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1999 Supreme(All) 1330
IN THE HIGH COURT OF ALLAHABAD
Yatindra Singh, J.
TAQDEER SINGH - Appellant
Versus
IIIRD ADDITIONAL DISTRICT JUDGE, JALAUN - Respondents
C. M. W. P. 11408 Of 1980
Decided On : 09/02/1999
BHAGWATI PRASAD, G.N.Verma, M.C.MISHRA, P.K.Bisariya, P.N.TIVARI, PRADEEP CHANDRA, R.N.Singh, RAKESH BHADUR
A person who illegally occupies a public cremation ground is liable for eviction.
Headnote:
PUBLIC PREMISES (EVICTION OF UNAUTHORISED OCCUPANT) ACT - SECTION 2(AA), 2(B), 2(E) - PUBLIC PREMISES - CREMATION GROUND - PUBLIC UTILITY LAND - UNAUTHORISED OCCUPANT - EVICTION - WRIT JURISDICTION - PUBLIC INTEREST: 1. The right to cremate or bury is a custom-based right and cannot be acquired or claimed as an easement. 2. A cremation ground is a public premises entrusted to the management of a local authority. 3. A local authority has the power to open and close cremation grounds and to manage them on behalf of the people. 4. A person who illegally occupies a public cremation ground is liable for eviction. 5. The writ jurisdiction should not be exercised in favor of a person who has no rights and is illegally occupying a public utility land.
Fact of the Case:
The petitioner, claiming to be in cultivatory possession of a plot of land on the basis of a lease deed from the Zamindar, challenged the order of the appellate court allowing the appeal of the Municipal Board and directing his eviction from the land, which the Board claimed to be a cremation ground and a public premises.
Finding of the Court:
The court held that the land in dispute was a public cremation ground and a public premises, that the petitioner was in illegal possession of the same, and that the writ petition had no merit.
Issues: 1. Whether the land in dispute was a public cremation ground or a cultivated tenancy holding. 2. Whether the land was a public premises entrusted to the management of the Municipal Board. 3. Whether the petitioner was an unauthorized occupant liable for eviction. 4. Whether the writ jurisdiction should be exercised in favor of the petitioner.
Ratio Decidendi: 1. The court relied on the revenue records, which showed that the land had been recorded as a cremation ground since the beginning of the century, and on the decision of the Supreme Court in Mohd. Labbat v. Mohd. Hanifa, which held that a public graveyard is a public premises and cannot be divested by non-user. 2. The court held that the management of the cremation ground was entrusted to the Municipal Board under Section 285 of the U.P. Municipalities Act, 1916, and that the Board had the power to open and close cremation grounds and to manage them on behalf of the people. 3. The court held that the petitioner was an unauthorized occupant liable for eviction because he had no rights to the land and was illegally occupying a public utility land. 4. The court held that the writ jurisdiction should not be exercised in favor of the petitioner because he had no rights and was illegally occupying a public utility land.
Final Decision: The writ petition was dismissed with the observation that the Board had no right to change the form of use of the cremation ground except in accordance with law.
( 1 ) SRI Taqdeer Singh (Petitioner) has filed this writ petition for quashing the order passed by the iiird Addl. District Judge, Jalaun at Oral, the appellate court, dated 29. 9. 1990. The appellate court allowed the appeal of the Municipal Board, Oral (the Board for short) against the order of the Prescribed Authority dated 24. 7. 1979. In proceeding under U. P. Public Premises (Eviction of Unauthorised Occupant) Act. 1972 (the Act for short ). FACTS
( 2 ) THE Board took the proceeding under the Act in respect of plot No. 802/1, area 1. 75 acre (the land in dispute) for eviction of the petitioner. According to the Board, it is a cremation ground--a public premises. The Board further says that the petitioner is unauthorised occupant and is liable for eviction under the Act, The petitioner denied this. He claims to be in cultivatory possession of the same on the basis of a lease deed from the Zamindar.
( 3 ) THE Prescribed Authority by its order dated 24. 7. 1979 held that the land in dispute appeared to be a public property and the Board has right to initiate the present proceedings as it was within the Municipal Limits, But the eviction proceedings were dismissed on the ground that the possession of the Board was not proved over the land in dispute and it was being cultivated,
( 4 ) THE Board filed an appeal. The appellate court held :--The land in dispute is marghat (cremation ground) used by the Hindus of the locality.--The zamindar had no right to grant a lease in respect of "marghat, which by long and continuous user as marghat had vested in the public at large.--The written lease deed dated 1. 7. 1961 (Ex. Ka-1) is a forged and fictitious document. It is against the pleadings of the petitioner--he had claimed it to be an oral lease,--The petitioner is liable for eviction and for damages at the rate of Rs. 175 per month. The petitioner has filed this writ petition against the order of the appellate court. POINTS FOB DETERMINATION
( 5 ) I have heard Sri G. N. Verma, counsel for the petitioner and Sri R. N. Singh for the respondents. Following points arise for determination in the present case :
(i) What is the basis of right to cremate ? Can a cremation ground be used for a purpose other than for cremation? (ii) What is the nature of the land in dispute ? is it a cremation ground, or is it tenancy land cultivated by the petitioner ? (iii) is the land in dispute a public premises ? is the petitioner, an unauthorised occupant ? is he liable for eviction ? (iv) is the petitioner entitled to any relief ? Should the writ jurisdiction be exercised in favour of the petitioner ? 1st Point : BASIS--RIGHT TO CREMATE OR BURY
( 6 ) THE nature of right to cremate or right to bury is similar. One is claimed by the Hindus ; the other normally by the Muslims, though persons of other faiths also bury their dead. It is a settled law that these rights cannot be acquired or claimed as an easement. The reasons could be many. Such a right cannot be Imposed for beneficial enjoyment of a land. But there was some debate among the different High Courts regarding basis of this right. Some held the basis could be lost grant, or dedication, or custom.
( 7 ) THE controversy has now been set at rest by the Privy Council in Lakshmidhar Mishra v. Rangalal (the Lakshmidhar Mishra case ). It has been clarified that such rights can neither be claimed on the basis of dedication nor as a lost grant. The true basis of these rights He in custom only. This decision was followed by a division bench of the Patna High Court.
( 8 ) THE sum and substance of these decisions is that : right to cremate or bury ones dead can be claimed only as a custom : and once it is proved that there is such custom, then the Zamindar cannot change the way it is used, without providing for equally convenient alternative, as it would be against the public interest. It is for this reason that the Privy Council in the Lakshmi dhar Mishra case, (1) decreed the suit ; (2) pas
