumstances of the case, I find that no interference is required in the order dated 19.11.2024 passed by court below allowing application Paper No. 3C granting leave to institute suit and application 8C for appointment of Commission for local investigation,” said Justice Agarwal, dismissing the revision petition filed by the mosque.

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