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Judgment
K.B.K. Vasuki, J.—Both the appeals are filed by the Dargah Haqhdhar Management Committee of Ervadi Dargah against the order dated
04.02.2010 made in M.P. (MD). No. 1 of 2010 in Cont. P. (MD). No. 566 of 2008, thereby refusing to permit the Appellant herein to
participate in the contempt proceeding as third party/intervenor and against the order dated 01.02.2010 made in Cont. P. (MD). No. 566 of
2008, thereby permitting the first Respondent herein to break open the lock of the Dargah, put a new lock and keep the keys with him.
The facts relevant to decide the controversy in issue in these appeals are briefly stated as follows;
(a) The Dargah called as ""Sulthan Syed Ibrahim Shaheeth Oliyullah Dargah"", is one of the famous Darghas in Ervadi Village, Ramanathapuram
District and the original founder of the Dargah was Alla Ibrahim Sahib and the Dargah is having 11 other subsidiary Dargahs attached to main
Dargah. The Dargah owns movable and immovable properties and the immovable properties are let out for lease and for rent, and the income so
derived from the properties are, after defraying the expenses, maintained in proper bank account. From the date of its inception, Dargah was being
managed by the male descendants of the male line of three branches representing the three sons of the original founder. While so, a committee
consisting of 15 members, representing all the three branches equally, was formed to manage the affairs of Dargah and such committee was placed
responsible for the management of the Dargah, in all aspects.
(b) While so, dispute arose between the parties during the year 1978 and though the same ended in compromise, the terms of compromise was
not properly implemented because of the trouble created in the smooth administration of the Dargah by few of the male descendants and the same
gave rise to various litigations, one among which is O.S. No. 236 of 1978 filed to frame a scheme for the purpose of management of the hundial
collection in various Dargahs, i.e., in the main Dargah as well as in the subsidiary Dargahs and after much deliberation, the parties entered into a
joint compromise and based on that, compromise scheme decree was passed on 27.04.1989 by the Sub Court, and the same remains in force
without any modification till date. The scheme decree contains various clauses dealing with the rights of the Huqdhaars, constitution of Executive
Council consisting of 21 Huqdhaars with elected office bearers among them for the entire administration and management of the affairs and
properties of Dargah, by the said Executive Council, duties and responsibilities of the various office bearers of the committee, employment of the
staff, utilisation of income from the hundial and other immovable properties for the festivals and distribution of balance amount among male
descendants, conduct of general body meeting and auditing of accounts, etc.
(c) In pursuance of the scheme decree, the terms contained therein was followed in the matter of management of affairs of Dargah Committee
through Executive Council. In the course of such management, disputes arose giving rise to number of Court proceedings relating to the
administration of Dargah and one such proceeding in O.S. No. 34 of 2004 is instituted on the file of the Vacation Civil Judge, Ramanathapurm by
the first Respondent herein and two others for certain reliefs in respect of hundial collection. The said suit was disposed of by granting compromise
decree and as per one of the clauses in the said compromise decree, the parties were permitted to file a suit for rectification of the scheme decree
for proper and effective administration of the Dargah and for auditing the account.
(d) The validity of compromise decree so made was challenged in C.R.P. No. 132 of 2004. Pending C.R.P., few individual Huqdhaars belonging
to three branches were having the custody of Dargah keys, including that of Makbara and the Administrator was appointed by the Court to
conduct annual festival and the Administrator is handed over the keys by the Huqdhaars including that of the contesting first Respondent herein and
after the festival was over the key was as per the order of the Revision Court handed over to the first Respondent herein. Pending C.R.P., one
Sathik Trust was in temporary charge of the affairs of the Durga and was in custody of the keys. The C.R.P., is subsequently withdrawn in view of
out of Court settlement arrived at between the parties at the intervention of elderly and responsible community persons of the Sathik Trust and in
pursuance of the same, Dargah Huqdhaars Management Committee consisting of President, Vice President, Secretary and Committee members
was constituted on 17.06.2007 and the Management of Ervadi Dargah including that of Makbara was brought under the control of the Executive
Committee, otherwise called as Executive Council and the Sathik Trust handed over the keys to the individual Hugdhaars from whom the keys are
received on the understanding that the same be handed over by the individual Hugdhaars to the newly constituted committee. When the
Management of Dargah was taken over by the Huqdhaars Executive Council, the individual Hudghaars except three Huqdhaars viz., 1) Siddik
Levvai S/o. Syed Abudheer Levvai, 2) Syed Rahamadulla S/o. Muhammad Ibrahim and 3) Pambaiya @ Syed Ibrahim Levvai S/o. Syed
Abudheeri Levvai, handed over the keys in their custody to the Committee and the three Huqdhaars above referred to refused to hand over the
keys relating to Dargah entrance gate, doors and Makbara and the same compelled the Dargah Huqdhaars Management Committee i.e., the
Executive Council to approach the Inspector of Police, Ervadi Police Station and the keys that were in the custody of three individuals, during
festival came into the custody of the second Respondent herein who was the then Inspector of Police, Ervadi Dargah Police Station.
(e) Though an issue was raised herein as to whether the custody of the keys was obtained from the individual Huqdhaars forcibly or handed over
by them to the second Respondent herein voluntarily, the same need not be gone into herein as the same is not relevant to decide the problem
raised herein. The fact remains undisputed is that the keys relating to entrance gate, doors, including main Makbara was for considerable time in
the custody of the Inspector of Police.
(f) While so, the first Respondent herein as Petitioner therein filed Crl.O.P. (MD) No. 2392 of 2008 against the second Respondent herein before
the learned Single Judge of this Court for directing the Respondent/Inspector of Police to return the Dargah Main Makbara (Sulthan Ibrahim
Saheed Oli Dargah Makbara) key, to the Petitioner. Pending Crl.O.P., the Appellant herein filed a petition in M.P. (MD) No. 1 of 2008 praying
to participate in the proceeding as intervenor. The learned Single Judge has, after going through the allegations and counter allegations raised by
each other and after hearing rival submissions made on behalf of all the parties including the third party/intervenor and also after going into the
records disposed of Crl.O.P. by holding that the key in question was originally in the custody of the Petitioner in Crl.O.P. viz., the first Respondent
herein and the same came to be in the custody of the then Inspector of Police, who is the second Respondent herein and the learned Single Judge
was, as there was no objection on the side of the Inspector of Police and the intervenor for handing over the key to the Petitioner in Crl.O.P.,
pleased to direct the Respondent/Inspector of Police, to hand over the key to the Petitioner therein. While doing so, the learned Single Judge has
categorically observed that the direction so issued in favour of the Petitioner in Crl.O.P. would not clothe him with any legal right to claim any right
over the administration or management of the Dargah and all the questions including the right of the Petitioner and intervenor over the Management
of Dargah shall be decided by the competent authority or Civil forum and the parties have to work out their remedy in the manner known to law. It
is further clarified that the direction for returning the keys is passed only in view of the no objection expressed by the Respondent/Inspector of
Police and the intervenor.
(g) Thereafter, the first Respondent herein, who is the Petitioner in Crl.O.P., has come forward with contempt petition in Cont. P. (MD). No. 238
of 2008 in Crl.O.P. No. 2392 of 2008 against the Inspector of Police, but the intervenor/Management Committee, who was one of the parties to
the order made in Crl.O.P. No. 2392 of 2008, was not arrayed as one of the Respondents in the contempt petition. It is contended by the
Petitioner in the contempt petition that the rival group opened the existing lock and substituted lock of the Dargah and as per the direction issued in
Crl.O.P., the key was not handed over to him by the Inspector of Police. But the learned Singe Judge, on the basis of the averments made in the
affidavit filed in support of the contempt petition to the effect that the Respondent sent the key by registered post and the same was refused as it
does not contain the actual key that was received from him, has found that it is the Petitioner therein who refused to receive the key and has
dismissed the contempt petition as no case is made out against the Respondent/Inspector of Police.
(h) The Petitioner in Crl.O.P. No. 2392 of 2008 has again come forward with the second contempt petition in Cont. P. No. 566 of 2008 against
the Respondent/Inspector of Police, alleging willful disobedience of the earlier order of the learned Single Judge made on 01.04.2008 by the
Respondent police. Here again the Management Committee is not arrayed as one of the Respondents. It is averred in the affidavit filed in support
of the petition that following the dismissal of the earlier contempt petition, the Petitioner approached the Respondent Police through his counsel for
receiving the key and one key was handed over to him on 16.09.2008 by the Respondent in the presence of his counsel, but that key did not
match with that of the lock of Makbara and that was not the key originally taken from him and the handing over of different key by the Respondent
to the Petitioner amounts to wilful disobedience of the earlier order. The Respondent police has in his counter explained that all the other
Huqdhaars handed over the locks and keys to him, but the Petitioner in Crl.O.P. handed over only one set of key saying that he will open the lock
by using another key in his custody and had the objection regarding the non-matching of key been true, it would have been raised at the time of
receiving key in the presence of his counsel and the key returned to him is only the key handed over to him by the Petitioner and the objection
regarding the actual key is only an after thought.
(i) The learned Single Judge, after hearing both parties in the second contempt petition No. 566 of 2008 passed an order on 01.02.2010 in and by
which the learned Single Judge arrived at a conclusion that such key handed over by the Respondent does not match the lock. The learned Single
Judge has further, in order to give quietus to the issue, per-mitted the Petitioner to break open the existing lock and to put a new lock and to keep
the key of the new lock with him. As the Respondent, Inspector of Police was in the meantime transferred to different place outside Ervadi Dargah
Circle, the entire exercise of breaking open such lock and putting up new lock was directed to be carried out in the presence of the present
Inspector of Police, Ervadi Dargah Circle and the present Inspector of Police was directed to monitor the entire process.
(j) On coming to know about the order so passed in the second contempt petition, the intervener, Management Committee filed a petition in M.P.
(MD). No. 1 of 2010 praying to permit him to intervene in the second contempt petition and to recall the order dated 01.02.2010 and to pass
suitable orders in conformity with the order dated 01.04.2008 made in Crl.O.P. No. 2392 of 2008. The learned Single by order dated
04.02.2010 dismissed the petition by refusing to entertain any further argument. However, while doing so, the learned Singe Judge is pleased to
observe that the earlier order dated 01.02.2010 contains a clear-cut clarification to the effect that handing over of key to the Petitioner in Crl.O.P.
would not confer him any right or power and the Petitioner ought to establish his right in respect of either administration or management of Dargah
only in a civil forum. Aggrieved against the order made in M.P. No. 1 of 2010 and the order made in Contempt Petition No. 566 of 2008, the
intervener, Management Committee has come forward with these appeals.
The main grievance raised by the Appellant herein is that the order in the second contempt petition is passed behind the back of the
Management Committee, who was one of the parties in his capacity as intervenor in Crl.O.P. and whose presence is essential to have effective
disposal of the issue in hand and the permission given to the Petitioner in Crl.O.P., i.e., the first Respondent herein, to break open the existing lock
and put up new lock and to keep the keys with him tantamounts to handing over the possession of the Dargah Makbara to him and the same is in
total violation of the terms of the scheme decree as per which only Executive Council shall be in administration and management of the Dargah and
the Management Committee is clothed with all rights to look after and to safeguard the rights of the individual Huqdhaars and worshippers and to
conduct all festivals and other ceremonies as referred to in Clause 10, etc., and the impugned orders dated 01.02.2010 and 04.02.2010 are not in
conformity with the earlier order dated 14.08.2008 made in the first contempt petition, i.e., Cont. P. No. 238 of 2008.
Per contra, the first Respondent herein has seriously contested Letters Patent Appeals both in law and on facts. According to the first
Respondent, no appeal under Clause 15 of the Letters Patent is maintainable against the order passed in contempt proceedings and the appeal
remedy available against any order passed in contempt petition is available only u/s 19 of the Contempt of Court Act.
Both the learned Counsel for the Appellant and the first Respondent cited the following decisions in support of their contentions for and against
the maintainability of Letters Patent Appeals against the orders passed in contempt petition;
a) Tamilnad Mercantile Bank Ltd. and Others Vs. Tamilnad Mercantile Bank Shareholders Welfare Association, .
b) 2009 (2) MLJ 868 (S.C. Sekar and Anr. v. Tamilnadu Mercantile bank Shareholder''s Welfare Association 2009 (2) MLJ 868)
The earlier Division Bench of this Court in the judgment reported in Tamilnad Mercantile Bank Ltd. and Others Vs. Tamilnad Mercantile Bank
Shareholders Welfare Association, has, after referring to earlier Apex Court judgments reported in J. Parihar Vs. Ganpat Duggar and others, and
P.S. Sathappan (Dead) by Lrs. Vs. Andhra Bank Ltd. and Others, and the earlier Division Bench judgments of this Court reported in S.
Arumuganainar Senior Manager Transport (South) and Bharath Petroleum Corporation Ltd. Vs. Jeenath Roadways, , 1993(2) LW 225 (R.
Rajagopal v. M.P. Chellamuthu and three Ors. 1993 (2) LW 225)in paragraph No. 16 concluded that the Letters Patent Appeals filed under
Clause 15 by the parties affected who were not before the learned Single Judge, are maintainable.
Whereas the recent Division Bench of this Court in the judgment reported in 2009(2) MLJ 868 in paragraph No. 19 concluded that the
provisions of appeal u/s 19(1) cannot be restricted only to a case of punishment imposed by the Court in contempt proceedings and such right of
Appeal shall also be extended where an order adversely affecting the party is passed and the person aggrieved would be only entitled to invoke the
jurisdiction of this Court under the provisions of the Contempt of Courts Act and need not necessarily relegated to other provisions, particularly
intra-Court Appeal.
As the view expressed in the earlier Division Bench of this Court was in the light of the decisions of the Apex Court, we are in total agreement
with the view expressed by the earlier Division Bench and in the light of the judgments relied upon therein, we uphold the maintainability of the
present Letters Patent Appeals.
For the purpose of disposing of the issue in hand on merits, the following important clauses in the scheme decree dated 27.04.1989 are
reproduced herein:
4(a) that the income in entirety from the following items do belong only to the male heirs in male line of Nalla Ibrahim Sahib;
i) Movable and immovable items and the income through hundial collections awarded by the pilgrims for the pooja performed by the Hukdhars
viz., male heirs in the male line of Nalla Ibrahim Sahib;
ii) that the income by way of lease from all other subsidiary Dargahs;
iii) that all rents from the houses, shops and sites (ground rent);
6) that the Dharga be and shall be administered by the Executive council called ""The Haqdhaar Executive Council"" consisting of 21 Huqdhaars and
that the said Huqdhaars shall be elected in proportion of their respective shares;
7)(a).....(e) that seven members from each of the respective three branches of male heirs in the male line, aggregating to 21 members shall be
elected to the Executive council and that the members so elected shall be in office for a period of three years from the date of assumption of charge
as a member in the Executive council;
10) the Hukdhar Executive council shall be responsible to
(i) to safe-guard the welfare of the pilgrims;
(ii) to conduct the festival Santhana Koodu (Urus) and other festivals;
(iii) to prepare plans to increase the income to Dharga;
(iv) to construct the buildings and safeguard the properties of Dargah and that the council shall perform as usual all the necessary acts relating to
every festival and other ceremonies such as ""Santhanam Poosuthal, Porvail Pothuthal, Mouleethu Oothuthal.
The facts above referred to would reveal that the individual Huqdhaars were in the absence of any Haqdhaar Executive Council and during the
pendency of litigation before various Courts kept the keys of the Dargah including Makbara in their custody. However, after constitution of the
Executive Council, that too as provided under the scheme decree, the right of the individual Huqdhaars to be in administration and management of
affairs of the Dargah including Makbara and subsidiary Dargah attached to the main Dargah, got relinquished and the Executive Council is
exclusively responsible and entitled to maintain the properties, to safeguard the welfare of the Pilgrims, to conduct festivals such as ""Santhana
Koodu (Urus)"", etc. and other ceremonies such as ""Santhanam Poosuthal, Porvai Porthuthal & Mouleethu Oothuthal"" and to do all the necessary
actions in connection with the same. Though individual Huqdhaars would have been conducting the festivals and other ceremonies by taking
advantage of the disputes pending in the matter of administration of Dargah, after constitution of the Executive Council, no such right is available to
them under the scheme decree.
As a matter of fact, during the pendency of C.R.P., on more than one occasion the keys were handed over to the Administrator who was
authorised to conduct festival and the custody of the keys were returned back to the litigating parties only to restore status quo-ante with clear
observation that the same does not clothe them with any legal right over the management of either Dargah or Makbara, which is forming part of
Dargah. The particular clause under the scheme decree that the Huqdhaars Executive Council which is very much in existence is only exclusively
responsible for the management of Dargah and its properties, is upheld and recognized by the learned Single Judge of this Court in the earlier
proceedings. As a matter of fact, while disposing of O.S. No. 34 of 2004 on 01.06.2004, the parties were permitted to file suit for rectification of
the scheme decree for better administration of Dargah and auditing the account. Further the perusal of the order passed by this Court in C.R.P.
No. 132 of 2004, dated 08.02.2005, which does find place at page 43 in the additional type-set of papers produced by the Appellant herein,
would reveal that the learned Single Judge of this Court while passing an order in C.R.P. No. 132 of 2004 in the presence of the first Respondent
herein, who is arrayed as one of the Respondents therein held that if the original scheme decree needs any modification for better administration of
the Dargah or direction are necessary for better implementation of the scheme, the parties shall approach the scheme Court and further held that all
the parties to C.R.P. as well as the persons who are bound by the scheme decree shall hereafter move the Sub Court in which the decree in O.S.
No. 236 of 1976 passed.
The learned Single Judge of this Court has also while passing the order in Crl.O.P. No. 2392 of 2008 filed by the first Respondent herein in
respect of the key issue clearly observed that the order of returning the key to the Petitioner therein/first Respondent herein is passed only in view
of ho objection raised by the Inspector of Police/second Respondent herein and the intervenor, Management Committee/Appellant herein and the
same would not clothe the Petitioner therein, who is the first Respondent herein with any legal right to claim any right over the administration or
management of the Dargah and Makbara.
In these factual background only, the disputes raised in these appeals are to be necessarily decided.
It is true that in pursuance of the order dated 01.04.2008, the key of the Dargah did not reach the first Respondent herein and the first
Respondent herein has filed first contempt petition in Cont. P. No. 238 of 2008. Though the order in Crl.O.P. No. 2392 of 2008 is passed in the
presence of the Appellant herein as third party/intervenor, the contempt application is filed without arraying the Management Committee as one of
the Respondents to the same. The first contempt petition is dismissed on 05.08.2008 mainly on the ground that it is the Petitioner therein who
refused to receive the key which was sent by the Respondent therein and no case of willful disobedience is made out against the Respondent
therein.
Thereafter, the first Respondent herein filed second contempt petition in Cont. P. No. 566 of 2008. Here again the Management Committee
was not arrayed as one of the Respondents and the cause of action for filing the contempt petition is explained in paragraph No. 6 of the affidavit
filed in support of the same, as if the key handed over by the Respondent does not match with the lock on the Makbara. It is seriously opposed by
the Respondent therein/second Respondent herein that the key handed over to him is the key which was received by him from the Petitioner and
the allegation raised in the petition regarding non-matching of the key is an after thought. However, the learned Single judge has by order dated
01.02.2010 simply accepted the plea of the Petitioner therein and permitted him to break open the existing lock and put new lock and keep the
key with him. The attempt made on the part of the Management Committee by filing a petition in M.P. No. 1 of 2010, praying to permit him to
intervene, to recall the order dated 01.02.2010 and to dispose of the contempt petition after hearing all the parties, was rejected by the learned
Single Judge not on the ground that the intervenor has no right to do so, but on the ground that the earlier order made it clear that the return of the
key does not clothe any right or power to the first Respondent herein and the parties have to establish their right before the Civil Forum and the
matter need not be reopened and re-argued.
Aggrieved by such order made in the second contempt petition on 01.02.2010 and in the impleading petition on 04.02.2010, the Huqdhaars
Management Committee has come forward with these two appeals and in the meantime, the direction issued by the learned Single Judge on
01.02.2010 is complied with and by recording the same, the second contempt petition is closed on 10.02.2010.
According to the Appellant, from the date of the order passed by the learned Single Judge i.e. from 01.02.2010, the Makbara is kept locked
by the first Respondent herein and pilgrims are denied the right of entering into the same for worshipping and also for other religious acts to be
performed by them upon the Dome erected. According to the Appellant, the learned Single Judge has exceeded his jurisdiction in permitting the
Petitioner in the contempt application to break open the lock and to put the new lock and to keep the key with him and thereby allowing him to be
in possession and management of Makbara without any right to do so as per clear terms of the scheme decree and that too as against the interest
of the worshippers.
The first Respondent, though as a party to the proceedings is bound by the observation made by the learned Single Judge of this Court in more
than one proceedings in C.R.P. No. 132 of 2004 and in Crl.O.P. No. 2392 of 2008, thereby denying his right to the management and
administration of Dargah, has been strenuously contending before this Court that the custody of the keys is handed over to him only for the
purpose of retaining the management of main Makbara so as to enable him to conduct ceremonies such as Porvai Porthuthal, etc. and his
predecessors and thereafter the first Respondent herein alone is having exclusive right to conduct such ceremonies in main Makbara. He has also
unsuccessfully attempted to substantiate such right by relying upon 14 documents contained in the additional type-set of papers produced by him.
Out of 14 documents, documents Nos. 3 to 8 & 10 to 13 are relating to key issue and they are the complaints given by the Petitioner and the
Respondents, and the acknowledgement for either accepting the custody of the key or handing over the custody of the key from and to individual
Huqdhaars, during the pendency of litigation and as the keys were admittedly in the custody of the individual Huqdhaars and the first Respondent
herein also one among those Huqdhaars and fighting for the key in the earlier proceedings, the documents above referred to do not improve the
case of the first Defendant with regard to the right to be in possession and management of the Makbara.
The remaining document Nos. 1, 2, 9\14 are the copy of identity card purported to be issued to the first Respondent and the orders made in
C.M.P. No. 696 of 2005 in C.R.P. No. 132 of 2004, Crl.O.P. No. 2392 of 2008 and Cont. P. No. 568 of 2008. Here again the earlier orders
passed by this Court do not, as discussed in the forgoing paragraphs, support his claim. In each and every order, it is clarified that the first
Respondent herein cannot, on the strength of the custody of the key, claim any right and the remedy available to him is only to go before the
Scheme Court for obtaining modification or further direction or to any other Civil Forum to get his right, if any to be declared. The only remaining
document is the copy of the identity card furnished to him by the Inspector of Police, Ervadi Dargah. It is true that his designation in this document
is referred to as ""Syed Ibrahim Oli Makbara Permanent and Hereditary Incharge, shortly termed as DHMC and the same is signed by the
President and Secretary of the Dargah Haqdhaar Management Committee.
The other document produced before us in the course of argument is the counterfoils of entry fee receipt book said to be issued by him for
DHMC for the period during March and April 2003. The genuineness of these documents are seriously disputed on the side of the Appellant, on
the basis of confession statement said to be given by Ex-secretary and the present President of the Management Committee, which is to the effect
that his signatures in the said documents are forged. The Appellant herein has also produced the entry fee receipt book relating to February 2010
onwards issued by one Shahulhameed, Incharge E.O. of Ervadi Dargah Haqdhaar Management Committee. It is contended by the Appellant that
one E.O. is appointed to be Incharge of the affairs of Dargah and the Executive Officer is empowered to collect Rs. 30/- per head from each
devotees as entry fee and the entire affairs of Dargah is being managed by him and the right claimed by the first Respondent herein mainly on the
basis of the custody of the key independent of the scheme decree is legally and factually unsustainable.
We are in total agreement with such contention raised on the side of the Appellant. As far as the claim made by the Appellant/Management
Committee to be in management and administration of the Dargah including Makbara and conduct festivals and other ceremonies is concerned, the
same can be traced out under scheme decree which is in force till date without any modification. It is nobody''s case that any application is filed or
pending before the concerned scheme Court by any other party for any modification or further direction for better administration of Dargah and for
better implementation of the terms of the scheme decree.
The specific clauses in the scheme decree are already reproduced in the earlier part of this order and in and under the same no individual
Huqdhaars, except the Huqdhaars Executive Council, consisting of selected 21 Huqdhaars and elected office bearers among them, has anything to
do with the right and management of Dargah including that of Makbara. The Makbara is to be treated as forming part of Dargah and no individual
Huqdhaars can claim any independent right to be in exclusive possession and enjoyment of the Dargah or Makbara, or to do any other ceremonies
such as Poorvai Porthuthal, etc. inside the same. Though the first Respondent herein has been persistently claiming one such right, the same is
admittedly not under the scheme decree or any other legally acceptable document. One such right is shown to be exercised by him during the
pendency of litigation and once pending litigation is over and once Management Committee is constituted either the first Respondent or any other
individual Huqdhaars cannot be permitted to per-form any other act in the matter of administration and management of Dargah or in the matter of
conducting festival and other ceremonies inside the Dargah or Makbara. Even the documents sought to be relied upon by the first Respondent
herein came into existence only during the pendency of litigation and as there is a serious dispute raised on the side of the Appellant against the
genuineness of the same no reliance can be placed upon such documents in support of the right claimed by the first Respondent herein.
As rightly observed by the learned Single Judge in the earlier proceedings that any party including that of individual Huqdhaars has to approach
the Scheme Court or any other Civil Forum for their right, if any to be established and the custody of the keys are restored to only maintain the
status quo and nothing more. Though it is held so by the learned Single Judge in the earlier proceedings, the learned Single Judge has, in the light of
such observation and clarification contained in the earlier orders, erroneously allowed the first Respondent herein to break open the lock and put
up new lock and keep the keys with him. Such an order passed by the learned Single Judge which impugned herein in these two Letters Patent
Appeals are totally against the observation held in the earlier proceedings which is rightly understood and reproduced by the learned Single Judge
while disposing of the petition filed by the Appellant herein to permit him to contest as intervenor and to recall the order dated 01.02.2010.
Further the learned Single Judge failed to see that while disposing of contempt application for non-compliance of the earlier order, no question
of issuing new direction will not at all arise. As rightly argued by the learned Counsel for the Appellant by relying upon the judgment reported in
Bihar Finance Service H.C. Coop. Soc. Ltd. Vs. Gautam Goswami and Others, , while dealing with the contempt application, the Court has to
primarily concerned with two aspects, that are (1) whether the order passed it has attained finality or not?; and (2) whether the same is complied
with or not? and it cannot give an additional direction as it is done in the present case. The learned Single Judge has while disposing of the second
contempt petition failed to see that the second Respondent herein/Inspector of police has by sending key through registered post and the first
Respondent herein having refused to receive the same, has no legs to maintain the second contempt petition.
Having considered the various dimensions and issues involved in these appeals, it will have to be noted that in a Dargah, the Makbara is the
sanctum sanctorum. Unlike a Hindu Temple there is no deity in a Mosque or a Dargah.
A Dargah is a place where a Muslim Saint is buried over which a Tomb is laid. Having regard to the great Sainthood displayed by an Islamic
scholar and by virtue of extensive learning of the Tenets of Islam, he is respected as a distinguished personality during his life time and such respect
earned by the person is continued to be maintained even after his demise.
A Dargah assumes greater significance by virtue of the Tomb of the personality who had earned such an amount of reputation by virtue of
sheer learning of the Islamic Tenets. Such a respect thus earned by the person created an en mass belief that the Tomb where he is laid at rest
would be able to alleviate the grievance of the believers. That is how a Dargah gains popularity and the great person buried in Ervadi Dargah was
one such learned personality of the yesteryears in Islam whose popularity was such that the people who have immense confidence in him throng the
Dargah to give vent to their grievances expecting great amount of solace and redressal through that Soul.
Therefore, the people who throng the Dargah with the mind filled with high expectations for redressal of their grievance would be anxious to
have a glimpse of the Tomb which is the place called Makbara. Every individual who visits the Dargah would be too anxious to enter the Makbara
and perform certain special activities such as Santhanam Poosuthal, Porvail Pothuthal, Mouleethu Oothuthal, etc., Santhanam Poosuthal is nothing
but applying sandalwood paste in some part of the Tomb inside the Makbara. Porvail Pothuthal is another form of activity by which whomsoever
can afford to buy a shawl or any other form of carpet depending upon his wherewithal and spread the same over the Tomb and Mouleethu
Oothuthal is recitation of special songs praising the Saint buried in the Dargah and thereby seek for redressal of their grievances.
Because of the significance of such special activities inside the Makbara, where the Tomb is located, the Scheme Decree entrusted the whole
management and administration of the Dargah with an Executive Committee in order to ensure organised performance of such special activities in
the Makbara. It is also relevant to note that such special activities to be performed inside the Makbara, depending upon the nature of such
activities, certain charges used to be collected from the devotees, which goes to fill the coffers of the Dargah accounts. Therefore, the upkeep and
maintenance of the Makbara and performance of various functions and activities inside the Makbara and whatever income derived from such
activities are all centrifugal functions which are part and parcel of the administrative set up of the Dargah and in particular the Makbara.
Therefore, the claim of the first Respondent that he was entrusted with the keys of the Makbara and that the entire control relating to the
Makbara was with him and with his predecessors is too tall a claim and can never be accepted.
Going by the Scheme Decree in general and Clause 10(iv) in particular, it is specifically mentioned that it is the responsibility of the Haqdhaar
Executive Council, among other things, to perform as usual all the necessary acts relating to every festival and other ceremonies such as
Santhanam Poosuthal, Porvail Pothuthal, Mouleethu Oothuthal"", which signifies without any scope for contradiction that it was well within the
Hukdhar of the Executive Council to have absolute control of the entire Dargah administration including the activities held in the Makbara and the
Tomb located therein. So no one single Haqdhaar from any of the families can claim exclusive control to the ingress and egress to the Makbara by
retaining its keys.
Therefore, we are convinced that the order of the learned single Judge in permitting the first Respondent to break open the locks of the
entrance to the Makbara and have his own lock and keep it under his control was directly in conflict with the Scheme Decree provision and
therefore the same cannot be sustained.
In as much as the Haqdhaar Executive Council is the supreme body which has got absolute right over the administration and up keep of the
Ervadi Dargah, they were the necessary parties to be heard and therefore, the rejection of their application for impleading themselves as a party
Respondent was also not justified.
For all the above stated reasons, these appeals are allowed and the order of the learned single Judge is set aside. The first Respondent is
directed to handover the keys in his custody forthwith, failing which the Appellants are entitled to replace the locks and have absolute control of the
Makbara under their lock and key.
In the result, both the Letters Patent Appeals are allowed and the order dated 04.02.2010, made in M.P. No. 1 of 2010 in Contempt Petition
No. 566 of 2008 as well as the order dated 01.02.2010, made in Contempt Petition (MD) No. 566 of 2008, of the learned single Judge are set
aside. In as much as, the conduct of the first Respondent in having attempted to take over the management of the Makbara contrary to the Scheme
Decree and thereby caused grave inconvenience to the administration of the Dargah management he is liable to pay exemplary costs to the
management. The appeals are therefore allowed and the first Respondent is directed to pay Costs of Rs. 2,000/- (Rupees two thousand only) to
the Appellant. Consequently, connected miscellaneous petitions are closed.