Back
Rajasthan High Court
Bapna Actg. C.J. & Jagat Narayan, J.
Syed Hussain Ali - Appellant
Versus
Dargah Committee Ajmer - Respondents
D.B. Civil Writ Petition No. 17 of 1957
Decided On : January 28, 1959
A judicial decision no doubt does not create any new right, but it places on a firm foundation the rights upheld by the decision and establishes, for all times to come. the rights so recognised as against the contesting parties or their successors in title, and if such rights are rights to property, the legislation which seeks to deprive the successful parties to the litigation of such rights is hit by Art. 19(l)(f) of the Constitution, unless it can be shown that the deprivation is reasonable and in the public interest. (Para 32)
Distinction must be made between the offerings which are made to or at the tomb. and the offerings which are made for other institutions. While the first one is divisible among the persons, who are according to the custom entitled to utilise it the second is utilised for the purpose of the institution for which the donations are made. (Para 44)
The Dargah of Khwaja Saheb, Ajmer can be treated as a class by itself in enacting a law for the better administration of the income derived from various sources for religious, pious and charitable purposes. In relation to the institutions pertaining to the Dargah an enactment could be legislated, and it is not hit by Art. 14 of the Constitution on that ground alone. (Para 60)
A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and obser-vances, ceremonies) and modes of worship which are regarded as integral parts of religion. The guarantee under our Constitution not only protects the freedom of religious opinion, but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression "practice of religion" in Art. 25. Religious protection extends to all schisms of a main religious group. In the present case some of the religious ceremonies performed at the Shrine being opposed to the tenets of orthodox Islam it is a)) the more essential that the committee of management should consist of only such persons who have faith in the religious practices which are in vogue at the Shrine. Sec. 5 therefore, of the Act is hit by Art. 26 of the Constitution. (Para 69)
One can understand that a religious dispute can be provided to be referred to a Board of Arbitration so that religious matters concerning this Dargah may not be the subject of civil litigation, but the reason behind the provision for referring secular disputes to arbitration is not founded on any reasonable basis of classification. Further, decision as to whether the matter is or is not of a nature falling within the section is left to the Committee which is a party to the dispute. The provision of sec. 16 is hit by Art. 14 of the Constitution. (Para 72)
(2) Khwaja Moinuddin Chishti was born in the province of Sijistan to the east of Persia some time towards the end of twelfth century, and settled down at Ajmer. He was a Sufi of the Chisti order, who attracted a large number of followers, and was held in great veneration during his lifetime. He died in or about 1236 A.D., and was buried at Ajmer. His grave was originally kochcha, but some time at the end of the 15th century the Khilji Sultans of Malwa made it pucca, and built a dome over it. The tomb gained in prestige, and came to be known as Dargah Khwaja Saheb. The Moghul Emperors beginning with Akbar took interest, and made endowments for various religious and charitable purposes mentioned in the Farmans issued by the Emperors. The renewed grants by Shahjahan in 1637 AD. of various villages and cash were of the annual income of Rs. 25,780/-, and the mutwallis of the shrine were Directed to apply this amount for surf-i-urs, wa langar, wa roshnaee, wa furoosh, wa gul, wa arbab-i-masjid, wa wazif-ashabistehqaq, wa buffaz, wa sadir-o-warid, wa savar wajub khairat wa mubarrat". The grant of villages with certain changes was affirmed by the succeeding Moghul Emperors as also the Marathas and the British Government, and these are not the subject matter of dispute Substantial additions to the buildings were also made by the Moghul Emperors. Akbar built a mosque, which goes by the name of Akbari Masjid. Shahjahan built the Juwa mosque in white marble. The Begami Dalan was built by Princess Jahan Ara Begam, daughter of Shahjahan. The Hyderabad State also made a grant of twelve villages. These are managed by the State, but the income thereof about Rs. 25,000/- a year is sent to the Sajjadanashin of the Dargah called by the name of Dewan. The terms of the grant are that 1/3rd of the income is to be gi\ en to the Dewan, 1 /3rd to the Durgah for its expenses, and out of the remaining l/3rd, two-thirds is to be divided among Ahal-i-bir adari (khadims), and l/3rd is to be spont on educational scholarships of the Ahal-i-biradari (khadims).
3. The case of the petitioners is that Khwaja Syed Fakhruddin and Sheikh Mahammad Yadgar had come with Khwaja Saheb at his followers to India, On the death of Khwaja Moinuddin Chishti, his grave with looked after them by their descon-d;nts. These descendants of Syed Fakhruddin and Shaikh Mohammad Yadgar came to be known as Khadim, whose occupation from generation has been that of religious service at the tomb of the Saint Moinuddin Chishti.
4. It is alleged that these Khadims had not only the right to look after the vast premises, but also to keep the keys of the tomb, and to attend to the multirude of pilgrims, who come to pray at the shrine, and to act as spiritual guides in the performance of religious functions, to wit, the Fateha (aet of prayer), for which they receive nazars (offerings), which were their main source of livelihood, and which have always been their property, It was alleged that the right to these offerings and nazars made by the pilgrims at the tomb and at the Durgah had been the subject matter of litigation for some time, and the matter went up to the Privy Council in Syed Altaf Hussain vs. Dewan Syed Ali Rasul Ali Khan and the Dargah Committee (P.C. Appeal No. 8 of 1936 reported in A.I R. 1938 P.C. 71). It was stated that by this judgment, which is dated 20th December, 1937, the Privy Council affirmed the decla
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
