The Madhya Pradesh (MP) High Court overturned the State Waqf Board’s claim on historical monuments in Burhanpur, even as the judge commented ironically that if the Board had its way, it would claim the Taj Mahal and the rest of India as a Waqf property.
Waqf Board decision on Burhanpur monuments
The court overturned a decision by the MP Waqf Board on 7 August 2024, which classified the Tomb of Shah Shuja, the Tomb of Nadir Shah, Bibi Sahib’s Masjid, and the palace within the Fort of Burhanpur under the control and administration of the Archaeological Survey of India (ASI) as Waqf property.
In 2013, the Waqf Board instructed the Archaeological Survey of India to vacate these sites, asserting ownership. The ASI, however, challenged this order through a writ petition, arguing that the sites—located in Emagird village, Burhanpur, and spanning about 4.448 hectares—were protected under the Ancient Monuments Preservation Act of 1904 and had been under their care for decades. The ASI contended that the designation as protected monuments could not be altered to waqf property without officially removing their protected status.
Conversely, the Waqf Board argued that its declaration of the property as waqf was valid and that the ASI should have appealed to the Waqf Tribunal rather than the high court.
The Trial
On 26 July 2024, Justice GS Ahluwalia’s bench noted that the properties had been officially designated as ancient monuments as early as 1913 and 1925 under the Ancient Monuments Preservation Act of 1904. There was no evidence indicating that this status had been revoked or altered according to Section 11 of the same Act.
The court highlighted that the Waqf Board’s claim was based on a notification under Section 5(2) of the Waqf Act, 1995. However, the Board failed to provide a complete notification to the court. Even though other parties did not contest this notification, the Board could not identify any legal basis for invalidating the earlier protections granted by the Ancient Monuments Preservation Act, 1904, without formal release by the Central Government or the Commissioner.
Referencing the Supreme Court’s ruling in Karnataka Board of Wakf vs. Government of India (2004), which affirmed that the Government of India maintains properties listed as Ancient Protected Monuments, the court agreed with the ASI’s position. It concluded that the Waqf Board’s notification was erroneous. Once a property is designated as an ancient monument and protected, it could not be retroactively classified as waqf property under the Waqf Act, 1995. Consequently, any such notification does not nullify the protections granted by the Ancient Monuments Preservation Act, 1904.
The High Court held that, “An erroneous notification issued in respect of property which is not an existing waqf property on the date of commencement of Waqf Act, wound 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.”
“Why not claim the Taj Mahal as Waqf property?”
The court determined that the CEO of the MP Waqf Board had acted improperly in declaring the monuments as waqf property and ordering the ASI’s eviction.
Justice GS Ahluwalia remarked, “Why not claim the Taj Mahal as Waqf property? Tomorrow, you might say that the entire India is Waqf property. It won’t work like this that you’ll issue notifications and the property will be yours.” As a result, the court nullified the CEO’s order from 19 July 2013.
Significant Courtroom Decision:
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
— Subhi Vishwakarma (@subhi_karma) August 7, 2024
(With inputs from Law Beat)
Subscribe to our channels on Telegram, WhatsApp, and Instagram and get the best stories of the day delivered to you personally.