“Tomorrow you might say entire India is Waqf property”: MP HC while dismissing waqf’s claim over Burhanpur Fort

On Tuesday, August 6, the Madhya Pradesh High Court overturned a decision by the MP Waqf Board that had claimed ownership of the historic Burhanpur Fort as Waqf property. The Waqf Board’s claim included several key sites within the fort: the Tomb of Shah Shuja, the Tomb of Nadir Shah, Bibi Sahib’s Masjid, and the palace located on the fort premises.

The controversy began in 2013 when the Waqf Board requested the Archaeological Survey of India (ASI) to evacuate these sites, asserting that they were Waqf property. In response, the ASI filed a writ petition with the High Court, arguing that the property, located in Emagird village, Burhanpur, and covering approximately 4.448 hectares, was protected under the Ancient Monuments Preservation Act of 1904.

The ASI maintained that these sites had been under its protection for decades and could not be reclassified as Waqf property without losing their status as protected monuments. The Waqf Board countered that it had rightfully declared the property as Waqf and argued that the ASI should have approached the Waqf Tribunal instead of filing a writ petition.

In its assessment on July 26, Justice GS Ahluwalia’s bench noted that the properties had been designated as ancient monuments as early as 1913 and 1925 through official notifications under the Ancient Monuments Preservation Act, of 1904. The court found no evidence that these properties had ever been removed from the Chief Commissioner’s custody as per Section 11 of the Ancient Monuments Preservation Act, 1904.

The Madhya Pradesh High Court addressed the Waqf Board’s claim over Burhanpur Fort on August 6, 2024, dismissing their assertion of ownership. The Waqf Board had based its claim on a notification issued under Section 5(2) of the Waqf Act of 1995. However, the court noted that the board did not submit a complete notification.

Although no other parties contested the notification, the Board could not provide a legal basis to invalidate the protections under the Ancient Monuments Preservation Act, 1904, unless the property was officially released by the Central Government or the Commissioner.

The court upheld the Archaeological Survey of India’s (ASI) position, referencing the Supreme Court’s ruling in Karnataka Board of Wakf vs. Government of India (2004). This ruling established that properties listed on the Register of Ancient Protected Monuments are undeniably under the Government of India’s ownership and maintenance.

The court concluded that the Waqf Board’s notification was incorrect. “Once a property is declared an ancient monument and protected monument, it cannot be considered Waqf property as of the Waqf Act, 1995,” the court stated. “Even if a notification had been issued declaring it to be Waqf property, it would not nullify the existing notifications under the Ancient Monuments Preservation Act, 1904.”

The court further asserted, “An erroneous notification issued in respect of property which is not an existing Waqf property as of the Waqf Act’s commencement date would not make it Waqf property, nor would it grant the Waqf Board jurisdiction to evict the Central Government from ancient and protected monuments.”

Justice GS Ahluwalia added a critical remark, “Why not claim the Taj Mahal as Waqf property? Tomorrow, you might say the entire India is Waqf property. It doesn’t work like that—you can’t issue notifications and simply claim the property as yours.” The court ruled that the CEO of the MP Waqf Board committed a serious legal error by treating the monument as Waqf property and directing the ASI to vacate it.