Madhya Pradesh High Court
Shri Sabla Hasan vs The Union Of India Through Secretary ... on 16 June, 2025
Author: Anand Pathak
Bench: Anand Pathak, Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE HIRDESH
WRIT APPEAL NO. 1111 of 2025
SHRI SABLA HASAN
Vs.
THE UNION OF INDIA & ORS.
----------------------------------------------------------------------------------------------------------
APPEARANCE:
Shri Ashish Srivastava - Advocate for the appellant.
Shri Praveen Kumar Newaskar - Dy. Solicitor General for
respondents No.1,3&4/ Union of India.
Shri Vivek Khedkar - Additional Advocate General for
respondents No.2&5/State.
----------------------------------------------------------------------------------------------------------
JUDGMENT
{Delivered on 16th the day of June, 2025}
Per: Justice Anand Pathak
1. The present appeal under Section 2 (1) of the Madhya Pradesh
Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam,
2005 is preferred by the appellant being crestfallen by the order
dated 10-03-2025 passed by learned Single Judge in Writ Petition
No.27200 of 2024 whereby the writ petition filed by the appellant
(as petitioner in writ petition) got dismissed.
2. Precisely stated facts of the case are that petitioner is Sajjada
Nashin of Dargah Hazrat Sheikh Muhammad Ghaus and as
submitted he is legal heir of Hazrat Sheikh Muhammad Ghaus.
According to petitioner in the Dargah of Hazrat Sheikh
Muhammad Ghaus, various religious and cultural activities are
performed for over last 400 years. However, subsequent to the
Archaeological Survey of India (ASI), declaring the Dargah as a
protected monument, such activities have been prohibited or
curtailed. Those activities include Urs (Jalsa) and Namaz.
3. On 02-03-2024, petitioner submitted an application to the ASI
requesting for permission for performing Urs at Dargah but vide
letter dated 14-03-2024 (Annexure P/4) said permission was
denied. It has been mentioned in the said letter that said premises
is a protected monument under the Ancient Monuments and
Archaeological Sites and Remains Act, 1958 (hereinafter referred
to as "the Act of 1958") and as per the Rules it can only be
opened from Sunrise to Sunset. As per Ancient Monuments and
Archaeological Sites and Remains Rules, 1959 (hereinafter
referred to as "the Rules of 1959") no such permission can be
granted. It is further mentioned that as per Section 30 of the Act
of 1958 and rule 8 of Rules of 1959 any such act would be
punishable with two years imprisonment with fine of Rs.1 lac.
Therefore, writ petition was filed by the petitioner in September,
2024.
4. It is the submission of learned counsel for the petitioner that
action/inaction of respondents' authorities are illegal and arbitrary
in nature. Petitioner and his forefather are performing the practice
of Urs for over 400 years and therefore, this is a regular
custom/religious practice which can be carried out in Dargah.
5. According to counsel for the petitioner question of violating rule
8 of Rule of 1959 does not arise in any manner and as per the
provisions of the Act of 1958 petitioner is entitled to perform Urs
and Namaz in the premises.
6. Learned counsel for the respondents/Union of India while filing
the detailed reply vehemently opposed the prayer on the ground
of concealment of facts. According to him, petitioner did not
approach this Court with clean hands and
concealed/misrepresented the facts.
7. It is the submission of learned counsel for the respondents/Union
of India that tomb of Muhammad Ghaus is a Centrally Protected
Monument vide gazette notification dated 23-01-1962 (Annexure
R/1) and is protected and maintained by ASI. While referring the
conduct of petitioner, it has been mentioned that for ownership of
the said monument/tomb of Muhammad Ghaus, Peerjada Syed Ali
Hasan filed Case No.59-A/1986 (Civil Suit) in the Court of XVI
Civil Judge Class -II, Gwalior which was dismissed vide
judgment dated 28-09-1995 (Annexure R/2). Thereafter, two sons
of Peerjada Syed Ali Hasan namely Syed Muhammad Hasan and
Syed Sipte Hasan and two daughters namely Fauziya Begam and
Shabana Begam as legal representatives of Syed Ali Hasan
preferred First Appeal before VII Additional District Judge,
Gwalior but the said appeal got dismissed after detailed order
passed by the appellate Court vide judgment dated 12-04-2004
(Annexure R/4).
8. Another litigation by way of Civil Suit No.23-A/1996 was filed at
the instance of son of Peerjada Syed Ali Hasan namely Syed
Muhammad Hasan, which was dismissed vide judgment dated 23-
07-1999. Against the said judgment, Civil Revision
No.1043/1999 was preferred before the Single Bench of this
Court which also got dismissed vide order dated 05-03-2002
(Annexure R/3).
9. Meanwhile, as submitted by respondents/Union of India that
against the order dated 12-04-2004 passed in First Appeal No.30-
A/2004, Second Appeal No.486/2004 was preferred before this
Court which also got dismissed vide judgment dated 13-01-2015
(Annexure R/5). Said Second Appeal contains all previous
litigations into consideration and dismissed the appeal preferred
by the appellant as referred above. The review petition bearing
No.231/2015 was also filed against the order dated 13-01-2015
but the same was also dismissed vide order dated 30-03-2016. In
the said review petition, one fact was mentioned that matter has
gone upto Supreme Court and there, petitioner lost. Therefore,
according to respondents/Union of India, dispute regarding
ownership over the land in question has also attained finality in
which petitioner and his forefather/family members lost. Without
disclosing these facts, petitioner approached this Court with
malafide intention.
10. It is further referred that a Public Interest Litigation bearing writ
petition No.1692/2010 (PIL) was taken suo moto by this Court on
the basis of news article published in one daily news paper on 01-
04-2010. After hearing submissions, vide order dated 20-02-2014
this Court issued certain directions including direction to the ASI
and Municipal Corporation, Gwalior to identify the encroachment
within the territory of protected monument and if found any
encroachment then appropriate action was directed to be taken for
removal of encroachment. Said order further indicates that the
State Government and Union of India shall not permit the
Organizer to hold any Urs or other activities without prior
permission of ASI. District Administration is also directed to
provide help to the ASI to prevent illegal activities within the
territory of protected monument and appropriate action be
ensured against miscreants.
11. It is further submitted that not only this, in year 2019, petitioner
Syed Sabla Hasan also filed case No.A-10/2020 before M.P. Waqf
Tribunal, Bhopal regarding claim of ownership of tomb of
Muhammad Ghaus and the same was dismissed in favour of ASI
vide order dated 31-10-2022.
12. It is the specific submission of learned counsel for the
respondents/Union of India that Syed Sabla Hasan and Syed Jaaul
Hasan are filing fake claims time and again despite the litigation
attained finality. They are consistently pursuing unlawful
activities in premises which created hindrance in protection of
archaeological monument of National Importance. They are doing
illegal acts like installation of electrical wiring, lights,
tents/structure, furnaces, hammering nails over the wall of
premises. They spread garbage in the premises and try to distract
visitors from their visit. In fact, District Administration is required
to take stern action against these persons so as to protect
monument and stop their unlawful activities. They try to assert by
making an attempt to perform such activities and intend to
encroach upon the area once again.
13. It is further mentioned that Syed Jaaul Hasan has wrongly been
allowed as Mujabir in case No.0006/B-121/2023-24 by Sub
Divisional Officer (Revenue), Lashkar District Gwalior without
knowing the submission of ASI. In fact, ASI took steps to get the
order dated 04-03-2024 corrected/set aside. According to counsel
for respondents/Union of India no permission can be granted to
organize Urs at Centrally Protected Monument, Tomb of
Muhammad Ghaus and said intimation was given to the petitioner
vide letter dated 14-03-2024. However, petitioner did not prefer
to challenge the said order. Thus, prayed for dismissal of this
appeal with exemplary cost.
14. Learned counsel for respondents/State also vehemently opposed
the prayer and submits that in view of the documents placed
before this Court in reply of Union of India, it is imperative that
the present writ appeal be dismissed with cost because petitioner
has not approached this Court with clean hands. Learned
Additional Advocate General undertakes that District
Administration shall take proper steps and would assist the ASI to
ensure protection and preservation of National Monument, Tomb
of Muhammad Ghaus.
15. Heard learned counsel for the parties at length and perused the
documents appended thereto.
16. Tomb of Muhammad Ghaus is situated in the city of Gwalior and
admittedly it is a Centrally Protected Monument and declared as
National Monument way back in 1962 vide Gazette notification
dated 23-01-1962 (vide Annexure R/1). In the premises, tombs of
Great Music Maestro Tansen and Muhammad Ghaus are
constructed. Tansen was one of the Nine Jewels of Mughal King
Akbar and remembered for his Classical Dhrupad Compositions,
creating several new Ragas and written Classical Books of Music
"Sri Ganesh Stotra" and "Sangita Sara". Dhrupad an epic form of
music is considered to be invented by Raja Man Singh Tomar
(Ruler of Gwalior) in medieval times. Therefore, National
Monument where Tansen and Muhammad Ghaus (famous
musician of medieval times) are buried, deserves preservation and
protection.
17. At the time of Independence, The Ancient Monuments
Preservation Act, 1904 was prevailing and later on The Ancient
and Historical Monuments and Archaeological Sites and Remains
(Declaration of National Importance) Act, 1951 also came into
being. Thereafter, the Act of 1958 was enacted and by the effect
of Section 39 of the Act of 1958, earlier two Acts got repealed and
ceased to have effect.
18. Aim and object of the Act of 1958 throws valuable light over
legislative intent as prescribed in the Act. Same reads as under:
"An Act to provide for the preservation of ancient and
historical monuments and archaeological sites and
remains of national importance, for the regulation of
archaeological excavations and for the protection of
sculptures, carvings and other like objects."
19. In the Act ancient monuments, antiquity, archaeological sites and
remains are defined. By the very spirit of the Act of 1958 and its
provisions, it is meant to preserve History, Culture, Civilization
and past attributes relating to them for posterity and for guidance
of future generations. Therefore, the very intent is to preserve
them and regulate them for visit of the people, for getting
knowledge about our past and to undertake research for future, if
required.
20. Not only this, even our Constitution makers were cognizant of this
important fact and their conviction and belief in protection of
monuments of National Importance reflected in Part IV of
Constitution where Directive Principles of State Policies are
placed. They are Light House for the State and are fundamental in
the governance of the country with the expectation that State shall
apply these principles for making the laws. Article 49 of the
Constitution deals in respect of protection of monuments, places
and objects of national importance. Article 49 of the Constitution
reads as under:
"49. Protection of monuments and places and objects of
national importance - It shall be the obligation of the State
to protect every monument or place or object of artistic or
historic interests (declared by or under law made by
parliament) to be of national importance, from spoilation,
disfigurement, destruction, removal, disposal or export, as
the case may be."
21. This Article indicates vision of Constitution makers and if it is
seen in juxtaposition of Article 51A(f) of the Constitution wherein
it is one of the fundamental duties of every citizen of India to
value and preserve the rich heritage of our composite culture, thus
it is clear that we have to preserve our rich cultural heritage
reflected through monuments/ buildings/ traditions/ antiquities
etc. They are to be protected from spoilation/destruction etc. as
referred in Article 49 of the Constitution.
22. To further the Constitutional vision as well as the aims and
objects of the Act of 1958, Sections 4, 16, 18 and 19 are worth
consideration.
23. If the case is seen from this vantage point, then it would be clear
that National Monument deserves to be protected and preserved
in a manner prescribed by law. Sections 4 and 16 are reiterated for
ready reference:
"4. Power of Central Government to declare ancient
monuments, etc., to be of national importance.―(1)
Where the Central Government is of opinion that any
ancient monument or archaeological site and remains not
included in section 3 is of national importance, it may, by
notification in the Official Gazette, give two months' notice
of its intention to declare such ancient monument or
archaeological site and remains to be of national
importance; and a copy of every such notification shall be
affixed in a conspicuous place near the monument or site
and remains, as the case may be.
(2) Any person interested in any such ancient monument or
archaeological site and remains may, within two months
after the issue of the notification, object to the declaration
of the monument, or the archaeological site and remains, to
be of national importance.
(3) On the expiry of the said period of two months, the
Central Government may, after considering the
objections, if any, received by it, declare by notification in
the Official Gazette, the ancient monument or the
archaeological site and remains, as the case may be, to be
of national importance.
(4) A notification published under sub-section (3) shall,
unless and until it is withdrawn, be conclusive evidence of
the fact that the ancient monument or the archaeological
site and remains to which it relates is of national
importance for the purposes of this Act.
16. Protection of place of worship from misuse, pollution
or desecration.―(1) A protected monument maintained by
the Central Government under this Act which is a place of
worship or shrine shall not be used for any purpose
inconsistent with its character.
(2) Where the Central Government has acquired a protected
monument under section 13, or where the Director-General
has purchased, or taken a lease or accepted a gift or
bequest or assumed guardianship of, a protected monument
under section 5, and such monument or any part thereof is
used for religious worship or observances by any
community, the Collector shall make due provision for the
protection of such monument or part thereof, from pollution
or desecration―
(a) by prohibiting the entry therein, except in accordance
with the conditions prescribed with the concurrence of
the persons, if any, in religious charge of the said
monument or part thereof, of any person not entitled so
to enter by the religious usages of the community by
which the monument or part thereof is used, or
(b) by taking such other action as he may think necessary
in this behalf."
24. The tomb of Muhammad Ghaus (premises includes tomb of
Tansen also) was declared ancient monument of national
importance purportedly under Section 4(3) of the Act of 1958 as
reflected in Gazette Notification dated 23-01-1962 and since then
it was maintained by the Central Government/ASI. If petitioner is
permitted to conduct Urs and Namaz then certainly as alleged by
respondents/Union of India, structure would suffer
spoilation/damage where tents would be installed, hammering
nails would be fixed, lights would be fixed, thus causing
degradation, spoilation, pollution and desecration. Since protected
monument is not declared archaeological monument to be of
national importance under Section 5 or 13 but under Section 4 of
the Act of 1958, therefore, no permission can be granted for use
as mentioned by the petitioner. This monument does not fall under
the place of worship and shrine. It is being acquired by the
Central Government. It is an archaeological monument declared
by the Central Government as monument of National Importance
under Section 4 of the Act of 1958. Therefore, it cannot be used
except to be protected as monument.
25. One more aspect deserves consideration is that Section 18 of the
Act of 1958 gives right to the public to have right of access to any
protected monument and if the prayer as made by the petitioner is
accepted then it would certainly hinder the right of access given
to the public under Section 18 of the Act of 1958. Section 18 of
the Act of 1958 reads as under:
"18. Right of access to protected monuments.―Subject to
any rules made under this Act, the public shall have a right
of access to any protected monument."
26. Therefore, right of access given to the public at large deserves
protection and understandably so because by visit of public at
large, give them an insight into their history and culture. They
come to know about their moments of glory in the past and learnt
lesson also from it.
It is stated that - Those who forget History are
Condemned to repeat it. Therefore, for learning of future
generations, right of access to protected monument is an
important statutory right. Same deserves protection.
27. Section 19 of the Act of 1958 put restrictions on enjoyment of
property rights in protected areas. Therefore, no person, including
the owner or occupier of a protected area shall construct any
building/or make operation within the protected area or carry on
any mining, quarrying, excavating, blasting or any operation of a
like nature in such area, or utilise such area or any part thereof.
Thus, it is clear that even if a person is owner of the property of
protected area, even then he cannot do such activities. Here, the
civil suits filed for ownership were dismissed long back as
referred in the reply of respondents/Union of India and discussed
in preceding paragraphs. Therefore, on this count also, petitioner
has no case on merits.
28. Perusal of all these documents indicate that ownership issue was
rejected by the Courts below after conducting regular trials.
Therefore, on this point also when owner of property has
restriction on enjoyment of property right in protected area then
the person like petitioner has no right whatsoever of stay in the
protected area or to cause any mischief as alleged by the
respondents.
29. In fact it is the duty of the ASI and District Administration to
protect this monument of National Importance with utmost
care and strictness so that such ancient monument carrying
History and Culture into its ambit, be preserved for posterity.
30. In view of the above discussion, it is clear that Constitutional
Vision and Constitutional Morality ought to prevail over personal
and vested interest. It deserves to be protected with utmost care
and caution and no activity as sought by the petitioner can be
permitted lest monument will lose its originality, sanctity and
vitality. It would be a National loss then.
31. One more aspect deserves attention is nature of relief sought by
the petitioner. Petitioner sought following reliefs in his writ
petition:
"1. That, this Hon'ble Court may kindly direct the
Respondent authorities to consider the grievances of the
petitioners and allow the petitioner and other local people
to perform the religious activity (Urs and Namaz) in the
interest of justice.
2. That, any other relief which this Hon'ble Court deems fit
may be passed in the interest of justice."
32. From perusal of relief clause it is clear that petitioner did not
challenge the order dated 14-03-2024 passed by the ASI whereby
he was given intimation about rejection of his application. That
order still stands and stares at petitioner. Therefore, in absence of
any challenge made to this order, no relief can be granted to the
petitioner.
33. Another ground raised by the respondents/Union of India is
concealment of facts. Said aspect is writ large in the case and
indicates mischievousness of petitioner and motive can be
attached because of such mischief of concealment of facts.
Learned Writ Court rightly dealt in extenso about such mischief.
This disentitles the petitioner to deny issuance of writ in
discretionary jurisdiction. This Court affirms the said findings of
learned Writ Court and holds that petitioner did not approach this
Court with clean hands.
34. In the conspectus of facts and circumstances of the case as well as
in view of the discussion made above, no case for interference in
the impugned order is made out. ASI rightly rejected the
application of petitioner vide order dated 14-03-2024. Copy of
this order be sent to Collector, District Gwalior, S.P. District
Gwalior for information and consideration.
35. Appeal sans merits and is hereby dismissed sans cost.
(ANAND PATHAK) (HIRDESH)
Anil* JUDGE JUDGE
ANIL Digitally signed by ANIL KUMAR CHAURASIYA
KUMAR
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR, ou=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR,
2.5.4.20=8512f40a1a9eaa50b6802d068b51dae27e84
c266b09d283f0799e67cdc7df50f,
CHAURASI
postalCode=474001, st=Madhya Pradesh,
serialNumber=EC534CBB3B245F050119F06F4A296D
D83C765A1E2ACC6EC7D8BD8CBCC9C2446E,
cn=ANIL KUMAR CHAURASIYA
Date: 2025.06.17 10:36:55 +05'30'
YA
