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

Rejecting the Mosque Committee's plea against the trial court's November 2024 order directing an Advocate Commissioner to survey the Sambhal's Shahi Jama Masjid, the Allahabad High Court today upheld the trial court's order.With this, a bench of Justice Rohit Ranjan Agarwal opined that prima facie the suit filed by the Hindu plaintiffs - claiming that the Mosque was built in 1526 after demolishing a Hindu temple that stood there- is not barred by the Places of Worship Act 1991 as they are merely seeking right to access the structure in question, which is a protected monument and they aren't trying to change its religious character. 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 ...

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

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