Less Graves Cannot Be A Ground To Vest Kabrastan Land In Govt: Gujarat High Court

Background

The Petitioner-Trust stated that the land measuring 2 acres was allotted for a graveyard in the Champaner village in August 1947. The Petitioner-Trust, meanwhile, was registered in 1996 and vide an application in 1997, the Trust became the caretaker of all affairs of the graveyard property.

The Petitioner-Trust further averred that since 1997, there have been many burials in the graveyard and Muslims staying in and around Champaner have brought in dead bodies to this land for burial. To buttress this claim, the Petitioner showed several certificates issued by the Panchayat showing burial and certain village forms, as well.

It was the Petitioner's case that despite these facts, the Respondent has tried to vest the land in Government and did not provide adequate hearing to the Trust before passing the impugned order. Further, the Respondent had exceeded its jurisdiction by committing an illegal act which was unjust for the community. Such an act violated the principles of natural justice and the settled principle of law "once a kabrastan, always a kabrastan" as enunciated by the Gujarat High Court.

The Petitioner-Trust relied on Syed Mohd. Salie Labbai (D), by Lrs. and Ors. v. Mohd. Hanifa (D) By Lrs. and Ors. [1976] 4 SCC 782] to contend that "once property became Wakf property it would continue to be Wakf property notwithstanding non-user by the Muslim community." It levelled the allegation that the Respondent had tried to allot the land to a builder lobby.

The Respondent, per contra, contended that the impugned order was passed in 2006 but the Petition was filed in 2009 indicating a delay. Further, the Circle Officer upon inspection of the land found that the kabrastan had only 5 graves which were 20 years old, and the rest of the land was lying idle. Therefore, to develop the area, the land was vested in the Government.

Additionally, there were only 2 Muslim families in the village. Thus, no land was available which could be allotted to the Petitioner-Trust for the purpose of graveyard.

Judgement

The Court while examining various documents noted that the land was a kabrastan in the name of the Trust, including as per the revenue records of 1996. Subsequently, the Bench considered the Syed Mohd Salie Labhai judgement where it was held:

"We are of the view that once a Kabarstan has been held to be a public graveyard then it vests in the public and constitutes a wakf and it cannot be divested by non-user but will always continue to be so whether it is used or not."

The judgement further stated:

"(1) that even though there may be no direct evidence of dedication to the public, it may be presumed to be a public graveyard by immemorial user i.e. where corpses of the members of the Mahomedan community have been buried in a particular graveyard for a large number of years without any objection from the owner."

"(4) that where a burial ground is mentioned as a public graveyard in either a revenue or historical papers that would be a conclusive proof to show the public character of the graveyard."

Justice Thaker observed that the certificate issued by the local Panchayat affirmed that the land in question was a kabrastan. The same had been admitted by the Respondent. Stating that the Respondent did not give adequate opportunity of hearing the Trust, the observations of the Respondent were not relevant or rational.

For instance, the claim that the graveyard did not have many burials or that there were only two Muslim families could not be a ground to divest the community of the land. The Bench remarked:

"One cannot expect that graveyard should be full always and if there are less graves, it cannot be said to be a ground to vest the land in Government."

Accordingly, the order of 2006 passed by the Collector was quashed and set aside.

Case Title: Islahul Sunni Muslim Khidmat Trust, Thro Managing Trustee Versus Collector

Citation: 2022 LiveLaw (Guj) 21

Case No: C/SCA/4946/2009