THE DURGAH COMMITTEE, AJMER AND ANOTHER versus SYED HUSSAIN ALI AND OTHERS

Citation: [1962] 1 S.C.R. 383 · Decided: 17-03-1961 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Dismissed

Cited by 13 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

_'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-Dur-
gah 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 fundamen-
tal 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 Chish-
tia 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 inclu-
ded 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 arrange-
ment 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 nega-
tived. 
Although this Court has laid down what is a religious deno-
mination and what are matters of religion, it must not be over-
looked 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 represent-
ed, 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 ne

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