HC rejects plea against Sambhal mosque survey: ‘No error, illegality in trial court's order'
Upholding the November 19 order of the court of Civil Judge (Senior Division) of Sambhal, Justice Rohit Ranjan Agarwal of the High Court said: 'The 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…'
The High 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 of the Act of 1958 being a protected monument,' the High Court said.
'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, referring to The Ancient Monuments and Archeological Sites and Remains Act, 1958.
In an ex-parte order, the Sambhal trial court had ordered a survey of the mosque by an advocate commissioner. Five days later, on November 24, four people died of gunshot wounds metres away from the mosque as violence broke out after a survey team showed up at the mosque. The police, however, claimed the bullets were not fired by them.
In its appeal, the mosque committee said the mosque has been in existence since the 16th century and has been in continuous use by Muslims as a place of worship, but the matter was rushed through in 'hot haste' after a suit was filed by eight plaintiffs who alleged that it was built after destroying a temple.
'The act of allowing application under Order XXVI Rule 9 for local investigation and appointing Advocate Commission has not caused any prejudice to the revisionist as he has right to question the same at the stage of Order XXVI Rule 10(2) CPC before the report is confirmed and admitted as an evidence and made part of the record,' the High Court said on Monday.
'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,' the order added.
Last November, the Supreme Court had asked the mosque management committee to approach the Allahabad High Court against the trial court order, saying further proceedings before the trial court would follow the directions of the High Court.
Underlining that 'peace and harmony must prevail', the Supreme Court bench of then Chief Justice of India Sanjiv Khanna and Justice Sanjay Kumar had directed the trial court to temporarily halt proceedings in the matter.
PTI adds:
Shri Gopal Sharma, the lawyer of the Hindu side in the Shahi Jama Masjid, said, 'The High Court has rejected it (the plea) 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, said the 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 November 19 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 November 24, 2024. The court had also directed that a report of the survey be filed before it by November 29.
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