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IN THE HIGH COURT AT CALCUTTA
Chittatosh Mookerjee, J.
Janab Nasiruddin Khan and Others - Petitioners
Versus
The Additional District Magistrate Howrah and Ors. - Respondents
C. R. No. 6193 (w) of 1014
Decided On : March 5, 1975
WEST BENGAL LAND (REQUISITION AND ACQUISITION) ACT, 1948 - SECTION 3(1) - A Muslim burial ground cannot be considered a place of religious worship within the meaning of the proviso to Section 3(1) of the West Bengal Land (Requisition and Acquisition) Act, 1948 (Act II of 1948).
Fact of the Case:
The petitioners, representatives of the Muslim Community of Padmapukur, challenged an order under Section 3(1) of the West Bengal Land (Requisition and Acquisition) Act, 1948 for requisition of a portion of land for the construction of Kona Express Highway. The petitioners claimed that the land was a Muslim burial ground and therefore exempt from requisition under the proviso to Section 3(1) of the Act.
Finding of the Court:
The court found that the petitioners failed to establish that the disputed plot was a Muslim burial ground. The court also held that even if the plot was a burial ground, it could not be considered a place of religious worship within the meaning of the proviso to Section 3(1) of the Act.
Issues: 1. Whether the disputed plot was a Muslim burial ground. 2. Whether a Muslim burial ground can be considered a place of religious worship within the meaning of the proviso to Section 3(1) of the West Bengal Land (Requisition and Acquisition) Act, 1948.
Ratio Decidendi: 1. The court held that the petitioners failed to establish that the disputed plot was a Muslim burial ground. The court relied on the fact that the petitioners were not recorded as owners in the revisional Khatian No. 90, which contained remarks regarding the alleged mode of user and about the existence of the alleged rights of Muslim Public to burial. The court also noted that the heirs and successors-in-interest of the recorded owners of Plot No. 147 themselves had not filed any writ application claiming that no notice of the order was served upon them. 2. The court held that even if the plot was a burial ground, it could not be considered a place of religious worship within the meaning of the proviso to Section 3(1) of the Act. The court relied on the fact that the primary object of the religious rites and practices associated with Muslim burial is internment of the dead body and not religious worship.
Final Decision: The court discharged the writ petition and held that the requisition order was valid.
The petitioners as representatives of the Muslim Community of Padmapukur, Police Station and District Howrah, filed this writ application challenging an order under Section 3 (1) of the West Bengal Land (Requisition and Acquisition) (Act II of (948) Act, 1948 made by the Additional District Magistrate, Howrah as the Collector under the said Act for requisition of a portion of R S. Plot No. 147 in Khatian No. 90 of Mouza Sibpore, District Howrah for the purpose of construction of Kona Express; High Way. The petitioners obtained leave under Order 1 Rule 8 of the Code of Civil Procedure.
2. The petitioners case is that the said Plot No. 147 and the Plot No. 178 situated respectively on the western and eastern sides of Currie Road, Howrah were being used as graveyards by the Muslim public from time immemorial. The said grave-yards were known as Abdullshah Burial Ground. They have annexed a copy of the RS. Khatian No. 90 of Mouza Sibpore. In the said record the name of one Abdul Manna Khan son of Indaj Ali Khan had been recorded in the Column 13 as a non-agricultural (Dakhalkar) tenant under Amitava Roy and others at a rent of Re. 1/- The said Plot No. 147 had been classified as 'Kabarsthan' with the remarks that it was for the use of Muslim Public. The total area recorded was 4498. The area attempted to be requisitoned by the order impugned in this Rule is 1945 in the middle part of the said Plot No. 147. The petitioners have challenged the said requisition order under the West Bengal Act II of 1948 on the ground that the said Plot No. 147 being a grave-yard must be considered as their 'place of worship', within the meaning of the proviso to Section 3 (I) of the said Act and the said land cannot be requisitioned. The petitioners also tried to contend before me that the requisition order is mala fide 3. The respondents in this Rule have denied the claim of the petitioners that the disputed Plot No. 147 is a grave-yard and have contended that the remark to the said effect in the R. S. Khatian No. 90 is incorrect and stands rebutted by other evidence. The respondents have also disputed that a Muslim Grave-Yard is a 'place of religious worship' within the meaning of the proviso to Section 3 (1) of the West Bengal Land (Requisition and Acquisition) Act, 1948 (Act II of 1948). The respondents have also denied that the said requisition order has been made mala fide for co)lateral purposes.
4. The sub-section (4) of Section 44 of the West Bengal Estates Acquisition Act, 1953, inter alia, provides that every entry in the Record of Rights finally published under sub-section (2) shall be presumed to he correct. The entries in the R.S. Khatian No. 90 that the Plot No. 147 was a 'Kabarsthan' for the .use of Muslim public raise a presumption of correctness. At- this stage I may observe that the petitioners were not right in- contending that there had been no revisional survey operations in the Mouza in question. The respondents in their Affidavit-in-Opposition have satisfactorily established that the Khatian No. 90 which was produced in this case was prepared under Revisional Survey Operations. Accordingly, the description of the land as R.S. Plot No. 147 in the requisition order was not incorrect.
5. According to the petitioners, the aforesaid Plot No. 147 wag comprised in holding Nos. 18 and 19, Currie Road of Howrah Municipality and that the previous holding number was No. 11, Currie Road. According to the petitioners, in the Demand Register prepared by the Municipality in the year 1919, the said holding was shown as a private burial ground. In the subsequent Demand Registers prepared in the years 1921 to 1926-27 the said holding was continued to be recorded as a burial ground (vide Annexures 'Q' and 'R' to the Affidavit-in-Reply of the petitioners). The petitioners also purported to produce a list of private burial grounds within the Howrah Municipalities claiming that the disputed Plot was included, therein. The petitioners both in th
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