The Madhya Pradesh High Court has reversed the MP Waqf Board’s decision declaring the Tomb of Shah Shuja, Tomb of Nadir Shah, Bibi Sahib’s Masjid, and the Burhanpur Palace as Waqf property. This ruling significantly impacts the ongoing debate over the ownership and preservation of India’s historical monuments.
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MADHYA PRADESH: The Madhya Pradesh High Court has overturned an order by the MP Waqf Board that declared the Tomb of Shah Shuja, Tomb of Nadir Shah, Bibi Sahib’s Masjid, and the palace located in the Fort of Burhanpur as Waqf property. The judgment marks a notable decision in the ongoing debate over the ownership and preservation of India’s historical monuments.
Background of the Case
In 2013, the MP Waqf Board asserted ownership over the aforementioned properties and directed the Archaeological Survey of India (ASI) to vacate the premises. The Board claimed the properties, located in village Emagird, Burhanpur and covering approximately 4.448 hectares, were under its jurisdiction. This assertion prompted the ASI to file a writ petition before the Madhya Pradesh High Court.
The ASI contested the Waqf Board’s order by highlighting that the properties had long been designated as protected under the Ancient Monuments Preservation Act of 1904. According to the ASI, these monuments have been under its protection for decades and cannot be reclassified as Waqf property without losing their status as protected monuments.
The ASI emphasized that-
“The properties were protected under the Ancient Monuments Preservation Act of 1904.”
Conversely, the Waqf Board maintained its stance that it had legitimately declared the properties as Waqf and thus possessed the authority to demand the ASI to vacate the site. The Board argued that the ASI should have approached the Waqf Tribunal instead of filing a writ petition.
On July 26, Justice GS Ahluwalia delivered the court’s judgment. The bench noted that the properties had been officially recognized as ancient monuments as far back as 1913 and 1925 through notifications issued under the Ancient Monuments Preservation Act, 1904. The court observed that there was no record indicating that the properties had ever been released from the guardianship of the Chief Commissioner as provided under Section 11 of the Ancient Monuments Preservation Act, 1904.
The court further noted that the Waqf Board’s claim was based on a notification issued under Section 5(2) of the Waqf Act, 1995. However, the Board failed to present the complete notification to the court. The judgment highlighted-
“The Board could not identify any legal provision that would nullify a notification issued under the Ancient Monuments Preservation Act, 1904, without the property being released by the Central Government or the Commissioner.”
The court affirmed the ASI’s position by referencing the Supreme Court’s decision in Karnataka Board of Wakf vs. Government of India (2004). The decision established that properties listed in the Register of Ancient Protected Monuments are indisputably owned and maintained by the Government of India.
Therefore, the court declared the Waqf Board’s notification erroneous. It stated-
“Once the property was declared an ancient and protected monument, it could not be considered an existing Waqf property as of the commencement date of the Waqf Act, 1995.”
The court added-
“An incorrect notification concerning property that was not an existing Waqf property at the commencement of the Waqf Act does not classify it as Waqf property. Therefore, it does not grant the Waqf Board jurisdiction to seek eviction of the Central Government from ancient and protected monuments.”
The court concluded that the CEO of the MP Waqf Board committed a “significant illegality regarding the waqf property monuments, thus ordering the ASI to vacate them.”
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Accordingly, the Madhya Pradesh High Court set aside the order issued by the CEO of the MP Waqf Board on July 19, 2013, reaffirming the status of the Tomb of Shah Shuja, Tomb of Nadir Shah, Bibi Sahib’s Masjid, and the palace in the Fort of Burhanpur as protected monuments under the ASI’s guardianship.
