Private Individual Has No Locus to Challenge Leave Under Section 80(2) CPC: Allahabad High Court Declines Sambhal Masjid Committee’s Plea in Dispute Over Protected Monument

“Suit for Access to Protected Monument Does Not Violate Place of Worship Act, 1991”, - Allahabad High Court, in a judgment authored by Justice Rohit Ranjan Agarwal, dismissed a revision filed by the Committee of Management, Jami Masjid Sambhal, challenging two trial court orders that allowed a civil suit to proceed before the expiry of the statutory notice period under Section 80(2) CPC and ordered the appointment of an Advocate Commissioner for local investigation of a monument declared protected in 1920.

Holding that the objections were “completely misplaced,” the Court observed:
“The 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 further clarified that the Place of Worship (Special Provisions) Act, 1991, had no bearing on the maintainability of the suit, as there was no prayer seeking change in the religious character of the site.

The suit in question, Original Suit No. 182 of 2024, was filed by eight plaintiffs including Hari Shankar Jain, asserting their right of access to Sri Harihar Temple, alleged to have been forcibly converted into the Jami Masjid during the Mughal era. The structure, located in Sambhal, had been declared a protected monument on 18 November 1920 under the Ancient Monuments Preservation Act, 1904.

The plaintiffs sought a declaration of public right of access under Section 18 of the Ancient Monuments and Archaeological Sites and Remains Act, 1958, and injunctive relief to prevent obstruction by the Masjid Committee. They also moved under Section 80(2) CPC for leave to institute the suit prior to expiry of notice period, citing imminent risk of destruction of artefacts.

On the very date of institution, 19.11.2024, the trial court allowed both the application under Section 80(2) CPC and the application under Order XXVI Rule 9 CPC for local investigation. These orders were challenged in Civil Revision No. 4 of 2025.

I. Section 80(2) CPC: Leave to Institute Suit Before Expiry of Notice Period

The core challenge was that the trial court erred in granting leave under Section 80(2) CPC despite absence of urgency. Rejecting this claim, the Court ruled:

“Once Government defendants have not objected to the leave, a private party cannot step in to raise the objection. The object of Section 80 is to protect Government officials—not to empower private litigants.”

The Court observed that notice was served on 21.10.2024, and the suit was filed on 19.11.2024. Since the State did not contest the urgency or raise any procedural objection in their written statements, the objection from the Masjid Committee lacked merit.

Referring to the Full Bench ruling in Gopal Singh Visharad v. Zahoor Ahmad, 2010 SCC OnLine All 1927, the Court reiterated: “The plea of want of notice under Section 80 cannot be taken by a private individual since it is for the benefit of the Government and its officers.”

The Court added that the power to grant leave under Section 80(2) is a discretionary safeguard to prevent irreparable injury and has to be exercised by trial courts judiciously—something that was done in this case.

II. Order XXVI Rule 9 CPC: Appointment of Advocate Commissioner

The Court upheld the appointment of an Advocate Commissioner, rejecting the claim that it was done hastily or without proper foundation.

“Where it appears to the Court that a local investigation is necessary for proper adjudication of the matter, it may order for the same. The object is not to collect courtroom evidence but to document ground realities.”

The Advocate Commissioner’s work began on 19.11.2024 but could not be completed due to public unrest and security limitations. The survey resumed and was completed on 24.11.2024. The Court emphasized that this was a continuation of the original survey, not a second or unauthorized one.

Referring to Rajinder & Co. v. Union of India, (2000) 6 SCC 506, the Court noted: “The order for appointment of Commission cannot be challenged at this stage—it is merely for gathering material and does not affect any party’s rights unless the report is accepted.”

Moreover, the Court recorded that the ASI’s own inspection report, submitted on 27.02.2025, confirmed the presence of modern paint and renovations that altered the monument’s original surface, thus vindicating the plaintiffs’ apprehension.

III. Effect of the Place of Worship (Special Provisions) Act, 1991

The revisionist argued that the suit was barred by Section 4 of the 1991 Act, which freezes the religious character of any place of worship as on 15 August 1947.

Rejecting this, the Court held:
“This is not a case where any conversion of place of worship is taking place or any religious character… is being changed. Plaintiffs have only sought right to access to a protected monument declared in 1920.”

The Court reiterated that the reliefs sought were based entirely on Section 18 of the AMASR Act, 1958, and that the monument was already protected under the 1904 Act and governed by a 1927 agreement acknowledging ASI's authority over repairs and access.

The Court observed: “Once the revisionist himself has subjected the structure to the Act of 1904 and, thereafter, to 1958, he cannot take shelter of the Act of 1991.”

Dismissing the revision, the Court concluded: “Court below had not committed any error… Revisionist being a private person is not covered under the canopy of Section 80… The application for local investigation has caused no prejudice… and the present suit is not prima facie barred by the Act of 1991.”

Thus, the Court upheld the trial court’s orders and vacated the interim stay. The civil suit was directed to proceed.

Date of Decision: 19 May 2025