New Delhi: The Allahabad High Court Monday rejected a plea filed by the management committee of Shahi Jama Masjid, Sambhal, against a trial court order appointing an advocate commissioner to survey the mosque.
The court also asserted that this suit is not prima facie barred by the Places of Worship (Special Provisions) Act, 1991, and would be governed by provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958, since the property is a protected monument.
“This is not a case where any conversion of place of worship is taking place or any religious character of place of worship is being changed. Plaintiffs have only sought right to access to a protected monument declared in the year 1920 under Section 18 of the Act of 1958,” Justice Rohit Ranjan Agarwal observed.
“Once, it is an admitted position that the structure in question has been declared as a protected monument in 1920 and the same remained unchallenged till date, it is bound to be governed by provisions of law which existed when the notification was made and, thereafter, the laws enacted to govern such protected monument,” the court added.
The Supreme Court had, in December last year, barred all courts across the country from passing any effective interim or final orders on suits disputing the character of existing places of worship. The order was passed on a batch of petitions challenging the constitutional validity of the Places of Worship Act, 1991.
The petition in the Sambhal case was filed challenging an order passed by the lower court on 19 November, which, among other things, appointed an advocate commissioner for conducting photography and videography of the place to be surveyed. The order was passed the same day that the suit was filed.
The trial court order was passed in a suit filed by Advocate Hari Shankar Jain and seven others, claiming that there is a centuries-old Sri Harihar Temple dedicated to the deity Kalki in the heart of city of Sambhal which is being forcibly and unlawfully used by the masjid committee. The plaintiffs in the case claim to be devotees of the deities Shiva and Vishnu.
The masjid committee had now questioned the order, pointing out that there was no urgency for the court to appoint a commissioner the same day the suit was filed. This, the committee said, displayed “collusiveness” between parties. The committee’s lawyer went on to point out concerns in the order appointing the advocate commissioner as well. For instance, he submitted that the 19 November 2024 order does not define the point on which the advocate commissioner needs to report, and also doesn’t fix any time period for the commission. However, Justice Rohit Ranjan Agarwal rejected the plea. “Suit to proceed,” the order said.
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‘Not covered by 1991 law’
The masjid committee had also submitted that the suit was barred by the Places of Worship (Special Provisions) Act, 1991, since the law prohibits conversion of any place of worship.
Jain submitted that the dispute was covered by the 1958 law, and so, it would not be governed by the 1991 law. He asserted that the property in this suit was declared as a protected monument through a notification issued in December 1920, under the 1904 law, which was replaced by the 1958 law.
He also contended that only the right to access under Section 18 of the 1958 law has been claimed, because the structure is a protected monument under Section 3 of the Ancient Monuments Preservation Act, 1904, by the ASI. Section 18 says that the public shall have a right of access to any protected monument.
The court accepted Jain’s argument.
It also found that the suit was not prima facie barred by provisions of the 1991 law, and that it had been filed seeking right to access the property in dispute under Section 18 of the 1958 Act, as it was a protected monument.
The court said that the mosque committee’s argument was “wholly misplaced, at this stage,” but asserted that the committee can raise this issue at the time of framing of issues or by filing an application before the trial court.
‘Thick layer of paint’
The ASI conducted a survey of the property in February this year, on the directions of the Allahabad High Court.
The court had asked the ASI to submit a report on whether any whitewashing or maintenance was needed inside the premises.
This report, which is a part of the Allahabad High Court order, said the interior of the mosque was painted with thick layers of enamel paint of sharp colors like golden, red, green and yellow, “concealing the original surface of the monument”.
This, it said, “prima facie proves the apprehension of the plaintiffs…as it has been stated in the report that the interior of the mosque has been painted with a thick layer of enamel paint of sharp colours like golden, red, green and yellow concealing the original surface of monument.”
The court has now asked that the report and pen drive submitted by the ASI before the court be transmitted to the trial court.
The survey
The high court noted that plaintiffs alleged in their application that defendants were trying to remove artefacts, signs and symbols of the Hindu temple from the mosque which necessitated a local investigation.
The management committee had also alleged that two surveys were conducted—one on 19 November and another on 24 November. It then said the second survey should have been carried out only with permission from the court. However, the high court found that it was the same survey that began on 19 November, and was completed on 24 November— therefore negating the necessity of permission.
The court opined that the order allowing local investigation and appointing an advocate commissioner has not caused any prejudice to the management committee because they have the right to question it before the report is confirmed, admitted as evidence and made a part of the record.
The notice period
The masjid committee had also challenged the 19 November order, because it allowed the suit to be filed before the expiry of the two month mandatory notice period under Section 80 of the Code of Civil Procedure.
Section 80 of CPC requires a two-month notice before instituting suits against the government or against a public officer in respect of any act by them in their official capacity. Section 80(2) allows for institution of the suit before expiry of the notice period. In this case, the notice was given on 21 October, and the suit was filed on 19 November.
However, the court did not find any illegality in the order because the institution of the suit before expiry of the notice period was not objected to by the government or its officials who had been made a party to the suit.
(Edited by Amrtansh Arora)
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