Bapna, Ag. C.J.
1. This is a petition under Article 226 of the Constitution presented by nine Khadims of the tomb of Khwaja Moiuddin Ohishti of Ajmer, Syed Hussain Ali, Syed Cayasuddin, Syed Mohammad Anis Kaptan, Syed Nansh Mohammad, Syed Qaiam Ali, Syed Hussain Ali II, Syed Mohammad Siddiq, Sheikh Haji Mohammad, and Sheikh Siraj Mohammad, against the Durgah Committee constituted under the Durgah Khwaja Sahcb Act, 1955 (No. 36 of 1955) for a declaration that the said Act is ultra vires the Constitution, and for a direction restraining the respondents from enforcing its provisions.
2. Khwaja Moinuddin Chishti was born in the province of Sijistan to the east of Persia some tune in 1142 A. D., and came to India some time towards the end of twelfth century, and settled down at Ajmer. He was a sufi of the Chishti 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 kachcha, 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 Durgah 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 Emperor. The renewed grants by Shahjahan in 1637 A. D. 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 wazaif-ashabistehqaq, wa huffaz, wa sadir-o-warid, wa sayar wajuh 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 Juma 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 Durgah called by the name of Dewan. The terms of the grant are that 1/3rd of the income is to bo given to the Dewan, 1/3rd to the Durgah for its expenses, and out of the remaining 1/3rd, two thirds is to be divided among Ahal-i-biradari (Khadims), and 1/3rd is to be spent on educational scholarships of the Ahal-i-biradari (Khadims).
3. The case of the petitioners is that Khwaja Syed Fakhruddin and Sheikh Mohammad Yadgar had come with Khwaja Saheb as his followers to India. On the death of Khwaja Moinuddin Chishti, his grave was looked after by these two followers, and after them by their descendants. These descendants of Syed Fakhruddin and Sheikh Mohammad Yadgar came to be known as Khadims, whose occupation from generation to 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 multitude 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 (act 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 Altaf Hussain v Ali Rasul Ali Khan, (P. C. Appeal No. 8 of 1936), reported in AIR 1938 PC 71. It was staged that by this judgment, which is dated 20th December, 1937, the Privy Council affirmed the declaration made by the Judicial Commissioner, Ajmer-Merwara with some modifications, and the rights of the Khadims and other parties to the suit were finally determined.
5. It was alleged that in 1955 the Parliament of India enacted the Durgah Khwaja Saheb Act (No. 36 of 1955) (hereinafter called the Act), which travelled beyond the object of the proper adminis-tration of the Durgah, and in effect and tor all intents and purposes violated the fundamental rights of not only the petitioners, but of all other Khadims of Durgah Khwaja Saheb. The provisions of the Act, which affected the petitioners, were said to be:
Section 2(d), which defined the 'Durgah Endowment' as including in Clause (v) all such nazars or offerings as are received on behalf of the Durgah by the Nazim or any person authorised by him;
Section 5, which declared the administration, control and management of the Durgah Endowment to vest in the Committee, which was to consist of a certain number of Hanafi Muslims to be appointed by the Central Government;
Section 11, which defined the powers and duties of the Committee, and by Clause (f) conferred the power and imposed the duty to determine the privileges of the Khadims and to regulate their presence in the Durgah by ihc grant to them of licences in that behalf, if the Committee thought it necessary to do so;
Section 14, which made 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 notwithstanding anything contained in any rule of law or decision to the contrary, further directed that no person other than the Nazim or any person authorised by him in this behalf was to receive or be entitled to receive nazars or offerings on behalf of the Durgah;
Section 16, Sub-section (1) which authorised the Committee to refer a dispute to a Board of Arbitration if the dispute arose between the Committee on the one part and Sajjadanashin, any Khadim, and any person claiming to be the servant of the Durgah under some hereditary right or any one or more of them on the other part, and such dispute did not, in the opinion of the Committee, relate to any religious usage or custom or to the performance of any religious office, at the request of either party to the dispute;
Section 16, Sub-section (2), which barred the jurisdiction of any court in respect of any matter required to be referred to arbitration;
Section 18, which gave the Committee power to have its order executed through a civil court in the same manner and by the same procedure as if it were a decree or order passed by itself in a suit.
6. It was alleged that the said Durgah Khwaj'a Saheb Act was brought into force by the Central Government with effect from 1st March, 1956, and the Nazim (administrator) of the Durgah Sharif wrote to the Secretary Anjuman Moinia Fakria Chishtia and Yadgar Chishtia Khuddam Khwaja on 29th February, 1956, intimating that the Act was to come into force on 1st March, 1956, A.D., and that under the Act, the responsibility of collecting the nazars had been placed on the members of the Durgah Committee.
The Secretary of the Anjuman and Yadgar was requested to explain to the Khadims or Raridarans who sit in the Begami Dalan that they may not sit within the boundaries of the Durgah with a register for recovering offerings and that they should not recover any offerings in the name of the Durgah. The Anjuman Moinia Fakria Chishtia and Yadgar Chishtia Khuddam Khawaja, which represent the Khadims, including the petitioners commenced negotiations with the Durgah Committee on a variety of matters, but the Nazim by his letter No. 533/ND/56 of 9th December, 1956, informed the Secretary that the President had directed him to inform the community to take the contract of the income arising out of the collections of the inner dome and the gulla (box) on the conditions suggested by the Committee, and that such contract had to be executed before the 1st of January, 1957, failing which nobody will be permitted to receive any offerings in the dome or in the gulla (Ex. 1).
7. It was alleged that the enactment, the Durgah Khwaja Saheb Act, is void, as it contravenes certain fundamental rights guaranteed by Part III of the Constitution in respect of -
1. equality before the law under Article 14;
2. acquisition and holding of property under Article 19(1)(f);
3. 'freedom of religion under Articles 25 and 26;
4. carrying on occupation under Article 19(1) to;
5. right to property under Articles 31(1) and 31(2) ;
6. right to constitutional remedies under Article 32,' inasmuch as -
(i) Article 14. -- The shrine of Khwaja Moinuddiu Chishti at Ajmer is one out of many shrines of a like nature spread over the length and breadth of India, and to single out this shrine out of so many by a special legislation is highly discriminatory.
(ii) Article 19(1)(f). -- The definition of 'Durgah Endowment' takes away from the petitioners the right to acquire and hold property in the shape of nazars and offerings to which they have been entitled ever since the shrine existed,
(iii) Article 26. -- The Committee appointed was to be constituted from among the Hanaii Muslims and not such Hanafi Muslims as followed the Chishtia order of Sufism.
(iv) Article 19(1)(g). -- It stopped the petitioners from carrying on their occupation as Khadims except under the authority of a licence which may or may not be granted.
(v) Articles 31(1) and 31(2).--It deprived the petitioners of their property, viz., the right to receive offerings and nazars without any compensation.
(vi) Article 32. -- It prevented access to the courts including the High Court and Supreme Court of India to vindicate their rights.
8. The provisions of Section 11 were further alleged to be void as it delegated arbitrary and uncontrolled power to the Durgah Committee in the matter of determining the privileges and enabling the Committee to discriminate between one Khadim and another in the matter of granting or withholding licences. And further it enabled interference with the Khadims' right to profess and practise religion guaranteed by Article 25(1) of the Constitution, inasmuch as it authorised the Committee to exclude a Khadim from being present in the Durgah.
9. The respondents filed a reply on 7th February, 1957, that the circle of the devotees and visitors to the shrine of Khwaja was not only confined to those of the Chishtia Order, but it embraced devotees and pilgrims of all classes of people, and in fact the greatest 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 Fakhruddin or those of Moammad Yadgar.
It was denied that the descendants of these two said persons came to be known as Khadims or that their occupation had been of religious service at the sacred tomb. It was pleaded that the religious services were performed and are performed by Sajjadanashin of the Durgah. It was denied that the petitioners had any right to look after the premises or the right to keep the keys of the tomb or to attend to the multitude of pilgrims who came to pray at the shrine or to act as spiritual guides in the performance of religious functions, to wit, Fateha. It was urged that the position of the petitioners has always been that of servants -- chowkidars -- of the holy tomb, and that the names of the petitioners and of their predecessors existed on the pay roll of Durgah office since 1829.
It was urged that the petitioners were not officially allowed or privileged to recite Fateha or to receive offerings or nazars, which was the exclusive concern and privilege of the Durgah Administration, because the entire management of the shrine together with its endowments, regulations and conduct of all religious ceremonies always vested in the Durgah Committees constituted under various legislative enactments, namely, Act No, 23 of 1936, Act No. 12 of 1938, Ordinance No. 24 of 1949, Durgah Khwaja Saheb (Emergency Provisions) Act, 1950, and finally Durgah Khwaja Saheb Act, 1955.
10. It was denied that the petitioners received nazars or offerings from pilgrims as a matter of right, and it was urged further that their conduct in soliciting nazars, as alleged by them, was wrongful and amounted to misappropriation of Durgah funds.
11. It was urged 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 life and they are meant for the poor, indigent, sick and suffering, so that the benediction may reach the soul of the dead saint and that the action of the petitioners and Khadims in depriving the Durgah Administration of this income is a contravention of all laws because all Nazars and offerings at the tomb in the Durgah area are the exclusive concern of the Durgah management, which alone is responsible for the maintenance of the shrine and which incurs all the expenses for feeding of the poor, aid to needy persons, supply of medical help to the deserving, providing shelter to the pilgrims, supply of water, light, aid to widows and orphans, charity to indigent, scholarships to poor students etc. It was urged that the Durgah Committee incurred all the expenditure in connection with all the religious services and ceremonies of the Durgah, and as such the alleged acceptance of Nazars by the petitioners is illegal and an invasion upon the legitimate rights of the shrine and it amounted to misappropriation.
12. It was denied that the Nazars were the main source of livelihood of the petitioners and urged that their main sources of income were tips, alms paid to them by the pilgrims, and handsome amounts paid by pilgrims in return for accommodation and food supplied to them, and for personal services rendered during their stay at Ajmer. It was urged that the receipt of Nazars and offerings by the Khadim community was not a matter of legal right, but an act of exploitation or invasion on the rights of the Durgah and misappropriation, so that no amount of time could give sanctity to their actions as against the shrine or clothe then with a right to receive the same openly and as of right. It was denied that any fundamental rights of the petitioners had been infringed. The respondents admitted the decision in Privy Council Appeal No. 8 of 1936 : (AIR 1938 PC 71), but it was submitted that it was not binding on the Durgah Committee because -
1. no defence had been at all filed on behalf of the Durgah Committee -- a fact judicially observed by the learned Judicial Commissioner in his judgment dated 4th January, 1932;
2. the said case had been brought to court by the Khadims and Dewan (as claimants to the offerings), and the Durgah Committee (which was in charge of the Durgah Endowment) was itself composed of a majority of the beneficiaries, who supported the claims of the rival groups. The only independent member (the President), who was left alone, felt himself oppressed by the majority, and did not urge the claims of the shrine to the offerings and Nazars made at it, but contented himself with making a claim only to ornaments and Kabarposhes;
3. the decision of civil court depends upon the actual pleadings of the parties, and so no contest was actually offered in the said case on behalf of the Durgah, and the case of the Durgah went by default;
4. the judgment of the Judicial Commissioner was based on two composition deeds of the Khadims and Sajjadanashin, to which the Durgah Committee was never a party, and was procured by collusion between the parties to the suit;
5. the doctrine of cosharership or partnership in the offerings at the shrine, as decided by the Privy Council, was wholly repugnant to the Muslim Law and Shariat, and gave rise to considerable unrest in the Muslims of India;
6. this matter (decision) and certain other matters brought about by factions in the Durgah Administration and exploitation by the Khadims of Durgah rights engaged the serious attention of the Government of India, and the Government of India was pleased to appoint a Committee headed by the late Mr. Justice Ghulam Hasan of the Allahabad High Court to enquire into the matter and the said Committee, after a thorough enquiry, came to the conclusion that the situation that confronted the Muslim community was not a normal one and was extraordinary and required extraordinary remedies, and, therefore, recommended legislation as the only appropriate solution for this state of affairs in respect of the Durgah affairs, including the question of nazars (pages 62 and 63 of the report);
7. this report was followed by legislation. First came the Durgah Khwaja Saheb (Emergency Provisions) Act (No. 17 of 1950) by Section 6 whereof the Administrator was authorised to solicit and receive on behalf of Durgah any Nazars and offerings from any person, notwithstanding any injunction issued by any court or anything contained in any law for the time being in force which, in brief, was the Privy Council ruling. The Administrator accordingly in March, 1950, set up tall wooden boards at various places in the Durgah soliciting Nazars and offerings on behalf of the Durgah and also put up sealed boxes for the pilgrims to pour their offerings and Nazars therein, and all moneys thus collected have gone to the Durgah without any distribution to any claimants and without any objection;
8. the new Act (No. 36 of 1955) has put the position Further clearer and Section 14 prohibited every person except the Nagim or any person authorised by him from receiving the said Nazars and offerings on behalf of the Durgah.
13. It was urged that for the aforesaid reasons, the decision of the Privy Council was a complete dead letter, and of no legal effect. It was urged that the entire offerings vested in the Durgah Committee, and the alleged rights based on Privy Council authority had been extinguished, abolished and ended for ever by the said Act.
14. It was urged that the religious services were performed by Sajjadanashin and all offerings and Nazars received on the 'Qul' day were received by the Durgah Administration. It was urged that there was no violation of any fundamental rights of the petitioners, and, at any rate, the alleged rights of the petitioners in the offerings did not exist on the eve of the passing of Act No. 36 of 1955, as they had been wiped out as a result of the Durgah Khwaja Saheb (Emergency Provisions) Act (No, 17 of 1950) enforced on 10th March, 1950. It was urged that the Act of 1955 did not take away or abridge any fundamental rights of the petitioners or of the Khadims or those of Muslims who belonged to the Sufi Chishtia order.
15. It was next urged that the Durgah Khwaja Saheb Act was not a religious Act, but was a secular Act enacted for the better management and control of the properties of the Durgah Endowment and the question of any interference with the fundamental rights of the petitioners did not arise. It was urged that the Durgah Committee consists of members, all of whom are Hanafi Muslims, and although all Hanafi Muslims may not be of the Chishtia order, yet it is true that Muslims of the Chishtia order must essentially belong to the Hanafi Sect.
It was pleaded that the members of the Durgah Committee were all of the Hanafi Sect, and had full faith in the Chishtia Order, and under Section 13 of the Act, the Committee was enjoined to conduct and regulate the established rites and ceremonies in accordance with the tenets of the Chishtia Saint, and it is being complied with.
16. It was further urged that the earlier legislation (Act No. 23 of 1936, as amended by Act No. 12 of 1938) provided by Section 5 that the members of the Committee shall be Hanafi Muslims and there was no objection from any quarter that this was opposed to any Muslim Law. It was urged that the rights under Articles 26 and 19 were not unqualified rights, and with respect to Article 14, various enactments had already been passed for the administration of properties of religious endowments, as for example, Sikh Gurdwara Act, Nathdwara Act (a mistake), Bihar Religious Trust Act, and further there were schemes of management settled by courts of law in various States in the country with regard to numerous Durgahs existing over the length and breadth of India.
It was pleaded that the Act did not offend against Articles 14, 25 or 26. The Act did not exclude the Khadims from the Durgah, but only provided for a sort of provision by the Durgah Committee for keeping a control on the unruly and turbulant members of the Khadim community in the interests of the general public and for due preservation of the rights and property of the Durgah endowment, which is within the four corners of the Constitution. It was alleged that the definition of the Durgah Endowment in Section 2(d) did not infringe or violate any rights of the Khadims. nor did Sections 11 and 14 infringe any rights of the Khadims, but were only enacted to impose disciplinary measures in the interests of the pilgrims.
It was alleged that the power to issue licence is not an unreasonable interference with the Khadims' rights to practise and profess their religion. It was urged that the freedom guaranteed by Article 25 required the protection of law against evils-masquerading in the name of religion. It was urged that there was no fundamental right to receive the Nazars and no infringement had, therefore, been made. The rights conferred by Articles 32 and 220 had not been infringed by any provisions in tide Act, and that Section 18 had been misunderstood, the said provision having been enacted only to prevent recourse to cumbersome and expensive machinery of law in the interest of general public and preservation of law and order. It was urged that the communication of the Administrator was not fairly appreciated by the two Anjumans to whom the communication was addressed.
17. It was finally urged that any alleged rights of the petitioners had been done away with by the Durgah Khwaja Saheb (Emergency Provisions) Act, 1950, and the present petition was belated and mala fide without any just basis.
18. The following additional pleas were also taken : --
19. The respondents entered office, having been appointed by the Central Government, and the Government of India was a necessary party. The respondents have tried to bring home to the Khadims the true significance of ownership in the Nazars and offerings and requested them for co-operation in the collection of Nazars on commission basis and between 12th of March, 1956, and 6th of May, 1957, eight Khadims had deposited Rs. 1410/- on payment of Rs. 555/- as commission. The petitioner No. 9, Sheikh Sirai Mohammad recovered a sum of Rs. 10/- from pilgrims for langar, and on this matter coming to the notice of the Administration, the petitioner was approached to deposit the same in the Durgah office which he did.
It was urged, that the generous and charitably inclined public sends every day hundreds of rupees by money orders to the Khadims for present services rendered by them, and this money is utilised for the personal expenses and aggrandisement of the Khadims, and not a pie is contributed to the Durgah funds. The Act does not touch this source of income just as personal gifts or tips by the pilgrims, and they are welcome to continue in the enjoyment of the same.
20. It is relevant at this stage to refer to the litigation evidenced by various decisions that have been produced in this case.
21. (1) Civil Suit No. 123 of 1915 was decided by Shri Har Bilas Sarda, Sub-Judge, First Class, Ajmer, on 14th December, 1915. His Highness the Nawab of Haora and Begum Sahiba of Wai offered Degs to the Durgah (that is, agreed to bear the expenses of cooking rice in the cauldron to be distributed later according to custom), and the money to meet the expenses was deposited with the Durgah. Syed Hussain Ali Khadim instituted the suit claiming one-fourth of the amount so deposited, i.e., Rs. 800/- as the amount was deposited through him as Vakil according to custom. The Durgah Committee, who was the defendant, admitted that the Vakil was entitled to a fourth part of the money deposited, but pleaded that other persons and not the plaintiff were entitled to receive the amount. The suit was decreed with costs in favour of the plaintiff.
22. (2) Civil Appeal No. 51 of 1921 arising out of suit which was instituted some time in 1915, and decided on 30th of June, 1922, by Mr. Har Bilas Sarda, Additional District Judge. The Durgah Committee as plaintiff claimed that there was a Hujra (room) and a verandah situated in the outer courtyard of the Durgah, and were in the use of the defendant, but he without permission erected tin-sheds in front of the verandahs, and did not remove them in spite of request by the Durgah Committee. The Durgah Committee prayed for the eviction of the defendant. While the new construction was directed to be removed, the claim for eviction of the defendant, who was a Khadim, was disallowed. It was observed that -
'The defendant is a Khadim of the Durgah, and the Khadims of the Durgah are hereditary Khadims, not in the sense of household servants. They perform priestly functions. Their connection with the shrine is not only ancient but intimate. They introduce pilgrims to the shrine. Their business keeps them attached to the Durgah, and to be present in it and go to it at all hours of the day. They look to the comforts of the pilgrims whom they introduce while inside the Durgah and they have been using the Hujras for purposes subsidiary to the Durgah, and never in opposition to it. There is no valid ground for ousting them from the Hujras.'
23. (3) Suit No. 9 of 1929, which went up to the Privy Council, and reported in AIR 1938 PC 71. The decision of the Judicial Commissioner is dated 4-1-1932. The plaintiff Dewan Syed Aley Rasitl Ali Khan, Sajjadanashin of Drggh of Khwaja Moinuddin Chishti, among other things, claimed that devout Mohammedans came from all places on pilgrimage to the tomb of Khwaja Moinuddin Chishti at Ajmer, and offerings both in cash and kind were made by the Pilgrims. Syed Aley Ras-ul succeeded as Sajjadanashin in 1922, and claimed on this suit that he was entitled to receive all offerings made at the tomb, and 'that the defendants Khadims were not entitled to any portion thereof.
The plea of the Khadim was that the offerings made at the tomb were divisible half and half between the plaintiff on the one hand and the whole body of Khadims on the other, and that Dewan. Sharfuddin, predecessor of Syed Aley Rasul, had given a lease of his share to the whole body of Khadims for Rs. 500/- per annum in respect of the offerings, and that this agreement was binding on the plaintiff. The Durgah Committee was also a party to the suit. The court held that the lease granted by Dewan Sharfuddin was valid only till his lifetime, and the rights of the parties were declared as follows:
'(i) All offerings or presents made to the Dewan at the Dewan's Khanqah or sitting place within the precincts of the Durgah are the exclusive property of the Dewan.
(ii) Offerings or presents of gold or silver vessels or implements or Qabarposhes for the use of the Durgah are the nroperty 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, be divided between the Dewan and the Khadims respectively in equal shares.
(iv) Other offerings, if made within the dome of the Shrine, shall be divisible between the Dewan and 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 perquisites of the Khadims exclusively:
(a) Copper coins and cowries and gold or silver articles (other than coins) of a value less than S 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 Dewan 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 reguired, or should be retained for the use of the Durgah.'
24. On appeal, their Lordships of the Privy Council confirmed this judgment except for a minor change, - namely, that the Khadims were held entitled to all the coins not exceeding two annas in value irrespective of whether they are made of copper or any other metal. The decision of the Privy Council is elated 20-12-1937. This judgment will be noticed in some detail hereafter.
25. (4) Civil Suit No. 4 of 1945. Syed Abdul Wahid and six other Khadims on behalf of themselves and all other Khadims of Hazrat Khwaja Sahib of Ajmer instituted a suit against the Durgah Committee on 15-5-1945, on the allegation that the plaintiffs and the other Khadims had been doing the 'khidmat' of the said Khwaja Sahib since the foundation of the holy shrine, and they had hereditary rights exclusively to manage and perform in the holy shrine the various religious rites and ceremonies and no other person could officiate at the performance of the said religious rites and ceremonies except some specified persons in particular ceremonies.
It was then alleged that the Durgah Committee proposed to hold a meeting on 15-5-1945, in order to remove the plaintiffs as Khadims and to appoint other persons instead. The plaintiffs claimed a declaration that they were the hereditary Khadims of Hazrat Khwaja Moinuddin Chishti of Ajmer and not removable at the will or pleasure of the Durgah Committee. The suit was decreed in the plaintiffs' favour on admission by judgment of 9-11-1948, by Judge, Small Cause Court, with special civil jurisdiction, Ajmer.
26. (5) Civil Suit No. 132 of 1945. Syed Mohammad Hussain Chishti and six others -- all Khadims -- on their own account and on account of other Khadims of Hazrat Khwaja Sahib of Ajmer instituted the suit against the Durgah Committee, which, on consent, was decreed as follows:
'That the Durgah Committee defendant No. 1 has no right to solicit offerings at or in the Durgah of Hazrat Khwaja Sahib, and that it is not entitled to receive any cash offerings by way of Nazurat of Futuhat at or in the Durgah Khwaja Sahib Ajmer and that defendant No. 1, the Durgah Committee, is prevented by means of a permanent injunction from putting up any boxes at or in the precincts of the Durgah of Hazrat Khwaja Sahib asking the pilgrims visiting to place their cash offerings into the said boxes.'
The suit was decided on 18-5-1949.
27. (6) Civil Suit No. 245 of 1945. Syed Abdul Wahid and six other Khadims on their own account and on account of all other Khadims sued the Durgah Committee on 16-5-1945, and claimed that they had the exclusive hereditary right to officiate at and to perform or take part in the performance of the various religious rites and ceremonies at the said Durgah with the single exception of Ghusul ceremonies at which the Dewan and the Mutwalli could also join on certain occasions.
It was mentioned that during the Urs Ghusul was given to the sacred tomb twice every night by the Khadims and at the second Ghusul, the Dewan, the Mutawalli with one assistant each could remain present, but one else could be present.
It was alleged that the Durgah Committee had decided in March, 1945, that certain persons besides the above named should be present at the Ghusul ceremonies. A declaration was sought that the plaintiffs and their community by immemorial custom of the shrine had the exclusive right to officiate at and perform the religious rites and ceremonies at or in the shrine known as Durgah Khwaja Sahib, and that the Khadims alone on the occasion of the first Ghusul and the Khadims together with the Dewan and Mutwalli (the latter with one assistant each) could officiate at the second Ghusul, and be present inside the tomb, and that the Durgah Committee had no power to interfere in the religious rites and ceremonies, the performance whereof could only be done by the Khaclirns. The suit was contested by the Durgah Committee. The learned Sub-Judge decided the case on 30-9-1948, and the declaration and injunction was granted as prayed for.
28. On being called upon by the Court to state what ceremonies were being performed by the Khadims in the holy shrine, an affidavit was produced by Syed Mohammad Anis, one of the Khadims on 7-10-1958. It was said that the ceremonies in connection with the shrine performed by the Khadims were as under:
'(1) 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'.
(2) Accompanied by a few other Khadims, he proceeds to open the second gate of the dome pronouncing a certain sacred formula in adulation of Khwaja Sahib.
(3) The Khadims then remove the flowers from the 'Mazar' and put fresh flowers on the 'Mazar' the ceremony being called 'Sej'.
(4) The Khadims then clean the dome premises, burn 'Loban', and deposit the withered flowers in a sacred depository.
(5) A general prayer is offered by the Khadims and the 'Mazar' is then thrown open for pilgrims.
(6) One Khadim on duty remains inside the tomb, while others guide the pilgrims. The one inside the tomb helps the pilgrims to kiss the 'Mazar', and prays for them after putting the 'Daman', i. e., the cloth covering of the grave over the pilgrims' heads. It is at this stage that the pilgrims present 'Nazar'.
(7) At 3 p. m. the dome gates are closed and once again the changing of flowers is done. The tomb is given a paint of sandal paste and the 'Kabar Posh' is also changed.
(8) The Khadims make a prayer for all the four silsilas of the Sufis and all other human beings and the 'Mazar' is again opened to the pilgrims as before.
(9) At sunset at the beat of Nakkara, the pilgrims gather at the tomb. Certain number of Khadims carry lamps inside the dome, and in doing so, they touch the heads of devotees with the lamps, and then place the lamps on lamp posts after lighting them with the fire in the 'Agardani' at the tomb. Madha (that is a song in praise of Khwaja Sahib) is recited and then a 'Dua' is recited, and all pilgrims present say 'Amin'.
(10) The 'Mazar' remains open till 10 p. m.
(11) Three Khadims give a ceremonial sweep thrice inside the dome, and lock it for the night. This routine is repeated every day.
(12) During Urs a special ceremony called 'Ghusul' is performed by the Khadims twice a night, and in the second 'Ghusul' the Sajjadana-shin and Mutwalli also participate. The 'Ghusul' is a ceremony of giving a bath to the tomb with rose water and scents, Such scented water collects in a reservoir from where it is distributed by the Khadims to the devotees who believe various mystic powers in the holy water.
(13) On the day of Basant Panchami, Kewals (musicians) bring fresh green plants and flowers as presents, and these are handed over to the Khadim on duty inside the dome, who places them on the 'Mazar'.' '
29. The performance of these ceremonies is not denied on behalf of the respondents, but by an affidavit of Iqbal Hussain Peshkar (reader of Durgah Committee) it is asserted in respect of the 'Ghusul' that it ('Ghusul') has no religious sanction behind it, and there is no authority for it either in the Holy Quran Shareef or the Hadees.
30. The main dispute in the present case centres round the right claimed by the petitioners on behalf of themselves and other khadims to the offerings made inside and outside the dome to the extent recognised in the Privy Council judgment referred to above. It is urged that the present Act purports to take away this right to property without providing any compensation, and is, therefore, ultra vires the Constitution.
31. Again, it is said that the petitioners have the right to officiate as priests at the holy shrine, and to receive the share in the offerings as aforesaid, and the Act purports to bar the exercise of their functions as priests, and thereby interferes with the fundamental right to -
(1) following a profession guaranteed under Article 19(1)(g), and
(2) acquiring and holding of property, to wit, offerings guaranteed under Article 19(1)(f) of the Constitution, and the restriction, not being in the interests of the general public, is ultra vires the Constitution.
32. Learned counsel for the respondents contended that according to Islamic law, the offerings at the tomb are the property of the Durgah, and the decision of the Privy Council did not take into consideration this aspect of the case as the main contestants, namely, the Sajjadanashin and the Kha-dims, were both interested to appropriate the offerings whether wholly or the part of them, and the Durgah Committee, which was a party to the suit did not properly put up the claims of the Durgah. and allowed the two parties to carry on the litigation as if one or the other or both had only the right to share in the offerings. It was then urged that a judicial decision does not create any right, but only purports to recognise a right, and if the right did not really exist, the legislative authority has power to enact a law which would be in consonance with the rights of the parties.
33. We are unable to accept the contention raised by learned counsel for the respondents. 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 con-testing 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 Article 19(1)(f) of the Constitution, unless it can be shown that the deprivation is reasonable and in the public interest. We are also not satisfied that the Khadims had no right according to the law applicable to the facts of the present case. The deprivation is, in our opinion, an excessive invasion on the rights of the petitioners, which cannot be said to be either reasonable or in public interest.
34. Learned counsel for the respondents strongly relied on Mahomed Oosman v. Essak Sale-mahomed Vanjara, ILR 1938 Bom 184. The case related to the Durgah of Pir Haji Ali situated at Mahalakshmi in Bombay. Mahomed Oosman and his brothers instituted a suit claiming inter alia that they were hereditary mujawars of the Durgah, and as such they were entitled absolutely to the offerings in the ghalla, to offerings of cocoanuts, sugar etc. made by the devotees, and to the copper coins in which babies were weighed at the said Durgah.
35. We have carefully gone through the decision, and it is apparent that the rights of the plain-tiff's were negatived mainly on the ground that they were not hereditary Mujawars (page 223 and page 232), and that a scheme for the Durgah was settled in 1917 by a competent court m which the claims of the plaintiffs did not figure at all.
36. At page 221 it is observed --'If there existed anything in the nature of a moral claim in favour of the plaintiff's ancestors or others the mujawars for the time being, to exercise some sort of authority at the dargah, that claim ought to have been placed before the Court in 1917 when the scheme was being framed and the trustees appointed. The failure to do so may have proceeded from a consciousness that there were no such claims, or that the trustees ought to consist of Fazla, the person who really endowed the dargah, and persons suggested by him. Assuming at the highest that the claim of the mujawars for the time being was overlooked, there can be no rectification of the oversight now, certainly not in the manner suggested for the plaintiffs.'
(36a) It is pertinent to refer to this case as elucidating the position and status of the Durgah; At p. 192 the learned Judge observes-
'The word 'dargah' is used in one of two-senses: either in its strict sense (1) to refer merely to the tomb by itself, or more loosely (2) to include the whole group of buildings of which the tomb is the nucleus -- the tomb as well as the mosque, and/or other institutions that may have grown up in the vicinity of the tomb ...... Speaking of a dargah as an institution where merely the tomb is referred to, is apt to cause an oversight of the fact that the dargah strictly consists of the tomb alone. It is only a reverential mode of speaking of the tomb of a holy person. And a tomb cannot in the nature of things be such a nucleus of human activity as a mosque or a khanqah, a librarv or a madrasa. Veneration for a tomb may give birth in its vicinity to institutions in the ordinary sense. It cannot infuse life and blood into-the tomb itself so as to convert the tomb into a similar living institution. An endowment for the purpose of a tomb is restricted by its very nature to the upkeep of the tomb, even though the tomb may be called a dargah.'
(36b) At p. 191 the learned Judge says--'The Prophet's- strong disapproval of the erection of an elaborate mausoleum or excessive outlay on tombs and; burial is well-known. The traditions on this point are unanimous ..... Since it is not proper to erect a mausoleum, it might have been argued, that the law cannot allow endowment of property for the purpose of the upkeep of a mausoleum, even though a saint be buried underneath. In spite of these traditions, however, beliefs have grown up in India and the courts have recognised these beliefs as having binding force, that great religious reverence may customarily be shown (even by persons professing Islam) to the burial place of a person sufficiently holy to be styled a saint: inasmuch as to raise his tomb to the standing of a religious object: so that property may validly be dedicated for its up-keep and preservation. In the result, there may be a waqf for the upkeep of the tomb of a saint ns distinguished from the tomb of a private person.' '
37. The next case relied upon is Advocate General oF Bombay v. Yusuf Ali Ebrahim, AIR 1921 Born 338. The relevant observations are at p. 356;
'Next J will deal with the tomb and gulla. These differ somewhat in their legal aspect. The tomb is real property and is in the nature of a perpetuity. The surplus of the past gulla offerings have also been invested in land and it is at any rate arguable that they now form a permanent landed endowment, and hence a perpetuity. The future gulla offerings, however, do not necessarily involve a perpetuity, for I take it they could all be applied as income. There is clearly some connection between tomb and gulla, but it is not altogether simple to define in law. The Advocate-General suggested tnat gulla offerings were the income of the tomb. This is to some degree supported by Zoolekha Bibi v. Syod Zynul Abedin, 6 Bom LR 1058 where the Court held that nazranas (offerings) to the Durgah should be treated as income of the Durgah and were liable to partition (see pages 1069 and 1071), but that nazaranas to the defendants personally could be retained by them. I am not, however, altogether satisfied that this is the correct legal relation of the tomb and the gulla. On the other hand there would seem to be something in the nature of a goodwill attaching to the tomb, viz., expectation that worshippers will repeat their visits and repeat their gifts. There may, therefore, be a remedy against those who might try to injure that goodwill. But for present purposes I do not think it necessary to pursue this. Whether it be wakf or sadakah, endowments or donation, the tomb or the offering may yet be charitable.'
38. In order to appreciate the rights of the parties it may be relevant to state the purpose of the mission of Khwaja Moinuddin Chishti, and how his tomb became a Durgah. and later developed into an institution. The 'Rajputana Gazetteer' Volume II, (1879 Edn.), dealing with Ajmer-Mer-wara, mentions the legend that -
'It was at Medina that a voice came from the tomb of the Prophet calling for Mueiyyin-ud-din, and directing him to go to Ajmer and convert the infidels'.
'Munisularvah' written by Jahan Ara Begum, daughter of Shah Jahan, mentions the same legend as having induced Khwaja Moinuddin Chishti to come and settle at Ajmer (From its Urdu translation). Some of the stories mentioned in 'Munisularvah' and 'Sariularfeen' refer to the miracles performed by Khwaja Moinuddin Chishti, and the Hindus, who were already steeped in superstitions, readily came under his influence. The Khwaja, on the other hand, seems to have made things easier for the Hindus, as he included in his programme devotional songs (kawalis), which are very near to bhajans of the Hindus of the bhaktimarg, though to the orthodox Muslims music near a mosque is irreligious. The ceremonies, which are performed at the Durgah, and stated in the affidavit referred to in the earlier part of the judgment, and which must have been started by his immediate followers, are more like the worship of a Hindu deity. The ceremony at lightening time is akin to Arti of a Hindu deity, and the ghusul is like the bath given to a deity. The scented water of ghusul is used in the-same way as charnamrit of a Hindu deity.
39. As stated earlier, on the death of Khwaja Sahib, his tomb was kachcha, and after several hundred years it was made pucca by a Malwa king. The report of the Dargah Khwaja Saheb (Ajmer) Committee of Enuiry renders quotation at page 69 from the award of Pirzada Mohammad Husain, District Judge of Hissar, in suit No. 258 of 1916 filed in the Court of the Subordinate Judge, first, class, Ajmer, relating to the dispute raised by Mohammad Hanif Khadim to the seat on the Urs of Khwaja Mohammad Usman Harooni : --
'The first attempt to appoint a Sajjadanashin-was made by the Malwa King, Sultan Mohamud Khilji in the person of one Sheikh Bayazid 'the-Senior' about four hundred years ago but it appears to have failed through the resistance and intrigues of the Khadims and the rivalry of other scions of the family in power in the Court of the-Malwa Kings. The question whether Sheikh Bayazid, the ancestor of the present Dewan, was a genuine descendant of the Khwaja Sahib was raised then for the first time and was settled in his favour on very authentic grounds. The . next attempt was made by Emperor Akbar who became a devotee of the Shrine. He appointed the saintly Sheikh Husain, a descendant of Bayazid, as a Sajjadanashin, but he and his courtiers Abul Fazal and Faizi did not find in him an easy tool for their favourite eult of Royal worship. He proved himself a firm adherent of Islam, refused to prostrate-himself before the Emperor, kept silent when the Emperor put a question to him about an alleged relation between his mother and the mother of Abul Fazal and Faizi (who was a sort of slave or servant in the family of his mother at Nagor) and' thus offended the powerful Ministers who did not forgive him ever. The influence of the descendants of Shaikh Saleem of Fatehpur Sikri, who as-foster brothers of the princess were very powerful at that time, went also against him simply through-the professional jealousy and above all the khadims who had enjoyed the full and unrestricted control of the Dargah for about four hundred years, except for a short period of Bayazid. naturally did not like the appointment of a Sajjadanashin (or Dewan) over them and rose as a body against him. They were not certainly menials as the word Khadim imports and their noble descent from a Sayed who was most likely a friend and disciple of the Khwaja Sahib, if not his brother, as alleged by the Khadims coupled with their enjoyment of absolute control of the Dargah for such a long period gave them a voice and prestige in the Mohammadan community which could not be lightly dismissed. The result was that the first regular Sajjadanashin was disgraced and sent in exile by the Emperor who did not recall him until only a few years before his death after the demise of his inveterate enemies Abul Fazal and Faizi but the institution of the Saj1-jadanashin became permanent henceforth.'
The above statement of facts has been accepted by the Committee of Enquiry,
40. These facts, which are matters of history, show that for 400 years after the death of Khwaja Sahib there was no one to look after the tomb except the Khadims. The tomb was kachcha, and hardly any expense could be required to maintain it. The offerings that may have been made during these 400 years must have been used by the Khadims for themselves, These Khadims were the main people to circulate the stories of miracles performed by Khwaja Sahib during his life time, and expected to be performed by him even after his death, if his assistance was sought by prayer. At page 20 of the Report, the tradition of the visit of Akbar to the grave of Khwaja Sahib in 1557 is mentioned : --
'Tradition has it that this visit was made in fulfilment of a vow he had taken before the birth of Jahangir. He had resolved to perform the pilgrimage to the tomb on foot from Agra, should his son survive.'
The stories of miracles must have been circulated by the Khadims to such a great extent that even the Emperor made a mannat, and in fulfilment of the vow he performed the pilgrimage to the tomb on foot from Agra. The visit of the Emperor brought the offerings, and what was once a humble tomb was surrounded by various buildings, and when the Emperor himself was seen to be convinced of the miracles of Khwaja Sahib, lesser persons could not resist believing in the tomb of Khwaja Sahib, which obtained the high sounding name of Durgah. During all this period of 400 years, the Khadims were the persons who appropriated the offerings made to the tomb. They looked after the tomb, performed the necessary rituals and spent the surplus income from offerings over themselves. The offerings at the tomb are again like offerings to a deity. The deity being a juristic person can own property, and the offerings made to it can be utilised for the purposes of the deity. The tomb is, however, not a juristic person, and the offering at the tomb is for the person who looks after the tomb. It is a very far-fetched notion to say that these offerings are for the purposes which were dear to the Dervish during his life time. The reply of the Durgah Committee itself mentions that the majority of the persons who visit the shrine are Hindus, Khoja Memons and Parsis. While they may make an offering as they make to a deity out of veneration for the place, they are hardly likely to wish that their offerings should be utilised for the purpose dear to the Dervish, namely, the propagation of Islam.
41. When the Sajjadanashin came to be appointed by the Malwa King or by the Emperor, Akbar, his introduction to the scene enabled him to become a sharer in the offerings.
42. It is not right to say that the decision of the Privy Council in AIR 1938 PC 71 rested only on an agreement between the Sajjadanashin and the Khadims to share the offerings. The agreements relied upon were in proof of the age-old custom of division of the offerings. Ex. D.20, on page 397 of the printed Paper Book of that case, which contains the agreement between Diwan Sira-juddin and the Khadims in 1892 A.D., refers to the division of the offerings in a particular manner followed by a sentence -
'According to custom of our progenitors we shall receive and enjoy it.'
The agreement is not the foundation of the right to divide, but was evidence of the custom relating to this shrine. It is, therefore, clear that what the Privy Council decided was to uphold the right of division of the offerings between the Sajjadanashin and the Khadims, which had existed from times immemorial.
43. Learned counsel for the respondents contended that the offerings to the Durgah belonged to the Durgah. 'Durgah', as stated earlier, has two meanings. One of the meanings is 'a tomb', and it is oniy a reverential mode of speaking of it as a Durgah. The offerings, which are made at the tomb, smack of idolatry, and is wholly inconsistent with the tenets of Islam. At page 54 of the Durgah Enquiry Committee Report it is mentioned that the three Jamiat representatives, Maulana Mufti Mohammad Kifayat Uriah, Maulana Ah-mad Saeed and Maulana Hilzur Rahaman (all well-known leaders of the Mohammadan community in India) could not be persuaded even to mention the word 'nazars', for they regarded the action of visitors making nazars to the tomb as unislamic. The head of the Ulemas of Firangimahal is stated to have said at the same page that 'soliciting of nazars or alms is prohibited by Islam'. He said that 'if a person voluntarily makes any offering to the Khadim or anybody else, it would not be open to objection', but he did not approve of the system of people visiting the tomb and placing something in the way of offering at the tomb with the object of being collected by the Khadim sitting there for the purpose. He also considered it wrong on the part of the Khadim to take the pilgrim to the side where the Quran Sharif is kept and ask him to pay nazar there. Nor did he approve of the practice of asking the pilgrim to go towards the head of the tomb and present nazar there or at any other place inside the tomb or outside it. This in his opinion was tantamount to soliciting alms and was prohibited by Islam. In the wider sense the Durgah includes Khanqah or mosque, and the offerings specifically made for the purpose of maintaining the Khanqah or rnosque or other charitable or religious institutions are undoubtedly to be utilised for these purposes and no others. When we speak of the offerings to the Durgah, 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.
44. Certain reported decisions, which have been cited in respect of Durgahs, all support the view that the offerings are dealt with according to custom which prevails at the Durgah.
45. In Mohiuddin v. Sayiduddin, ILR 20 Cal 810, the Sajjadanashin was held to have power to utilise the surplus income beyond what was necessary for the religious purposes which were to be performed, An argument was raised that the defendant starved the religions trusts in order to live in affluence. It was observed that -
'The fact of his living in affluence seems to us beside the question. If the defendant wilfully neglected to perform the duties which were incumbent on him, and misappropriated the amounts which ought to have been spent in the performance of those ceremonies; if he starved the students or turned any of them out for the purpose of increasing his own allowance, in that case no doubt the question of malversation would arise'. It may be mentioned that in the present case there is no allegation whatsoever on behalf of the respendents, nor is it to be found in the findings of the Ghulam Hasan Report that the grants made to the Durgah in its wider sense are not sufficient for the various ceremonies to be performed at the Durgah, or for the carrying out the various purposes for which the grants were made or for financing the institutions maintained at the Durgah.
46. In AIR 1921 Bom 338 at p. 358, Marten J. observed as follows : --
'I will next consider whether the offerings at Chandabhoy's tomb are charitable. These admittedly come to Mullaji in right of his office: they pass to his successor as Dai and not to his heirs : they are not his private property like the Salam; but according to him are dawat property. In the past they have been spent regularly on the upkeep of the mosque and tomb, the ooros feasts, majlis and illuminations. The surplus has been invested in land, and the resulting rents carried to the gulla account.'
It was because of the aforesaid custom that the gulla money was held to be one utilisable for a charitable object. In the present case, the custom has all along been that these offerings had been utilised by the Sajjadanashin and the Khadims for their own purposes.
47. In Sri Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar, AIR 1922 PC 123 at p. 132 it was observed that -
'The duties in connection with the 'shrine' apart from giving spiritual instruction, consist in the due observance of the annual ceremonies at the tomb of the Saint, the distribution of charity at fasts and festivals, the celebration of the birthday of the Prophet, and the performance of other rites and ceremonials prescribed either by the religious law of by usage and practice. Ordinarily speaking, the Sajjadanashin has a larger right in the surplus income than a mutwali, for so long as he does not spend it in wicked living or in objects wholly alien to his office, he like the Mohant of a Hindu Mutt, has full power of disposition over it.' This case has been referred to in Mahomed Oosman's case, ILR (1938) Bom 184 as laying down that the Sajjadanashin is merely a manager (p. 220). This conclusion was erroneous.
48. The contention raised in the present case by the respondent is two-fold : --
1. that the offerings made at the tomb are Durgah income;
2. that the said Durgah income can only be utilised for the purposes of the Durgah. The second contention is negatived by Vidya Varu-thi's case, AIR 1922 PC 123, inasmuch as the Sajjadanashin has the power to spend it on himself. The first point is not dealt with in that judgment, but emphasis is laid on the usage and practice of the institution. The custom in this institution permits the sharing of the offerings between the Sajjadanashin and the Khadims.
49. In Mahummad Hamid v. Mian Mahmud, AIR 1922 PC 384, the case related to the tomb of Hazrat Suleman of the same order as Khwaja Moin-uddin Chishti. On a dispute having arisen between the Sajjadanashin and his brothers, an award was made in 1903 by the Tumandars that Muhammad Musa was Sajjadanashin of the Khanqah with the right to manage the mosque and shrine, and that the income of the shrine consisting of the offerings of the pilgrims, should belong as to one-fifth to Muhammad Musa as Sajjadanashin and as to the balance to the two brothers equally. Subsequently a litigation arose between Khwaja Mohammad Hamid, son of Muhammad Musa, and his uncles, and the case went up to the Privy Council with respect to the offerings. It was decided that -
'The defendant Mian Muhmud is entitled during the joint lives of himself and the plaintiff to one-half of the surplus offerings at the shrine after deducting all outgoings (including a reasonable remuneration to the Sajjadanashin), with liberty to him to apply for an account and payment of what may be found due.'
The division of the offerings between the Sajjadanashin and somebody else was thus upheld.
50. ILR (1938) Bom 184, which has previously been cited, is the solitary case, in which the offerings were held to be income of the Durgah as an institution to be utilised for charitable purposes. The decision was given on the special facts of the case, it being held that no customary mode of utilisation of the offerings had been established, and the plaintiffs were held to be persons in unauthorised occupation of Government land on which the Durgah had been erected, and further, the claim of the plaintiffs was contrary to the scheme sanctioned for the administration of the Durgah long before the institution of the suit. No custom was set up in the case, and whatever was set up had not been proved. The learned Judge after stating that the Hanafi law must prevail for the purposes of civil rights, observed at page 203 that -
'That exposition (of Hanafi Law) may no doubt be overridden by commentaries proved to be recognised by a particular community as being of paramount authority, or by particular rules of conduct alleged and proved to have been adopted by custom. No custom altering the Ilanafi law has however been pleaded in this suit. The plaint is silent in this respect.'
In the present case the petitioners have based their right on custom and usage. The case of ILR (1938) Bom 184 cannot, therefore, help the respondents.
51. Further, the decision of the learned Judge was based on two assumptions. The first assumption was that the surplus income from the offerings after defraying the expenses of the tomb 'must be put to uses that are charitable in accordance with Islamic notions' (page 194). He apparently overlooked the decisions of their Lordships of the Privy Council in AIR 1922 PC 123 and AIR 1922 PC 384. The second assumption was that 'the offering proceeds from a trust that it will be ultilis-ed for the institution itself or for lending God a good deed', i.e. putting the offerings to fitting charitable uses (page 208). The first part of the sentence does not present any difficulty. In a wider sense the institution means not only the stone and mortar, but would include all persons who have some functions to perform at the institution, and these will include the Sajjadanashin and the Khadims. If the offerings are, therefore, utilised by the Sajjadanashin and the Khadims for their maintenance, they can be said to be utilised for the purpose of the institution for which they are meant. The second part of the sentence that it meant 'putting the offerings to fitting charitable uses' is a big jump, and would raise quite an amount of controversy as to what is a fitting charitable use, and what is not. Again, charity according to Islamic law does not always mean giving away to others. It includes utilisation for maintenance of one's family also. What the pilgrims may be supposed, to mean when they make the offerings is not diffi-cult to gather in the present case. Since this tomb has existed for several centuries past, the pilgrims can be presumed to be fully cognizant of the mode of appropriation of the offerings which they make. It is open to a pilgrim to earmark his donation for a particular object. If he does so it is spent on that object and there is no controversy about it. If on the other hand he does not earmark his donation, then it follows that he intends that it should be appropriated in the customary manner.
If he wants that part of his donation should go to the Khadims he makes it outside the tomb. If he wants that the whole of it should go to the Sajja-danashin he makes it at his sitting place. If he wants that it should be shared by both of them he makes it at the tomb. It may be that some of the pilgrims have no particular intention to whom the donation should go.
They make the offering only to earn spiritual merit, leaving it to custom how it is ultimately utilised. The intention of the pilgrims, many of whom are not even Muslims, cannot be inferred that the offerings which they make may not be utilised for the Sajjadanashin and the Khadims, who maintain the tomb and conduct the ceremonies which tha pilgrims believe bring benediction on them, and that some other charitable uses were intended by them. With great respect we are unable to follow the reasoning of the learned Judge in Mahomed Oosman's case, ILR (1938) Bom 184.
52. From the review of the cases cited, it is clear that the offerings made at the tomb are governed by the customary mode of their utilisation, and the history of this institution shows that these offerings have been utilised according to a certain custom which has been upheld by the Privy Council.
53. On behalf of the respondents reliance was also placed on the Badri Nath Temple case: Nar Hari Shastri v. Badrinath Temple Committee, AIR 1952, SC 245, as supporting the contention that the Khadims had no right to offerings at the Durgah. The analogy of Pandas of Badrinath Temple with Khadims of Durgah Khwaja Saheb, Ajmer, does not hold good. The Pandas had no hand in the management or ceremonies at the temple. They acted only as guides to the pilgrims, and did not claim any right to receive the offerings made to the deity of the temple.
The offering was made to them personally, and what was prohibited by the rule was that the offering could not be made to Pandas within the precincts of the temple. In the present case, the Khadims are functionaries at the Durgah, having the duty or the right to perform certain ceremonies, and they claim the offerings which are made to the tomb.
The offering which may be made by the pilgrim to a Khadim personally is not the subject of any dispute between the parties. The respondent calls such offerings tips, and does not propose to interfere in the receipt of such tips by the Khadims .
54. Another ground on which the decision of the Privy Council was attacked was that no defence had at all been filed on behalf of the Durgah Committee. This is not correct, It may be mentioned that the decision originated in an interpleader suit filed by the District Magistrate, Ajmer. The late Sajjadanashm Dewan Sharfuddin had during his life time leased out his share of the offerings to the Khadims for Rs. 500/- a year.
He died in 1922, and was succeeded by Dewan Syed Ale Rasul Khan who refused to recognise the lease executed by his predecessor. This resulted in a renewal of the dispute between the Khadims and the Dewan with regard to the distribution of the offerings which were not earmarked for the use of the Durgah. The District Magistrate had to intervene and a Receiver was appointed to collect all the offerings made at the Shrine and the above interpleader suit was instituted by him in the Court of Sub-Judge, Ajmer, for purposes of obtaining a decision as to the distribution of the offerings between the Dewan and the Khadims.
When this suit was pending, the Dewan instituted another suit for a declaration of his rights with respect to the offerings made at the Shrine, and for an injunction restraining the Khadims from interfering with those rights. The interpleader suit thereupon became redundant, and was withdrawn by the District Magistrate with the leave of the Court.
The Mutawalli and the Durgah Committee were also parties to the suit instituted by the Dewan. The President, Durgah Committee, filed a written statement in that suit, which is printed at page 41 of the Paper Book in the Privy Council case, which was filed before us. In the plaint, the Sajjadanashin had claimed that he was entitled to recover aJl offerings and presents whatsoever and wheresoever made as perquisites and emoluments of his office.
Ill the written statement filed by the President of the Durgah Committee this exclusive right was challenged, and he put forward the claim of the Committee to recover gold and silver articles including Kabarposhes or any other article offered for the use of the tomb, dome or the Durgah Khawaja Saheb.
55. As has been shown above, the rest of the offerings were being shared according to their customary mode of disposal between the Sajjadanashin and the Khadims and no claim could reasonably be laid in respect of them on behalf of the Durgah Committee. This Committee was first formed under the Act of 1863 in the year 1867.
From that time onwards, right upto the institution of this suit the Durgah Committee had no concern with the offerings which were not earmarked for the use of the Durgah. It may be that the President of the Committee was the only member of the Committee who was not interested either in the Dewan. or in the Khadims.
It cannot, however, be said that there was any collusion between the Committee on the one hand and the Khadims or the Sajjadanashin on the other hand so a,s to nullify the effect of the decision within the meaning of Section 44 of the Evidence Act. The President in his written statement did not fail to press the just rights of the Durgah, and these rights were recognised by the District Judge, by the Judicial Commissioner, and by the Privy Council.
No share was claimed in the unearmarked cash offerings because there was no basis for such claim. It was not disputed before us in the course of arguments that from 1867 when the first Committee was formed till now the unearmarked offerings have always lieen appropriated by the Dewan and the Khadims.
The decision in the case was not based on two composition deeds as was alleged on behalf of the respondents. The composition deeds only purported to record the usual practice and they were taken to be proof of that practice only.
56. The contention of the respondents that the 'doctrine of cosharership or partnership in the offerings at the Shrine as decided by the Privy Council was wholly repugnant to the Muslim Law and Shariat' has already been dealt with above at some length. The institution of the Durgah andthe ceremonies performed there are apparently at variance with orthodox Muslim religious notions.
Matters pertaining to such institutions are only regulated by custom and not by pure Hanafi law, and the custom at this Shrine, as stated above, is that the offerings are divided between the Sajja-danashin and the Khadims in the manner given in the Privy Council decision.
57. In view of the above findings, it remains to be seen how the rights of the Khadims are affected by Act No. 36 of 1955, and whether any of the provisions of the Constitution had been violated.
58. The contention of the petitioners is that this Durgah has been selected out of the many in India for an enactment of the legislation, and there is thus discrimination.
59. The Durgah 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 Durgah an enactment could be legislated, and it is not hit by Article 14 of the Constitution on that ground alone.
60. Section 14 of the Act authorised the Nazim to solicit and receive on behalf of the Durgah any Nazars or offerings from any person, and declared 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.
The contention of the petitioners is that the offerings made at the tomb are now directed to be solicited by the Nazim, and under the definition in Section 2(d)(v) of the Act, this becomes Durgah property. On behalf of the respondents it is contended that this section docs not prevent the pilgrims from paying tips to the Khadims if they wish to do so, but it prohibits the Khadims or any other person from receiving the offerings which the pilgrims may make to the Durgah, and that, therefore, it does not hit any charitable donation which the pilgrims may give to the Khadims and their rights are thus not affected.
61. The contention on behalf of the respondents is only plausible. 'Durgah' has two meanings: (1) the tomb itself, and (2) the various institutions which have gathered round about the shrine, e. g., the Khanqah, the mosque, the langarkhana (kitchen for distributing food to the poor) etc. What is offered at the tomb had been the subject of litigation, and the rights of the Khadims and Sajjadanashin were upheld by the Privy Council Judgment in Suit No. 9 of 1929.
The definition of Durgah Endowment purports to include such offerings as well to which the Sajjadanashin and the Khadims were entitled. At one stage it was argued by the respondents that the definition was innocuous, inasmuch as it only included such Nazars or offerings as were received on behalf of the Durgah, and did not touch the offerings which were made to the Khadims.
As the case developed, the respondents emphatically laid claim to the offerings which were made at the tomb without specifying the purpose by placing reliance on ILR (1938) Bom 184. As stated earlier, the Nazars or offerings which were specifically made for any institution maintained by she Durgah in its larger sense would properly be included in the Durgah Endowment, but the definition, so fair as it covered the Nazars or offerings made at the tomb by being included in the definition, encroached upon the rights of the petitioners and other Khadims to receive and enjoy the said offerings according to the rights upheld by the Judicial Committee of the Privy Council.
The including of such offerings in the definition of Durguh Endowment, and empowering the Nazim or any person authorised by him to receive such Nazars or offerings on behalf of the Durgah was hit by Article 19(i)(f) of the Constitution. The deprivation is not saved under Article 19(5), as it is neither in the interests of the public, nor is it reasonable.
62. The petitioners Khadims performed certain functions at the Dargah not by virtue of being the servants of the Durgah Committee. It is immaterial that some of them are paid by the Durgah Committee, but as discussed earlier, their right to look after the tomb has its origin in times immemorial, and has never been challenged prior to the Act-While the power to determine such privileges and the regulation of their presence is left to the Committee, no guidance is given in the Act for the exercise of this power, and it is left to the Committee to arbitrarily grant licence to some or refuse to others, and recognise some privileges or reject others.
Section 11(f) of the Act, which empowers 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, is hit by Article 19(1)(g) of the Constitution, and by Article 14. Equal protection means absence of arbitrary discrimination not only by the Jaws themselves, but also in their administration. Article 25.
63. This Article declared all persons to be equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion, subject to public order, morality and health. Every person, who believes in the Saint, is entitled to visit the shrine of Durgah Khwaja Sahib to pay his raspects, and to pray for his soul, and the Khadims being followers of the Saint are entitled to enjoy the same right.
Section 11(f), inasmuch as it authorised the Committee to regulate the presence of the Khadims in the Durgah by the grant of licence, and implied-ly to prohibit the entrv of any Khadini by refusal of licence is hit by Article 25(1) of the Constitution. The grant or refusal to grant licence is left arbitrarily in the hands, of the Committee, and no guidance is afforded by the Act in the matter of grant or refusal of licence. In this connection reference may be made to AIR 1952 SC 245.
64. Section 11(h) of the Act empowers the Committee to determine the functions and powers, if any, which the Sajjadanashin may exercise in relation to the Durgah. A Sajjadanashin has well-known powers in respect of the Durgah so far as the spiritual side is concerned, and the power given to the secular committee to define the religious or spiritual functions of the Sajjadanashin is again hit by Article 25 of the Constitution.
65. The Act empowers the Committee by Section 13 to make interim arrangements for the performance of the functions of the Sajjadanshiri as it may think fit. The office of the Sajjadanashin is a spiritual office, and the appointment of a Sajjadanashin is regulated by custom pertaining to the institution, vide Piran v. Abdool Karim, ILR 19 Cal 203.
66. This provision is inconsistent with Article 25 of the Constitution as imposing upon the followers of the Chishtia order a Sajjadanashin not according to the usage of the institution, but appointed according to the will of the Committee which may consist of Muslims who may be Hanafis but not followers of Chishtia order. Article 26,
67. This Article lays down that 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 immove-able property; and
(d) to administer such property in accordance with law.
This is subject to public order, morality and health. The contention is that this shrine of Khwaja Moi-nuddin Chishti is of the religious denomination of Chishtia order of Hanafi Muslims, but the Committee, which is to be constituted under Section 5, is laid down by the Act to be of Hanafi Muslims.
It is conceded by the respondents that all Hanafi. Muslims need not be of Chishtia order, but the contention is that in the earlier Act of 1936 also the Committee was to consist of Hanati mus-lims and under Section 15 the Committee is directed to conduct and regulate the established rites and ceremonies in accordance with the tenets of the Chishti Saint,
It was urged that Chishtia order cannot be said to be any religious denomination, and, therefore, Section 5 is not hit by Article 26. This fundamental right mentioned in Article 26 has only been conferred on the citizens of India by the present Constitution, and it is immaterial that he earlier Act provided for the Committee to consist of Hanafi Muslims irrespective of whether they were of the Chishtia order or not.
It is conceded that at the shrine of Khwaja Moinuddin Chishti and the other institutions which have sprung up round about this shrine, the rites and ceremonies are conducted in the manner of the Chishtia order. Some of these ceremonies are mentioned in an earlier part of the judgment, and have their peculiarities unknown to Muslim law.
In fact the Ghusul ceremony which way the subject of litigation, and which is considered as one of the essentials of the shrine, inasmuch as the holy water after the Ghusul is believed by the followers of the Saint to possess certain mysterious and miraculous properties has been denounced by the affidavit of Iqbal Husain on behalf of the respondents as having no religious sanction behind it.
This shows that the present Committee is not in a mood to accept the current beliefs of the followers of the Chishtia Saint. The Khadims as followers of the Chishtia order are entitled to claim that the Committee appointed by the Government should consist of such Hanafi Muslims only as may be the followers of the Chishtia order. The Chishtia order can be considered to be a religious denomination or a section thereof mentioned in Article 20 of the Constitution.
68. What is a denomination within the meaning of Article 26 has been explained by their Lordships of the Supreme Court in Commr. Hindu Religious Endowments, Madras v. Lakshmindrai Thirtha Swamiar, AIR 1954 SC 282. It was pointed out in that decision that freedom of religion in the Constitution is not confined to religious beliefs only but extends to religious practices as well.
Under Article 26(b) a religious denomination enjoys complete autonomy in the matter of deciding sis to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere in such matters. This matter cannot be left to a committee of persons who may not believe in-these rites and ceremonies, and may regard them as 'immoral' being opposed to Quranic injunctions. Under Section 15 of the Act, the Committee is enjoined 'to follow the rules of Muslim Law', and 'to conduct and regulate the established rites and ceremonies in accordance with the tenets of Chishti Saint'. As has been shown above, there is a clash between Muslim law and the rites and ceremonies carried on at the shrine, and the present Committee does not apparently believe in all of them.
The petitioners, who belong to a schism have reasonable ground for apprehending that it will gradually do away with these ceremonies, thereby interfering with their religion. Religion is a matter of faitb. 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.
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 mads clear by the use of the expression 'practice of religion' in Article 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 all 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. In our opinion, Section 5 of the Act is hit by Article 26 off the Constitution.
69. This Article has been amended by the Fourth Amendment Act 1955, and is not applicable to the facts of this case.
70. This is in respect of Sections 16 and 18.
71. Section 16 of the Act provides for a Board of Arbitration in respect of a dispute between the Committee on the one part and the Sajjadanashin, any Khadim, and any person claiming to be the servant of the Durgah. under some hereditary right or any one or more of them on the other part, and 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.
The Act does not recognise any rigts or privileges of the Khadims, having left it to the Committee to determine the same in any manner it likes without any guidance being afforded by the Act. The Act also does not recognise any person to be the servant of the Durgah under some hereditary right. The section relates to a reference to the Board of Arbitration of a dispute which does noli relate to any religious usage or custom or to the performance of any religious office.
One can understand that a religious dispute can be provided to be referred to a Board of Arbitration so that religious matters concerning this Dur-gah may not he 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 claissificatioin.
Further the 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 Section 16 is hit by Art, 14 of the Constitution.
72. Section 18 provides for the execution of any order of the Committee by a civil court in case of its non-compliance. The powers of the Committee are laid down in Section 11, and it would be monstrous to suppose that any order passed by the Committee in the exercise of such wide powers against any person, which can otherwise be challenged in a civil court, should be made executable as if it were a decree.
This takes away the right of the citizens of India who may deal with the Committee to enforce their rights in a civil court, and it is hit by Article 14 of the Constitution.
73. In Ram Prasad v. State of Bihar, AIR 1953 SC 215, the appellants asserted title to certain lands in Bettiah Estate under a settlement which they claimed to have lawfully obtained from the Courts of Wards, while it was alleged on behalf of the Estate that the settlement was not for the benefit of the Estate and was contrary to law, as the Court of Wards did not then 'apply its mind' to that question.
Their Lordships observed that this was purely a dispute between private parties and a matter for determination by duly constituted courts to which is entrusted in every free and civilised society the important function of adjudicating on disputed Jegal rights, after observing the well-established procedural safeguards which include the right to be heard, the right to produce witnesses, and so fourth; this is the protection which the law guarantees equally to all persons, and our Constitution prohibits by Article 14 every State from denying such protection to anyone.
74. It was also argued on behalf of the respondents that long before the Act, the matters dealt with by the Act were being dealt with by other Acts, viz., The Durgah Khwaja Saheb (Emergency Provisions) Ordinance, 1949, and the Durgah Khwaja Saheb (Emergency Provisions) Act, 1950, and, therefore, no rights have been infringed by Act No. 36 of 1955.
It may be mentioned that the Acts referred to do not touch the questions that have been raised in the present petition. It may also be mentioned that the present petition arose only out of the attempts of the Administrator to enforce Act No. 36 of 1955, and that gave cause to the petitioners to approach this Court.
75. A contention was also raised by the res-pondents that as the vires of a Central Act were bring challenged, the Union of India should have been impleaded as a party. This argument has no force. The petitioners do not claim any relief against the Central Government. Notices of the petition were served on the Attorney General and the Advocate Genera so that if the Union Government or the State Government desired to defend the provisions of the Act, it may do so.
76. As a result, the petition if allowed in part and the following provisions of the Durgah Khwaja Saheb Act, 1955 (Act No. 36 of 1955) are declared ultra vires the Constitution:--
So far as it includes in the definition of Dur-gah endowment nazars or offerings made at the tomb which the Khadims are entitled to share by custom and usage;
So fas as it lays down that the Committee shall consist of Hanafi Muslims without further restricting that they shall be of the Chishti order believing in the religious practices and rituals in vogue at (this Shrine; Section 11(f)-
So far as it gives uncontrolled powers to the Committee to determine the privileges of the Kha-dims and to regulate their presence in the Durgah by the grant to them of licences in that behalf, which can be exercised arbitrarily;
So far as it empowers the secular Committee to determine even the spiritual functions and powers, if any, which the Sajjadanashin may exercise in relation to the Durgah; Section 13(1)-
So far as it empowers the secular Committee to make interim arrangements for the performance of the spiritual functions of the Sajjadanashin as it may think fit with the previous approval of the Chief Commissioner; Section 14-
So far as it empowers the Nazim to solicit and receive offerings at the tomb or in the dome, to which the Khadims are entitled by custom and usage, notwithstanding anything contained in any rule of law or decision to the contrary; Section 16-
Section 18- Whole; Iand the respondents are restrained from enforcingthem. The petitioners are entitled to recover costsof the petition from the respondents, counsel's feebeing taxed at Rs. 100/- per day.