The Madhya Pradesh High Court has recently overturned an order issued by the MP Waqf Board that asserted ownership over several historic monuments, including the Tomb of Shah Shuja, the Tomb of Nadir Shah, Bibi Sahib’s Masjid, and the palace situated within the Fort of Burhanpur.
In 2013, the Waqf Board had directed the Archaeological Survey of India (ASI) to vacate these premises, asserting that they were Waqf properties. This order was contested by the ASI, which filed a writ petition with the high court. The ASI argued that the properties in question, located in village Emagird, Burhanpur, and spanning approximately 4.448 hectares, had long been designated as protected under the Ancient Monuments Preservation Act of 1904.
The ASI maintained that these monuments had been under their protection for decades, and could not be reclassified as Waqf property without relinquishing their status as protected monuments. This longstanding protection was crucial to preserving the historical and cultural significance of these sites.
Conversely, the Waqf Board contended that it had lawfully declared the property as Waqf and therefore possessed the authority to order the ASI to vacate the site. Additionally, the Board argued that the ASI should have approached the Waqf Tribunal instead of filing a writ petition directly with the high court.
Justice GS Ahluwalia, in his judgment delivered on July 26, observed that the properties had been officially recognized as ancient monuments as early as 1913 and 1925 through notifications issued under the Ancient Monuments Preservation Act of 1904. The court noted there was no evidence that these properties had ever been released from the guardianship of the Chief Commissioner as stipulated under Section 11 of the Ancient Monuments Preservation Act, 1904.
The judgment pointed out that the Waqf Board based its ownership claim 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 court emphasized that while the notification had not been challenged by any parties, the Waqf Board could not cite any legal provision that would nullify a notification issued under the Ancient Monuments Preservation Act, 1904, without an explicit release of the property 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), which established that properties listed in the Register of Ancient Protected Monuments are indisputably owned and maintained by the Government of India.
Thus, the court held the notification referred to by the Waqf Board as erroneous. It stated that once a property was declared an ancient and protected monument, it could not be considered an existing Waqf property as of the commencement of the Waqf Act, 1995. Therefore, even if a notification was issued declaring it a Waqf property, it would not automatically nullify the protections granted 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.
The court opined that the CEO of the MP Waqf Board had committed a material illegality by considering these monuments as Waqf property and directing the ASI to vacate them.
Accordingly, the court set aside the order issued by the CEO of the MP Waqf Board on July 19, 2013.
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