Madhya Pradesh High Court: In a writ petition filed under Article 226 of the Constitution, where multiple writ petitions and appeals were decided through a common order, a Division Bench of Vijay Kumar Shukla* and Alok Awasthi, JJ., invoked the principles enshrined in the Ayodhya judgment and decided upon the validity of the ASI survey conducted and the reports, along with the validity of the Ailan 1935 i.e. an order declaring the “disputed area” a Mosque and the claim of it being a waqf property. The Court held that it can safely rely upon the conclusions derived on the basis of such multidisciplinary scientific studies by the ASI and the fundamental rights guaranteed under Articles 25 and 26 of the Constitution, and recorded that the historical literature and architectural references establish the character of the “disputed area”, i.e. Bhojshala, as a centre of Sanskrit learning and temple of Goddess Vagdevi (Saraswati).
Background
Multiple writ petitions and a writ appeal by way of Article 226 of the Constitution and Section 2(1), M.P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005, respectively which raised common issues related to the claim of prayer by Hindus/namaz by Muslims/prayer by Jain samaj in “disputed area” of Bhojshala and Kamal Maula Mosque were disposed of by this common order.
The order was passed by ASI, in exercise of the powers under Rule 4, Ancient Monument and Archaeological Sites and Remains Rules, 1959, restricting the right of Hindus to worship in Bhojshala complex on a particular day and timing and the order permitting the Muslim community to offer namaz on Friday was challenged.
The Court adjudicated the matter from multiple perspectives, referring to the principles and rulings of the Ayodhya judgment and relied on them while deciding the validity of the ASI Survey Report, the Ailan issued in 1935 which was relied upon by the respondents to claim that the character of the “disputed area” was a mosque and the claim of the “disputed area” being a waqf property.
Analysis
The Court referred to the ASI survey report and prepared brief findings of the report.
The Court first adjudicated the issue of “protected monument” and afterwards applied the principles enshrined by the Supreme Court in “Ayodhya judgment”, i.e. M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1, for the purpose of determining the religious character of the “disputed area”.
The Court observed that the judgment in Ayodhya case arose out of a civil suit which dealt with the claim of a title over the disputed area but the present case did not arise out of a civil suit for “claim of title”, rather it needs to be decided upon on the basis of historical literature, architectural features, ASI survey reports, etc.
The Court further opined that while determining the character of the disputed area on the basis of above referred, the 10 principles laid down by the Supreme Court in Ayodhya case shall be considered.
The 10 principles —
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The burden of proof is not that of mathematical certainty or proof beyond a reasonable doubt, but the standard which courts should accept is that of preponderance of probability.
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The enquiry of modern courts cannot be to ascertain theological perfection of the structure, but to ascertain evidence of faith and belief, worship, subsistence of endowment, nature of endowment and whether it exists in perpetuity or not, religious use, conduct of worshipper, historical assertion and continuity and consistency of religious belief.
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The protection of the deity, the endowed property, and the underlying pious purpose is the paramount objective of modern courts, which can be protected by its beneficiaries, i.e., the worshippers and the rule of locus standi is relaxed for the purpose.
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The destruction or absence of the idol does not result in termination of the pious purpose or the endowment. Even where the idol is destroyed, or where the presence is intermittently or entirely absent, the legal personality created by the endowment, i.e. the pious purpose, continues to subsist. This ensures that there exists an entity in whom the property may vest in an ideal sense, who may receive the dedication and the interests of devotees may be protected. The protection of the deity is imperative and even in absence of trust, where an endowment is made for a religious or charitable institution, it is given juristic personality to secure the interest.
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While assessing the matters of faith and belief, the courts must recognise that they are not always capable of proof by direct documentary evidence, nor must they always subscribe to secular logic. Faith and belief lie within the personal realm of the believer and their genuineness cannot be put to test of scriptural interpretation or rational scrutiny. The test should be of genuineness and not rationality. Consistency and continuity of faith and belief are relevant factors when proprietary rights are judged. If a denomination has consistently and continuously believed in the existence of a particular fact within the spiritual realm, and such assertion is corroborated by other relevant material on record, then courts must not decide the matter by comparing the strength of competing faiths, but must assess the genuineness of the belief.
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Official Gazettes or Gazetteers, though are not inadmissible or irrelevant and may be considered to provide historical background and may also possess corroborative value if supported by other material, but they cannot be treated as conclusive proof of title, religious character, legal entitlement or disputed historical fact. Their contents must be scrupulously tested against the totality of the record, including contemporaneous documents, official records, archaeological material, conduct of parties, and other surrounding circumstances.
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The official descriptions, administrative nomenclature, government correspondence and contemporaneous official records may have material evidentiary value where they consistently identify a disputed site by reference to its religious or historical association. Such material may not, by itself, conclude title or final legal character, but it can substantially corroborate other documentary, historical, archaeological and worship-related evidence.
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Internal religious doctrines, whether invoked by the Hindu side in the form of juristic personality of the land itself or by the Muslim side in the form of waqf by user over the entire disputed property, cannot be accepted in a manner that automatically destroys the established religious rights of the other community.
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Expert opinion must be sieved and evaluated by the Court and cannot be treated as conclusive. Archaeology, which includes multiple disciplines and transdisciplinary approaches, is the strength of the report prepared by experts and cannot be labelled as a weak form of evidence. The assessment of findings has to be done by applying the principle of preponderance of probabilities rather than absolute truth and it is to be considered an acceptable standard. Findings of forceful demolition can be inferential where the building in dispute did not have its own foundation, but was raised on existing walls, or where the floor was sitting just over the floor of the earlier building. The Court must read the report as a whole, assess its findings contextually, consider objections realistically, and determine whether the conclusions drawn are supported by the material on record.
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The dispute concerns religious character so historical use, continuity of worship, or competing claims over a protected or disputed religious site, archaeological findings of religious motifs, art, instruments, sculptures, inscriptions and architectural members demonstrating pre-existing structure of a particular religion may be of high probative value which enable the courts to apply the other principles in determining subsisting rights and consistency of belief.
Application of the Principles
The Ailan dated 24 August 1935, which recognised the disputed area as a mosque, relied upon by the respondents, was tested on the anvil of Articles 13 and 372 of the Constitution and was not held to be a legal constitutional order. The reasoning being that it was not valid as per the Government of India Act, 1935 because the Act came into force in 1937, not in 1935 when the order was issued. So, it had to be tested as per the constitutional provisions. Moreover, the disputed area was already notified as an ancient monument under the 1904 Act and was held to be a “protected monument” under the 1954 Act.
The Court further stated that Ailan was merely an executive or administrative arrangement and not a legislative enactment, issued prior to the Constitution. And for a pre-Constitution instrument to survive, it must possess legislative character emanating from lawful legislative authority and must satisfy the requirements of Articles 365 and 372. Article 13 invalidates laws inconsistent with the fundamental rights and Article 130 is contextual and cannot automatically validate every executive order or notification issued prior to the Constitution. Moreover, every order issued by a Princely Ruler survives as law only when it goes through the test under the Constitution.
The Court further observed that the said order was contrary to the inscriptions, scriptures and continuity of official recognition which clearly establishes a substantial pre-existing Hindu religious and educational structure associated with Bhojshala. Thus, the Court held that the 1935 order cannot override constitutional principles and cannot be treated as a binding legislative document.
Thus, it was the finding of the Court that Hazrat Maulana Kamaluddin Chishti had laid the foundation stone of the mosque in 1306-07 AD and none of the material showed that the disputed area, claimed to be a mosque, was constructed prior to 1034 AD as the historical material, literature and notifications placed by respondents itself establish that the mosque was constructed after 1034 AD.
From the point of view of waqf, the Court stated that a mosque can be built on a waqf property and no material suggested that the disputed property is a waqf property or dedicated to waqf. The property and the owner must belong to waqif and the owner must dedicate the property to the Almighty but no historical material could prove that waqf was created. Therefore, there can be no presumption regarding existence of a mosque in the disputed area, which was prima facie established to be constructed as Bhojshala and temple of Goddess Vagdevi (Saraswati), a place of learning Sanskrit language in 1034 AD.
On the point of objections to the ASI report and videography that the survey was not conducted in a fair and impartial manner and the findings were recorded with any bias or ulterior motive, the Court opined that the carbon dating method is used to determine the age of material itself and not for the age of construction period and the presence of representatives of the petitioners and the respondent is evident from videography. The experts used absolute scientific dating methods, typological or stylistic analysis, X-ray fluorescence (XRF) spot analysis, compositional testing and examination of construction material. All artefacts recovered, duly recorded and catalogued, were separately numbered, documented, photographed, and incorporated in the report. Therefore, the objection was not accepted by the Court.
Admissibility of Archaeological Evidence — The Court held that the archaeological evidence is admissible, relevant, and can form basis of judicial conclusions, even if it does not conclusively prove demolition. The monument is a protected monument of national importance under statutory control of ASI. And the Court must rely on scientific archaeological evidence, not on speculative historical narratives.
Holdings in the light of Ayodhya judgment — Applying the 10 principles from Ayodhya judgment and addressing in detail the legal history and historical literature produced from both sides, the Court held that the Indian Archaeological Review 1972 supports the claim of the petitioners that the Bhojshala and temple of Goddess Vagdevi (Saraswati) was constructed in 1034 AD, nullifying the operation of Ailan 1935 and thus, declared the “disputed area” to be a centre of Sanskrit learning and Temple of Goddess Vagdevi (Saraswati).
[Hindu Front for Justice v. Union of India, 2026 SCC OnLine MP 11410, decided on 15-5-2026]
*Judgment Authored By: Justice Vijay Kumar Shukla
Advocates who appeared in this case:
For Petitioners: Vishnu Shankar Jain, Vinay Joshi, Varsha Parashar, Harishankar Jain, Parth Yadav, Saurabh Singh, Mani Munjal Yadav, Utkarsh Dubey, Devendra Nagar, Vagish Parashar, Rohit Shukla, Shalini Joshi, Shivangee Parmar, Satyanarayan Dubey, Priyanka Sharma, Bhuvnesh Gupta, Lalit Namdev, Pradhumna Malpani, Arpit Singh Parihar, Rajesh Joshi, Pooja Verma
For Respondents: Salman Khurshid, Noor Ahmed Sheikh, Zishan Khan, Lubna Naaz, Azra Rehman, Tausif Warsi, Arshad Mansuri, Shobha Menon, Mohd. Ikram Ansari, Rahul Choubey, Sunil Kumar Jain, Aviral Vikas Khare, Rishi Bhargava, Ayushi Agrawal, Nandini Sharma, Kushagra Jain, Bhoomika Mev, Jyoti Sencha, Sachin Patel, Ayush Agrawal, Vishwajit Joshi, Ms. Nena Mishra, Shreesh Dubey, Surbhi Bahal, Syed Ashhar Ali Warsi, Poorvi Asati, Manan Sharma, Mohd. Hashim, Priyal Agrawal, Prashant Singh, Nilesh Yadav, Rahul Sethi, Dhirendra S. Parmar, Ashish Yadav, Sonal Gupta, Sudeep Bhargava, Shrey Raj Saxena, Swapnil Ganguly, Abhijeet Awasthy, Surendra Kumar Gupta, Viraj Godha, Sahil Sonkusale, Viraj S. Jha
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