Sambhal mosque row: Allahabad HC junks Masjid committee plea against survey

The Allahabad High Court on Monday dismissed a plea by the Masjid committee against the survey ordered by a Sambhal court in the Shahi Jama Masjid and Harihar Temple dispute. The court said the order to appoint a court commissioner and the suit were maintainable.

Justice Rohit Ranjan Agarwal had previously reserved his order on the matter after hearing counsel for the Masjid committee and plaintiff Hari Shanker Jain aside from the counsel for the Archeological Survey of India (ASI).

"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," the court said.

The court was referring to The Ancient Monuments and Archeological Sites and Remains Act, 1958.

The Committee of Management, Shahi Jama Masjid, had moved the high court challenging the suit and the Sambhal court order which directed the survey through an advocate commissioner.

The court refused to accept the argument of the mosque committee which said the dispute stood settled in 1877 and then a decree was confirmed by the high court as the 1877 verdict was in relation to an old building whereas the 'Juma Masjid' was declared as a protected monument under the (The Ancient Monuments Preservation of Monuments) Act of 1904 in 1921.

"If the title suit was decided in favour of revisionist in the year 1877, then, question arises as to why the revisionist had entered into an agreement in the year 1927 subjecting the structure in dispute to the Act of 1904?" it asked.

The judgement further noted that the alleged agreement did not reveal the ownership of the revisionist (committee) and clearly spoke that the structure needed to be protected in pursuance of the Act of 1904 by the archaeological department.

The Allahabad High Court today rejected Mosque Committee's plea against the trial court's order passed on November 19 directing an Advocate Commissioner to survey the mosque in a suit which claimed that the mosque was built after destroying a temple.
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"The entire case set up by revisionist is on the basis of the alleged agreement entered between then collector, Moradabad and the revisionist in the year 1927. Once revisionist himself admitted to the execution of the alleged agreement which was in pursuance of the Act of 1904, prior to the enforcement of the Act of 1991 and cut-off date mentioned therein, he cannot say at this stage that suit is barred by provisions of the Act of 1991," the court added.

The court went on, "I find that court below had not committed any error, irregularity or illegality in granting leave to institute the suit before the expiry of period of notice under Section 80(2) CPC, as it was never objected by the Government or its officials defendants 1 to 5 and revisionist/defendant 6 being a private person is not covered under the canopy of Section 80."

The court held that the suit was "not prima facie barred" by the provisions of the Places of Worship (Special Provisions) Act, 1991.

"In fact, it has been filed seeking right to access to property in dispute under Section 18 (right of access to protected monuments) of the Act of 1958 being a protected monument," it said.

The court observed no interference was required in the order dated 19 November 2024 passed by the civil court instituting the suit and appointing a commission for local investigation.

"Revision fails and is hereby dismissed. Interim order stands vacated. Suit to proceed. No order as to cost," it held.

Jain and seven others filed the suit before a civil judge senior division, Sambhal contending the Shahi Idgah Mosque was built after demolishing a temple at Sambhal.

The mosque, it claimed, was built by Mughal emperor Babur in 1526 after demolishing the Harihar Mandir in Sambhal.

The high court had previously stayed further proceedings before the trial court.

Speaking to PTI, Shri Gopal Sharma, the lawyer of the Hindu side in the case, said, "The high court has rejected it as per the rules. We welcome the decision of the high court. The survey ordered by the civil judge senior division of Sambhal was within the law and was appropriate."

On the other hand, the lawyer of the Muslim side, Shakeel Ahmed Warsi, told PTI that the Allahabad High Court's order was according to the judicial process. The original plaintiffs in the suit claimed the right of access to the religious site at Mohalla Kot Purvi in Sambhal district.

The committee alleged the suit was filed at noon on 19 November 2024 and within hours, the judge appointed a commission and directed an initial survey at the mosque, which was done on the same day and again on 24 November 2024. The court had also directed that a report of the survey be filed before it by 29 November.

On 10 January, the top court directed the Sambhal district magistrate to maintain status quo on reviving or allowing prayers at a "private" well located near the entrance of the mosque.

Considering a plea of the committee the top court issued notices to the Centre, the director general of the ASI, Sambhal district magistrate and other private Hindu side litigants led by Jain.

On 24 November last year, protesters gathered near the mosque and clashed with the security personnel, leading to stone pelting and arson, leaving four dead and several injured.

The top court, on 29 November last year, ordered the Sambhal court to halt proceedings in the case over the mosque and its survey at Chandausi while directing the UP government to maintain peace and harmony in the violence-hit town.

The mosque committee moved the Supreme Court on 28 November, challenging the 19 November order of the district court directing the survey of the Mughal-era mosque and sought an ex-parte stay on the operation of the 19 November, last year order passed by the civil judge.