The Allahabad High Court has upheld a trial court’s decision to allow a survey of Sambhal’s Shahi Jama Masjid by an Advocate Commissioner. This came after the mosque committee filed a plea against the November 2024 trial court order.
“The suit is not barred by the Places of Worship Act, 1991 as the plaintiffs only seek access to the protected monument and are not trying to change its religious character,” Justice Rohit Ranjan Agarwal noted.
The case concerns a suit filed by Hindu plaintiffs who claim the mosque was built in 1526 after demolishing a Hindu temple. They are only asking for access to the site, which has been a protected monument since 1920.
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The mosque committee argued that the survey order was passed without giving them notice and that the survey happened on the same day the application was filed (November 19), and again on November 24, 2024.
However, the High Court examined three legal questions in its 45-page judgment:
1. Leave to File Sit Before Expiry of Notice
Under Section 80(2) of the Civil Procedure Code (CPC), the Court can allow a case against the government even before the usual two-month notice period expires. The Hindu plaintiffs sent the notice on October 21, 2024, and applied for leave to file the case on November 19, 2024.
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“There is no flaw in allowing the suit before the notice period expired. The government and its officers did not raise any objection,” the Court observed.
2. Appointment of Advocate Commissioner
The Court clarified that Order XXVI Rule 9 and 10 of the CPC allows a local investigation if necessary for deciding the case. The plaintiffs alleged that signs of a Hindu temple were being removed from the site. Hence, a survey was important to gather timely evidence.
“The rule allows the court to order investigation even without notifying both parties if the situation demands,” said the Court.
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It explained that the Commissioner's report would become part of the court record and could be reviewed if either party raised objections.
3. Bar Under Places of Worship Act, 1991
The mosque committee argued that the suit violates the Places of Worship Act, 1991, which bans changing the religious character of a site as it stood on August 15, 1947.
However, the Court noted that the Shahi Jama Masjid has been a protected monument since 1920 under the Ancient Monuments Act of 1904, and is now governed by the Ancient Monuments and Archaeological Sites and Remains Act, 1958.
“The suit only asks for the right to access a protected monument under Section 18 of the 1958 Act. There is no attempt to change its religious status,” the Court clarified.
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The Court also referred to a 1927 agreement between the mosque’s caretakers (mutawallis) and the Collector of Moradabad, which handed over maintenance of the site to the Archaeological Survey of India (ASI). This, the Court said, shows that the site was accepted as a protected monument long before the 1991 Act came into effect.
“The plaintiffs’ suit is not blocked by the 1991 Act and is only about access rights under the 1958 Act,” the Court ruled.
In conclusion, the High Court dismissed the revision plea filed by the mosque committee and upheld the trial court’s order. The case—Committee of Management, Jami Masjid Sambhal vs. Hari Shankar Jain and 12 Others—will now continue in the trial court.
Case title - Committee Of Management, Jami Masjid Sambhal Ahmed Marg Kot Sambhal vs. Hari Shankar Jain And 12 Others 2025 LiveLaw (AB) 180
