Isabella Mariam

The High Court of Madhya Pradesh Division Bench of Justice Anand Pathak and Justice Hirdesh dismissed an appeal challenging the denial of permission to hold religious rituals at a nationally protected monument. The court upheld the rejection of a plea seeking to organize Urs and offer Namaz at the tomb of Muhammad Ghaus in Gwalior, which has been declared a protected monument under the Ancient Monuments and Archaeological Sites and Remains Act, 1958. Concluding that the monument cannot be used for religious events inconsistent with its declared status, the court affirmed the legality of the Archaeological Survey of India's (ASI) decision and directed preservation of the site in line with constitutional and statutory mandates.

The appellant, claiming to be the Sajjada Nashin of the Dargah of Hazrat Sheikh Muhammad Ghaus, approached the court following the dismissal of his writ petition. According to him, he is a legal heir of Hazrat Sheikh Muhammad Ghaus, and religious and cultural activities such as Urs and Namaz have been performed at the Dargah for over four centuries.

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The dispute arose after the Archaeological Survey of India (ASI) denied permission to conduct Urs at the site. The appellant submitted an application dated 02-03-2024 to the ASI, requesting authorization to perform Urs. This was refused by the ASI via letter dated 14-03-2024, which cited that the premises is a protected monument under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 ("the Act of 1958"), and as per the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 ("the Rules of 1959"), such permission could not be granted.

The ASI's communication further clarified that the monument may be opened only from sunrise to sunset and that any act in violation of Rule 8 of the 1959 Rules and Section 30 of the 1958 Act would be punishable with up to two years of imprisonment and a fine of Rs. 1 lakh.

The appellant challenged this refusal by filing a writ petition in September 2024, asserting that the action and inaction of the respondents were arbitrary and that religious practices such as Urs and Namaz constituted a centuries-old tradition.

He contended that Rule 8 of the Rules of 1959 did not apply to the case and that the provisions of the Act of 1958 did not prohibit the holding of such religious activities within the monument premises.

The Union of India, represented by the Dy. Solicitor General, opposed the petition by stating the concealment of material facts by the appellant. It was submitted that the tomb of Muhammad Ghaus had already been declared a Centrally Protected Monument via Gazette Notification dated 23-01-1962 and is maintained by the ASI.

The respondents referred to multiple prior litigations initiated by the appellant's family concerning the ownership of the site. A civil suit (Case No.59-A/1986) filed by Peerjada Syed Ali Hasan had been dismissed on 28-09-1995, and subsequent appeals up to the Supreme Court, including Civil Revision No.1043/1999 and Second Appeal No.486/2004, had all been rejected. Review Petition No.231/2015 was also dismissed. These proceedings, according to the respondents, conclusively established that the petitioner had no ownership or proprietary rights over the tomb.

The respondents further pointed out that the appellant concealed these judicial outcomes when filing the writ petition. Additionally, a suo moto Public Interest Litigation (W.P. No.1692/2010) had been entertained by the High Court based on a news report, wherein the court directed that no Urs or activities be permitted at the monument without ASI's prior approval.

It was also submitted that another case (No. A-10/2020) filed by the petitioner before the M.P. Waqf Tribunal for claiming ownership over the tomb was dismissed by order dated 31-10-2022.

The respondents alleged that despite the finality of these litigations, the petitioner and his associates had continued unlawful acts at the site, including setting up electrical fixtures, tents, and even causing structural interference by hammering nails into the monument walls. It was further submitted that such actions amounted to desecration, pollution, and potential encroachment on a nationally significant archaeological site.

It was contended that an order passed by the Sub-Divisional Officer, Lashkar, on 04-03-2024, recognizing Syed Jaaul Hasan as Mujabir, had been wrongly granted and that the ASI had taken steps to have the order set aside. The respondents also asserted that the petitioner had not challenged the ASI's letter dated 14-03-2024, thereby rendering his writ petition unsustainable.

The State Government, through the Additional Advocate General, also supported the Union's position and assured that the District Administration would assist the ASI in protecting the monument.

The Bench extensively reviewed the statutory provisions, constitutional directives, and earlier legal proceedings.

"Tomb of Muhammad Ghaus is situated in the city of Gwalior and admittedly it is a Centrally Protected Monument and declared as National Monument way back in 1962 vide Gazette notification dated 23-01-1962", the court noted, confirming the official status of the site.

The court observed that the tomb premises also included the burial place of Tansen, a renowned musical figure and one of the nine gems of Emperor Akbar's court.

"Dhrupad an epic form of music is considered to be invented by Raja Man Singh Tomar (Ruler of Gwalior) in medieval times", the court recorded, underscoring the cultural significance of the location.

The court discussed the legislative intent behind the Act of 1958, quoting its preamble: "An Act to provide for the preservation of ancient and historical monuments and archaeological sites and remains of national importance, for the regulation of archaeological excavations and for the protection of sculptures, carvings and other like objects."

Referring to Article 49 of the Constitution, the court stated: "It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest... from spoilation, disfigurement, destruction, removal, disposal or export."

The court also noted the relevance of Article 51A(f), stating that citizens have a fundamental duty "to value and preserve the rich heritage of our composite culture."

Examining Section 4 of the Act, the court recorded: "A notification published under sub-section (3) shall, unless and until it is withdrawn, be conclusive evidence of the fact that the ancient monument... is of national importance."

Referring to Section 16(1), the court stated: "A protected monument maintained by the Central Government under this Act which is a place of worship or shrine shall not be used for any purpose inconsistent with its character."

The court noted that the monument had not been declared as a place of worship or shrine under Sections 5 or 13 of the Act, and therefore, the exception under Section 16(2) did not apply.

"This monument does not fall under the place of worship and shrine. It is being acquired by the Central Government. It is an archaeological monument declared by the Central Government as monument of National Importance under Section 4 of the Act of 1958."

Considering the implications of permitting the Urs, the court observed: "If petitioner is permitted to conduct Urs and Namaz then... structure would suffer spoilation/damage where tents would be installed, hammering nails would be fixed, lights would be fixed, thus causing degradation, spoilation, pollution and desecration."

The court also stated public access rights under Section 18: "Subject to any rules made under this Act, the public shall have a right of access to any protected monument." Permitting exclusive religious events, the court found, would impair this statutory right.

Further, the court invoked Section 19 of the Act, recording that even an owner of property in a protected area cannot undertake activities like construction or excavation.

"Therefore, on this point also when owner of property has restriction on enjoyment of property right in protected area then the person like petitioner has no right whatsoever of stay in the protected area or to cause any mischief as alleged by the respondents."

Addressing the issue of concealment, the court observed: "This disentitles the petitioner to deny issuance of writ in discretionary jurisdiction. This Court affirms the said findings of learned Writ Court and holds that petitioner did not approach this Court with clean hands."

The court concluded that "Constitutional Vision and Constitutional Morality ought to prevail over personal and vested interest" and warned that "no activity as sought by the petitioner can be permitted lest monument will lose its originality, sanctity and vitality."

The Division Bench affirmed the decision of the learned Single Judge and held that no case for interference in the impugned order was made out.

The court recorded: "ASI rightly rejected the application of petitioner vide order dated 14-03-2024."

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The Bench further directed: "Copy of this order be sent to Collector, District Gwalior, S.P. District Gwalior for information and consideration."

It was clarified by the court that in view of the earlier PIL (W.P. No.1692/2010), no Urs or activities should be allowed at the monument without permission from the ASI and that the District Administration must assist in enforcement.

Finding no merit in the appeal, the court recorded: "Appeal sans merits and is hereby dismissed sans cost."

Advocates Representing the Parties:

For the Petitioner: Shri Ashish Srivastava, Advocate

For the Respondents: Shri Praveen Kumar Newaskar, Deputy Solicitor General for Union of India, Shri Vivek Khedkar, Additional Advocate General for the State

Case Title: Shri Sabla Hasan v. The Union of India & Ors.

Case Number: Writ Appeal No. 1111 of 2025

Bench: Justice Anand Pathak, Justice Hirdesh