A burial ground traditionally used by the public cannot be claimed as private; refusal to permit burials by other Jamaths contravenes public accessibility principles.

ORDER :

1. The challenge in the writ petition is to an order made by the first respondent calling upon the petitioner not to refuse permission for burial as the burial ground is public in nature and also not to refuse the grant of death certificate.

2. Heard Mr.M.Mahaboob Athiff, learned counsel for the petitioner, Mr.S.A.Ajmal Khan, learned counsel for the respondents 1 and 2 and Mr.S.Anwar Sameem, learned counsel for the respondents 3 and 4.

3. The learned counsel appearing on behalf of the petitioner would submit that the petitioner Waqf is a notified Waqf under Section 6 of the Waqf Act, 1995. Originally, the Waqfs comprised of a Mosque. After the formation of the Waqf, properties were purchased by the Mosque from the common fund and there is no dedication in respect of the said properties except the Mosque. One of the properties that were purchased by the management adjacent to the Mosque to an extent of 93 cents has been used as a graveyard for the members of the petition mentioned Waqf, who are in payment of subscription. The revenue records in respect of the said property stand in the name of individuals, who are the Office Bearers and not in the name of the Waqf. Therefore, he would submit that the said burial ground cannot be a part of the Waqf for the property of the Waqf as it did not comply with the twin conditions, namely being a dedication to the almighty coupled with the dedication for any purpose considered in Muslim law to be pious, religious and charitable. He would further submit that the burial ground is held by the Management Committee for the benefit of its members, who contribute to the common fund. The members of other Jamath had approached the management of the petitioner Waqf to permit them to bury the dead belonging to their Jamath, which was declined.

4. He would further submit that the burial ground maintained by the petitioner Waqf is itself not sufficient to cater to the needs of its members. A petition was filed by the third respondent Waqf before the first respondent for a direction to the petitioner Waqf to permit the burial of members belonging to all Jamaths in the burial ground belonging to and maintained by the petitioner Waqf.

5. He would submit that the Board cannot hold an enquiry on such application, as the Board can only resolve the dispute between the members of a particular Waqf and not between two Waqfs. He would submit that based on such representation made by the third respondent, the first respondent had issued a show cause notice on 16.11.2021 calling upon the petitioner to attend the enquiry on 24.11.2021, which was served to the petitioner only on 22.11.2021. The said notice was bereft of material facts. However, the representatives of the petitioner had appeared before the Board on 24.11.2021 and had requested the copies of the complaints and reasonable opportunity to be provided to put forth their case. Without providing the said complaints or reasonable opportunity to the petitioner, the impugned order came to be passed on 29.11.2021 directing the petitioner to permit the use of the burial ground by the persons of all Jamaths and also directing issuance of certificate testifying such burial. This order had been made in violation of right of the petitioner under Article 300A of the Constitution of India

6. He would further submit that the procedure that had been followed by the first respondent is in violation of the law laid down by the Division Bench of this Court in the case of Khathar