The Durgah Committee, Ajmer and another
Vs. Syed Hussain Ali & Ors [1961] INSC 107 (17 March 1961)
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
WANCHOO, K.N.
GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA
CITATION: 1961 AIR 1402 1962 SCR (1) 383
CITATOR INFO :
R 1962 SC 853 (18,34) R 1963 SC1638 (57) RF
1968 SC 662 (20) R 1972 SC1586 (8) R 1975 SC 706 (18) R 1983 SC 1 (16,79,127) R
1984 SC 51 (8A) F 1987 SC2213 (18)
ACT:
Durgah Endowment-Enactment for administration
and management of Property-If violative of denominational rights of Chishtia
Soofies-Provisions, if infringe fundamental rightsDurgah Khwaja Saheb Act, 1955
(XXXVI of 1955), SS. 2(d)(v), 45, II(f) and (h), 13, 14, 16, 18--Constitution
of India, Arts. 25, 26, 19(1)(f) and (g), 14, 32.
HEADNOTE:
The respondents, who were the Khadims of the
tomb of Hazrat Khwaja Moin-ud-din Chishti of Ajmer challenged the
constitutional validity of the Durgah Khwaja Saheb Act, 1955 (XXXVI of 1955)
and certain specified sections by a petition filed under Art. 226 of the
Constitution in the Rajasthan High Court. The High Court substantially found in
their favour and made a declaration that the impugned provisions of the Act
were ultra vires and restrained the appellants from enforcing them. The
respondents claimed to represent the Chishti Soofies who, according to them,
constituted a religious denomination or a section thereof to whom the Durgah
belonged and their case was that the impugned Act had interfered with their
fundamental right to manage its affairs. Their further case was that the Nazars
(offerings) of the pilgrims constituted their customary and main source of
income and were their property, recognised by judicial decisions including that
of the Privy Council in Syed Altaf Hussain v. Dewan Syed Ali Rasul Ali Khan,
A.I.R.
1938 P. C. 71, that the impugned Act and its
material provisions violated their fundamental rights guaranteed by Arts. 14,
19(1) (f) and (g), 25, 26, 30(1) and (2) and 32 of the Constitution. It was
contended that ss. 4 and 5 of the Act, which provided for the setting up and
composition of the Durgah Committee consisting of Hanafi Muslims none of whom
might belong to the Chishtia order, infringed the rights of the. denomination
guaranteed by Art, 26(b), (c) and (d) that cl. (v) of S. 2(d) of the Act, by
which all such Nazars as were received on behalf of the Durgah by the Nazim or
any person authorised by him were to be included in the Durgah Endowment,
infringed their fundamental right to property, that ss. 11(f) and (h) which
empowered the committee to determine the privileges of the Khadims and the
functions and powers of the Sajjadanashin and s. 13(1) which authorised the
committee to make provisional interim arrangement in case the office of
Sajjadanashin fell vacant, infringed 384 their fundamental rights under Art.
25(1), that S. 14 by creating a statutory right in the Nazim or his agent. to
solicit and receive offerings on behalf of the Durgah and prohibiting the
Khadims and the Sajjadanashin from doing so, violated their right to property
and S. 118 which provided for the enforcement of the orders of the committee as
orders and decrees of a civil court violated Arts. 14 and 32 of the
Constitution. The past history of the Endowment for centuries showed that its management
was always vested in Mutawallis appointed by the State, some of whom were
Hindus, and that the pilgrims who visited the Durgah and made offering were not
confined to Moslems alone but belonged to all communities.
Held, that the contentions of the respondents
must be negatived.
Although this Court has laid down what is a
religious denomination and what are matters of religion, it must not be
overlooked that the protection of Art. 26 of the Constitution can extend only
to such religious practices as were essential and integral parts of the
religion and to no others.
Commissioner, Hindu Religious Endowments,
Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [1954] S.C.R.
1005 and Sri Venkataramana Devaru v. The State of Mysore, [1958] S.C.R. 895,
discussed.
Assuming that the Chishti order of Soofies
constituted such a denomination or section of it whom the respondents
represented, it was obvious that cls. (c) and (d) of Art. 26 could not create
any rights which the denomination or the section never had; they could merely
safeguard and guarantee the continuance of such rights which the denomination
or section had. Where right to administer properties had never vested in the
denomination or had been surrendered by it or had otherwise been effectively
and irretrievably lost to it, Art. 26, could not be successfully invoked.
In the instant case, since Chishti Soofies
never had any rights of management over the Durgah Endowment for centuries
since it was created, the attack on SS. 4 and 5 of the Act must fail.
Asrar Ahmed v. Durgah Committee, Ajmer,
A.I.R. 1947 P.C. 1, referred to.
It was not correct to say that SS. 2(d)(v)
and 14 of the impugned Act infringed Art. 19(1)(f) and (g) of the Constitution.
Those sections, properly construed, meant that offerings earmarked generally
for the Durgah belonged to the Durgah and could be received only by the Nazim
or his 'agent. These offerings, as found by judicial decisions, never belonged
to the respondents and the impugned sections did not affect what was found to
belong to them.
Syed Altaf Hussain v. Dewan Syed Ali Rasul
Ali Khan, A.I.R. 1938 P.C. 71, referred to.
385 There could be no doubt as to the
competency of the Legislature to regulate matters relating to the property of
the Durgh by providing that the said Offerings could be solicited by the Nazim
or hi,, agent. It was, liower, not correct to say that the omission of the word
explicitly' contained in the definition in the earlier Act from the present Act
enlarged the scope of the definition in any way.
The powers conferred on the committee by s.
11(f) and (h), which must be read in the light of the mandatory provisions of
S. 15 which made it obligatory on the committee to observe Muslim Law and the
tenets of the Chishti saint and which had to be exercised within the limits
laid down by s.
16, could not be said to violate Art. 25(1)
of the Constitution.
section 16 in providing for the setting up of
a Board of Arbitration, embodied a healthy and unexceptionable principle,
obviously in the interest of the institution as well as the parties, and could
not be said to infringe Arts 14 or 32 of the Constitution.
Section 13(1) could not be read apart from
the other provisions of s. 13. That section really intended to lay down the
procedure for determining disputes relating to succession to III Office of
Sajjadanashin and it was therefore fertile to contend that s. 13(1) offended
against Art. 25(1).
since s. 18 was confined to such final orders
as were within the jurisdiction of the committee and passed against persons who
did not object to them but failed to comply with them, it did not contravene
Arts. 14 or 32 of the Constitution.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 272 of 1960.
Appeal from the judgment and order dated
January 28, 1959, of the Rajasthan High Court in D. B. Civil Writ. Petition No.
17 of 1957.
H. N. Sanyal,, Additional Solicitor-General
of India, R. Ganapathy Iyer, Y. S. Nasarullah Sheriff, J. L. Datta and K. L.
Hathi, for the appellants.
G. S. Pathak, Syed Anwar Hussain and B. P.
Maheshwari, for respondents Nos. 1 to 7.
A. G. Ratnaparkhi: for Govind saran for
respondents Nos. 8 and 9.
H. N. Sanyal, Additional Solicitor-General of
India, R. H. Dhebar and T. Jf. Sea, for the Intervener.
1961. March 17. The Judjment of the Court was
delivered by 49 386 GAJENDRAGADKAR, J.-In.the High Court of Judicature for
Rajasthan at Jodhpur a writ petition was filed under Art.
226 of the Constitution by the nine
respondents who are Khadims of the tomb of Khwaja Moinud-din Chishti of Ajmer
challenging the vires of the Durgah Khwaja Saheb Act XXXVI of 1955 (hereafter
called the Act). In this petition the respondents alleged that the Act in
general and the provisions specified in the petition in particular are ultra
vires and they claimed a direction or an appropriate writ or order restraining
the appellants the Durgah Committee and the Nazim of the said Committee from
enforcing any of its provisions. The writ petition thus filed by the
respondents substantially succeeded and the High Court has made a declaration
that the impugned provisions of the Act are ultra vires and has issued an order
restraining the appellants from enforcing them. The appellants then applied for
and obtained a certificate from the High Court and it is with the said
certificate that they have come to this Court by their present appeal.
According to the respondents the shrine of
Nazrat Khwaja Moin-ud-din Chishti which is generally known as the Durgah Khwaja
Saheb situated at Ajmer is one of the most important places of pilgrimage for
the muslims of India. Since persons following other religious also hold the
saint in great veneration a large number of non-muslims visit the tomb every
year.
Khwaja Saheb came to India sometime towards
the end of the 12th Century A. D. and settled down in Ajmer. His saintly
character and his teachings attracted a large number of devotees during his
lifetime and these devotees honoured him as a great spiritual leader. Khwaja
Saheb belonged to the Chishti Order of Soofies. He died at Ajmer in or about
1236 A. D., and naturally enough after his death-his tomb became a place of
pilgrimage.
The respondents' case further is that after
his death the tomb under which the saint was interred was a kutcha structure
and continued to be such for nearly 300 years thereafter. The petition alleged
that a pucca structure was built by the Khilji Sultans of 387 Mandu and over
the said pucca structure a tomb was constructed. Thereafter successive Muslim
Rulers, particularly the Moghul Emperors, made endowments and added to the
wealth and splendour of the shrine.
Khwaja Syed Fukhuruddin and Sheikh Mohammad
Yadgar, who originally accompanied the Khwaja Saheb Syed to India, were his
close and devoted followers. After the saint's death both of them looked after
the, grave and attended to the spiritual needs of the pilgrims. The descendants
of these two disciples gradually came to be known as Khadims. For generations
past their occupation has been that of religious service at the tomb of Khwaja Saheb.
Therespondents belong to this sector section of Khadims. They claim that they
are members of a religious denomination or section known as Chishtia Soofies.
Their petition further avers that throughout the centuries the Khadims had not
only looked after the premises of the tomb but also kept the keys of the tomb
and attended to the multitude of pilgrime who visited the shrine and acted as
spiritual guides in the performance of religious functions to, with the Fateha
(act of prayer) for which they received Nazars (offerings).
These Nazars were the main source of income
for the livelihood of the Khadims and have in fact always constituted their
property.
According to the respondents the right of the
Khadims to the offerings and Nazars made by pilgrims before the tomb and at the
Durgah had been the subject matter of several judicial decisions and the same
had been finally decided by the Privy Council in Syed Altaf Hussain v. Dewan
Syed Ali Rasul Ali Khan The petition is substantially based on what the respondents
regard to be the effect of the said decision in respect of their rights.
According to them the rights recognised by the said decision amount to their
fundamental rights to property and their fundamental right to manage the said
property, and that in substance is the basis of the petition.
Thus the respondents challenged the vires of
the Act on the ground that its material provisions take (1) A.I.R. 1938 P.C.
71.
388 away and/or abridge their fundamental
rights as a class and also the fundamental rights of the muslims belonging to
the Soofi Chishtia Order guaranteed by Arts. 14, 19 (1) (f) and (g), 25, 26,
31(1) and (2) as well as 32. According to the case set out in the petition all
Hanafi muslims do not necessarily believe in Soofism and do not belong to the
Chishtia Order of Soofies, and it is to the latter sect that the shrine solely
belongs; the maintenance of the shrine has also been the sole concern of the
said sect. It is this sect which has to maintain the institution for religious
purposes and manage its affairs according to custom and usage. That is why the
respondents alleged that the material provisions of the Act, were violative of
their fundamental rights. In regard to s. 5 of the Act under which the Durgah
Committee is constituted the respondents' objection is that it can consist of
Hanafi muslims who are not members of the Chishtia Order and that introduces an
infirmity which makes the said provision inconsistent with Art. 26 of the
Constitution. On these, allegations the respondents claimed a declaration that
certain specified sections of the Act Were void and ultra vires which made the
whole of the Act void and ultra vires avid they asked directions or orders or
writ in the nature of mandamus or any other appropriate writ to the appellants
restraining them from enforcing in any manner the said Act against them.
The claim thus made by the respondents was
disputed by the appellants in their detailed written statement. They averred
that the circle of devotees of, and visitors to, the shrine was not confined to
the Chishtia Order; but it included devotees and pilgrims of all classes of
people following different religions. According to them the largest number of
pilgrims and visitors 'were Hindus, Khoja Memons and parsis. It was denied that
the Durgah was looked after by the descendants of Syed Fukhuruddin and Mohamad
Yadgar. The allegations made by the respondents in respect of their occupation,
duties and rights were seriously challenged and the case made out by them in
regard to the receipt of the offerings and Nazars 389 was disputed. According
to the appellants the religious services at the tomb were and are performed by
the Saiiadanashin of the Durgah and the respondents had no right to look after
the premises, to keep the keys of the tomb, to attend to the pilgrims visiting
the shrine or to receive any offerings or Nazars. Their case was that the
Khadims were and are no more, than servants of the holy tomb and their duties
are similar to those of chowkidars.
The appellants further pleaded that according
to Islamic belief offerings made at the tomb of a dead saint are meant for the
fulfilment of objects which were dear to the saint in his lifetime and they are
meant for the poor, the indigent. the sick and the stiffening so that the benediction
may reach the soul of the., departed saint. The averments made by the
respondents in regard to their fundamental rights and their infringement were
challenged by the appellants and it was urged that the Act in general and the
provisions specified in the petition in particular were intra vires and
constitutional.
On these pleadings the High Court proceeded
to consider the history of the institution, the nature of the rights set up by
the respondents and the effect of the impugned legislation on those rights. The
High Court has found that the offerings made before the tomb for nearly 400
years before the tomb was rebuilt into a pucca structure must have been used by
the Khadims for themselves. It also held that the Khadims were performing
several duties set out by the respondents and that it was mainly the Khadims
whocirculated the stories of miracles performed by Khwaja Saheb during his
lifetime and thus helped to spread the reputation of the tomb. Even after the
tomb was rebuilt and endowments were made to it the Khadims looked after the
tomb, performed the necessary rituals and spent the surplus income from the
offerings for themselves. In due course Sajjanashins came to be appointed, but,
according to the High Court their emergence on the scene merely enabled them to
become sharers in the offerings. It has further been 390 found by the High
Court on a review of judicial decisions pronounced in several disputes between
the parties that the offerings made at the tomb are governed by the customary
mode of their utilisation and the history of the institution proved that the
said offerings have been used according to a certain custom which had been
upheld by the Privy Council in the case of Syed Altaf Hussain (1). 'this custom
showed that the offerings made before the shrine are divided between the
Sajjadanashin and the Khadims in the manner indicated in the said decision. It
is in the light of these broad findings that the High Court proceeded to
examine the vires of the impugned provisions of the Act.
Thus considered the High Court came to the
conclusion that the several sections challenged by the respondents in their
writ petition are ultra vires. It has held that s. 2(b)(v) violates Art.
19(1)(f), s. 5 violates Art. 26, s. 11(f) Arts. 19(1)(g) and 25(1), ss. 11(b)
and 13(1) Art. 25, s. 14 Art. 19(1)(f) and as. 16 and 18 Art. 14 read with Art.
32.
Having found that these sections are ultra
vires the High Court has issued an order restraining the appellants from
enforcing the said sections. In regard to s. 5 in particular the High Court has
found that the said section is ultra vires inasmuch as it lays down that the
Committee shall consist of Hanafi muslims without further restricting that they
shall be of the Chishtia Order believing in the religous practices and ritual
in vogue at the shrine. It may be added that since s. 5 which contains the key
provision of the Act has thus been struck down, though in a limited way, the
whole of the Act has in substance been rendered inoperative.
Before dealing with the merits of the appeal
it would be relevant and useful to consider briefly the historical background
of the dispute because, in determining the rights of the respondents and of the
sect which they claim to represent, it would be necessary to ascertain broadly
the genesis of the shrine, its growth, the nature of the endowments made to it,
the management of the properties thus endowed, the rights of the Khadims and
the Sajjadanashin in regard to (1) A.I.R. 1938 P.C. 71.
391 the tomb and the effect of the relevant
judicial decisions in that behalf. This enquiry would inevitably take us back
to the 13th Century because Khwaja Moin-ud-din died either in 1236 or 1233 A.D.
and it was then that a kutcha tomb was constructed in his honour. It appears
that in the High Court the parties agreed to collect the relevant material in
regard to the growth of this institution which has now become scarce and
obscure owing to lapse of time from the Imperial Gazetteer dealing with Ajmer,
the Report of the Ghulam Hasan Committee (hereafter called the Committee).
appointed in 1949 to enquire into and report
on the administration of the present Durgah as well as the decision of the
Privy Council in Asrar Ahmed v. Durgah Commitee, Ajmer (2). The Committee's
report shows that the Committee'examined a large number of, witnesses belonging
to several communities who were devoted to the shrine, it considered the
original Sanads and a volume of other documents produced before it, took into
account all the relevant judicial decisions to which its attention was drawn,
and passed under review the growth of this institution and its management
before it made its recommendations as to the measures necessary to secure the
efficient management of the Durgah Endowment, the conservation of the shrine in
the interest of the devotees as a whole. Presumbly when the parties agreed to
refer to the historical data supplied by the Committee's report they advisedly
refrained from adopting the course of producing the original documents
themselves in the present enquiry.
The political history of Ajmer has been
stormy, and through the centuries sovereignty over the State of Ajmer has
changed hands with the inevitable consequence that the fortunes of 'the shrine
varied from time to time. it is true that the material which has been thus
placed before the Court is not satisfactory, as it could not but be so, because
we are trying to trace the history of the institution since the 13th Century
for nearly 600 years thereafter; but the picture which emerges as a result of a
careful consideration of the (2) A. I.R 1947 P.C.I.
392 said material is on the whole clear
enough for our purpose in the present appeal.
Khwaja Moin-ud-din was born in Persia in
1143. Later he migrated with his father to Nisharpur near Meshad where Omar
Khayyam is buried. Then he moved from place to place until he reached Ajmer
about the end of the 12th Country. At Ajmer lie died at the ripe old age of 90.
It appear,; that he retired into his cell on the First of Rajab and was found
dead in the cell on the Sixth Day when it, was opened. That is why his death
anniversary is celebrated every year during the six days of Rajah. He, received
formal the logical education at Samarkhand and Bukhara, and in the pursuit of
spiritual knowledge he travelled far and wide. Ultimately he became a disciple
of Hazrat Khwaja Usman Harooin who was a well known faqir of the Chishti sect.
During his lifetime the reputation of Khwaja Moinuddin travelled far and wide
and attracted devotees following different religious throughout the country.
At his death the saint could not have left
any property and so there was no question of management of the property
belonging to his tomb. No doubt the tomb itself was constructed immediately
after his death but it was a kutcha structure and apparently for several years
after his death there does not appear to have been endowment of property to the
tomb, and so its financial position must have been of a very modest order.
Persons belonging to the affluent classes were not, attracted for many years
and so there was hardly any occasion to manage any property of the tomb as
such. After his death the family of the saint remained in Ajmer for some time
but it appears that the members of the family were driven out of Ajmer for some
years and they came back only centuries later. This was the consequence of the
change of rulers who exercised sovereign power over Ajmer.
The construction of a pucca tomb was
commenced in the reign of one of the Malwa Kings whose dynasty ruled over Ajmer
up to 1531. There is no evidence to show that any property was dedicated to the
tomb even then. It, however, does appear that one of the 393 Malwa Kings had
appointed a Sajjadanashin to look after the tomb; this Sajjadanasliin was in
later times called Dewan.
The construction of the tomb took a fairly
long time but even after it was completed there is no trace of any endowment of
property.
In or about 1560 Akbar defeated the Malwa
Kings and Ajmer came under Moghul rule and so the Moghul period began.
Akbar took great interest in the tomb and
that must have added to the popularity of the tomb and attracted a large number
of affluent pilgrims. It was about 1567 A. D. that the tomb was rebuilt and
re-endowed by Akbar who reigned from 1556 to 1605. A Farman issued by Akhar
ascribed to the year 1567 shows that eighteen villages were granted to the
Durgah. According to the report of the Committee which had access to the
original Sanad and other relevant documents the year of the Sanad was not 1567
but 1575. The report also shows that the object of this first endowment was not
one for the general purposes of the Durgah but for a specific purpose, namely,
'langar khana'. It appears that during this period a descendant of the saint
functioned as a Sajjadanashin and he also performed the duties of a Mutawalli.
There is no reliable evidence in regard to the position of the Sajjadanashin,
his duties and functions before the date of Akbar, but it is not difficult to
imagine that even if a Sajjadanashin was in charge of the tomb he had really
very little to manage because the tomb had not until 1567 attracted substantial
grants or endowments. The Committee's report clearly brings out that the
appointment of a Sajjadanashin in the time of Akbar was purely on the basis of
an appointment by the State because it is pointed out that as soon as Akbar was
not satisfied with the work of the Sajjadanashin appointed by him in 1567 he
removed him from office in 1570 and appointed a new incumbent in his place This
new incumbent carried on his duties until 1600. Similarly in 1612 Jehangir
appointed a Sajjadanashin to function also as Mutawalli. During Jehangir's time
(1605-1627) some more villages were endowed to the Durgah.
50 394 During Shahjehan's time (1627-1658)
some significant changes took place in the management of the Durgah. ,The
office of the Sajjadanashin was separated from that of the Mutawalli under the
name of Darogah, the Mutawalli was put in charge of the management and
administration of the secular affairs of the Durgah. It would also appear that
some of the Darogahs were Hindus. In his turn Shahjehan endowed several
villages in favour of the Durgah. This endowment, unlike that of Akbar, was for
the general purposes of the Durgah.
According to the Committee Shahjehan's endowment
was in supersession of the earlier grants though it is difficult to decide as
to whether it was in supersession of Akbar's grant or of an earlier grant made
by Shahjehan himself However that may be, it is quite clear that at the very
time when Shahjehan made his endowment he separated the office of the
Sajjadanashin from that of the Mutawalli and left it to the sole charge of the
Mutawalli appointed by the Ruler to manage the properties endowed to the
Durgah. The later history of the institution shows that the separate office of
the Mutawalli who was in sole management of the administration of the
properties of the Durgah continued ever since, and that throughout its history
the Mutawallis have been appointed by the State and were as such answerable to
the State and not to the sect represented by the respondents. This state of
affairs continued during the reign of Aurangzeb (1659-1707).
After Aarangzeb died there. was a change in
the political fortunes of Ajmer because Rathor Rajputs seized Ajmer in 1719 and
ruled over it for two years thereafter. This change of political sovereignty
does not appear to have affected the administration of the Durgah which
continued as before. In 1721 the Moghul rule was reestablished over Ajmer but
that again made no change to the administration of the Durgah and the
management of its properties. The Moghul rule in turn was disturbed in 1743 by
the Rajput Rathors who were in power for nearly 13 years. The Rathor rule came
to an end when the Scindias occupied Ajmer in 1756 and continued in 395
possession of the city until 1787. In that year the Rathors came back again and
remained in possession till 1791 when Scindias overpowered them and continued
to occupy it until 1818. In about 1818, after the Pindari War Ajmer passed into
the hands of the East India Company and so its connection with the British
Government commenced. Whilst political sovereignty over Ajmer was thus changing
hands from time to time the state of affairs in relation to' the Durgah
remained as it was during the time of Shahjehan. The Sajjadanashin looked after
the performance of the religious observances of the rites and the Mutawalli
looked after the administration and management of the properties of the Durgah.
In this connection it is relevant and significant to note that the Mutawalli
has always been an officer appointed by the Government in power. That in brief
is the broad picture which emerges in the light of the material placed by the
parties before the Court in the present proceedings.
At this stage it would be material to narrate
very briefly the relevant history of legislation in regard to the
administration of religious endowments which followed the assumption of
political power by the British Government.
The first Act to which reference must be made
is Act XX of 1863. This Act was passed to enable the Government to divest
itself of the management of religious endowments which had till then vested in
the Revenue Boards. Section 3 of the Act provided, inter alia, that in the
case, of every mosque to which the earlier regulations applied Government shall
as soon as possible after the passing of the Act make special provision for the
'administration of such mosques as specified in the Act by subsequent sections
Under s. 4 the transfer of the administration of the said mosque and other
institutions to trustees is provided with the consequence that the
administration by Revenue Boards had to come to an end. Section 6 deals with
the rights of the trustees to whom the property is transferred under s. 4; and
it also contemplates the appointment of committees which may exercise powers as
therein specified. With the rest of 396 the provisions of this Act we are not
concerned. The effect of this Act was that the management of religious
endowments which had been taken over by the Government and which vested in the
Revenue Boards was entrusted to the trustees as proscribed by s. 4. In
accordance with the provisions of s. 6 a committee was appointed to look after
the management of the Durgah with which we are concerned and that committee
continued to be in. such management until 1936.
In 1936 Act XXIII of 1936 was passed
specifically with the object of making better provision for the administration
of the Durgah and the Endowment of the Durgah of Khwaja Moin-ud-din Chishti
known as the Durgah Khwaja Saheb, Ajmer.
This Act consisted of twenty sections and in
a sense it provided a self-contained code for the administration of the Durgah
and its endowments. Section 2(4) defines a Durgah Endowments as including (a) the
Purgah Khwaja Saheb, Ajmer,(b)all buildings and movable property within the
boundaries of the Durgah Sharif, (c) Durgah Jagir including all land, houses
and shops and all landed property wheresoever situated belonging to the Durgah
Sharif, (d) all other property and all income derived from any source
whatsoever, dedicated to the Durgah or placed for any religious, pious or
charitable purposes under the Durgah Administration, and (e) only such
offerings as are intended explicitly for the use of the Durgah. It would be
noticed that the material provisions of the Act which dealt with the management
and administration of the Durgah were intended to operate in regard to the
Durgah Endowment thus comprehensively defined. Under s. 4 the administration
and control of this endowment had to vest in a committee constituted in the
manner prescribed. The powers and duties of this committee are prescribed by s.
11; whereas s. 16 provides for arbitration of disputes that may arise between
the committee on the one hand and the sajjadanashin, the Mutawalli and the
Khadim or any of them on the other. With the rest of the provisions of the Act
we are not concerned.
In pursuance of the material 397 provisions
of this Act a Durgah Committee was appointed and it has been in management of
the Durgah Endowment ever since.
As we have already indicated the Government
of India appointed the Committee under the Chairmanship of Mr. Justice Ghulam
Hasan in 1949 to enquires into and report on the administration of the Durgah
Endowment and to make appropriate recommendations to secure the conservation of
the shrine by efficient management of the said Endowment.
The Committee made its report on October 13,
1949, and that led to the promulgation of Ordinance No. XXIV of 1949 which was
followed by Emergency Provisions Act, 1950, and finally by the Act of 1955 with
which we are concerned in the present appeal. The Committee held an exhaustive
enquiry, considered the voluminous evidence produced before it, reviewed the
conduct of the Sajjadanashins and the Khadims, examined the manner in which the
offerings were received and appropriated by them, took into account several
judicial decisions dealing with the question of the rights and obligations of
the said parties and came to the conclusion that "the historial review of
the position leads only to the inference that the Sajjadanashins and the
Khadims between themselves came to an agreement for mutual benefit and to the
detriment of the Endowment and adopted a kind of a practice to realise offerings
from visitors to the Durgah on a show of some charitable object and led the
ignorant and the unwary into the trap" (1). The Committee has observed
that most of the spokesmen before it candidly admitted the existence of many
malpractices indulged in by Khadims and a majority of them showed a keen desire
to introduce radical social reform in the community, provided they are backed
by the authority of law (2). The Committee then commented on the agreement
entered into between the Sajjadanashins and the Khadims as ampunting to' an
unholy alliance among unscrupulous persons to trade for their (1) Report of the
Durgah Kbwaja Saheb (Ajmer Committee of Enquiry dated October 13, 1949,
Published.-by Government of India in 1950, p. 63.
(2) Ibid, P. 56.
398 personal aggrandisement in the name of
the holy saint, and it noticed with regret that the interest of the community
had suffered more from the superstitious, ignorant and the reactionary
hierarchy than from the doings of zealous reformers (1). According to the
Committee "tinkering with the problem will be a remedy worse than the
disease and it had no doubt that no narrow and technical considerations should
stop us from marching forward". As a result of the findings made by the
Committee it made specific recommendations as to the manner in which reform
should be introduced in the management and administration of the Durgah
Endowment by legislative process. Speaking generally, the Act ha; been passed
in the light of the recommendations made by the Committee.
Thus it would be clear that from the middle
of the 16th Century to the middle of the 20th Century the administration and
management of the Durgah Endowment has been true to the same pattern. The said
administration has been treated as a matter with which the State is concerned
and it has been left in charge of the Mutawallis who were appointed from time
to time by the State and even removed when they were found to be guilty of
misconduct or when it was felt that their work was unsatisfactory. So far as
the material produced in this case goes the Durgah Endowment which includes
movable and immovable property does not appear to have been treated as owned by
the denomination or section of the devotees and the followers of the saint, and
its administration has always been left in the hands of the official appointed
by the State.
In this connection it may be relevant to
refer to the decision of the Privy Council in the case of Agrar Ahmed (2). The
appeal before the Privy Council in that case arose from a suit filed by Syed
Asrar Ahmed against the Durgah Committee, in which he claimed a declaration
that the office of the Mutawalli of the Durgah Khwaja Saheb, Ajmer, was
hereditary in his family and that the Durgah Committee was not competent to
question his status as a hereditary Mutawalli in succession to the last holder
of that office.
(5) Ibid. P. 64. (2) A.I.R. 1947 P.C. I.
399 The District Judge who tried the said
suit passed a decree in favour of Asrar Ahmed but on appeal the Judicial
Commissioner. set aside the decree and dismissed Asrar Ahmed's suit. On appeal
by Asrar Ahmed to the Privy Council the decision of the Judicial Commissioner
was confirmed. In dealing with this dispute the Privy Council has considered
the genesis and growth of the shrine along with the' stormy history of the
State of Ajmer to which we have already referred. In the course of his judgment
Lord Simonds observed that it was not disputed that in the reign of Emperor
Shahjehan the post of Mutawalli was separated from that of Sajjadanashin and
had become a Government appointment, whereas the Sajjadsnashin remained and
continued to be the hereditary defendant of the saint. Then he referred to the
firman of Shahjehan issued in 1629 by which the Emperor ordered that the
Mutawalli appointed by the State was to sit on the left of the Sajjadanashin at
the Mahfils. Similarly the firman issued by Aurangzeb in 1667 directed the
order of sitting at the Mahfils by laying down that Daroga Balgorkhana, i.e.,
Mutawalli of the Durgah or anyone who is appointed by the State do sit on the
left of the Sajjadanashin. It is significant to note that Daroga Balgorkhana
was a Hindu in Akbar's time. Having thus held that the office of the Mutawalli
was an office created by the State and the holder of the office was a State
servant the Privy Council examined the evidence on which Asrar Ahmed relied in
support of his plea that by custom the office was hereditary and held that the
said evidence did not justify the claim. This decision, supports the conclusion
that the Durgah Endowment and its administration have always been in charge of
the Mutawalli appointed by the State and that on occasions the post of the
Mutawalli was held by a Hindu as well.
Having thus reviewed brosoly the genesis of
the shrine, its growth and the story of its endowments and their management, it
may now be relevant to enquire what is the nature of the tenets and beliefs to
which Soofism subscribes. Such an enquiry would serve to 400 assist us in
determining whether the Chishtia sect can be regarded as a religious
denomination or a section thereof within Art. 26. According to Murray T. Titus
(1) "Islam, like Christianity, has its monastic orders and saints, the
underlying basis of which is 'the mystic interpretation of the religious life
known as Sufiism". According to this author, the men imbued with soofi
doctrine came very early to India is not disputed; but who those earliest
comers were or when they arrived cannot be definitely ascertained. He also
expresses the opinion that though Soofism is found so extensively "it is
not the religion of a sect, it is rather a natural revolt of the human heart
against the cold formalism of a ritualistic religion, and so while Sufis have
never been regarded as a separate sect of muslims they have nevertheless tended
to gather themselves into religious orders". These have taken on special
forms of Organisation, so that today there is a great number of such orders,
which, curiously enough, belong only to the Sunnis. The author 'then enumerates
fourteen orders or families (khandan);
amongst them is the Chishtia Order.
According to the report of the Committee,
however, the Soofies are divided into four main silsilas; amongst them are
Chishtias. The report expresses the definite opinion that the Soofi silsilas
are not sects (p. 13). The characteristic feature of a particular silsila is
confined to a few spiritual practices, like Aurad or Sama, to certain
festivals, institutions like veneration of shrines and the devotion to certain
leading personalities of the order.
Soofism really denotes the attitude of mind,
that is to say, a soofi while accepting all that orthodox Islam has to offer,
finds lacking in it an emotive principle. According to Soofies a clear
distinction has to be drawn between the real and the apparent, and they
believed that the ultimate reality could be grasped only intuitively (Ma'arifat
or gnosis). A special feature of Soofi belief is divine love.
An intellect, according to Soofies, performs
a restricted function. The centre of spiritual life is the Qalb or the Rooh (p.
16).
(1) "Indian Islam", a Religious
History of Islam in India, by Murray T. Titus, published by Oxford University
Press in the Series "The Religious Quest of India pp. 110, 111.
401 In Piran v. Abdool Karim (1), Ameer Ali,
J., had occasion to consider the functions of the Sajjadanashin and the
Mutawalli. He observed that the Sajjadanashin has certain spiritual functions
to perform. He is not only a Mutawalli but also a spiritual preceptor. He is
the curator of the Durgah where his ancestor is buried and in him he is
supposed to continue the spiritual line (silsila). As is well known these
Durgahs are the tombs of celebrated dervishes, who in their lifetime were
regarded as saints.
Some of these men had established Khamkahs
where they lived and their disciples congregated. These dervishes professed
esoteric doctrines and followed distinct systems of initiation. They were
either Soofies or the disciples of Mian Roushan Bayezid who flourished about
the time of Akbar andwho had founded an independent esoteric brotherhood in
which the chief occupied a peculiarly distinct position.
The preceptor is called the pir, the disciple
a murid. On the death of the pir his successor assumes the privilege of
initiating the disciples into the mysteries of dervishism or Soofism. This
privilege of initiation is one of the functions of the Sajjadanashin (p.
220-221). Thus on theoretical considerations it may not be easy to hold that
the followers and devotees of the saint who visit the Durgah and treat it as a
place of pilgrimage can be regarded as constituting a religious denomination or
any section thereof. However, for the purpose of the present appeal we propose
to deal with the dispute between the parties on the basis that the Chishtia
sect whom the respondents purport to represent and on whose behalf--(as well as
their own)-they seek to challenge the vires of the Act is a section or a
religious denomination. This position appears to have been assumed in the High
Court and we do not propose to make any departure in that behalf in dealing
with the present appeal.
The next point which needs to be considered
is the duties of the Khadims and their rights on which their claim for an
appropriate writ is based in the present (1) (1891) I.L. R. 19 Cal. 204.
51 402 proceedings. In the High Court the
question about the duties of the Khadims was settled by calling upon the
respondents to file an affidavit in that behalf. In accordance with the order
passed by the High Court Syed Mohammed Hanis, who is one of the Khadims, made a
detailed affidavit, setting forth the duties of the Khadims and the statements
made in this affidavit do not appear to have been traversed at the trial.
According to this affidavit, every day one Khadim in rotation opens the first
gate of the dome containing the shrine at 4 a. m. after pronouncing the sacred
call named the "Azan". Accompanied by a few others he then proceeds
to open the second gate pronouncing certain sacred formulae in adulation of
Khwaja Saheb. Then the Khadime remove the old flowers from the Mazar and put
fresh flowers on it. This ceremony is called "Sej". The dome premises
are then cleaned, 'Loban' is burnt and the withered flowers are deposited in a
sacred depository. This is followed by general prayer whereupon the Mazar is
thrown open for the pilgrims. One Khadim remains on duty inside the dome while
others guide the pilgrims. The Khadim who is present inside the dome helps the
pilgrims to kiss the Mazar and prays for them, after putting the Daman, that is
to say, the cloth coveting of the grave over the pilgrims' heads.
At this stage the pilgrims offer Nazar. At 3
p. m. the dome gates are closed and the flowers are changed once again. At this
time the dome is given a paint of sandal paste and the Kabr Posh is also
changed. The Khadim offers prayers for all the four silsilas of the Soofies and
all other human beings, and this is followed by the opening of the Mazar again.
At sunset there is a beat of Nakkara which gathers the pilgrims at the dome. At
this time the Khadims carry lamps inside the dome, and while so doing they
touch the heads of devotees with their lamps and then the lamps are placed on
lamp posts. Madha (song in praise of Khwaja Saheb) is recited followed by the
recitation of Dua and all pilgrims join by saying Amin. The Mazar remains open
in this way until 10 p. in. when three Khadims give a, ceremonial sweep 403
thrice inside the dome and lock it for the night. Besides these daily duties
the Khadims perform a special ceremony during Urs and it is called OusI. On the
day, of Basant Panchami Kavvals bring fresh green plants and flowers as
presents to the Mazar and they are placed on the Mazar by the Khadims on duty.
That in brief is the nature of the duties performed by the Khadims in the
Durgah Khwaja Saheb.
Let us now consider the rights which
according to the respondents have been held established by judicial decisions.
In this connection the respondents rely mainly on the judgment of the Judicial
Commissioner in the litigation which went before him in 1931 as well as the
decision on appeal to the Privy Council in the matter. The contending parties
in this litigation were the Dewan (i.e., Sajjadanashin), the Khadims and the
Durgah Committee. It is not necessary for our present purpose to set out the respective
contentions of the parties. It would be enough if we recite the conclusions
reached by the Judicial Commissioner and mention the final decision of the
Privy Council in respect of them. This is how the Judicial Commissioner
recorded his conclusions at the end of his judgment in paragraph 14:
"(a) The rights of the Diwan in respect
of offerings made at the Durgah are declared to be as follows:-(i) All
offerings or presents made to the Diwan at the Diwan's Khanqah or sitting place
within the precincts of the Durgah are the exclusive property of the Diwan.
(ii) Offerings or presents of gold or silver
vessels or implements or Qabarposhes for the use of the Durgah are the property
of the Durgah Committee as trustees for the Durgah irrespective of the payment
of Tawan to the Khadims, and irrespective of the spot at which they are
presented.
(iii) Other offerings if made outside the
dome of the Shrine are the perquisites of the Khadims, with the exception that
offerings of animals or such bulky articles as cannot conveniently be brought
within the dome shall, if made at the steps of the Shrine 404 be divided
between the Diwan and the Khadims respectively in equal shares.
(iv) Other offerings if made within the dome
of the Shrine shall be divisible between the Diwan and the Khadims respectively
in equal shares irrespective of the spot at which they are deposited within the
dome, provided that the following class of offerings shall be the perquisites
of the Khadims exclusively:
(a) Copper coins and cowries and gold or
silver articles (other than coins) of a value less than 8 Annas, and cotton
cloth of inferior quality.
(b) All offerings made between the hours of 4
a.m. and 4 p.m. on 'Qul' day i.e. the last day of the 'Urs'.
(v) Cash or other offerings sent by post
shall be deemed to be offerings made at the Shrine, i.e. within the dome,
unless addressed. specifically to the Durgah Committee, the Diwan or the
Khadims for their exclusive use.
(vi) In the case of articles falling within
the scope of clause (ii) the payment of Tawan shall be deemed conclusive proof
that an article is presented for the use of the Durgah and in case in which no
Tawan is paid in respect of an article falling within the scope of clause (ii)
the Durgah Committee shall be the authority to decide whether such article is
required or should be retained for the use of the Durgah.
(b) The defendant Khadims are enjoined to
refrain from any interference with plaintiff's rights as above declared."
It has been strenuously urged before us by Mr. Pathak on behalf of the
respondents that the only offerings' to which the Durgah Committee can lay a
claim under this judgment are those specified in cl. (a) (ii), and he contends
that these offerings are none other than the presents of, specified articles as
therein indicated; in other words, the argument is that it is only offerings of
certain articles for certain specific uses of the Durgah that constitute the
property of the Durgah; all other offerings fall to be distributed either 405
under cl. (a)(iii) or cl. (a)(iv). If the offerings are made outside the dome
with the exceptions there specified they go to the Khadims exclusively; if they
are made Co,, within the dome they are to be divided between the Dewan and the
Khadims in equal shares, but even in respect of such offerings those that fall
within cl. (a)(iv)(a) or cl.
(a)(iv)(b) have to be paid to the Khadims.
Mr. Pathak thus suggests that cl. (a)(ii) refers Gaj only to specific presents
given for specific purposes and the opening word "offerings" in the
said clause really refers to the said presents and nothing else. We would read
this clause as confined to specific presents and as excluding every other
offering altogether. In our opinion this contention is unsound. In dealing with
the effect of the finding recorded by the Judicial Commissioner we cannot lose
sight of the fact that we are not construing terms of a statute but we are
attempting to find out the effect of the findings made in judicial proceedings.
The said findings cannot therefore be divested from the rest for the reasons
given in the judgment, and those reasons do not support the construction
suggested by Mr. Pathak. Besides, cl. (v) specifically refers to cash or other
offerings Sent by post, and it provides, inter alia, that if the said cash or
other offerings are addressed specifically to the Dargah Committee they would
belong to the Durgah just as if they are addressed specifically to the Dewan or
the Khadims they would belong to them respectively to the exclusion of anyone else.
Clause (v) thus clearly postulates that cash or other offerings maybe sent by
the devotees to the Durgah Committee specifically for the purposes of the
Committee, and that must inevitably mean that offering may be made in cash or
may take other forms, and if it is earmarked even generally for the Durgah
Committee it would go to the Durgah Committee, and neither the Sajjadanashin
nor the Khadim can claim any share in it. Construing the word
"offerings" in cl. (a)(ii) in the light of cl. (a)(v) we are disposed
to take the view that the word "offerings" includes also an offering
besides presents which are specifically referred to in that clause; and so it
follows that even according to the findings 406 considered as a whole, if any
offerings in cash or kind are made in favour of the Durgah and in that sense
earmarked for its general purposes they would belong only to the Durgah and
neither the Khadim nor the Sajjadanashin can make any claim in regard to it.
This matter had gone before the Privy Council
in Syed Altaf Hussain v. Diwan Syed Ali Khan (1), J. Dealing with the question
of the offerings and the rights of the respective parties thereto the Privy
Council observed that it was conceded by the parties before the Court of Appeal
that a distinction must be drawn inter alia between those articles such as
Qaberposhes which are presented for the use of the Durgah and the, other
offerings which are made at the Durgah; and it added that while the offerings
belonging to the latter category may be divisible between the Dewan and the
Khadims those made for the specific use of the Durgah are the property of the
Durgah. In appreciating the effect of this observation it must be remembered
that the controversy between the parties at that stage was not as to whether offerings
made otherwise than in the form of specific articles but earmarked to the
Durgah would belong to the Durgah or not. Even in respect of the articles
specifically given to the Durgah for specific purposes the Khadims made a claim
and that was rejected. This background of the dispute cannot be overlooked in
judging the effect of the decision itself and observations made in. the course
of the judgment. Even so, it is significant that the Privy Council specifically
observed that "it appears that the offerings which are not intended for
the use of the Durgah are made at various places of the buildings attached to
the shrine". In other words, it would appear that the, offerings which
were intended for the use of the Durgah were treated as constituting a class of
offerings apart from the other offerings which were divisible between the
Khadims and the Sajjadanashins, and that clearly is consistent with the view
which we have taken in regard to the effect of the findings recorded by the
Judicial Commissioner in appeal.
The Privy Council found that Khadims who (1)
A.I. R. 1938 P.C. 71.
407 work as the servants of the Shrine were
no doubt entitled to the offerings as already indicated but that they can make
no claim in regard to the offerings which are intended for the use of the
Durgah.
At this stage we ought to examine the scheme
of the Act and read its material provisions the vires of syed, which is
challenged by the respondents. The Act consists of 22 sections, and like its
predecessor Act Gaja XXIII of 1936 it provides a self-contained Code for the
administration of the Durgah and the Endowment of the Durgah. Section 2(d)
defines Durgah Endowment in five clauses. The first three clauses are exactly
in the same terms as the corresponding clauses of s. 2(4) of the earlier Act
XXIII of 1936.
Clause (iv) of a. 2(d) is substantially
similar to the corresponding clause in the earlier section except that it
includes the Jagirdari villages of Hokran and Kishanpur in Ajmer expressly,
whereas cl. (v) is somewhat differently worded. Under cl. (v) all such nazars
or offerings as are received on behalf of the Durgah by the Nazir or any person
authorised by him are included in the Durgah Endowment. By s. 3 the provisions
of the Act are given overriding effect even though they may be inconsistent
with the provisions contained in Act XX of 1863. Section 4(1) deals with the
appointment of the Committee in which the administration, control and
management of the Durgah Endowment shall be vested. This Committee shall be
called the Durgah Committee, Ajmer that is the effect of s. 4(2). Section 5
prescribes the composition of the Committee. It provides that the Committee
shall consist of not less than five and not more than nine members all of whom
shall be Hanafi Muslims and shall be appointed by the Central Government.
Section 6 deals with the terms of office and
resignation and removal of members and casual vacancies. Section 7 provides for
the election of the President and the Vice-President of the Committee. Section
8 prescribes the conditions under which the, Committee may be superseded.
Section 9 provides for the power of the Central Government to appoint a Nazim,
and s. 10 contemplates the appointment of an Advisory Committee to advise the
408 Nazim. Under s. 11 the powers and duties of the Committee are specified.
All of these powers are in (regard to the administration, control and
management of the Durgah Endowment. Two of these ought to be specified because
they are the subject-matter of challenge., Section 11(f) refers to the power of
the Committee to determine the privileges of the Khadims and to regulate their
presence in the Durgah by the grant to them of "licences in that behalf if
the Committee thinks it necessary so to do", and under s. 11(h) power is
given to the Committee to determine the functions and powers, if any, which the
Sajjadana. shin may exercise in relation to the Durgah. Under s. 12 provision
is made for the remuneration of the Sajjadanashin. Succession to the office of
the Sajjadanashin is the subject-matter of s. 13. Section 13(1) provides that
as soon as the office of the Sajjadanashin falls vacant, the Committee shall,
with the previous approval of the Chief Commissioner, make such interim
arrangements for the performance of the functions of the Sajjadailashin as it
may think fit and immediately thereafter publish a notice in such form and
manner as may be determined by the Committee, inviting applications for the
office of the successor as therein specified. Four other sub-sections of s. 13
deal with the appointment of the successor but they are not the subject matter
of any controversy and so it is unnecessary to refer to them.
Section 14 is important. It makes it lawful
for the Nazim or any person authorised by him in this behalf to solicit and receive
on behalf of the Durgah any nazars or offerings from any person, and it adds
that notwithstanding anything contained in any rule of law or decision to the
contrary no person other than the Nazim or any person authorised by him in this
behalf shall receive or be entitled to receive nazars or offerings on behalf of
the Durgah. This section prohibits the Khadims or the Sajjadanashins to solicit
offerings on behalf of the Durgah and is the subject-matter of dispute. Section
15 enjoins upon the Committee to observe Muslim law and tenets of the Chishti
saint in conducting and regulating the established rites and 409 ceremonies at
the tomb. Section 16 provides for the appointment of a Board of Arbitration. If
any dispute arises between the Committee on the one part c and the
Sajjadanashin, any Khadim and any person claiming to be the servant of the
Durgah on the other part provided such dispute does not, in the opinion of the
Committee, relate to any religious usage or custom or to the performance of any
religious office, it has to go before the Board of Arbitration which consists
of a nominee of the Committee and a nominee of the other party to the dispute
and a person who holds or has held the office or is acting or has acted as a
district judge to be appointed by the Central Government.
This section provides that an award of the
Board shall be final, and shall not be questioned in any court. Section 16(2)
lays down that no suit shall lie in any court in respect of any matter which is
required by sub-s. (1) to be referred to a Board of Arbitration. Section 17
then lays down that any defect in the constitution of, or vacancy in, the
Committee would not invalidate its acts and proceedings;
and s. 18 provides for the enforcement of the
final orders passed by the Committee in the same manner and by the same
procedure as if the said orders were a decree or order passed by a civil court
in a suit. Section 19 provides for the audit of accounts and annual report, and
s. 20 empowers the Committee to make bye-laws to carry out,, the purposes of
this Act. Section 21 deals with transitional provisions, and s. 22 repeals the
earlier Act of 1936. That in brief is the nature and scope of the material
provision, of the Act.
The challenge to the vires of the Act rests
broadly on two principal grounds. It is urged that its impugned provisions are
inconsistent with Art. 26(b), (c), (d) of the Constitution and thereby violate
the right to freedom of religion and to manage 'denominational institutions
guaranteed by the said Article. It is also argued that some of its provisions
are violative of the respondents' fundamental right guaranteed under Art.
19(1)(f) and (g).
It would be convenient to deal with these two
principal grounds of attack before 52 410 examining the other arguments urged
against the validity of different sections.
We will first take the argument about the
infringement of the fundamental right to freedom of religion. Articles 25 and
26 together safeguard the citizens right to freedom of religion. Under Art.
25(1), subject to public order, morality and health and to the other provisions
of Part 111, all persons are equally entitled to freedom of conscience and
their right freely to profess, practise and propagate religion. This freedom
guarantees to every citizen not only the right to entertain such religious
beliefs as may appeal to his conscience but also affords him the right to
exhibit his belief in his conduct by such outward acts as may appear to him
proper in order to spread his ideas for the benefit of others. Article 26
provides that subject to public order, morality and health every religious
denomination or any section thereof shall have the right(a) to establish and
maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of
religion;
(c) to own and acquire movable and immovable
property; and (d) to administer such property in accordance with law.
The four clauses of this Article constitute
the fundamental freedom guaranteed to every religious denomination or any
section thereof to manage its own affairs. It is entitled to establish
institutions for religious purposes, it is entitled to manage its own affairs
in the matters of religion, it is entitled to own and acquire movable and
immovable property and to administer such property in accordance with law. What
the "expression "religious denomination" means has been
considered by this Court in The Commissioner, Hindu Religious Endowments,
Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1).
Mukherjea, J., as he then was, who spoke for
the Court, has quoted with approval the dictionary meaning of the word
"denomination" which says that a (1) [1954] S.C.R. 1005, 1023, 1024411
"denomination" is a collection of individuals classed,.
together under the same name, a religious
sect or body having a common faith and Organisation and, designated by a
distinctive name". The learned Judge has added that Art. 26 contemplates
not merely a religious denomination but also a section thereof Dealing with the
questions as to what are the matters of religion, the learned Judge observed
that the word "religion" has not been defined in the Constitution,
and it is a term which is hardly susceptible of any rigid definition. Religion,
according to him, is a matter of faith with individuals or communities and it
is not necessarily theistic. It undoubtedly has its basis in a system of pleas
or doctrines which are regarded by those who profess that religion as conducive
to their spiritual well being, but it is not correct to say that religion is
nothing else but a doctrine or belief. A religion may not only lay down a code
of ethical rules for its followers to accept, it might prescribe rituals and
observances, ceremonies and modes of worship which are regarded as integral parts
of religion, and these forms and observances might extend even to matters of
food and dress. Dealing with the same topic, though in another context, in Sri
Venkataramana Devaru v. The State of Mysore (1), Venkatarama Aiyar, J. spoke
for the Court in the same vein and observed that it was settled that matters of
religion in Art. 26(b) include even practices which are regarded by the
community as part of its religion, and in support of this statement the learned
Judge referred to the observations of Mukherjea, J. which we have already
cited. Whilst we are dealing with this point it may not be out of place
incidentally to strike a note of caution and Observe that in order that the
practices in question should be treated as a part of religion they must be regarded
by the said religion as its essential and integral part;
otherwise even purely secular practices which
are not an essential or an integral part of religion are apt to be clothed with
a religious form and may make a claim for being treated as religious practices
within the (1) [1958] S.C.R. 895412 meaning of Art. 26. Similarly, even
practices though religious may have sprung from merely superstitious beliefs
and may in that sense be extraneous and unessential accretions to religion
itself. Unless such practices are found to constitute an essential and integral
part of a religion their claim for the protection under Art. 26 may have to be
carefully scrutinised; in other words, the protection must be confined to such
religious practices as are an essential and an integral part of it and no
other.
In the present appeal we are concerned with
the freedoms guaranteed under Art. 26(c) and (d) in particular. The respondents
contend that the appointment of the Committee contemplated by ss. 4 and 5 has
effectively deprived the section of the denomination represented by them of its
right to own the endowment properties and to them. We have already stated that
we propose to deal with this appeal on the assumption that the respondents have
filed the present writ petition not only for the Khadims but also for and oil
behalf of the Chishtis and chat the Chishtis constitute a section of a
religious denomination. Considered on this basis the contention of the
respondents is directed against the powers conferred on the Committee for the
purpose of administering the property of the Durgah and in substance it amounts
to a challenge to the validity of the whole Act, because according to them it
is for the section of the denomination to administer this property and the Legislature
cannot interfere with the said right.
In dealing with this argument it is necessary
to recall the fact that the challenge to the vires of s. 5 has been made by the
respondents in their petition on a very narrow ground. They had urged that
since the committee constituted under the Act was likely to include Hanafi
muslims who may not be Chishtis muslims the provision authorising the
appointment of the Committee was ultra vires, and in fact the decision of the,
High Court is also based on this narrow ground. Now, it is clear that the vires
of s. 5 cannot be effectively challenged on any such narrow ground. If the
right of the denomination or a section of such denomination is adversely
affected by the statute the relevant 413 provision of the statute must be
struck down as a whole and in its entirety or not at all. If respondents could
properly invoke Art. 26(d) it would not be open to the statute to constitute by
nomination a Committee for the management and administration of the property of
the denomination at all. In others words, the infirmity or the vice in the
statute cannot be cured by confining the members of the proposed Committee to
the denomination itself. This no doubt is a serious weakness in the basis on
which they levelled their attack against the validity of s. 5 in the court
below.
Besides, it is significant that the property
in respect of which the claim has been made by the respondents is only the
property consisting of offerings made either in or outside the shrine. We have
already seen that the Durgah Endowment contains several other items of property
and none of these items except the offerings has been referred to in the
petition, and that reasonably suggests that the respondents were conscious that
the other items of properties though they formed part of the Durgah Endowment
were never in the management of the denomination as such and so as to which
they could legally make no claim. That is another infirmity in the claim made
by the respondents in challenging the vires of s. 5.
However, we have allowed Mr. Pathak to argue
this part of the respondents' case on the broad and general ground that the
Chishtia Soofies constitute either a denomination or a section of a
denomination and as such they are entitled to administer and manage all the
properties of the Durgah including the offerings to which specific reference
has been made in the petition by the respondents. The challenge thus presented
to the vires of s. 5 and other subsidiary sections dealing with the powers of
the Committee cannot succeed for the simple and obvious reason that the
denomination never had the right to administer the said property in question.
We have already seen how the history of the
administration of the Durgah Endowment from the time the first endowment was made
down to the date of the Act clearly shows that, the endowments 114 have always
been made on such terms as did not confer on the denomination the right to
manage the properties endowed.
The management of the properties endowed was
always in the hands of officers appointed by the State who were answerable to
the State and who were removable by the State at the State's pleasure. We have
already seen that until Akbar made his endowment in favour of the Durgah the
position of the Durgah and its properties was very modest and there was hardly
any property to manage or administer. Ever since the first endowment was made
and subsequent additions by similar endowments followed the administration and
management of the property has been consistent with the same pattern and the
said pattern excludes any claim that the administration of the property in
question was ever in the hands of the said denomination. It is obvious that
Art. 26(c) and (d) do not create rights in any denomination or its section
which it never had; they merely safeguard and guarantee the continuance of
rights which such denomination or its section had. In other words, if the
denomination never had the right to manage the properties endowed in favour of
a denominational institution as for instance by reason of the terms on which
the endowment was created it cannot be heard to say that it has acquired the
said rights as a result of Art. 26(c) and (d), and that the practice and custom
prevailing in that behalf which obviously is consistent with the terms of the
endowment should be ignored or treated as invalid and the administration and
management should now be given to the denomination. Such a claim is plainly
inconsistent with the provisions of Art. 26. If the right to administer the
properties never vested in the denomination or had been validly surrendered by
it or has otherwise been effectively and irretrievably lost to it Art.
26 cannot be successfully invoked. The
history of the administration of the property endowed to the tomb in the
present case which is spread over nearly Four Centuries is sufficient to raise
a legitimate inference about the origin of the terms on which the endowments
were founded, 415 an origin which is inconsistent with any rights subsisting in
the denominations to administer the properties belonging to the institution. It
was because the respondents were fully conscious of this difficulty that they
did not adopt this broad basis of challenge in their writ petition. In
considering this question it is essential to remember that the pilgrims to the
tomb have at no time been confined to Chishtia Soofies nor to muslims but that
in fact a large number of Hindus, Khoja Memons and Parsis visit the tomb out of
devotion for the memory of the departed saint and it is this large cosmopolitan
circle of pilgrims which should in law be held to be the circle of
beneficiaries of the endowment made to the tomb. This fact inevitably puts a
different complexion on the whole problem. We must, therefore, hold that the
challenge to the vires of S. 5 and the subsidiary sections which deal with the
powers of the Committee on the ground that the said provisions violate the
fundamental right guaranteed to the denomination represented by the respondents
under Art. 26(c) and (d) fails.
That takes us to the other principal
challenge based on Art.
19(1)(f) and (g). This challenge is directed
partly against cl. (v) in s. 2(d) which defines a Durgah Endowment. We have
already seen that by this clause all such Nazars or offerings as are received
on behalf of the Durgah by the Nazim or any other person authorised by him are
included in the Durgah Endowment. Section 14 may be read along with this
definition. This section confers power on the Nazim or his agent to solicit or
receive offerings on behalf of the Durgah and prohibits any other person from
soliciting such offerings. The respondents contend that these Provisions
infringe their fundamental right to property inasmuch as offerings or Nazars
which under the custom judicially recognised would have gone to them are now
sought to be diverted to the Durgah to their detriment. This argument proceeds
on the assumption that it is only particular presents made for certain specific
purpose of the Durgah that would belong to the Durgah and that the rest of the
offerings 416 would be divisible between the Khadims and the Sajjadanashins as
directed in the earlier litigation to which with have already referred. If the
assumption made by the respondents was well founded that the effect of the said
decision was to limit the right of the Durgah only to the receipt of the
specific articles for specific purposes then of course there would have been
considerable force in the argument that s. 2(d)(v) and s. 14 seek to augment
that right and to that extent diminish or prejudicially affect the rights of
the respondents. But, as we have already indicated, the decision of the
Judicial Commissioner as well as that of the Privy Council do not support the
claim made on behalf of the respondents. Even under the said decisions,
specific articles given for specific purposes as well as offerings made for the
general purposes of the Durgah and earmarked for it always belonged to the
Durgah and it is only these offerings which are included within the definition
of the Durgah Endowment by s. 2(d)(v). Offerings or Nazars which are paid to
the Durgah and as such received on behalf of the Durgah constitute Durgah
Endowment and s. 14 authorises the Nazim or his agent to receive such offerings
and prohibit any other person from receiving them.
In other words, the effect of the two
provisions is that when offerings are made earmarked generally for the Durgah
they belong to the Durgah and such offerings can be received only by the Nazim
or his agent and by nobody else. It is clear that these offerings never
belonged to the respondents and they pan therefore have no grievance against
either s.
2(d)(v) or s. 14. That is a matter concerning
the property of the Durgah and it is open to the Legislature to regulate by
providing that the said offerings can be solicited by the Nazim or his agent
and by no one else. The Khadims' right to receive offerings which has been
judicially recognised is in no manner affected or prejudiced by the impugned
provisions. Even after the Act came into force pilgrims might and would make
offerings to the Khadims and there is no provision in the Act which prevents
them from accepting such offerings when made. Therefore, in our opinion, the
challenge to the vires of these two provisions must also fail.
417 Before we Part with s. 2(d)(v) it may be
pertinent to observe that in substance the relevant portion of the definition
of the Durgah Endowment is the same as in the earlier Act. Under the earlier
Act only sub offerings as were intended explicitly for the use of the Durgah
were included in the Durgah Endowment, while under s. 2(d)(v) all Mazars and
offerings which are received on behalf of the Durgah are so included. Gaje. The
omission of the word "explicitly" from the present definition is
merely intended to make it clear that if from the nature of the offering or the
circumstances surrounding the making of the offering or from other relevant
facts it appears that the offering was made for the purpose of the Durgah and
was accepted on behalf of the Durgah as such it would be an item of the Durgah
Endowment though the offering may not have been explicitly made for the Durgah
as such; but the broad idea underlying both the definitions is that where
offerings are made apart from the gifts of specific articles intended for
specific purposes of the Durgah and it is found that they are earmarked or
intended for the Durgah for the general purposes of the institution they would
constitute a part of the Durgah Endowment. Therefore the contention that by
enlarging the definition of Durgah Endowment s. 2(d)(v) has made an
encroachment on the fundamental rights of the respondents is not at all well
founded.
That takes us to s. 11(f) and (h). The
challenge to the vires of these two provisions proceeds on the assumption that
they encroach upon the fundamental right of the respondents under Art. 25(1).
It is urged that the Committee has been given power by these provisions to
determine the privileges of the Khadims as well as the, functions and powers,
if any, which the Sajjadanashin may exercise in relation to the Durgah and that
means infringement of, the freedom of the Khadims to practice their religion
according to the custom and according to their concept. We are not impressed by
this argument. What the relevant provisions intend to achieve is the regulation
of the discharge of duties by the Khadims and the discharge 418 of functions
and powers by the Sajjadanashin. It is common ground that the Khadims
discharged their duties by rotation and that itself proves that some regulation
is necessary, and so the impugned provisions merely provide for the regulation
of the discharge of the duties by the Khadims and nothing more, and so the plea
that the freedom to practice religion guaranteed by Art. 25(1) has been
violated does not appear to be well founded.
In this connection we ought to refer to s. 15
which makes it obligatory for the Committee in exercise of its powers and
discharge of its duties to follow the rules of Muslim law applicable to Hanafi
muslims in India, and so all the ceremonies in the Durgah have necessarily to
be conducted and regulated in accordance with the tenets of the Chishti saint.
The powers conferred on the Committee by s. 11 (f) and (h) must be read in the
light of the mandatory provisions of s. 15. Thus read the apprehension that the
fundamental right to freedom of religion is infringed by the said provisions
will clearly appear to be wholly unjustified.
There is yet another section which is
relevant in dealing with the present point, and that is s. 16. Under s. 16
arbitration is provided for when disputes arise between the Committee on the
one part and the Khadims and others on the other. This provision applies to all
disputes except those that relate to any religious usage or custom or to the
performance of any religious office. In other words, disputes in regard to
secular matters are left for the decision of the arbitrators, and that, in our
opinion, is a very sensible provision. The composition of the Board of
Arbitration is based on well recognised principles; the two parties to the
dispute name their respective nominees and an impartial member is required to
be appointed on the Board with the qualifications specified by s. 16(1)(iii).
The argument that s. 16 offends against the fundamental right guaranteed by
Art. 14 read with Art. 32 seems to us to be wholly untenable. The policy
underlying s. 16 is in our opinion healthy and unexceptionable and so the
provisions of a. 16 can be sustained 419 on the ground that they are obviously
in the interest of the institution as well as the parties concerned. The
provisions for compulsory adjudication by arbitration are not unknown and it
would be idle to contend that they offend against Art. 14 read with Art. 32.
If a dispute arises between the Committee and
the Khadims in regard to a religious matter it would necessarily have to be
decided in accordance with the, ordinary law and in ordinary civil courts of
competent jurisdiction. Such a dispute is outside the purview of s. 16; and
indeed, in respect of such a dispute the Committee is not authorised to make
any orders or issue any directions at all. Therefore the conclusion appears to
us to be inescapable that the provisions of s. 11(f) and (h) are valid and do
not suffer from any constitutional infirmity.
The next section which is challenged is s.
13(1). The validity of this section has not been specifically attacked in the
petition but even so since the whole of the Act has in a general way been
challenged we have allowed Mr. Pathak to urge his arguments against the
validity of s. 13(1).
Section 13(1) authorises the Committee to
make provisional interim arrangement if a vacancy occurs in the office of the
Sajjadanashin. Now, in considering the scope and effect of this provision it
cannot be read apart from the provisions of the remaining sub-sections of s.
13. Section 13 is really intended to lay down the procedure for determining
disputes as to the succession to the office of the Sajjadanashin. That is the
main object of the section, but if a vacancy occurs suddenly as it always will
in the case of death for instance some interim arrangement must obviously be
made; and all that s. 13(1) empowers the Committee to do is to make an
appropriate interim arrangement in that behalf and to proceed to take the
necessary steps for the appointment of a permanent successor as prescribed by
the other provisions of s. 13. Therefore it is futile to contend that s. 13(1)
offends against Art. 25(1) of the Constitution.
Section 14 is attacked on the ground that it
violates the respondents' right to property under Art. 19(1)(f). We have
already discussed this question in dealing 420 with s. 2 (d)(v). As we have
pointed out all that s. 14 does is to create a statutory right in the Nazim or
his agent to solicit and receive offerings on behalf of the Durgah. That does
not affect the right of the respondents to receive offerings paid to them by
the pilgrims visiting the Durgah. The respondents cannot possibly claim a,
right, to solicit or receive offering, intended for take benefit of the Durgah.
In fact no such claim has been. made in the petition and no claim can be made
at ill. Therefore the validity of s. 14 is not shaken by the challenge made by
the respondents under Art.. 19(1)(f).
That leaves only one section to be considered
and that is s. 18. It is urged that s. 18 also violates the fundamental rights
guaranteed to the respondents under Arts. 14 and 32 of the, Constitution. It is
difficult to appreciate the It may be conceded that s. 18 is somewhat clumsily
worded.
The final orders whose enforcement is
provided for by s. 18 would appear to be final orders passed in matters within
the competence of the Committee as to which no dispute is raised by the persons
against when, the said orders are passed.
We have already seen that if disputes arise
in respect of any matters left to the jurisdiction of the Committee and they
are not of a religious character then they have to be referred to arbitration
provided for by s. 16, and in that case it is the award passed by the board of
Arbitration that would be in force. If disputes arise between the parties on
any religious matters they will have to be decided in accordance with law in
the ordinary civil courts of competent jurisdiction and so decisions in these
disputes are also outside s.18. Thus considered the scope of s. 18 would be
confined only to such final orders as are passed by the committee within its
jurisdiction against persons who do not object to them but who fail to comply
with them. If that is the scope of s. 18, as we hold it is, it is, idle to
contend that either Art. 14 or Art.32 or the two read together are contravened.
During the course of his argument Mr. Pathak
emphasised the fact that though the provisions of the 421 enactment may be
within the four corners of the Constitution and none of the impugned provisions
may be found to be ultra vires his clients were apprehensive that in fact and
in practice their rights to receive offerings would be prejudicially affected.
That is a matter on which we propose to express no opinion. All that we are
concerned to see is whether the legal rights of the respondents or of the
section of the denomination they, seek to represent are prejudicially affected
by the impugned legislation contrary to the provisions of the Constitution; and
a careful examination of the relevant sections in the light of the criticisms
made by Mr. Pathak against them has satisfied us that none of the impugned
sections can be said to be unconstitutional. If as a result of the enforcement
of the present Act incidentally more offerings are paid to the Durgah and are
received on behalf of the Durgah that is a consequence which the respondents
may regard as unfortunate but which introduces no infirmity in the validity of
the Act.
In the. result the appeal is allowed, the
order issued by the High Court is set aside and the petition filed by the
respondents dismissed with costs throughout.
Appeal allowed.
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