Judgment

GAJENDRAGAKDAR, 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 Khawaja Moin-ud-din Chishti of Ajmer challenging the vires of the Durgah Khawaja 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 Nasim 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.

2. According to the respondents the shrine of Nasrat Khawaja Moin-ud-din Chishti which is generally known as the Durgah Khawaja Saheb situated at Ajmer is one of the most important places of pilgrimage for the Muslims of India. Since persons following other religions also hold the saint in grant veneration a large number of non-Muslims visit the tomb every year.

3. 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. Khawaja 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.

4. 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 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.

5. Khwaja Syed Fukhuruddin and Sheikh Mohammad Yadgar, who originally accompanied the Khawaja Saheb 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 Khawaja Saheb. The respondents belong to this sect or 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 pilgrims who visited the shrine and acted as spiritual guides in the performance of religious functions to wit the Fateha (act or 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.

6. 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 Altaf Hussain v. Ali Rasul Ali Khan, AIR 1938 PC 71. 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