Tomb of Shah Jahan’s daughter-in-law is not Waqf property, rules Madhya Pradesh High Court

Justice GS Ahluwalia, who passed the final order on July 26, observed the “property in question is an ancient and protected monument duly notified under the Ancient Monuments Preservation Act, 1904 and therefore, CEO, M.P. Waqf Board committed a material illegality by directing the petitioner to vacate the same.”

The ASI argued that the three contested sites – Shah Shuja monument, Tomb of Nadir Shah and Bibi Sahiba’s Masjid located at the Fort of Burhanpur are also ancient and protected monuments.

The Shah Shuja monument houses the tomb of Begum Bilqis, wife of Mughal Emperor Shah Jahan’s son, Shah Shuja. She was buried in Burhanpur after she died giving birth to her daughter. The tomb also known as Kharbuza Mahal is “crowned with a dome.” The site “stands on a raised fluted circular plinth” and “built of stone and plastered with shell mortar and decorated with paintings.”

The tomb of Nadir Shah is a “massive tomb, built on a raised platform” and “supported on eight archways.” The chamber is occupied by three graves. According to Pratna Samiksha, a journal of archeology published in 2020 “the tomb of Muhammad Shah Faruqi II (ah 974–84/1566–76 Ce), the tenth Sultan of the Faruqi lineage is built over a highly raised plinth at the west of the complex. It is mistakenly marked as the tomb of ‘Nadir Shah’ by ASI but the fact is there is no Nadir Shah in the Faruqi genealogy.”

Bibi Saheba’s mosque alias Bibi ki Masjid was completed by queen Begum Rokeya, daughter of Gujarat Sultan Muẓaffar Shah II, around 1529. Researchers have speculated that during the 15th century, the northern part of Burhanpur was more populous hence the queen commissioned this mosque.

The ASI submitted that “as per section 11 of Ancient Monuments Preservation Act, 1904, Commissioner would be a guardian of the monument and for the purposes of maintaining such monument shall have access to the monument at all reasonable times by himself and by his agents, subordinates and workmen, for the purpose of inspecting the monument…doing such acts as he may consider necessary for the maintenance.”

The ASI submitted that “unless and until guardianship is relinquished under Section 14 of Ancient Monuments Preservation Act, 1904, the same cannot be declared as a waqf property.”

“It is further submitted that for declaring any property as waqf property, the property must be existing waqf property on the date of commencement of the Waqf Act so as to entitle the waqf Board to exercise power under the same. Once the property has been acquired by Government of India under the Ancient Monuments Preservation Act, 1904 and has been entered in the register of Ancient protected monuments long back and Government of India is in absolute ownership and continuous possession thereof for the last several years, then the said property cannot be said to be an existing waqf property, therefore Waqf Board cannot exercise any right over the same,” the ASI lawyer KN Pethia argued.

The respondents argued, “Since the aforesaid property was declared as a waqf property, therefore CEO had no option but to direct the petitioner to vacate the same” and that the order should have first been challenged before the Waqf Tribunal.

The court ruled that the “property in question was already declared as an ancient monument and protected monument under sections 1(1) and 3(1) of Ancient Monuments Preservation Act, 1904.”

“After the property is declared as an ancient monument and protected monument, the same comes under the guardianship of the Commissioner and property can be released from his guardianship only after following the procedure as laid down under Section 14 of Ancient Monuments Preservation Act, 1904. There is nothing on record to show that the Commissioner had ever relinquished his guardianship over the property in dispute,” the court said.

The court said that 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 court said that the Wakf board notification “would not take away the ownership of Central Government over the property in dispute.”

“Therefore, even in absence of any challenge to the notification by which property in dispute was declared as waqf property, this Court is of considered opinion that it cannot be said that by virtue of notification issued under the Waqf Act, the property in dispute has become a waqf property,” the court said.