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PETITIONER: THE DURGAH COMMITTEE, AJMER ANDANOTHER

       Vs.

RESPONDENT: SYED HUSSAIN ALI AND OTHERS

DATE OF JUDGMENT: 17/03/1961

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1961 AIR 1402            1962 SCR  (1) 383  CITATOR INFO :  R          1962 SC 853  (18,34)  R          1963 SC1638  (57)  RF         1968 SC 662  (20)  R          1972 SC1586  (8)  R          1975 SC 706  (18)  R          1983 SC   1  (16,79,127)  R          1984 SC  51  (8A)  F          1987 SC2213  (18)

ACT: Durgah Endowment-Enactment for administration and management of   Property-If  violative  of  denominational  rights   of Chishtia Soofies-Provisions, if infringe fundamental rights- Durgah Khwaja Saheb Act, 1955 (XXXVI of 1955), SS.  2(d)(v), 45,  II(f) and (h), 13, 14, 16, 18--Constitution  of  India, Arts. 25, 26, 19(1)(f) and (g), 14, 32.

HEADNOTE: The respondents, who were the Khadims of the tomb of  Hazrat Khwaja   Moin-ud-din   Chishti  of  Ajmer   challenged   the constitutional validity of the Durgah Khwaja Saheb Act, 1955 (XXXVI 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  fundamental  right  to  manage  its affairs.   Their  further  case was  that  the  Nazars  (off erings) 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 Altaf Hussain v. Dewan Syed Ali Rasul Ali Khan,  A.I.R. 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

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the Constitution.  It was     contended that ss. 4 and 5  of the Act, which provided for the    setting      up       and composition of the Durgah Committee consisting    of  Hanafi Muslims none of whom might belong to the Chishtia 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  included  in  the  Durgah  Endowment,  infringed   their fundamental right to property, that ss. 11(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  arrangement  in  case  the  office  of Sajjadanashin fell vacant, infringed 384 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 offerings on behalf of the  Durgah  and prohibiting the Khadims    and  the Sajjadanashin from doing so,  violated  their  right to property  and  S.  118  which provided for the enforcement of the orders of the  committee as  orders and decrees of a civil court  violated  Arts.  14 and  32  of  the  Constitution.  The  past  history  of  the Endowment  for  centuries  showed that  its  management  was always vested in Mutawallis appointed by 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 overlooked   that   the  protection  of  Art.  26   of   the 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 represented, it was obvious that cls. (c) and (d) of Art. 26 could  not create any rights which the denomination  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 never vested in the denomination or had been surrendered by it  or had otherwise been effectively and irretrievably lost to it, Art. 26, could not be successfully invoked. In  the  instant case, since Chishti Soofies never  had  any rights of management over the Durgah Endowment for centuries since  it was created, the attack on SS. 4 and 5 of the  Act must fail. Asrar Ahmed v. Durgah Committee, Ajmer, A.I.R. 1947 P.C.  1, referred to. It  was  not correct to say that SS. 2(d)(v) and 14  of  the impugned  Act  infringed  Art.  19(1)(f)  and  (g)  of   the Constitution.   Those  sections, properly  construed,  meant that  offerings earmarked generally for the Durgah  belonged to the Durgah and could be received only by the Nazim or his ’agent.   These offerings, as found by  judicial  decisions, never belonged to the respondents and the impugned  sections did not affect what was found to belong to them.

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Syed Altaf Hussain v. Dewan Syed Ali Rasul Ali Khan,  A.I.R. 1938 P.C. 71, referred to. 385 There  could be no doubt as to the competency of the  Legis- lature  to regulate matters relating to the property of  the Durgh  by  providing  that  the  said  Offerings  could   be solicited  by the Nazim or hi,, agent.  It was, liower,  not correct  to  say that the omission of the  word  explicitly’ contained  in  the definition in the earlier  Act  from  the present Act enlarged the scope of the definition in any way. The  powers conferred on the committee by s. 11(f) and  (h), which must be read in the light of the mandatory  provisions of  S.  15  which made it obligatory  on  the  committee  to observe  Muslim Law and the tenets of the Chishti saint  and which had to be exercised within the limits laid down by  s. 16,  could  not  be  said  to  violate  Art.  25(1)  of  the Constitution. section  16  in providing for the setting up of a  Board  of Arbitration,   embodied   a  healthy   and   unexceptionable principle,  obviously in the interest of the institution  as well as the parties, and could not be said to infringe  Arts 14 or 32 of the Constitution. Section 13(1) could not be read apart from the other  provi- sions  of s. 13.  That section really intended to  lay  down the   procedure   for  determining  disputes   relating   to succession  to  III   Office of  Sajjadanashin  and  it  was therefore fertile to contend that s. 13(1) offended  against Art. 25(1). since s. 18 was confined to such final orders as were within the jurisdiction of the committee and passed against persons who  did not object to them but failed to comply with  them, it did not contravene Arts. 14 or 32 of the Constitution.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 272 of 1960. Appeal  from the judgment and order dated January 28,  1959, of  the Rajasthan High Court in D. B. Civil Writ.   Petition No. 17 of 1957. H.   N.  Sanyal,, Additional Solicitor-General of India,  R. Ganapathy Iyer, Y. S. Nasarullah Sheriff, J. L. Datta and K. L. Hathi, for the appellants. G.   S. Pathak, Syed Anwar Hussain and B. P. Maheshwari, for respondents Nos. 1 to 7. A.   G. Ratnaparkhi: for Govind saran for respondents Nos. 8 and 9. H.   N. Sanyal, Additional Solicitor-General of India, R.   H. Dhebar and T. Jf.  Sea, for the Intervener. 1961. March 17. The Judjment of the Court was  delivered by 49 386 GAJENDRAGADKAR,  J.-In.the  High  Court  of  Judicature  for Rajasthan  at Jodhpur a writ petition was filed  under  Art. 226  of  the Constitution by the nine  respondents  who  are Khadims  of the tomb of Khwaja Moinud-din Chishti  of  Ajmer challenging  the vires of the Durgah Khwaja Saheb Act  XXXVI of  1955 (hereafter called the Act).  In this  petition  the respondents  alleged  that  the  Act  in  general  and   the provisions  specified   in the petition  in  particular  are ultra  vires and they claimed a direction or an  appropriate writ  or  order restraining the appellants the  Durgah  Com- mittee  and the Nazim of the said Committee  from  enforcing any of its provisions.  The writ petition thus filed by  the respondents  substantially succeeded and the High Court  has

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made  a declaration that the impugned provisions of the  Act are  ultra  vires and has issued an  order  restraining  the appellants from enforcing them.  The appellants then applied for and obtained a certificate from the High Court and it is with the said certificate that they have come to this  Court by  their present appeal. According  to  the respondents the shrine of  Nazrat  Khwaja Moin-ud-din  Chishti which is generally known as the  Durgah Khwaja Saheb situated at Ajmer is one of the most  important places  of  pilgrimage  for the  muslims  of  India.   Since persons  following  other religious also hold the  saint  in great  veneration  a large number of non-muslims  visit  the tomb every year. Khwaja  Saheb came to India sometime towards the end of  the 12th  Century A. D. and settled down in Ajmer.  His  saintly character  and  his teachings attracted a  large  number  of devotees during his lifetime and these devotees honoured him as  a great spiritual leader.  Khwaja Saheb belonged to  the Chishti Order of Soofies.  He died at Ajmer in or about 1236 A. D., and naturally enough after his death-his tomb  became a place of pilgrimage. The  respondents’ case further is that after his  death  the tomb  under  which  the  saint was  interred  was  a  kutcha structure  and  continued to be such for  nearly  300  years thereafter.  The petition alleged that a pucca structure was built by the Khilji Sultans of 387 Mandu  and  over  the  said  pucca  structure  a  tomb   was constructed.     Thereafter   successive   Muslim    Rulers, particularly the Moghul Emperors, made endowments and  added to the wealth and splendour of the shrine. Khwaja  Syed  Fukhuruddin and Sheikh  Mohammad  Yadgar,  who originally accompanied the Khwaja Saheb Syed to India,  were his  close and devoted followers.  After the  saint’s  death both  of them looked after the, grave  and  attended  to the spiritual  needs of the pilgrims.  The descendants of  these two  disciples gradually came to be known as  Khadims.   For generations past their occupation has been that of religious service  at  the  tomb of Khwaja  Saheb.   The-  respondents belong to this sect or section of Khadims.  They claim  that they  are  members of a religious  denomination  or  section known  as  Chishtia Soofies.  Their petition  further  avers that  throughout  the  centuries the Khadims  had  not  only looked after the premises of the tomb but also kept the keys of  the tomb and attended to the multitude of  pilgrime  who visited  the  shrine and acted as spiritual  guides  in  the performance  of religious functions to, wit the Fateha  (act of  prayer)  for  which they  received  Nazars  (offerings). These  Nazars  were  the  main  source  of  income  for  the livelihood   of  the  Khadims  and  have  in   fact   always constituted their property. According to the respondents the right of the Khadims to the offerings and Nazars made by pilgrims before the tomb and at the  Durgah had been the subject matter of several  judicial decisions and the same had been finally decided by the Privy Council  in Syed Altaf Hussain v. Dewan Syed Ali  Rasul  Ali Khan  The  petition  is  substantially  based  on  what  the respondents regard to be the effect of the said decision  in respect  of  their  rights.  According to  them  the  rights recognised by the said decision amount to their  fundamental rights to property and their fundamental right to manage the said  property,  and that in substance is the basis  of  the petition. Thus the respondents challenged the vires of the Act on  the ground that its material provisions take

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(1)  A.I.R. 1938 P.C. 71. 388 away and/or abridge their fundamental rights as a class  and also the fundamental rights of the muslims  belonging to the Soofi Chishtia Order guaranteed by Arts. 14, 19 (1) (f)  and (g), 25, 26, 31(1) and (2) as well as 32.  According to  the case  set  out in the petition  all Hanafi  muslims  do  not necessarily  believe  in Soofism and do not  belong  to  the Chishtia Order of   Soofies,  and it is to the  latter  sect that  the  shrine  solely belongs; the  maintenance  of  the shrine has also been the sole concern of the said sect.   It is  this  sect  which has to maintain  the  institution  for religious  purposes  and  manage its  affairs  according  to custom and usage.  That is why the respondents alleged  that the material provisions of the Act, were violative of  their fundamental  rights.   In regard to s. 5 of  the  Act  under which  the Durgah Committee is constituted the  respondents’ objection  is that it can consist of Hanafi muslims who  are not  members  of the Chishtia Order and that  introduces  an infirmity  which makes the said provision inconsistent  with Art.  26  of the Constitution.  On  these,  allegations  the respondents  claimed  a declaration that  certain  specified sections of the Act Were void and ultra vires which made the whole  of  the  Act void and ultra  vires  avid  they  asked directions  or orders or writ in the nature of  mandamus  or any  other  appropriate writ to the  appellants  restraining them from enforcing in any manner the said Act against them. The  claim thus made by the respondents was disputed by  the appellants  in  their  detailed  written  statement.    They averred that the circle of devotees of, and visitors to, the shrine  was  not  confined to the  Chishtia  Order;  but  it included  devotees  and pilgrims of all  classes  of  people following  different  religions.   According  to  them   the largest number of pilgrims and visitors ’were Hindus,  Khoja Memons and parsis.  It was denied that the Durgah was looked after  by  the descendants of Syed Fukhuruddin  and  Mohamad Yadgar.  The allegations made  by the respondents in respect of  their  occupation,  duties  and  rights  were  seriously challenged  and the case made out by them in regard  to  the receipt of the offerings and Nazars 389 was  disputed.   According to the appellants  the  religious services  at  the  tomb  were  and  are  performed  by   the Saiiadanashin of the Durgah and the respondents had no right to look after the premises, to keep the keys of the tomb, to attend to the pilgrims visiting the shrine or to receive any offerings  or Nazars.  Their case was that the Khadims  were and  are no more, than servants of the holy tomb  and  their duties are similar to those of chowkidars. The  appellants  further pleaded that according  to  Islamic belief offerings made at the tomb of a dead saint are  meant for  the fulfilment of objects which were dear to the  saint in  his  lifetime  and  they are meant  for  the  poor,  the indigent.   the  sick  and  the  stiffering  so   that   the benediction may reach the soul of the., departed saint.  The averments  made  by  the  respondents  in  regard  to  their fundamental rights and their infringement were challenged by the appellants and it was urged that the Act in general  and the provisions specified in the petition in particular  were intra vires and constitutional. On these pleadings the High Court proceeded to consider  the history of the institution, the nature of the rights set  up by   the  respondents  and  the  effect  of   the   impugned legislation on those rights.  The High Court has found  that the  offerings  made before the tomb for  nearly  400  years

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before the tomb was rebuilt into a pucca structure must have been used by the Khadims for themselves.  It also held  that the  Khadims were performing several duties set out  by  the respondents  and  that it was mainly the Khadims  who-  cir- culated  the stories of miracles performed by  Khwaja  Saheb during his lifetime and thus helped to spread the reputation of the tomb.  Even after the tomb was rebuilt and endowments were made to it the Khadims looked after the tomb, performed the necessary rituals and spent the surplus income from  the offerings  for themselves.  In due course Sajjanashins  came to  be  appointed, but, according to the  High  Court  their emergence on the scene merely enabled them to become sharers in the offerings.  It has further been 390 found  by the High Court on a review of  judicial  decisions pronounced in several disputes between the parties that  the offerings  made  at the tomb are governed by  the  customary mode of their utilisation and the history of the institution proved that the said  offerings have been used according  to a certain custom which had been upheld by the Privy  Council in the case of Syed Altaf Hussain (1).  ’this custom  showed that  the  offerings  made before  the  shrine  are  divided between  the  Sajjadanashin and the Khadims  in  the  manner indicated in the said decision.  It is in the light of these broad findings that the High Court proceeded to examine  the vires of the impugned provisions of the Act. Thus  considered the High Court came to the conclusion  that the several sections challenged by the respondents in  their writ petition are ultra vires.  It has held that s.  2(b)(v) violates  Art.  19(1)(f), s. 5 violates Art.  26,  s.  11(f) Arts. 19(1)(g) and 25(1), ss. 11(b) and 13(1) Art. 25, s. 14 Art.  19(1)(f) and as. 16 and 18 Art. 14 read with Art.  32. Having  found that these sections are ultra vires  the  High Court  has issued an order restraining the  appellants  from enforcing  the  said  sections.   In  regard  to  s.  5   in particular the High Court has found that the said section is ultra  vires  inasmuch as it lays down  that  the  Committee shall consist of Hanafi muslims without further  restricting that  they shall be of the Chishtia Order believing  in  the religous  practices and ritual in vogue at the  shrine.   It may  be  added  that  since s.  5  which  contains  the  key provision of the Act has thus been struck down, though in  a limited  way,  the whole of the Act has  in  substance  been rendered inoperative. Before  dealing  with the merits of the appeal it  would  be relevant  and  useful  to consider  briefly  the  historical background of the dispute because, in determining the rights of  the  respondents  and of the sect which  they  claim  to represent,  it would be necessary to ascertain  broadly  the genesis  of  the  shrine,  its growth,  the  nature  of  the endowments made to it, the management of the properties thus endowed, the rights of the Khadims and the Sajjadanashin  in regard to (1)  A.I.R. 1938 P.C. 71. 391 the  tomb and the effect of the relevant judicial  decisions in that behalf.  This enquiry would inevitably take us  back to  the 13th Century because Khwaja Moin-ud-din died  either in 1236 or 1233 A.D. and it was then that a kutcha tomb  was constructed  in  his honour.  It appears that  in  the  High Court the parties agreed to collect the relevant material in regard  to  the  growth of this institution  which  has  now become  scarce and obscure owing to lapse of time  from  the Imperial  Gazetteer  dealing with Ajmer, the Report  of  the Ghulam  Hasan  Committee (hereafter called  the  Committee).

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appointed  in  1949  to  enquire  into  and  report  on  the administration of the present Durgah as well as the decision of  the  Privy Council in Asrar Ahmed  v.  Durgah  Commitee, Ajmer   (2).    The  Committee’s  report  shows   that   the Committee’examined a large number of, witnesses belonging to several  communities  who  were devoted to  the  shrine,  it considered  the  original  Sanads  and  a  volume  of  other documents  produced  before it, took into  account  all  the relevant  judicial  decisions  to which  its  attention  was drawn,   and  passed  under  review  the  growth   of   this institution   and   its  management  before  it   made   its recommendations  as to the measures necessary to secure  the efficient   management   of  the   Durgah   Endowment,   the conservation  of the shrine in the interest of the  devotees as  a whole.  Presumbly when the parties agreed to refer  to the historical data supplied by the Committee’s report  they advisedly  refrained from adopting the course  of  producing the  original documents themselves in the  present  enquiry. The political history of Ajmer has been stormy, and  through the  centuries  sovereignty  over the  State  of  Ajmer  has changed  hands  with  the inevitable  consequence  that  the fortunes of ’the shrine varied from time to time. it is true that  the  material which has been thus  placed  before  the Court  is  not  satisfactory, as it could  not  but  be  so, because   we  are  trying  to  trace  the  history  of   the institution  since  the 13th Century for  nearly  600  years thereafter;  but the picture which emerges as a result of  a careful consideration of the (2)  A.  I.R 1947 P.C.I. 392 said  material is on the whole clear enough for our  purpose in the present appeal. Khwaja  Moin-ud-din  was born in Persia in 1143.   Later  he migrated with his father to Nisharpur near Meshad where Omar Khayyam is buried.  Then he moved from place to place  until he  reached  Ajmer about the end of the  12th  Country.   At Ajmer lie died at the ripe old age of 90.  It appear,;  that he retired into his cell on the First of Rajab and was found dead in the cell on the Sixth Day when it, was opened.  That is why his death anniversary is celebrated every year during the  six  days of Rajah.  He, received  formal  the  logical education  at Samarkhand and Bukhara, and in the pursuit  of spiritual  knowledge he travelled far and wide.   Ultimately he became a disciple of Hazrat Khwaja Usman Harooin who  was a well known faqir of the Chishti sect.  During his lifetime the  reputation of Khwaja Moinuddin travelled far  and  wide and   attracted  devotees  following   different   religious throughout the country. At his death the saint could not have left any property  and so  there  was  no question of management  of  the  property belonging  to  his  tomb.   No doubt  the  tomb  itself  was constructed immediately after his death but it was a  kutcha structure  and apparently for several years after his  death there does not appear to have been endowment of property  to the tomb, and so its financial position must have been of  a very  modest  order.   Persons  belonging  to  the  affluent classes were not, attracted for many years and so there  was hardly  any occasion to manage any property of the  tomb  as such.   After his death the family of the saint remained  in Ajmer  for some time but it appears that the members of  the family were driven out of Ajmer for some years and they came back only centuries later.  This was the consequence of  the change of rulers who exercised sovereign power over Ajmer. The construction of a pucca tomb was commenced in the  reign of one of the Malwa Kings whose dynasty ruled over Ajmer  up

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to 1531.  There is no evidence to show that any property was dedicated  to the tomb even then.  It, however, does  appear that one of the 393 Malwa Kings had appointed a Sajjadanashin to look after  the tomb;  this Sajjadanasliin was in later times called  Dewan. The  construction  of the tomb took a fairly long  time  but even  after  it  was  completed there is  no  trace  of  any endowment of property.  In  or about 1560 Akbar defeated the Malwa Kings and  Ajmer came  under  Moghul  rule and so the  Moghul  period  began. Akbar  took  great interest in the tomb and that  must  have added  to the popularity of the tomb and attracted  a  large number  of affluent pilgrims.  It was about 1567 A. D.  that the  tomb  was rebuilt and re-endowed by Akbar  who  reigned from 1556 to 1605.  A Farman issued by Akhar ascribed to the year  1567 shows that eighteen villages were granted to  the Durgah.  According to the report of the Committee which  had access  to the original Sanad and other  relevant  documents the  year  of the Sanad was not 1567 but 1575.   The  report also  shows that the object of this first endowment was  not one  for  the  general  purposes of the  Durgah  but  for  a specific  purpose, namely, ’langar khana’.  It appears  that during this period a descendant of the saint functioned as a Sajjadanashin  and  he  also  performed  the  duties  of   a Mutawalli.     There  is no reliable evidence in  regard  to the position   of   the   Sajjadanashin,  his   duties   and functions before    the  date  of  Akbar,  but  it  is   not difficult  to  imagine that even if a Sajjadanashin  was  in charge  of  the  tomb he had really very  little  to  manage because  the tomb had not until 1567  attracted  substantial grants or endowments.  The Committee’s report clearly brings out  that the appointment of a Sajjadanashin in the time  of Akbar was purely on the basis of an appointment by the State because  it  is pointed out that as soon as  Akbar  was  not satisfied  with the work of the Sajjadanashin  appointed  by him in 1567 he removed him from office in 1570 and appointed a  new incumbent in his place This new incumbent carried  on his duties until 1600.  Similarly in 1612 Jehangir appointed a  Sajjadanashin  to  function also  as  Mutawalli.   During Jehangir’s time (1605-1627) some more villages were  endowed to the Durgah. 50 394 During Shahjehan’s time (1627-1658) some significant changes took  place in the management of the Durgah. ,The office  of the  Sajjadanashin was separated from that of the  Mutawalli under  the name of Darogah, the Mutawalli was put in  charge of the management and administration of the secular  affairs of the Durgah.  It would also appear that some of the  Daro- gahs  were  Hindus.  In his turn Shahjehan  endowed  several villages  in favour of the Durgah.  This  endowment,  unlike that  of Akbar, was for the general purposes of the  Durgah. According  to  the Committee Shahjehan’s  endowment  was  in supersession of the earlier grants though it is difficult to decide as to whether it was in supersession of Akbar’s grant or  of  an earlier grant made by Shahjehan  himself  However that  may be, it is quite clear that at the very  time  when Shahjehan made his endowment he separated the office of  the Sajjadanashin from that of the Mutawalli and left it to  the sole  charge  of  the Mutawalli appointed by  the  Ruler  to manage  the  properties endowed to the  Durgah.   The  later history of the institution shows that the separate office of the   Mutawalli   who  was  in  sole   management   of   the administration  of  the properties of the  Durgah  continued

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ever  since, and that throughout its history the  Mutawallis have been appointed by the State and were as such answerable to  the  State  and  not to  the  sect  represented  by  the respondents.   This  state of affairs continued  during  the reign of Aurangzeb (1659-1707). After  Aarangzeb died there. was a change in  the  political fortunes  of  Ajmer because Rathor Rajputs seized  Ajmer  in 1719  and  ruled  over it for two  years  thereafter.   This change  of  political sovereignty does not  appear  to  have affected the administration of the Durgah which continued as before.   In  1721 the Moghul rule  was  reestablished  over Ajmer but that again made no change to the administration of the Durgah and the management of its properties.  The Moghul rule in turn was disturbed in 1743 by the Rajput Rathors who were in power for nearly 13 years.  The Rathor rule came  to an  end  when  the  Scindias  occupied  Ajmer  in  1756  and continued in 395 possession of the city until 1787.  In that year the Rathors came  back again and remained in possession till  1791  when Scindias  overpowered them and continued to occupy it  until 1818.   In  about 1818, after the Pindari War  Ajmer  passed into  the  hands  of  the East  India  Company  and  so  its connection  with the British Government  commenced.   Whilst political  sovereignty  over Ajmer was thus  changing  hands from  time to time the state of affairs in relation to’  the Durgah remained as it was during the time of Shahjehan.  The Sajjadanashin looked after the performance of the  religious observances of the rites and the Mutawalli looked after  the administration  and  management  of the  properties  of  the Durgah.   In this connection it is relevant and  significant to  note  that  the Mutawalli has  always  been  an  officer appointed by the Government in power.  That in brief is  the broad  picture  which emerges in the light of  the  material placed  by  the  parties before the  Court  in  the  present proceedings. At  this stage it would be material to narrate very  briefly the  relevant  history  of  legislation  in  regard  to  the administration  of religious endowments which  followed  the assumption  of  political power by the  British  Government. The  first Act to which reference must be made is Act XX  of 1863.   This  Act  was passed to enable  the  Government  to divest  itself  of the management  of  religious  endowments which had till then vested in the Revenue Boards.  Section 3 of the Act provided, inter alia, that in the case, of  every mosque  to which the earlier regulations applied  Government shall as soon as possible after the passing of the Act  make special provision for the ’administration of such mosques as specified  in the Act by subsequent sections Under s. 4  the transfer of the administration of the said mosque and  other institutions  to trustees is provided with  the  consequence that the administration by Revenue Boards had to come to  an end.   Section  6 deals with the rights of the  trustees  to whom  the  property is transferred under s. 4; and  it  also contemplates   the  appointment  of  committees  which   may exercise powers as therein specified.  With the rest of 396 the provisions of this Act we are not concerned.  The effect of this Act was that the management of religious  endowments which had been taken over by the Government and which vested in  the  Revenue  Boards was entrusted to  the  trustees  as proscribed by s. 4. In accordance with the provisions of  s. 6 a committee was appointed to look after the management  of the  Durgah with which we are concerned and  that  committee continued to be in. such management until 1936.

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In  1936 Act XXIII of 1936 was passed specifically with  the object of making better provision for the administration  of the  Durgah  and  the  Endowment of  the  Durgah  of  Khwaja Moin-ud-din Chishti known as the Durgah Khwaja Saheb, Ajmer. This  Act  consisted of twenty sections and in  a  sense  it provided a self-contained code for the administration of the Durgah  and its endowments.  Section 2(4) defines  a  Durgah Endowments  as  including  (a)  the  Purgah  Khwaja   Saheb, Ajmer,(b)all  buildings  and  movable  property  within  the boundaries of the Durgah Sharif, (c) Durgah Jagir  including all   land,  houses  and  shops  and  all  landed   property wheresoever situated belonging to the Durgah Sharif, (d) all other  property  and  all income  derived  from  any  source whatsoever,  dedicated  to  the Durgah  or  placed  for  any religious,  pious  or charitable purposes under  the  Durgah Administration, and (e) only such offerings as are  intended explicitly  for the use of the Durgah.  It would be  noticed that the material provisions of the Act which dealt with the management and administration of the Durgah were intended to operate   in   regard   to   the   Durgah   Endowment   thus comprehensively defined.  Under s. 4 the administration  and control  of  this  endowment  had to  vest  in  a  committee constituted in the manner prescribed.  The powers and duties of  this  committee are prescribed by s. 11; whereas  s.  16 provides for arbitration of disputes that may arise  between the  committee  on the one hand and the  sajjadanashin,  the Mutawalli and the Khadim or any of them on the other.   With the rest of the provisions of the Act we are not  concerned. In pursuance of the material 397 provisions of this Act a Durgah Committee was appointed  and it  has  been  in management of the  Durgah  Endowment  ever since. As  we  have  already  indicated  the  Government  of  India appointed  the  Committee  under  the  Chairmanship  of  Mr. Justice Ghulam Hasan in 1949 to enquires into and report  on the  administration  of  the Durgah Endowment  and  to  make appropriate  recommendations to secure the  conservation  of the  shrine by efficient management of the  said  Endowment. The Committee made its report on October 13, 1949, and  that led to the promulgation of Ordinance No. XXIV of 1949  which was followed by Emergency Provisions Act, 1950, and  finally by  the  Act  of 1955 with which we  are  concerned  in  the present  appeal.  The Committee held an exhaustive  enquiry, considered  the  voluminous  evidence  produced  before  it, reviewed the conduct of the Sajjadanashins and the  Khadims, examined the manner in which the offerings were received and appropriated  by  them, took into account  several  judicial decisions  dealing  with  the question  of  the  rights  and obligations  of the said parties and came to the  conclusion that "the historial review of the position leads only to the inference  that the Sajjadanashins and the  Khadims  between themselves  came to an agreement for mutual benefit  and  to the  detriment  of  the Endowment and adopted a  kind  of  a practice to realise offerings from visitors to the Durgah on a  show of some charitable object and led the  ignorant  and the  unwary into the trap" (1).  The Committee has  observed that  most of the spokesmen before it candidly admitted  the existence of many malpractices indulged in by Khadims and  a majority  of them showed a keen desire to introduce  radical social reform in the community, provided they are backed  by the  authority of law (2).  The Committee then commented  on the  agreement entered into between the  Sajjadanashins  and the  Khadims  as  ampunting to’  an  unholy  alliance  among unscrupulous persons to trade for their

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(1)  Report of the Durgah Kbwaja Saheb (Ajmer Committee of Enquiry   dated  October 13, 1949, Published.-by  Government of India in 1950, p. 63. (2)  Ibid, P. 56. 398 personal  aggrandisement in the name of the holy saint,  and it  noticed with regret that the interest of  the  community had  suffered more from the superstitious, ignorant and  the reactionary  hierarchy  than  from  the  doings  of  zealous reformers  (1).  According to the Committee "tinkering  with the  problem will be a remedy worse than the disease and  it had  no  doubt that no narrow and  technical  considerations should  stop us from marching forward".  As a result of  the findings  made by the Committee it made  specific  recommen- dations  as  to  the  manner  in  which  reform  should   be introduced  in  the  management and  administration  of  the Durgah   Endowment   by   legislative   process.    Speaking generally,  the  Act  ha; been passed in the  light  of  the recommendations made by the Committee. Thus  it  would be clear that from the middle  of  the  16th Century to the middle of the 20th Century the administration and management of the Durgah Endowment has been true to  the same pattern.  The said administration has been treated as a matter  with  which the State is concerned and it  has  been left  in  charge of the Mutawallis who were  appointed  from time  to time by the State and even removed when  they  were found  to be guilty of misconduct or when it was  felt  that their  work  was  unsatisfactory.  So far  as  the  material produced  in  this  case goes  the  Durgah  Endowment  which includes  movable and immovable property does not appear  to have been treated as owned by the denomination or section of the  devotees  and  the  followers of  the  saint,  and  its administration  has  always been left in the  hands  of  the official appointed by the State. In  this  connection  it may be relevant  to  refer  to  the decision  of  the Privy Council in the case of  Agrar  Ahmed (2).  The appeal before the Privy Council in that case arose from  a  suit filed by Syed Asrar Ahmed against  the  Durgah Committee, in which he claimed a declaration that the office of  the  Mutawalli of the Durgah Khwaja  Saheb,  Ajmer,  was hereditary  in his family and that the Durgah Committee  was not  competent to question his status as a hereditary  Muta- walli in succession to the last holder of that office. (5) Ibid.  P. 64.         (2) A.I.R. 1947 P.C. I. 399 The  District Judge who tried the said suit passed a  decree in  favour  of  Asrar  Ahmed  but  on  appeal  the  Judicial Commissioner.  set  aside  the decree  and  dismissed  Asrar Ahmed’s suit.  On appeal by Asrar Ahmed to the Privy Council the decision of the Judicial Commissioner was confirmed.  In dealing  with this dispute the Privy Council has  considered the genesis and growth of the shrine along with the’  stormy history  of  the  State of Ajmer to which  we  have  already referred.   In  the  course of  his  judgment  Lord  Simonds observed  that  it  was not disputed that in  the  reign  of Emperor  Shahjehan the post of Mutawalli was separated  from that   of   Sajjadanashin  and  had  become   a   Government appointment,   whereas   the  Sajjadsnashin   remained   and continued to be the hereditary defendant of the saint.  Then he  referred  to the firman of Shahjehan issued in  1629  by which  the Emperor ordered that the Mutawalli  appointed  by the State was to sit on the left of the Sajjadanashin at the Mahfils.   Similarly the firman issued by Aurangzeb in  1667 directed the order of sitting at the Mahfils by laying  down that  Daroga Balgorkhana, i.e., Mutawalli of the  Durgah  or

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anyone  who is appointed by the State do sit on the left  of the  Sajjadanashin.  It is significant to note  that  Daroga Balgorkhana  was a Hindu in Akbar’s time.  Having thus  held that  the office of the Mutawalli was an office  created  by the  State and the holder of the office was a State  servant the Privy Council examined the evidence on which Asrar Ahmed relied in support of his plea that by custom the office  was hereditary  and held that the said evidence did not  justify the claim.  This decision, supports the conclusion that  the Durgah Endowment and its administration have always been  in charge  of the Mutawalli appointed by the State and that  on occasions  the post of the Mutawalli was held by a Hindu  as well. Having thus reviewed brosoly the genesis of the shrine,  its growth and the story of its endowments and their management, it may now be relevant to enquire what is the nature of  the tenets  and  beliefs to which Soofism subscribes.   Such  an enquiry would serve to 400 assist  us in determining whether the Chishtia sect  can  be regarded  as a religious denomination or a  section  thereof within  Art. 26.  According to Murray T. Titus  (1)  "Islam, like  Christianity, has its monastic orders and saints,  the underlying  basis of which is ’the mystic interpretation  of the  religious  life known as Sufiism".  According  to  this author,  the men imbued with soofi doctrine came very  early to India is not disputed; but who those earliest comers were or  when they arrived cannot be definitely ascertained.   He also  expresses the opinion that though Soofism is found  so extensively "it is not the religion of a sect, it is  rather a  natural  revolt  of  the human  heart  against  the  cold formalism of a ritualistic religion, and so while Sufis have never been regarded as a separate sect of muslims they  have nevertheless  tended  to gather  themselves  into  religious orders".  These have taken on special forms of Organisation, so that today there is a great number of such orders, which, curiously  enough,  belong only to the Sunnis.   The  author ’then  enumerates  fourteen orders  or  families  (khandan); amongst them is the Chishtia Order. According  to  the  report of the  Committee,  however,  the Soofies  are divided into four main silsilas;  amongst  them are  Chishtias.  The report expresses the  definite  opinion that  the  Soofi  silsilas  are  not  sects  (p.  13).   The characteristic  feature of a particular silsila is  confined to a few spiritual practices, like Aurad or Sama, to certain festivals,  institutions like veneration of shrines and  the devotion  to  certain leading personalities  of  the  order. Soofism really denotes the attitude of mind, that is to say, a  soofi  while  accepting all that orthodox  Islam  has  to offer, finds lacking in it an emotive principle.   According to  Soofies a clear distinction has to be drawn between  the real  and the apparent, and they believed that the  ultimate reality  could  be grasped only  intuitively  (Ma’arifat  or gnosis).  A special feature of Soofi belief is divine  love. An  intellect, according to Soofies, performs  a  restricted function.   The centre of spiritual life is the Qalb or  the Rooh (p. 16). (1)  "Indian Islam", a Religious History of Islam in  India, by Murray T. Titus, published by Oxford University Press  in the Series "The Religious Quest of India pp. 110, 111.                             401 In Piran v. Abdool Karim (1), Ameer Ali, J., had occasion to consider   the  functions  of  the  Sajjadanashin  and   the Mutawalli.   He observed that the Sajjadanashin has  certain spiritual functions to perform.  He is not only a  Mutawalli

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but  also a spiritual preceptor.  He is the curator  of  the Durgah  where  his  ancestor  is buried and  in  him  he  is supposed  to continue the spiritual line (silsila).   As  is well  known  these  Durgahs  are  the  tombs  of  celebrated dervishes,  who in their lifetime were regarded  as  saints. Some of these men had established Khamkahs where they  lived and their disciples congregated.  These dervishes  professed esoteric   doctrines  and  followed  distinct   systems   of initiation.   They were either Soofies or the  disciples  of Mian Roushan Bayezid who flourished about the time of  Akbar and- who had founded an independent esoteric brotherhood  in which  the  chief occupied a peculiarly  distinct  position. The  preceptor is called the pir, the disciple a murid.   On the death of the pir his successor assumes the privilege  of initiating the disciples into the mysteries of dervishism or Soofism.   This  privilege  of  initiation  is  one  of  the functions  of  the  Sajjadanashin  (p.  220-221).   Thus  on theoretical  considerations it may not be easy to hold  that the followers and devotees of the saint who visit the Durgah and  treat  it as a place of pilgrimage can be  regarded  as constituting   a  religious  denomination  or  any   section thereof.  However, for the purpose of the present appeal  we propose to deal with the dispute between the parties on  the basis that the Chishtia sect whom the respondents purport to represent  and on whose behalf--(as well as their  own)-they seek  to  challenge the vires of the Act is a section  or  a religious denomination.  This position appears to have  been assumed in the High Court and we do not propose to make  any departure in that behalf in dealing with the present appeal. The next point which needs to be considered is the duties of the  Khadims  and their rights on which their claim  for  an appropriate writ is based in the present (1)  (1891) I.L. R. 19 Cal. 204. 51 402 proceedings.   In  the  High Court the  question  about  the duties  of  the  Khadims was settled  by  calling  upon  the respondents  to  file  an  affidavit  in  that  behalf.   In accordance  with  the order passed by the  High  Court  Syed Mohammed  Hanis, who is one of the Khadims, made a  detailed affidavit,  setting forth the duties of the Khadims and  the statements made in this affidavit do not appear to have been traversed at the trial.  According to this affidavit,  every day one Khadim in rotation opens the first gate of the  dome containing  the  shrine  at 4 a. m.  after  pronouncing  the sacred  call named the "Azan".  Accompanied by a few  others he then proceeds to open the second gate pronouncing certain sacred  formulae  in adulation of Khwaja  Saheb.   Then  the Khadime remove the old flowers from the Mazar and put  fresh flowers  on  it.  This ceremony is called "Sej".   The  dome premises are then cleaned, ’Loban’ is burnt and the withered flowers  are  deposited  in a sacred  depository.   This  is followed  by  general prayer whereupon the Mazar  is  thrown open  for the pilgrims.  One Khadim remains on  duty  inside the dome while others guide the pilgrims.  The Khadim who is present inside the dome helps the pilgrims to kiss the Mazar and prays for them, after putting the Daman, that is to say, the  cloth coveting of the grave over the  pilgrims’  heads. At this stage the pilgrims offer Nazar.  At 3 p. m. the dome gates are closed and the flowers are changed once again.  At this time the dome is given a paint of sandal paste and  the Kabr  Posh is also changed.  The Khadim offers  prayers  for all  the  four silsilas of the Soofies and all  other  human beings,  and  this is followed by the opening of  the  Mazar again.   At sunset there is a beat of Nakkara which  gathers

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the  pilgrims at the dome.  At this time the  Khadims  carry lamps  inside  the dome, and while so doing they  touch  the heads  of devotees with their lamps and then the  lamps  are placed  on  lamp  posts.  Madha (song in  praise  of  Khwaja Saheb) is recited followed by the recitation of Dua and  all pilgrims  join  by saying Amin.  The Mazar remains  open  in this way until 10 p.     in.  when  three  Khadims  give  a, ceremonial sweep 403 thrice  inside the dome and lock it for the night.   Besides these  daily duties the Khadims perform a  special  ceremony during  Urs  and it is called OusI.  On the day,  of  Basant Panchami  Kavvals  bring fresh green plants and  flowers  as presents  to the Mazar and they are placed on the  Mazar  by the  Khadims  on duty.  That in brief is the nature  of  the duties performed by the Khadims in the Durgah Khwaja Saheb. Let  us  now  consider the rights  which  according  to  the respondents   have   been  held  established   by   judicial decisions.   In this connection the respondents rely  mainly on  the  judgment  of  the  Judicial  Commissioner  in   the litigation  which  went before him in 1931 as  well  as  the decision on appeal to the Privy Council in the matter.   The contending parties in this litigation were the Dewan  (i.e., Sajjadanashin), the Khadims and the Durgah Committee.  It is not  necessary  for  our  present purpose  to  set  out  the respective  contentions of the parties.  It would be  enough if  we  recite  the  conclusions  reached  by  the  Judicial Commissioner  and  mention the final decision of  the  Privy Council  in  respect  of them.  This  is  how  the  Judicial Commissioner  recorded  his conclusions at the  end  of  his judgment in paragraph 14:               "(a)  The  rights of the Diwan in  respect  of               offerings  made at the Durgah are declared  to               be as follows:--               (i)   All  offerings or presents made  to  the               Diwan at the Diwan’s Khanqah or sitting  place               within  the  precincts of the Durgah  are  the               exclusive property of the Diwan.               (ii)  Offerings or presents of gold or  silver               vessels  or implements or Qabarposhes for  the               use  of  the Durgah are the  property  of  the               Durgah  Committee as trustees for  the  Durgah               irrespective  of the payment of Tawan  to  the               Khadims, and irrespective of the spot at which               they are presented.               (iii) Other offerings if made outside the dome               of  the  Shrine  are the  perquisites  of  the               Khadims, with the exception that offerings  of               animals  or  such  bulky  articles  as  cannot               conveniently be brought within the dome shall,               if made at the steps of the Shrine               404               be  divided between the Diwan and the  Khadims               respectively in equal shares.               (iv)  Other offerings if made within the  dome               of  the Shrine shall be divisible between  the               Diwan  and the Khadims respectively  in  equal               shares irrespective of the spot at which  they               are  deposited within the dome, provided  that               the following class of offerings shall be the               perquisites of the Khadims exclusively:               (a)  Copper  coins  and cowries  and  gold  or               silver articles (other than coins) of a  value               less  than  8  Annas,  and  cotton  cloth   of               inferior quality.

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             (b)   All offerings made between the hours  of               4  a.m. and 4 p.m. on ’Qul’ day i.e. the  last               day of the ’Urs’.               (v)   Cash  or  other offerings sent  by  post               shall  be deemed to be offerings made  at  the               Shrine,   i.e.   within   the   dome,   unless               addressed.   specifically   to   the    Durgah               Committee, the Diwan or the Khadims for  their               exclusive use.               (vi)  In  the case of articles falling  within               the scope of clause (ii) the payment of  Tawan               shall  be  deemed  conclusive  proof  that  an               article is presented for the use of the Durgah               and  in  case  in which no Tawan  is  paid  in               respect of an article falling within the scope               of  clause (ii) the Durgah Committee shall  be               the  authority to decide whether such  article               is required or should be retained for the  use               of the Durgah.               (b)   The  defendant Khadims are  enjoined  to               refrain from any interference with plaintiff’s               rights as above declared." It  has  been strenuously urged before us by Mr.  Pathak  on behalf of the respondents that the only offerings’ to  which the Durgah Committee can lay a claim under this judgment are those specified in cl. (a) (ii), and he contends that  these offerings  are  none other than the presents  of,  specified articles as therein indicated; in other words, the  argument is that it is only offerings of certain articles for certain specific uses of the Durgah that constitute the property  of the  Durgah;  all  other offerings fall  to  be  distributed either                             405 under  cl.  (a)(iii) or cl. (a)(iv).  If the  offerings  are made  outside the dome with the exceptions  there  specified they  go to the Khadims exclusively; if they are  made  Co,, within the dome they are to be divided between the Dewan and the  Khadims  in equal shares, but even in respect  of  such offerings  those  that  fall within cl.  (a)(iv)(a)  or  cl. (a)(iv)(b) have to be paid to the Khadims.  Mr. Pathak  thus suggests  that  cl.  (a)(ii) refers  Gaj  only  to  specific presents  given for specific purposes and the  opening  word "offerings"  in  the said clause really refers to  the  said presents  and  nothing else.  We would read this  clause  as confined  to specific presents and as excluding every  other offering  altogether.   In our opinion  this  contention  is unsound.  In dealing with the effect of the finding recorded by  the  Judicial Commissioner we cannot lose sight  of  the fact  that we are not construing terms of a statute  but  we are  attempting to find out the effect of the findings  made in judicial proceedings.  The said findings cannot therefore be  divested  from  the rest for the reasons  given  in  the judgment, and those reasons do not support the  construction suggested  by  Mr. Pathak.  Besides,  cl.  (v)  specifically refers  to  cash  or other offerings Sent by  post,  and  it provides,  inter  alia,  that  if the  said  cash  or  other offerings are addressed specifically to the Dargah Committee they  would  belong  to  the Durgah  just  as  if  they  are addressed  specifically  to the Dewan or  the  Khadims  they would belong to them respectively to the exclusion of anyone else.  Clause (v) thus clearly postulates that cash or other offerings maybe sent by the devotees to the Durgah Committee specifically  for  the purposes of the Committee,  and  that must  inevitably mean that offering may be made in  cash  or may take other forms, and if it is earmarked even  generally

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for  the  Durgah  Committee  it  would  go  to  the   Durgah Committee, and neither the Sajjadanashin nor the Khadim  can claim  any share in it.  Construing the word "offerings"  in cl.  (a)(ii) in the light of  cl. (a)(v) we are disposed  to take  the  view that the word "offerings" includes  also  an offering besides presents which are specifically referred to in that clause; and so it follows that even according to the findings 406 considered as a whole, if any offerings in cash or kind  are made in favour of the Durgah and in that sense earmarked for its  general purposes they would belong only to  the  Durgah and  neither the Khadim nor the Sajjadanashin can  make  any claim in regard to it.  This  matter  had gone before the  Privy  Council  in  Syed Altaf Hussain v. Diwan Syed Ali Khan (1), J. Dealing    with the  question  of  the  offerings  and  the  rights  of  the respective  parties thereto the Privy Council observed  that it  was conceded by the parties before the Court  of  Appeal that  a distinction must be drawn inter alia  between  those articles such as Qaberposhes which are presented for the use of the Durgah and the, other offerings which are made at the Durgah;  and it added that while the offerings belonging  to the  latter category may be divisible between the Dewan  and the  Khadims those made for the specific use of  the  Durgah are the property of the Durgah.  In appreciating the  effect of   this  observation  it  must  be  remembered  that   the controversy between the parties at that stage was not as  to whether  offerings  made  otherwise  than  in  the  form  of specific  articles but earmarked to the Durgah would  belong to  the  Durgah  or not.  Even in respect  of  the  articles specifically  given to the Durgah for specific purposes  the Khadims made a claim and that was rejected.  This background of the dispute cannot be overlooked in judging the effect of the decision itself and observations made in. the course  of the  judgment.   Even so, it is significant that  the  Privy Council  specifically  observed that "it  appears  that  the offerings  which are not intended for the use of the  Durgah are made at various places of the buildings attached to  the shrine".   In  other  words,  it  would  appear  that   the, offerings which were intended for the use of the Durgah were treated as constituting a class of offerings apart from  the other offerings which were divisible between the Khadims and the Sajjadanashins, and that clearly is consistent with  the view  which  we have taken in regard to the  effect  of  the findings  recorded by the Judicial Commissioner  in  appeal. The Privy Council found that Khadims who (1) A.I. R. 1938 P.C. 71. 407 work as the servants of the Shrine were no doubt entitled to the offerings as already indicated but that they can make no claim in regard to the offerings  which are intended for the use of the Durgah. At this stage we ought to examine the scheme of the Act  and read  its  material provisions the vires of syed,  which  is challenged  by  the  respondents.  The Act  consists  of  22 sections, and like its predecessor Act Gaja XXIII of 1936 it provides a self-contained Code for the administration of the Durgah  and  the  Endowment of  the  Durgah.   Section  2(d) defines  Durgah Endowment in five clauses.  The first  three clauses are exactly in   the same terms as the corresponding clauses of s.  2(4)  of  the  earlier  Act  XXIII  of  1936. Clause (iv) of a.  2(d)  is  substantially  similar  to  the corresponding  clause in the earlier section except that  it includes  the Jagirdari villages of Hokran and Kishanpur  in

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Ajmer  expressly,  whereas cl. (v) is  somewhat  differently worded.   Under cl. (v) all such nazars or offerings as  are received on behalf of the Durgah by the Nazir or any  person authorised by him are included in the Durgah Endowment.   By s.  3 the provisions of the Act are given overriding  effect even  though  they may be inconsistent with  the  provisions contained  in Act XX of 1863.  Section 4(1) deals  with  the appointment  of the Committee in which  the  administration, control  and  management of the Durgah  Endowment  shall  be vested.    This  Committee  shall  be  called   the   Durgah Committee,  Ajmer that is the effect of s. 4(2).  Section  5 prescribes  the composition of the Committee.   It  provides that  the Committee shall consist of not less than five  and not  more  than  nine members all of whom  shall  be  Hanafi Muslims  and shall be appointed by the  Central  Government. Section 6 deals with the terms of office and resignation and removal of members and casual vacancies.  Section 7 provides for the election of the President and the Vice-President  of the  Committee.  Section 8 prescribes the  conditions  under which the, Committee may be superseded.  Section 9  provides for the power of the Central Government to appoint a  Nazim, and  s.  10  contemplates the  appointment  of  an  Advisory Committee to advise the 408 Nazim.   Under s. 11 the powers and duties of the  Committee are  specified.  All of these powers are in  (regard to  the administration,   control  and  management  of  the   Durgah Endowment.  Two of these ought to be specified because  they are the subject-matter of  challenge., Section 11(f)  refers to the power of the Committee to determine the privileges of the Khadims and to regulate their presence in the Durgah  by the  grant  to  them of  "licences in  that  behalf  if  the Committee thinks it necessary so to do", and under s.  11(h) power  is given to the Committee to determine the  functions and  powers, if any, which the Sajjadana. shin may  exercise in  relation to the Durgah.  Under s. 12 provision  is  made for  the remuneration of the Sajjadanashin.   Succession  to the office of the Sajjadanashin is the subject-matter of  s. 13.   Section 13(1) provides that as soon as the  office  of the  Sajjadanashin falls vacant, the Committee  shall,  with the  previous approval of the Chief Commissioner, make  such interim arrangements for the performance of the functions of the  Sajjadailashin  as  it may think  fit  and  immediately thereafter  publish a notice in such form and manner as  may be  determined by the Committee, inviting  applications  for the  office  of the successor as  therein  specified.   Four other sub-sections of s. 13 deal with the appointment of the successor  but  they  are  not the  subject  matter  of  any controversy  and  so  it is unnecessary to  refer  to  them. Section  14 is important.  It makes it lawful for the  Nazim or  any person authorised by him in this behalf  to  solicit and receive on behalf of the Durgah any nazars or  offerings from  any person, and it adds that notwithstanding  anything contained in any rule of law or decision to the contrary  no person other than the Nazim or any person authorised by  him in  this  behalf  shall receive or be  entitled  to  receive nazars  or offerings on behalf of the Durgah.  This  section prohibits  the  Khadims  or the  Sajjadanashins  to  solicit offerings on behalf of the Durgah and is the  subject-matter of  dispute.   Section  15 enjoins  upon  the  Committee  to observe  Muslim  law  and tenets of  the  Chishti  saint  in conducting and regulating the established rites and 409 ceremonies  at  the  tomb.   Section  16  provides  for  the appointment  of  a  Board of Arbitration.   If  any  dispute

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arises  between  the  Committee on the one part  c  and  the Sajjadanashin, any Khadim and any person claiming to be  the servant  of  the  Durgah on the  other  part  provided  such dispute does not, in the opinion of the Committee, relate to any  religious usage or custom or to the performance of  any religious  office,  it  has  to  go  before  the  Board   of Arbitration which consists of a nominee of the Committee and a nominee of the other party to the dispute and a person who holds or has held the office or is acting or has acted as  a district  judge to be appointed by the  Central  Government. This  section provides that an award of the Board  shall  be final,  and shall not be questioned in any  court.   Section 16(2)  lays  down  that no suit shall lie in  any  court  in respect of any matter which is required by sub-s. (1) to  be referred  to a Board of Arbitration.  Section 17  then  lays down that any defect in the constitution of, or vacancy  in, the Committee would not invalidate its acts and proceedings; and  s. 18 provides for the enforcement of the final  orders passed  by the Committee in the same manner and by the  same procedure  as  if  the said orders were a  decree  or  order passed by a civil court in a suit.  Section 19 provides  for the audit of accounts and annual report, and s. 20  empowers the  Committee to make bye-laws to carry out,, the  purposes of this Act.  Section 21 deals with transitional provisions, and s. 22 repeals the earlier Act of 1936.  That in brief is the nature and scope of the material provision, of the Act. The  challenge to the vires of the Act rests broadly on  two principal grounds.  It is urged that its impugned provisions are   inconsistent  with  Art.  26(b),  (c),  (d)   of   the Constitution  and  thereby violate the right to  freedom  of religion   and   to  manage   ’denominational   institutions guaranteed by the said Article.  It is also argued that some of   its  provisions  are  violative  of  the   respondents’ fundamental  right guaranteed under Art. 19(1)(f)  and  (g). It  would  be convenient to deal with  these  two  principal grounds of attack before 52 410 examining the other arguments urged against the validity  of different sections. We  will first take the argument about the  infringement  of the  fundamental right to freedom of religion.  Articles  25 and  26 together safeguard the citizens right to freedom  of religion.   Under  Art.  25(1),  subject  to  public  order, morality and health and to the other provisions of Part 111, all  persons are equally entitled to freedom  of  conscience and  their right freely to profess, practise  and  propagate religion.  This freedom guarantees to every citizen not only the right to entertain such religious beliefs as may  appeal to his conscience but also affords him the right to  exhibit his belief in his conduct by such outward acts as may appear to  him proper in order to spread his ideas for the  benefit of  others.   Article  26 provides that  subject  to  public order,  morality and health every religious denomination  or any section thereof shall have the right- (a)  to  establish and maintain institutions  for  religious and charitable purposes; (b)  to manage its own affairs in matters of religion; (c)  to own and acquire movable and immovable property; and (d)  to administer such property in accordance with law. The four clauses of this Article constitute the  fundamental freedom  guaranteed to every religious denomination  or  any section thereof to manage its own affairs.   It is  entitled to establish institutions for religious purposes,   it    is entitled to manage its own affairs in   the    matters    of

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religion,  it  is entitled to own and  acquire  movable  and immovable  property  and  to  administer  such  property  in accordance  with  law. What  the  "expression     "religious denomination" means has been considered by this Court in The Commissioner,  Hindu  Religious Endowments,  Madras  v.  Sri Lakshmindra   Thirtha  Swamiar  of  Sri  Shirur  Mutt   (1). Mukherjea, J., as he then was, who spoke for the Court,  has quoted  with  approval the dictionary meaning  of  the  word "denomination" which says that a (1)  [1954] S.C.R. 1005, 1023, 1024- 411 "denomination"  is  a collection  of  individuals  classed,. together  under  the  same name, a religious  sect  or  body having a common faith and Organisation and, designated by  a distinctive name".  The learned Judge has added that Art. 26 contemplates not merely a religious denomination but also  a section  thereof Dealing with the questions as to  what  are the matters of religion, the learned Judge observed that the word   "religion" has not been defined in the  Constitution, and  it is a term which is hardly susceptible of  any  rigid definition.   Religion,  according to him, is  a  matter  of faith  with  individuals  or  communities  and  it  is   not necessarily  theistic.   It undoubtedly has its basis  in  a system of pleas or doctrines which are regarded by those who profess  that religion as conducive to their spiritual  well being, but it is not correct to say that religion is nothing else but a doctrine or belief.  A religion may not only  lay down a code of ethical rules for its followers to accept, it might  prescribe  rituals and  observances,  ceremonies  and modes  of  worship which are regarded as integral  parts  of religion, and these forms and observances might extend  even to matters of food and dress.  Dealing with the same  topic, though  in another context, in Sri Venkataramana  Devaru  v. The State of Mysore (1), Venkatarama Aiyar, J. spoke for the Court in the same vein and observed that it was settled that matters  of  religion in Art. 26(b) include  even  practices which are regarded by the community as part of its religion, and in support of this statement the learned Judge  referred to  the observations of Mukherjea, J. which we have  already cited.  Whilst we are dealing with this point it may not  be out  of place incidentally to strike a note of  caution  and Observe that in order that the practices in question  should be  treated as a part of religion they must be  regarded  by the  said  religion  as its  essential  and  integral  part; otherwise  even  purely secular practices which are  not  an essential  or  an integral part of religion are  apt  to  be clothed with a religious form and may make a claim for being treated as religious practices within the (1)  [1958] S.C.R. 895- 412 meaning  of  Art.  26.   Similarly,  even  practices  though religious may have sprung from merely superstitious  beliefs and  may  in  that  sense  be  extraneous  and   unessential accretions  to religion itself.  Unless such  practices  are found  to  constitute an essential and integral  part  of  a religion  their claim for the protection under Art.  26  may have  to  be  carefully scrutinised;  in  other  words,  the protection  must be confined to such religious practices  as are an essential and an integral part of it and no other. In  the  present appeal we are concerned with  the  freedoms guaranteed  under  Art. 26(c) and (d)  in  particular.   The respondents  contend that the appointment of  the  Committee contemplated  by  ss. 4 and 5 has effectively  deprived  the section of the denomination represented by them of its right to  own  the  endowment properties and to   them.   We  have

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already  stated that we propose to deal with this appeal  on the  assumption that the respondents have filed the  present writ petition not only for the Khadims but also for and  oil behalf  of the Chishtis and chat the Chishtis  constitute  a section  of  a religious denomination.  Considered  on  this basis the contention of the respondents is directed  against the  powers  conferred on the Committee for the  purpose  of administering the property of the Durgah and in substance it amounts  to  a challenge to the validity of the  whole  Act, because  according  to  them it is for the  section  of  the denomination to administer this property and the Legislature cannot interfere with the said right. In dealing with this argument it is necessary to recall  the fact  that the challenge to the vires of s. 5 has been  made by  the  respondents  in their petition  on  a  very  narrow ground.  They had urged that since the committee constituted under  the Act was likely to include Hanafi muslims who  may not  be  Chishtis  muslims  the  provision  authorising  the appointment  of the Committee was ultra vires, and  in  fact the decision of the, High Court is also based on this narrow ground.   Now, it is clear that the vires of s. 5 cannot  be effectively  challenged on any such narrow ground.   If  the right of the denomination or a section of such  denomination is adversely affected by the statute the relevant 413 provision of the statute must be struck down as a whole  and in  its  entirety  or  not at  all.   If  respondents  could properly  invoke  Art.  26(d) it would not be  open  to  the statute  to  constitute by nomination a  Committee  for  the management  and  administration  of  the  property  of   the denomination at all.  In others words, the infirmity or  the vice in the statute cannot be cured by confining the members of the proposed  Committee to the denomination itself.  This no  doubt is a serious weakness in the basis on  which  they levelled  their attack against the validity of s. 5  in  the court below. Besides,  it is significant that the property in respect  of which the claim has been made by the respondents is only the property  consisting of offerings made either in or  outside the shrine.  We have already seen that the Durgah  Endowment contains  several other items of property and none of  these items  except  the  offerings has been referred  to  in  the petition, and that reasonably suggests that the  respondents were  conscious  that the other items of  properties  though they  formed part of the Durgah Endowment were never in  the management  of the denomination as such and so as  to  which they could legally make no claim.  That is another infirmity in  the  claim made by the respondents  in  challenging  the vires of s. 5. However,  we have allowed Mr. Pathak to argue this  part  of the  respondents’ case on the broad and general ground  that the  Chishtia Soofies constitute either a denomination or  a section  of a denomination and as such they are entitled  to administer  and  manage  all the properties  of  the  Durgah including the offerings to which specific reference has been made in the petition by the respondents.  The challenge thus presented to the vires of s. 5 and other subsidiary sections dealing with the powers of the Committee cannot succeed  for the  simple and obvious reason that the  denomination  never had  the right to administer the said property in  question. We  have already seen how the history of the  administration of  the Durgah Endowment from the time the  first  endowment was made down to the date of the Act clearly shows that, the endowments 114

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have always been made on such terms as did not confer on the denomination  the  right to manage the  properties  endowed. The  management of the properties endowed was always in  the hands of officers appointed by the State who were answerable to  the  State and who were removable by the  State  at  the State’s  pleasure.   We have already seen that  until  Akbar made  his endowment in favour of the Durgah the position  of the Durgah and its properties was very modest and there  was hardly any property to manage or administer.  Ever since the first endowment was made and subsequent additions by similar endowments followed the administration and management of the property  has been consistent with the same pattern and  the said  pattern excludes any claim that the administration  of the  property in question was ever in the hands of the  said denomination.  It is obvious that Art. 26(c) and (d) do  not create  rights in any denomination or its section  which  it never   had;  they  merely  safeguard  and   guarantee   the continuance of rights which such denomination or its section had.   In  other words, if the denomination  never  had  the right  to  manage  the properties endowed  in  favour  of  a denominational institution as for instance by reason of  the terms on which the endowment was created it cannot be  heard to  say that it has acquired the said rights as a result  of Art.  26(c)  and  (d),  and that  the  practice  and  custom prevailing in that behalf which obviously is consistent with the  terms of the endowment should be ignored or treated  as invalid and the administration and management should now  be given  to  the  denomination.   Such  a  claim  is   plainly inconsistent  with the provisions of Art. 26.  If the  right to   administer   the  properties  never   vested   in   the denomination  or had been validly surrendered by it  or  has otherwise been effectively and irretrievably lost to it Art. 26  cannot  be  successfully invoked.  The  history  of  the administration  of the property endowed to the tomb  in  the present  case which is spread over nearly Four Centuries  is sufficient to raise a legitimate inference about the  origin of the terms on which the endowments were founded, 415 an  origin which is inconsistent with any rights  subsisting in the denominations to administer the properties  belonging to  the  institution.  It was because the  respondents  were fully  conscious of this difficulty that they did not  adopt this  broad basis of challenge in their writ  petition.   In considering  this question it is essential to remember  that the  pilgrims to the tomb have at no time been  confined  to Chishtia  Soofies  nor to muslims but that in fact  a  large number of Hindus, Khoja Memons and Parsis visit the tomb out of  devotion for the memory of the departed saint and it  is this  large cosmopolitan circle of pilgrims which should  in law  be  held  to  be the circle  of  beneficiaries  of  the endowment  made  to the tomb.  This fact inevitably  puts  a different  complexion  on  the  whole  problem.   We   must, therefore, hold that the challenge to the vires of S. 5  and the  subsidiary sections which deal with the powers  of  the Committee on the ground that the said provisions violate the fundamental right guaranteed to the denomination represented by the respondents under Art. 26(c) and (d) fails. That takes us to the other principal challenge based on Art. 19(1)(f) and (g).  This challenge is directed partly against cl.  (v)  in s. 2(d) which defines a Durgah  Endowment.   We have  already  seen that by this clause all such  Nazars  or offerings  as  are received on behalf of the Durgah  by  the Nazim or any other person authorised by him are included  in the  Durgah  Endowment.  Section 14 may be read  along  with this definition.  This section confers power on the Nazim or

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his  agent to solicit or receive offerings on behalf of  the Durgah  and prohibits any other person from soliciting  such offerings.   The respondents contend that  these  Provisions infringe  their  fundamental right to property  inasmuch  as offerings  or  Nazars  which  under  the  custom  judicially recognised  would  have gone to them are now  sought  to  be diverted  to the Durgah to their detriment.   This  argument proceeds  on  the  assumption that  it  is  only  particular presents  made  for certain specific purpose of  the  Durgah that  would  belong to the Durgah and that the rest  of  the offerings 416 would   be   divisible   between   the   Khadims   and   the Sajjadanashins  as  directed in the  earlier  litigation  to which with have already referred.  If the assumption made by the respondents was well founded that the effect of the said decision  was to limit the right of the  Durgah only to  the receipt of the specific articles for specific purposes  then of  course there would have been considerable force  in  the argument  that  s. 2(d)(v) and s. 14 seek  to  augment  that right  and to that extent diminish or  prejudicially  affect the  rights  of the respondents.  But, as  we  have  already indicated, the decision of the Judicial Commissioner as well as  that of the Privy Council do not support the claim  made on   behalf  of  the  respondents.   Even  under  the   said decisions, specific articles given for specific purposes  as well  as  offerings  made for the general  purposes  of  the Durgah  and earmarked for it always belonged to  the  Durgah and it is only these offerings which are included within the definition of the Durgah Endowment by s. 2(d)(v).  Offerings or Nazars which are paid to the Durgah and as such  received on  behalf of the Durgah constitute Durgah Endowment and  s. 14  authorises  the  Nazim  or his  agent  to  receive  such offerings and prohibit any other person from receiving them. In  other  words, the effect of the two provisions  is  that when  offerings are made earmarked generally for the  Durgah they belong to the Durgah and such offerings can be received only  by the Nazim or his agent and by nobody else.   It  is clear that these offerings never belonged to the respondents and  they pan therefore have no grievance against either  s. 2(d)(v) or s. 14.  That is a matter concerning the  property of the Durgah and it is open to the Legislature to  regulate by providing that the said offerings can be solicited by the Nazim  or his agent and by no one else.  The Khadims’  right to receive offerings which has been judicially recognised is in  no  manner  affected  or  prejudiced  by  the   impugned provisions.   Even  after the Act came into  force  pilgrims might  and would make offerings to the Khadims and there  is no  provision in the Act which prevents them from  accepting such  offerings when made.  Therefore, in our  opinion,  the challenge  to  the vires of these two provisions  must  also fail. 417 Before  we  Part  with s. 2(d)(v) it  may  be  pertinent  to observe  that  in  substance the  relevant  portion  of  the definition  of the Durgah Endowment is the same  as  in  the earlier  Act.  Under the earlier Act only sub  offerings  as were  intended  explicitly for the use of  the  Durgah  were included in the Durgah Endowment, while under s. 2(d)(v) all Mazars  and  offerings which are received on behalf  of  the Durgah  are  so included. Gaje.  The omission  of  the  word "explicitly" from the present definition is merely  intended to make it clear that if from the nature of the offering  or the circumstances surrounding the making of the offering  or from  other relevant facts it appears that the offering  was

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made  for  the  purpose of the Durgah and  was  accepted  on behalf  of  the Durgah as such it would be an  item  of  the Durgah  Endowment  though  the offering may  not  have  been explicitly  made for the Durgah as such; but the broad  idea underlying both the definitions is that where offerings  are made apart from the gifts of specific articles intended  for specific  purposes of the Durgah and it is found  that  they are  earmarked  or intended for the Durgah for  the  general purposes of the institution they would constitute a part  of the  Durgah  Endowment.  Therefore the  contention  that  by enlarging the definition of Durgah Endowment s. 2(d)(v)  has made  an  encroachment  on the  fundamental  rights  of  the respondents is not at all well founded. That  takes  us to s. 11(f) and (h).  The challenge  to  the vires  of  these two provisions proceeds on  the  assumption that  they  encroach  upon  the  fundamental  right  of  the respondents  under  Art.  25(1).   It  is  urged  that   the Committee  has  been  given power  by  these  provisions  to determine  the  privileges of the Khadims as  well  as  the, functions  and powers, if any, which the  Sajjadanashin  may exercise   in  relation  to  the  Durgah  and   that   means infringement  of,  the freedom of the  Khadims  to  practice their  religion  according to the custom  and  according  to their concept.  We are not impressed by this argument.  What the relevant provisions intend to achieve is the  regulation of the discharge of duties by the Khadims and the discharge 418 of  functions  and  powers  by  the  Sajjadanashin.   It  is common ground that the Khadims discharged their    duties by rotation and that itself proves that some    regulation   is necessary, and so the impugned provisions merely provide for the regulation of the discharge of the duties by the Khadims and  nothing  more,  and so the plea  that  the  freedom  to practice   religion  guaranteed  by  Art.  25(1)  has   been violated does not appear to be well founded. In this connection we ought to refer to s. 15 which makes it obligatory  for the Committee in exercise of its powers  and discharge  of its duties to follow the rules of  Muslim  law applicable  to  Hanafi  muslims in India,  and  so  all  the ceremonies  in the Durgah have necessarily to  be  conducted and  regulated in accordance with the tenets of the  Chishti saint.   The powers conferred on the Committee by s. 11  (f) and  (h)  must  be  read  in  the  light  of  the  mandatory provisions  of  s. 15. Thus read the apprehension  that  the fundamental right to freedom of religion is infringed by the said  provisions  will clearly appear to  be  wholly  unjus- tified. There  is yet another section which is relevant  in  dealing with  the  present point, and that is s. 16.   Under  s.  16 arbitration is provided for when disputes arise between  the Committee on the one part and the Khadims and others on  the other.  This provision applies to all disputes except  those that  relate  to  any religious usage or custom  or  to  the performance  of  any  religious  office.   In  other  words, disputes  in  regard  to secular matters are  left  for  the decision of the arbitrators, and that, in our opinion, is  a very  sensible provision.  The composition of the  Board  of Arbitration is based on well recognised principles; the  two parties to the dispute name their respective nominees and an impartial  member is required to be appointed on  the  Board with  the  qualifications specified by s.  16(1)(iii).   The argument  that s. 16 offends against the  fundamental  right guaranteed  by Art. 14 read with Art. 32 seems to us  to  be wholly  untenable.   The policy underlying s. 16 is  in  our opinion healthy and unexceptionable and so the provisions of

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a. 16 can be sustained 419 on the ground that they are obviously in the interest of the institution   as  well  as  the  parties   concerned.    The provisions  for compulsory adjudication by  arbitration  are not unknown and it would be idle to contend that they offend against Art. 14 read with Art. 32. If a dispute arises between the Committee and the Khadims in regard to a religious matter it would necessarily have to be decided in accordance with the, ordinary law and in ordinary civil  courts of competent jurisdiction.  Such a dispute  is outside the purview of s. 16; and indeed, in respect of such a dispute the Committee is not authorised to make any orders or  issue any directions at all.  Therefore  the  conclusion appears  to us to be inescapable that the provisions  of  s. 11(f)  and  (h)  are  valid  and  do  not  suffer  from  any constitutional infirmity. The  next  section  which is challenged is  s.  13(1).   The validity of this section has not been specifically  attacked in  the petition but even so since the whole of the Act  has in a general way been challenged we have allowed Mr.  Pathak to  urge  his arguments against the validity  of  s.  13(1). Section  13(1) authorises the Committee to make  provisional interim arrangement if a vacancy occurs in the office of the Sajjadanashin.  Now, in considering the scope and effect  of this  provision it cannot be read apart from the  provisions of  the  remaining  sub-sections of s. 13.   Section  13  is really  intended to lay down the procedure  for  determining disputes as to the succession to the office of the  Sajjada- nashin.   That is the main object of the section, but  if  a vacancy  occurs  suddenly as it always will in the  case  of death  for instance some interim arrangement must  obviously be made; and all that s. 13(1) empowers the Committee to  do is to make an appropriate interim arrangement in that behalf and  to  proceed  to  take  the  necessary  steps  for   the appointment  of a permanent successor as prescribed  by  the other  provisions  of  s. 13.  Therefore  it  is  futile  to contend  that  s. 13(1) offends against Art.  25(1)  of  the Constitution. Section  14 is attacked on the ground that it  violates  the respondents’ right to property under Art. 19(1)(f).  We have already discussed this question in dealing 420 with  s.  2 (d)(v).  As we have pointed out all that  s.  14 does  is  to create a statutory right in the  Nazim  or  his agent  to  solicit and receive offerings on  behalf  of  the Durgah.   That does not affect the right of the  respondents to  receive offerings paid to them by the pilgrims  visiting the Durgah.  The respondents cannot possibly claim a, right, to solicit or receive offering, intended for take benefit of the  Durgah.   In fact no such claim has been. made  in  the petition  and  no claim can be made at ill.   Therefore  the validity of s. 14 is not shaken by the challenge made by the respondents under Art.. 19(1)(f). That leaves only one section to be considered and that is s. 18.   It is urged that s. 18 also violates  the  fundamental rights  guaranteed to the respondents under Arts. 14 and  32 of  the,  Constitution.  It is difficult to  appreciate  the It  may be conceded that s. 18 is somewhat clumsily  worded. The final orders whose enforcement is provided for by s.  18 would appear to be final orders passed in matters within the competence of the Committee as to which no dispute is raised by  the persons against when,- the said orders  are  passed. We  have already seen that if disputes arise in  respect  of any  matters left to the jurisdiction of the  Committee  and

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they  are not of a religious character then they have to  be referred  to arbitration provided for by s. 16, and in  that case it is the award passed by the board of Arbitration that would be in force.  If disputes arise between the parties on any  religious  matters  they will have  to  be  decided  in accordance  with  law  in  the   ordinary  civil  courts  of competent  jurisdiction and so decisions in  these  disputes are  also outside s.18. Thus considered  the scope of s.  18 would  be confined only to such final  orders as are  passed by the committee within its jurisdiction against persons who do not object to them but who fail to comply with them.   If that  is the scope  of s. 18, as we hold it is, it is,  idle to  contend  that either Art. 14 or Art.32 or the  two  read together are contravened. During the course of his argument Mr. Pathak emphasised  the fact that though the provisions of the 421 enactment may be within the four corners of the Constitution and none of the impugned provisions may be found to be ultra vires  his  clients were apprehensive that in  fact  and  in practice   their  rights  to  receive  offerings  would   be prejudicially  affected.   That  is a  matter  on  which  we propose to express no opinion.  All that we are concerned to see is whether the legal rights of the respondents or of the section  of  the denomination they, seek  to  represent  are prejudicially affected by the impugned legislation  contrary to  the  provisions  of  the  Constitution;  and  a  careful examination  of  the relevant sections in the light  of  the criticisms made by Mr. Pathak against them has satisfied  us that  none  of  the  impugned sections can  be  said  to  be unconstitutional.  If as a result of the enforcement of  the present  Act  incidentally more offerings are  paid  to  the Durgah  and are received on behalf of the Durgah that  is  a consequence which the respondents may regard as  unfortunate but  which  introduces no infirmity in the validity  of  the Act. In  the. result the appeal is allowed, the order  issued  by the  High Court is set aside and the petition filed  by  the respondents dismissed with costs throughout.                                 Appeal allowed. 422