# THE DURGAH COMMITTEE, AJMER AND ANOTHER v. SYED HUSSAIN ALI AND OTHERS - **Citation:** [1962] 1 S.C.R. 383 - **Court:** Supreme Court of India - **Decided:** 1962 - **Case number:** Civil Appeal No. 272of1960 - **Bench:** P. B. Gajendragadkar, A. K. Sarkar, K. N. W Anchoo, K. 0. Das Gupta, N. Rajagopala Ayyangar - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-durgah-committee-ajmer-and-another-v-syed-hussain-ali-and-others-2132 - **Pages:** 39 ## Headnote Durgah Endowment - Enactment for administration and management of property-If violative of denominational rights of Chishtia Soofies-Provisions, if infringe fundamental rights-Durgah Khwaja Saheb Act, r955 (XX XV 1 of r955), ss. 2(d)(v), 4, 5, II(f) and (h), r3, r4, r6, r8-Constitution of India. Arts. 25, 26, r9(r)(j) and (g), r4, 32. The respondents, who were the Khadims of the tomb of Hazrat Khwaja Moin-ud-din Chisbti of Ajmer challenged the constitutional validity of the Durgah Khwaja Saheb Act, 1955 (XXXV! of 1955) and certain specified sections by a petition filed under Art. 226 of the Constitution in the Rajasthan High Court. The High Court substantially found in their favour and made a declaration that the impugned provisions of the Act were ultra vires and restrained the appellants from enforcing them. The respondents claimed to represent the Chishti Soofies who~ according to them, constituted a religious denomination or a section thereof to whom the Durgah belonged and their case was that the impugned Act had interfered with their fundamental right to manage its affairs. Their further case was that the Nazars (offerings) of the pilgrims constituted their customary and main source of income and were their property, recognised by judicial decisions including that of the Privy Council in Syed Alta] Hussain v. Dewan Syed Ali Rasul Ali Khan, A.LR. 1938 P. C. 71, that the impugned Act and its material provisions violated their fundamental rights guaranteed by Arts. 14, 19(1) (f) and (g), 25, 26, 30(1) and (2) and 32 of the Constitution. It was con tended that ss. 4 and 5 pf the Act, which provided for the setting up and composition of the Durgah Committee consist .. ing of Hanafi Muslims none of whom might belong to the Chishtia order, infringed the rights of the denomination guaranteed by Art. 26(b), (c) and (d) that cl. (v) of s. 2(d) of the Act, by which all such Nazars as were received on behalf of the Durgah by the Nazim or any person authorised by him were to be included in the Durgah Endowment, infringed their fundamental right to property, that ss. rr(f) and (h) which empowered the committee to determine the privileges of the Khadims and the functions and powers of the Sajjadanashin and s. 13(1) which authorised the committee to make provisional interim arrangement in case the office of Sajjadanashin fell vacant, infringed , J.V!arch I]. , 384 SUPREME COURT REPORTS [1962] r96r their fundamental rights under Art. 25(1), that s. 14 by creating a statutory right in the Nazim or his agent to solicit and receive The Du,gah offerings on behalf of the Durgah awl prohibiting the Khadims Committee, Ajmer and the Sajjadanashin from doing so, violated their right to & Anoth" property ands. r8 which provided for the enforcement of the v. orders of the committee as orders and decrees of a civil court Syed Hussain Ali violated Arts. 14 and 32 of the Constitution. The past history & Others of the Endowment for centuries showed that its management was always vested in Mutawallis appointed hy the State, some of whom were Hindus, and that the pilgrims who visited the Durgah and made offering were not confined to Moslems alone but belonged to all communities. Held, that the contentions of the respondents must be negatived. Although this Court has laid down what is a religious denomination and what are matters of religion, it must not be overlooked that the protection of Art. 26 of tlie Constitution can extend only to such religious practices as were essential and integral parts of the religion and to no others. Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [1954] S.C.R. 1005 and Sri Venkataramana Devaru v. The State of Mysore, (1958] S.C.R. 895, discussed. Assuming that the Chishti order of Soofies constituted such a denomination or section of it whom the respondents represented, it was obvious that els. (c) and (d) of Art. 26 could not create any rights which the denon1inatio ## Text _Characters 0–39,839 of 88,794. This is a partial read: ask again with offset=39839 for what follows._ _'J • ' 1 S.C.R. SUPREME COURT REPORTS 383 THE DURGAH COMMITTEE, AJMER AND ANOTHER v. SYED HUSSAIN ALI AND OTHERS (P. B. GAJENDRAGADKAR, A. K. SARKAR, K. N. W ANCHOO, K. 0. DAS GUPTA and N. RAJAGOPALA AYYANGAR, JJ.) Durgah Endowment - Enactment for administration and management of property-If violative of denominational rights of Chishtia Soofies-Provisions, if infringe fundamental rights-Durgah Khwaja Saheb Act, r955 (XX XV 1 of r955), ss. 2(d)(v), 4, 5, II(f) and (h), r3, r4, r6, r8-Constitution of India. Arts. 25, 26, r9(r)(j) and (g), r4, 32. The respondents, who were the Khadims of the tomb of Hazrat Khwaja Moin-ud-din Chisbti of Ajmer challenged the constitutional validity of the Durgah Khwaja Saheb Act, 1955 (XXXV! of 1955) and certain specified sections by a petition filed under Art. 226 of the Constitution in the Rajasthan High Court. The High Court substantially found in their favour and made a declaration that the impugned provisions of the Act were ultra vires and restrained the appellants from enforcing them. The respondents claimed to represent the Chishti Soofies who~ according to them, constituted a religious denomination or a section thereof to whom the Durgah belonged and their case was that the impugned Act had interfered with their fundamental right to manage its affairs. Their further case was that the Nazars (offerings) of the pilgrims constituted their customary and main source of income and were their property, recognised by judicial decisions including that of the Privy Council in Syed Alta] Hussain v. Dewan Syed Ali Rasul Ali Khan, A.LR. 1938 P. C. 71, that the impugned Act and its material provisions violated their fundamental rights guaranteed by Arts. 14, 19(1) (f) and (g), 25, 26, 30(1) and (2) and 32 of the Constitution. It was con tended that ss. 4 and 5 pf the Act, which provided for the setting up and composition of the Durgah Committee consist .. ing of Hanafi Muslims none of whom might belong to the Chishtia order, infringed the rights of the denomination guaranteed by Art. 26(b), (c) and (d) that cl. (v) of s. 2(d) of the Act, by which all such Nazars as were received on behalf of the Durgah by the Nazim or any person authorised by him were to be included in the Durgah Endowment, infringed their fundamental right to property, that ss. rr(f) and (h) which empowered the committee to determine the privileges of the Khadims and the functions and powers of the Sajjadanashin and s. 13(1) which authorised the committee to make provisional interim arrangement in case the office of Sajjadanashin fell vacant, infringed , J.V!arch I]. , 384 SUPREME COURT REPORTS [1962] r96r their fundamental rights under Art. 25(1), that s. 14 by creating a statutory right in the Nazim or his agent to solicit and receive The Du,gah offerings on behalf of the Durgah awl prohibiting the Khadims Committee, Ajmer and the Sajjadanashin from doing so, violated their right to & Anoth" property ands. r8 which provided for the enforcement of the v. orders of the committee as orders and decrees of a civil court Syed Hussain Ali violated Arts. 14 and 32 of the Constitution. The past history & Others of the Endowment for centuries showed that its management was always vested in Mutawallis appointed hy the State, some of whom were Hindus, and that the pilgrims who visited the Durgah and made offering were not confined to Moslems alone but belonged to all communities. Held, that the contentions of the respondents must be negatived. Although this Court has laid down what is a religious denomination and what are matters of religion, it must not be overlooked that the protection of Art. 26 of tlie Constitution can extend only to such religious practices as were essential and integral parts of the religion and to no others. Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [1954] S.C.R. 1005 and Sri Venkataramana Devaru v. The State of Mysore, (1958] S.C.R. 895, discussed. Assuming that the Chishti order of Soofies constituted such a denomination or section of it whom the respondents represented, it was obvious that els. (c) and (d) of Art. 26 could not create any rights which the denon1ination or the section never had; they could merely safeguard and guarantee the continuance of such rights which the denomination or section had. Where right to administer properties had never vested in the denomination or had been surrendered by it or had otherwise been effectively and irretrievably lost to it, Art. 26 could not be successfully invoked. In the instant case, since Chishti Soofies never had any rights of management over the Durgah Endowment for centuries since it was created, the attack on ss. 4 and 5 of the Act must fail. Asrar Ahmed v. Durgah Committee, Ajmer, A.I.R. 1947 P.C. l, referred to. It was not correct to say that ss. 2(dJ(v) and 14 of the impugned Act infringed Art. r9(1)(f) and (g) of the Constitution. Those sections, properly construed, meant that offerings earmarked generally for the Durgah belonged to the Durgah and could be received only by the Nazim or his agent. These offerings, as found by judicial decisions, never belonged to the respondents and the impugned sections did not affect what was found to belong to them. Syed Altaf Httssain v. Dewan Syed Ali Rasul Ali Khan, A.LR. 1938 P.C. 71, referred to. ' l S.C.R. SUPREME COURT REPORTS 385 There could be no doubt as to the competency of the Legisx96x lature to regulate matters relating to the property of the Durgah by providing that the said offerings could be solicited by the TM Du,gah Nazim or his agent. It \Vas, however, not correct to say thatCornmittee, AJmer the omission of the word 'explicitly' contained in the definition 6' Anolh" in the earlier Act from the present Act enlarged the scope of the v. . definition in any way. Syed l-lussain Ali The powers conferred on the committee by s. II(f) and (h), which must be read in the light of the mandatory provisions of s. 15 which made it obligatory on the committee to observe Muslim Law and the tenets of the Chishti saint and which had to be exercised within the limits laid down by s. 16, could not be said to violate Art. 25(1) of the Constitution. Section 16 in providing for the setting up of a Board of Arbitration, embodied a healthy and unexceptionable principle, obviously in the interest of the institution as well as the parties, and could not be said to infringe Arts. 14 or 32 of the Constitution. Section 13(1) could not be read apart from the other provisions of s. 13. That section really intended to lay down the procedure for determining disputes relating to succession to the Office of Sajjadanashin and it was, therefore, futile to contend that s. 13(r) offended against Art. 25(r). Since s. 18 \vas confined only to such final orders as were within the jurisdiction of the committee and passed against persons who did not object to them but failed to comply with them, it did not contravene Arts. 14 or ·32 of the Constitution. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 272of1960. Appeal from the judgment and order dated January 28, 1959, of the Rajasthan High Court in D. B. Civil Writ Petition No. 17 of 1957. H. N. Sanyal, Additional Solicitor-General of India, R. Ganapathy Iyer, Y. S. Nasarullah Sheriff, J. L. Datta and K. L. Hathi, for the appellants. G. S. Pathak, Syed Anwar Hussain and B. P. Maheshwari, for respondents Nos. l to 7. A.G. Ratnaparkhi for Govind Saran, for respondents Nos. 8 and 9. H. N. Sanyal, Additional Solicitor-General of India, R. H. Dhebar and T. M. Sen, for the Intervener. 1961. March 17. The Judgment of the Court was delivered by 49 & Others 386 SUPREME COURT REPORTS [1962] r96r GAJENDRAGADKAR, J.-In:the High Court of Judicature for Rajasthan at J odhpur a writ petition was filed C T"'.,,Du• gAah under Art. 226 of the Constitution by the nine resnonommi ee, ;mer . , t' & Anoth" dents who are Khad1ms of the tomb of Khwaja Moinv, ud-din Chishti of Ajmer challenging the vires of the Sytd Hussain Ali Durgah Khwaja Saheb Act XX XVI of 1955 (hereafter 6' Othm called the Act). In this petition the respondents Gajend;;;;;:,d110 , 1. alle~ed t.hat the ~~t i1;1 gener'.11 and the provisions specified m the pet1t10n m particular are ultra vires and they claimed a direction or an appropriate writ or order restraining the appellants the Durgah Committee and the Nazim of the said Committee from enforcing any of its provisions. The writ petition thus filed by the respondents substantially succeeded and the High Court has made a declaration that the impugned provisions of the Act are ultra vires and has issued· an order restraining the appellants from enforcing them. The appellants then applied for and obtained a certificate from the High Court and it is with the said certificate that they have come to this Court by their present appeal. According to the respondents the shrine of N azrat Khwaja Moin-ud-din Chishti which is generally known as the Durgah Khwaja Saheb situated at Ajmer is one of the most important places of pilgrimage for the muslims of India. Since persons following other religions also hold the saint in great veneration a large number of non-muslims visit the tomb every yeai:. Khwaja Saheb came to India sometime towards the end of the 12th Century A. D. and settled down in Ajmer. His saintly character and his teachings attracted a large number of devotees during his lifetime and these devotees honoured him as a great spiritual leader. Khwaja Saheb belonged to the Chishti Order of Soofies. He died at Ajmer in or about 1236 A. D., and naturally enough after his death his tomb became a place of pilgrimage. The respondents' case further is that after his death the tomb under which the saint was interred was a kutcha structure and continued to be such for nearly 300 years thereafter. The petition alleged that a pucca structure was built by the Khilji Sultans of - ' • I S.C.R. SUPREME COURT REPORTS 387 Mandu and over the said pucca structure a tomb was r96r constructed. Thereafter successive Muslim Rulers, Th D h d e urga particularly the Moghul Emperors, ma e endowments committee Ajm I S.C.R. SUPREME COURT REPORTS 389 was disputed. According to the appellants the relir96r giou~ s.~rvices at. the tomb were and are performed by n, Durgah the Saiiadanashm of the Durgah and the respondents Committu, Ajmer had no right to look after the premises, to keep the & Another keys of the tomb, to attend to the pilgrims visiting v. the shrine or to receive any offerings or Nazars. Their Syed Hussain Ali case was that the Khadims were and are no more & Others than servants of the holy t.omb and their duties are Gajend;;;;,dkar 1. similar to those of chowkidars. The appellants further pleaded 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 lifetime and they are meant for the poor, the indigent, the sick and the suffering so that the benediction may reach the soal of the departed saint. The averments made by the respondents in regard to their fundamental rights and their infringement were challenged by the appeilants and it was urged that the Act in general and the provisiom specified in tho petition in particular were intra vires and constitutional. On these pleadings the High Court proceeded to consider the history of the institution, the nature of the rights set up by the respondents and the effect of the impugned legislation on those rights. The High Court has found that the offerings made before the tomb for nearly 400 years before the tomb was rebuilt into a pucca structure must have been used by the Khadims for themselves. It also held th:it the Khadims were performing several duties sot out by the respondents and that it was mainly the Khadims who circulated the stories of miracles performed by Khwaja Saheb during his lifetime and thus helped to spread the reputation of the tomb. Even after the tomb was rebuilt and endowments were made to it the Khadims looked after the tomb, performed the necessary rituals and spent the surplus income from the offerings for themselves. In duo course Sajjadanashins came to be appointed, but, according to the High Court their emergence on the scone merely enabled them to become sharers in the offerings. It has further been 390 SUPREME COURT REPORTS [1962] r96r found by the High Court on a review of judicial dcciTI D h sions pronounced in several disputes between the parM urga , h h . committee, AJmer ties t at t e offermgs made at the tomb are govern- & Another ed by the customary mode of their utilisation and v. the history of the institution proved that the said Syed Hussain Ali offerings have been used according to a certain cus- & Others tom which had been upheld by the Privy Council in Gajendragadka' J. the case of Syed Altaf Hussain ( 1). This custom showed that the offerings made before the shrine are divided between the Sajjadanashin and the Khadims in the manner indicated in the said decision. It is in the light of these broad findings that the High Court proceeded to examine the vires of the impugned provisions of the Act. Thus considered the High Court came to the conclusion that the several sections challenged by the respondents in their writ petition are ultra vires. It has held thats. 2(b)(v) violates Art. 19(l)(f), s. 5 violates Art. 26, s. ll(f) Arts. 19(1)(g) and 25(1), ss. ll(b) and 13(i) Art. 25, s. 14 Art. 19(l)(f) and ss. 16 and 18 Art. 14 read with Art. 32. Having found that these sections are ultra vires the High Court has issued an order restraining the appellants from enforcing the said sections. In regard to s. 5 in particular the High Court has found that the said section is ultra vires inasmuch as it lays down that the Committee shall consist of Hanafi muslims without further restricting that they shall be of the Chishtia Order believing in the religous practices and ritual in vogue at the shrine. It may be added that since s. 5 which contains the key provision of the Act has thus been struck down, though in a limited way, the whole of the Act has in substance been rendered inoperative. Before dealing with the merits of the appeal it would be relevant and useful to consider briefly the historical background of the dispute, because, in determining the rights of the respondents and of the sect which they claim to represent, it would be necessary to ascertain broadly the genesis of the shrine, its growth, the nature of the endowments made to it, the management of the properties thus endowed, the rights of the Khadims and the Sajjadanashin in regard to (1) A.I.R. 1938 P.C. 71. - , • ·• 1 S.C.R. SUPREME COURT REPORTS 391 the tomb and the effect of the relevant judicial deciz96r sions in that behalf. This enquiry would inevitably The Durgah take us back to the 13th Century because Khwaja Committu, Ajmer Moln-ud-din died either in 1236 or 1233 A.D. and it & Another was then that a kutcha tomb was constructed in his v. h I h · th H' h C t th t' Syed Hussain Ali onour. t appears t at m e 1g our e par 1es & 011 agreed to collect the relevant material in regard to the _:_'__" growth of this institution which has now become Gajendragadkar J. scarce and obscure owing to lapse of time from the Imperial Gazetteer dealing with Ajmer, the Report of the Ghulam Hasan Committee (hereafter called the Committee) appointed in 1949 to enquire into and report on the administration of the present Durgah as well as the decision of the Privy Council in Asra,r Ahmed v. Durgah Committee, Ajmer ('). The Committee's report shows that the Committee examined a large number of witnesses belonging to several communities who were devoted to the shrine, it considered the original Sanads and a volume of other documents produced before it, took into account all the relevant judicial decisions to which its attention was drawn, and passed under review the growth of this institution and its management before it made its recommendations as to the measures necessary to secure the efficient management of the Durgah Endowment, the conservation of the shrine in the interest of the devotees as a whole. Presumbly when the parties agreed to refer to the historical data supplied by the Committee's report they advisedly refrained from adopting the course of producing the original documents themselves in the present enquiry. The political history of Aj~er has been stormy, and through the centuries sovereignty over the State of Ajmer has changed hands with the inevitable consequence that the fortunes of the shrine varied from time to time. It is true that the material which has been thus placed before the Court is not satisfactory, as it could not but be so, because we are trying to trace the history of the institution since the 13th Century for nearly 600 years thereafter; but the picture which emerges as a result of a careful consideration of the (2) A.LR 1947 P.C. I. 392 SUPREME COURT REPORTS [1962] z96r said material is on the whole clear enough for our The Dwgah purpose ~n the_presen~ appeal. . . . . Committee Ajm" KhwaJa Morn-ud-dm was born m Persia 1t1 1143. & A,,;,,,., Later he migrated with his fathrr to Nisharpur near v. Meshad where Omar Khayyam is buried. Then he Syed Hussain Ali moved from place to place until he reached Ajmer & Othm about the end of the 12th Century. At Ajmer he died Gajend,agadh., J. at the ripe old age of 9~: It appe~rn t.hat he retired into his cell on the .E ust of Ra Jab and was found dead in the cell on the Sixth Day when it was opened. That is why his death anniversary is celebrated every year during the six days of Ra jab. He received formal theological education at Samarkhand and Bukhara, and in the pursuit of spiritual knowledge he travelled far and wide. Ultimately he became a disciple of Hazrat Khwaja Usman Harooni who was a well known faqir of the Chish ti sect. During his lifetime the reputation ofKhwaja Moinuddin travelled far and wide and attracted devotees following different religions throughout the country. At his death the saint could not have left any property and so there was no question of management of the property belonging to his tomb. No doubt the tomb itself was constructed immediately after his death but it was a kutcha structure and apparently for several years after his death there does not appear to have been endowment of property to the tomb, and so its financial position must have been of a very modest order. Persons belonging to the affiuent classes were not attracted for many years and so there was hardly any occasion to manage any property of the tomb as such. After his death the family of the saint remained in Ajmer for some time but it appears that the members of the family were driven out of Ajmer for some years and they came back only centuries later. This was the consequence of the change of rulers who exercised sovereign power over Ajmcr, The construction of a pucca tomb was commenced in the reign of one of the Malwa Kings whose dynasty ruled over Ajmer up to 1531. There is no evidence to show that any property was dedicated to the tomb even then. It, however, does appear that one of the •. • .. 1 S.C.R. SUPREME COURT REPORTS 393 Malwa Kings had appointed a Sajjadanashin to look 196' after the tomb; this Sajjadan~shin was in later times The Durgah called Dewan. The construct10n of the tomb took a commit1". Ajmer fairly long time but even after it was completed there & Another is no trace of any endowment of property. v. . . In or about 1560 Akbar defeated the Malwa Kings Syed _Hussain Al• and Ajmer came under Moghul rule· and so the & Othm Moghul period began. Akbar took great interest in Gajendragadkar ]. the tomb and that must have added to the popularity of the tomb and attracted a large number of affluent pilgrims. It was about 1567 A. D. that the tomb was rebuilt and re-endowed by Akbar who reigned from 1556 to 1605. A Farman issued by Akbar ascribed to the year 1567 shows that eighteen villages were granted to the Durgah. According to the report of the Committee which had access to the original Sanad and other relevant documents the year of the Sanad was not 1567 but 1575. The report also shows that the object of this first endowment was not one for the general purposes of the Durgah but for a specific purpose, namely, 'langar khana'. It appears that during this period a descendant of the saint functioned as a Sajjadanashin and he also performed the duties of a Mutawalli. There is no reliable evidence in regard to the position of the Sajjadanashin, his duties and functions before the date of Akbar, but it is not difficult to imagine that even if a Sajjadanashin was in charge of the tomb he had really very little to manage because the tomb had not until 1567 attracted substantial grants or endowments. The Committee's report clearly brings out that the appointment of a Sajjadanashin in the time of Akbar was purely on the basis of an appointment by the State because it is pointed out that as soon as Akbar was not satisfied with the work of the Sajjadanashin,appointed by him in 1567 he removed him from office in 1570 and appointed a new' incumbent in his place. This new incumbent carried on his duties until 1600. Similarly in 1612 J ehangir appointed a Sajjadanashin to function also as Mutawalli. During Jehangir's time (1605-1627) some more villages were endowed to the Durgah. 50 394 SUPREME COURT REPORTS [1962J ( "'- '9° 1 During Shahjehan's time (1627-1658) some significant changes took place in the management of the Durgah. 1 he Durgah Th ffi f h S .. d h' d f Connnittee, Ajmer e o ce o t e aJJa anas Ill was separate rom o;, Auoth" that of the Mutawalli under the name of Darogah, v. the Mutawalli was put in charge of the management Syed Hussain Ali and administration of the secular affairs of the .;;. Othm Durgah. It would also appear that some of the DaroG . d-dl 1 gahs were Hindus. In his turn Shahjehan endowed a1en raga 'ar . several villages in favour of the Durgah. This endowment, unlike that of Akbar, was for the general purposes of the Durgah. According to the Committee Shahjehan's endowment was in supersession of the earlier grants though it is difficult to decide as to whether it was in supersession of Akbar's grant or of an earlier grant made by Shahjehan himself. However that may be, it is quite clear that at the very time when Shahjehan made his endowment he separated the office of the Sajjadanashin from that of the Mutawalli and left it to the sole charge of the Mutawalli appointed by the Ruler to manage the properties endowed to the Durgah. The later history of the institution shows that the separate office of the Mutawalli who was in sole management of the administration of the properties of the Durgah continued ever since, and that throughout its history the Mutawallis have been appointed by the State and were as such answerable to the State and not to the sect represented by the respondents. This state of affairs continued during the reign of Aurangzeb (1659-1707). After Aurangzeb died there was a change in the political fortunes of Ajmer because Rathor Rajputs seized Ajmer in 1719 and ruled over it for two years thereafter. This change of political sovereignty does not appear to have affected the administration of the Durgah which continued as before. In 1721 the Moghul rule was re-established over Ajmer but that again made no change to the administration of the Durgah and the management of its properties. The M"ghul rule in turn was disturbed in 1743 by the Rajput Rathors who were in power for nearly 13 years. The Rathor rule came to an end when the Scindias occupied Ajmer in 1756 and continued in .. • ._) • 1 S.C.R. SUPREME COURT REPORTS 395 possession of the city until 1787. In that year the I96I Rathors came back again and remained in possession till 1791 when Scindias overpowered them and conk Con;:,;11~,':'~ajmer nued to occupy it until 1818. In about 1818, after &· Anothn the Pindari War Ajmer passed into the hands of the v. East India Company and so its connection with the Syed Hussain Ali British Government commenced. Whilst political &· Othm soverei!inty ov~r Ajmer was th.us . ch~nging ~ands Gajend,ag.•dka> r. from time to time the state of affa1rs m relat10n to · the Durgah remained as it was during the time of Shahjehan. The Sajjadanashin looked after the performance of the religious observances of the rites and the Mutawalli looked after the administration and management of the properties of the Durgah. In this connection it is relevant and significant to note that the Mutawalli has always been an officer appointed by the Government in power. That in brief is the broad picture which emerges in the light of the mate. rial placed by the parties before the Court in the present proceedings. At this stage it would be material to narrate very briefly the relevant history of legislation in regard to the administration of religious endowments which fol. lowed the assumption of political power by the British Government. The first Act to which reference must be made is Act XX of 1863. This Act was passed to enable the Government to divest itself of the manage. ment of religious endowments which had till then vested in the Revenue Boards. Section 3 of the Act provided, inter alia, that in the case of every mosque to which the earlier regulations applied Government shall as soon as possible after the passing of the Act make special provision for the administration of such mosques as specified in the Act by subsequent sec. tions. Under s. 4 the transfer of the administration of the said mosque and other institutions to trustees is provided with the consequence that the administration by Revenue Boards had to come to an end. Section 6 deals with the rights of the trustees to whom the property is transferred under s. 4; and it also contemplates the appointment of committees which may exercise powers as therein specified. With the rest of 396 SUPREME COURT REPORTS [1962] r96x the provisions of this Act we are not concerned. The Th D h effect of this Act was that the management of religie urga , CommWee, Ajm,,ous endowments which had been taken over by the & Anoth" Government and which vested in the Revenue Boards v. was entrusted to the trustees as prescribed by s. 4. In Syed Hussain Ali accordance with. the provisions of s. 6 a committee & 1!_'."_"' was appointed to look after the management of the Gajendragadkar 1. Durgah with which we are concerned and that · committee continued to be in such management until 1936. In 1936 Act XXIII of 1936 was passed specifically with the object of making better provision for the administration of the Durgah and the Endowment of the Durgah of Khwaja Moin-ud-din Chishti known as the Durgah Khwaja Saheb, Ajmer. This Act consisted of twenty sections and in a sense it provided a self-contained code for the administration of the Durgah and its endowments. Section 2(4) defines a Durgah Endowment as including (a) the Durgah Khwaja Saheb, Ajmer, (b) all buildings and movable property within the boundaries of the Durgah Sharif, (c) Durgah Jagir including all land, houses and shops and all landed property wheresoever situated belonging to the Durgah Sharif, ( d) all other property and all income derived from any source whatsoever, dedicated to the Durgah or placed for any religious, pious or charitable purposes nuder the Durgah Administration, and (e) only such offerings as are intended explicitly for the use of the Durgah. It would be noticed that the material provisions of the Act which dealt with the management and administration of the Durgah were intended to operate in regard to the Durgah Endowment thus comprehensively defined. Under s. 4 the administration and control of this endowment had to vest in a committee constituted in the manner prescribed. The powers and duties of this committee are prescribed by s. 11; whereas s. 16 provides for arbitration of disputes that may arise between the committee on the one hand and the Sajjadanashin, the Mutawalli and the Khadim or any of them on the other. With the rest of the provisions of the Act we are not concerned. In pursuance of the material T . " __ .. 1 S.C.R. SUPREME COURT REPORTS 397 provisions of this Act a Durgah Committee was r96r appointed and it has bee_n in management of the The Durgah Durgah Endowment ever smce. committee, Ajmer As we have already indicated the Government of & Another India appointed the Committee under the Chairmanv. _ _ ship of Mr. Justice Ghulam Hasan in 1949 to enquire Syed Hussain Alr into and report on the administration of the Durgah & Othm Endowment and to make appropriate recommenda- Gajendragadkar J. tions to secure the conservation of the shrine by efficient management of the said Endowment. The Committee made its report on October 13, 1949, and that led to the promulgation of Ordinance No. XXIV of 1949 which was followed by Emergency Provisions Act, 1950, and finally by the Act of 1955 with which we are concerned in the present appeal. The Committee held an exhaustive enquiry, considered the voluminous evidence produced before it, reviewed the conduct of the Sajjadanashins and the Khadims, examined the manner in which the offerings were received and appropriated by them, took into account several judicial decisions dealing with the question of the rights and obligations of the said parties and came to the conclusion that "the historical review of the position leads only to the inference that the Sajjadanashins and the Khadims between themselves came to an agreement for mutual benefit and to the detriment of the Endowment and adopted a kind of a practice to realise offerings from visitors to the Durgah on a show of some charitable object and led the ignorant and the nnwary into the trap" (1). The Committee has observed thn.t most of the spokesmen before it candidly admitted the existence of many malpractices indulged in by Khadims and a majority of them showed a keen desire to introduce radical social reform in the community provided they are backed by the authority of law (2). The Committee then commented on the agreement entered into between the Sajjadanashins and the Khadims as amounting to an unholy . alliauce among unscrupulous persons to trade for their (I) Report of the Durgah Khwaja Saheb ( Ajmer) Com1nittee of Enquiry dated October 13, 1949, published by Government of India in 1950, p. 63. (2) Ibid, P- 56. • 398 SUPREME COURT REPORTS [1962] r96r personal aggrandisement in the name of the holy Th D h saint, and it noticed with regret that the interest of Comm:ttee~rg;jmer the community had suffered more from the supersti- &· Another tious, ignorant and the reactionary hierarchy than v. from the doings of zealous reformers('). According to Syed Hussain Ali the Committee "tinkering with the problem will be a "' Othm remedy worse than the disease and it had no doubt that Gajendragadkar J. no narrow and technical considerations should stop us from marching forward". As a result of the findings made by the Committee it made specific recommendations as to the manner in which reform should be introduced in the management and administration of the Durgah Endowment by legislative process. Speaking generally, the Act has been passed in the light of the recommendations made by the Committee. Thus it would be clear that from the middle of the 16th Century to the middle of the 20th Century the administration and management of the Durgah Endowment has been true to the same pattern. The said administration has been treated as a matter with which the State is concerned and it has been left in charge of the Mutawallis who were appointed from time to time by the State and even removed when they were found to be guilty of misconduct or when it was felt that their work was unsatisfactory. So far as the material produced in this case goes the Durgah Endowment which includes movable and immovable property does not appear to have been treated as owned by the denomination or section of the devotees and the followers of the saint, and its administration has always been left in the hands of the official appointed by the State. In this connection it may be relevant to refer to the decision of the Privy Council in the case of Asrar Ahmed (2). The appeal before the Privy Council in that case arose from a suit filed by Syed Asrar Ahmed against the Durgah Committee in which he claimed a declaration that the office of the Mutawalli of the Durgah Khwaja Saheb, Ajmer, was hereditary in his family and that the Durgah Committee was not competent to question his status as a hereditary Mutawalli in succession to the last holder of that office . • (5) Ibid, p. 64 . (2) A.LR. 1947 P.C. I, • ' 1 S.C.R. SUPREME COURT REPORTS 399 Tli.e District Judge who tried the said suit passed a z96r deem~ in ~avou~ ~f Asrar Ah.med but on appeal the 1he Durgah J ud101al Comm1ss10ner set aside the decree and dis- co,,, milt,,, Ajmer missed Asrar Ahmed's suit. On appeal by Asrar & Another Ahmed to the Privy Council the decision of the Judiv. cial Commissioner was confirmed. In dealing with Sy"l Hussain Ali this dispute the Privy Council has considered the & Othm genesis and growth of the s~rine along with the Gajeudragadkar J. stormy history of the State of Aimer to which we have already referred. In the course of his judgment Lord Simonds observed that it was not disputed that in the reign of Emperor Shahjehan the post of Mutawalli was separated from that of Sajjadanashin and had become a Government appointment, whereas the Sajjadanashin remained and continued to be the hereditary descendant of the saint. Then he referred to the firman of Shahjehan issued in 1629 by which the Emperor ordered that the Mutawalli appointed by the State was to sit on the left of the Sajjadanashin at the Mahfils. Similarly the firman issued by Aurangzeb in 1667 directed the order of sitting at the Mahfils by laying down that Daroga Balgorkhana, i.e., Mutawalli of the Durgah or anyone who is appointed by the State do sit on Lhe left of the Sajjadanashin. It is significant to note that Daroga Balgorkhana was a Hindu in Akbar's time. Having thus held that the office of the Mutawalli was an office created by the State and the holder of the office was a State servant the Privy Council examined the evidence on which Asrar Ahmed relied in support of his plea that by custom the office was hereditary and held that the said evidence did not justify the claim. This decision supports the conclusion that the Durgah Endowment and its administration have always been in charge of the Mutawalli appointed by the State and that on occasions the post of the Mutawalli was held by a Hindu as well. Having thus reviewed broadly the genesis of the shrine, its growth and the story of its endowments and their management, it may now be relevant to enquire what is the nature of the tenets and beliefs to which Soofism subscribes. Such an enquiry would serve to 400 SUPREME COURT REPORTS [1962] assist us in determining whether the Chishtia sect cran r1i, Durgah be regarded as a religious denomination or a section Committee, Ajmer thereof within Art. 26. According to Murray T. & Anothn Titus (1) "Islam, like Christianity, has its monastic v. . . orders and saints, the underlying basis of which is Syed / 1 0"""'" Ali the mystic interpretation of the religious life known ~ lhers S fi" " A d' I · h h . _ as u ism . ccor mg to t us aut or, t e men 1mGajendragadkar J.