By Mumtaz Alam Falahi, TwoCircles.net,
Within the span of just 25 days in the month of May 2011, the Honorable Patna High Court passed two verdicts, exactly same in effect, on two Muslim graveyards in two different districts. The Honorable judges who delivered the judgments in both the cases were same, and thus text and the pattern of the verdicts are very much identical.
On 4th May 2011, the HC bench of Justice Shiva Kirti Singh and Justice Dr. Ravi Ranjan allowed a pucca road on and public use of a plot of land that is claimed by local Muslims in Jehanabad district as graveyard because it has visible graves. The bench said Muslims are using another plot as a graveyard.
The same bench, on 25th May 2011, rejected a PIL that had urged the court to stop authorities from renovating or constructing a pond on a plot of land (in Gardanibagh area of Patna) which was described in Khatiyan as graveyard (Qabristan). The bench said that long ago in 1920 the local Muslims had exchanged the plot in question with another plot which they use as a graveyard.
In both the cases the plots of graveyard are described as Gairmazarua Aam (uncultivated land for public utility). In Jehanabad case, the plot has grave(s) while in Patna case, the land documents mention it as graveyard and it is contended it is a waqf property. However, both the plots have now met the same fate – they have been declared public property.
HC verdict on Alinagar Pali graveyard in Jehanabad:
This writ petition has been preferred by a resident of village, Alinagar Pali, P.S.-Pali, District- Jehanabad who belongs to muslim community. The prayer in the writ petition is to remove encroachment and crops from Plot No.459 in the said village and not to disturb the graves existing on that land.
From the documents available on record it is clear that another Plot No. 455 is recorded as graveyard and has already been demarcated and placed under a boundary wall. In respect of the plot in question i.e. Plot 2 No.459, the Khatian discloses the land to be Gairmazarua Aam Parti Kadeem which means public land under no particular purpose and available for use of all the people. However, in the counter affidavit filed on behalf of the Respondent No.5, i.e. the District Magistrate, Jehanabad, there is an averment in paragraph-10 that at present this huge plot measuring 74 decimals which comprises of Plot No. 382, 383 etc has kuchha road (earth work) as well as plain field and is used by public in general with one grave measuring 9″x 9″. It has further been stated in that paragraph that the rest of the land is free from encroachment being in the nature of parti and plain as well as having trees. Petitioner is satisfied with the description given above and he only wants that the existing grave should not be disturbed and the land should remain as public land and should not be permitted to be tilled or cultivated by private raiyat. Petitioner also wants that the said lands should not be settled with any body because according to petitioner this would affect the sentiments of the muslim community because they believe that in the past this land was used as a graveyard.
In public interest, we have no hesitation in granting the relief that the land in question should be treated as Gairmazarua Aam Parti Kadeem land and it should not be settled with any private person and the grave existing on the said land should not be disturbed.
It is clarified that this order shall not stand in the way of the road being made pucca or the land being put to use to public purpose.
This writ petition is disposed of accordingly.
HC verdict on Gardanibagh graveyard in Patna:
This Public Interest Litigation has been filed for a direction to the respondent authorities not to renovate or construct a pond on plot no. 1427 of Khata no. 30 because as per Survey Khatiyan it is a Gairmazarua Aam land which was described in Khatiyan as graveyard (Qabristan).
Counter affidavit on behalf of the State is categorical that land in question is no longer graveyard since long number of years rather, it is a public land upon which pond exists since long. According to paragraph 6 of the counter affidavit there was a land acquisition proceeding for development of that area and in the year 1920-1921 the aforesaid plot no. 1427 had been 2 exchanged with plot no. 1344 situated at Damaria (Dhera Chak) under the same Mauza and since then on account of such exchange the Muslim community has been using plot no. 1344 as burial ground instead of plot no. 1427. On behalf of the petitioner, learned counsel has raised a dispute that once the land was described as a graveyard, the exchange would not affect the right of the community to use it as a graveyard and as it was a Waqf property; its nature of use cannot be altered. An intervention application has also been filed supporting the stand of the State.
This court is not persuaded to go into the original map prepared at the time of land exchange showing exchange and other related issues in this Public Interest Litigation. It has acquired a definite shape of adversarial litigation. Hence, this writ petition as Public Interest Litigation is disposed of. It goes without saying that the petitioner, if so advised, may pursue his remedy through appropriate proceeding in accordance with law.