On Tuesday, 6th August, the Madhya Pradesh High Court overturned a decision by the MP Waqf Board that claimed the Burhanpur Fort as Waqf ownership. The Waqf Board claimed that the Tomb of Shah Shuja, the Tomb of Nadir Shah, Bibi Sahib’s Masjid, and the palace located in the Fort of Burhanpur were Waqf property.
In 2013, the Waqf Board requested the Archaeological Survey of India (ASI) to evacuate the sites, claiming ownership of them. However, the ASI filed a writ petition with the high court, contending that the property, located in Emagird village, Burhanpur, and spanning around 4.448 hectares, was already protected under the Ancient Monuments Preservation Act of 1904.
The ASI stated that these sites, which had been under their protection for decades, could not be reclassified as Waqf property without losing their status as protected monuments.
Significant Courtroom Decision:
— Subhi Vishwakarma (@subhi_karma) August 7, 2024
The Madhya Pradesh High Court has nullified an order by the MP Waqf Board, which declared the Tomb of Shah Shuja, Tomb of Nadir Shah, Bibi Sahib’s Masjid, and the palace within the Burhanpur Fort as Waqf property.
In 2013, the Waqf Board… pic.twitter.com/wKjtaCkXWE
The Waqf Board, on the other hand, contended that it had appropriately declared the property as Waqf and hence had the jurisdiction to force the ASI to remove the premises. It further contended that the ASI should have sought the Waqf Tribunal rather than filing a writ petition.
In its July 26 assessment, Justice GS Ahluwalia’s bench noted that the properties had been officially designated as ancient monuments as far back as 1913 and 1925 through notifications issued under the Ancient Monuments Preservation Act, of 1904. It added that there was nothing documented to show that they had ever been released from the Chief Commissioner’s custody as provided under Section 11 of the Ancient Monuments Preservation Act, 1904.
It stated that the Waqf Board predicated its ownership claim on a notification issued under Section 5(2) of the Waqf Act of 1995 when the Act came into functioning. However, the Board failed to submit the entire notification to the court. Although no parties challenged the notification, the Board was unable to identify any legal provision that would render the notification issued under the Ancient Monuments Preservation Act, 1904 null and void unless the property was released by the Central Government or the Commissioner.
The court upheld the ASI’s stance by citing the Supreme Court’s ruling in Karnataka Board of Wakf vs. Government of India (2004), which ruled that properties listed on the Register of Ancient Protected Monuments are unquestionably owned and maintained by the Government of India.
As a result, the court determined that the notification referred to by the Board was incorrect. It stated that once a property was declared an ancient monument and protected monument, it could not be said to be an existing Waqf property on the date of the Waqf Act, 1995; thus, even if a notification had been sent declaring it to be a Waqf property, it would not consequently nullify the notifications issued under the Ancient Monuments Preservation Act, 1904.
“An erroneous notification issued in respect of property which is not an existing Waqf property on the date of commencement of Waqf Act, would not make it a Waqf property thereby giving jurisdiction to the Waqf Board to seek eviction of the Central Government from ancient and protected monuments,” the high court held.
Justice GS Ahluwalia further remarked, “Why not claim the Taj Mahal as Waqf property? Tomorrow you might say the entire India is Waqf property. It won’t work like this that you’ll issue notifications and the property will be yours.” The court ruled that the CEO of the MP Waqf Board committed significant illegality by considering the monument’s waqf property and ordering the ASI to remove it.
