Patna High Court
Mirza Sulaiman Beg And Ors. vs Harihar Mahto And Ors. on 4 January, 1985
Equivalent citations: AIR1985PAT227, 1985(33)BLJR585, AIR 1985 PATNA 227, 1985 BBCJ 335, (1985) BLJ 607, (1985) PAT LJR 152
Author: Lalit Mohan Sharma
Bench: Lalit Mohan Sharma
JUDGMENT S.S. Sandhawalia, C.J.
1. Whether a Kabaristan is within the ambit of the wide sweep of the definition of 'land' in Section 2(9) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter to be referred to as the 'Consolidation Act') is the significant question necessitating this reference to the Division Bench.
2. The petitioner, Mirza Sulaiman Beg and others had instituted a Title Suit in their individual as well as representative capacity on behalf of the Muslim public for the alleged removal of encroachment made by the defendants and others over a portion of a Kabaristan situated in Muradabad Kalan and for restraining the defendants from interfering with the land or the trees thereon. It was averred that the aforesaid land is a very old Kabaristan and the dead bodies of the Muslims residing in the localities were being buried therefrom time immemorial. On this premise, it was the stand that the same was not agricultural land within the meaning of the Consolidation Act. In contesting the suit, the defendants in the written statement pleaded, inter alia, that they had taken a settlement of ten decimals out of the disputed plot of land and constructed a house and other appurtenance thereon and further denied the Kabaristan -- character of the plot. On the 25th of April, 1978, defendant No. 2 filed a petition claiming that the suit had abated in view of the notification under Section 3 of the Act with respect to the area in which the plot of land is situated. The petitioners in rejoinder to the said petition took the stand that the land in question was outside the purview of the Consolidation Act and, therefore, Section 4(c) of the Act was inapplicable. By the impugned order dated the 24th of Jan. 1979, the learned Additional Munsif, Sasaram, without adverting in detail to the character of the land, was Kabaristan and whether the same would be the land within the meaning of Section 2(9) of the Consolidation Act, proceeded to hold on the basis of the notification that the suit was hit by Section 4(c) and ordered that the same stood abated.
3. This civil revision originally came up before my learned brother Sharma, J. sitting singly. Before him, the learned counsel for the parties relied on Section 2(9), 4(c) and 11(3) of the Consolidation Act to buttress their respective stand. Considering the significance of the question, the matter was referred to be decided by a larger Bench.
4. Inevitably the issue herein has to be considered in the light of the language of the Statute. What herein calls for pointed notice are the provisions of Section 2(7), 2(9) and 11(3), which may be quoted in extenso for facility of reference : --
"2. Definitions -- In this Act, unless there is anything repugnant in the subject or context --
XXX XXX XXX (7) 'Holding' means a parcel or parcels of land held by a raiyat and forming the subject matter of a separate tenancy;
xxx xxx xxx (9) 'Land' means agricultural land, and includes horticultural land, Kharaur land, land with bamboo clumps, pasture land, cultivable waste land, homesteads, tanks, wells and water channels;"
"11. Preparation of Draft Scheme --
(3) For the purpose of Sub-section (1), it shall be lawful for the Assistant Consolidation Officer -
(i) to declare that any land specifically assigned for any public purposes ceases to be so assigned and to assign any other land for such public purposes :
Provided that it shall not be lawful for the Assistant Consolidation Officer to direct that any land specifically assigned for cremation ground or other religious purposes shall cease to be so assigned unless it is approved by the Village Advisory Committee;"
5. Learned Counsel for the petitioners had primarily pressed his contention that land under a Kabristan was not agricultural land, and, would, therefore, stand out of the definition under Section 2(9) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred ro as the Act). On this premise it was further contended that consequently, the whole sweep of the consolidation proceeding would be excluded altogether and no question of the abatement of the suit under Section 4(c) would arise. Reliance was also sought to be placed on the proviso to Section 11(3) of the Act, and, on Syed Mohd. Salie Labbai v. Mohd. Hanifa, AIR 1976 SC 1569.
6. Perhaps, at the very outset, it calls for notice that the learned Counsel for the petitioners was fair enough to concede that there was no precedent in favour of his stand. The matter has, therefore, to be examined primarily on principle and the language of the statute. What first meets the eye herein is the wide amplitude in which the Legislature has sought to cast the definition of 'land' under Section 2(9) of the Act. But, apart from that, it would seem plain that even in common parlance a graveyard and the land under it would still be ordinarily understood as land. The learned Counsel for the petitioners had virtually conceded this aspect, but emphasis was sought to be placed by him that though this would be 'land', it is not 'agricultural land'. A reference to Section 2(9) would show that the said definition is not a constructive one, but indeed is expansive. The provision uses the well-known phrase 'means' and 'includes'. It seems to be plain therefrom that the definition, far from confining the land to being strictly agricultural in nature, in fact extends it to matters and things, which cannot strictly be labelled as 'agricultural land' for instance, it includes 'homesteads', and, by itself, a homestead is not an agricultural land stricto sensu. Similarly, a tank or a well are plainly not agricultural land. Therefore, the wide ranging language employed in Section 2(9) would, far from excluding Kabristan land therefrom (which, even in ordinary terminology may be understood as land generically) would indeed squarely put it within the wide sweep of its definition.
7. Somewhat surprisingly, learned Counsel for the petitioners had also sought to place reliance on Section 11(3) and, in particular, the proviso thereto. However, it appears to me that a reference to the proviso would rather boomerang on the stand of the petitioners. This clearly indicates that the Legislature expressly visualised a lawful change of assignment by the Consolidation Officer of lands dedicated for cremation grounds or other religious purposes with (he pre-condition of the approval of the Village Advisory Committee. This clearly indicates that the statute visualises a cremation ground as squarely within the definition of 'land' and the ambit of consolidation. Plainly enough, if the argument of the petitioners is accepted that a Kabristan is not agricultural land, and, therefore, beyond the definition, then on a parity of reasoning, a cremation ground is equally not agricultural land either, and, would thus have to be treated on the same footing. Yet, the statute has clearly and in express terms put cremation ground within the ambit of the definition of land and the scope of consolidation. That being so, Kabristan land would have to be treated identically. In fairness, one must notice some shade of distinction in the matter, because in a graveyard the dead bodies stand interred in the land, whilst it is not so in a cremation ground. Nevertheless, neither of the two is agricultural land as such, and, therefore, if one is expressly within the scope of consolidation, one does not see why the other can logically be excluded therefrom. Learned, Counsel for the respondents had rightly placed some reliance on the recent judgment in Abdul Jalil v. State of U.P. (1984) 2 SCC 138 : (AIR 1984 SC 882 at P. 884), wherein it has been observed as under : --
"Moreover, during the present hearing we persistently inquired of counsel appearing on both the sides as to whether there was anything in the Holy Koran which prohibited shifting of graves and counsel for the Sunni Muslims was not able to say that there was any to be found in the Koran. On the other hand, Shri Ashok Sen appearing for Shia Muslims categorically stated that there is no text in the Holy Koran which prohibits removal or shifting of graves; he also stated that his clients (Shia Muslims) do not regard removal or shifting of a grave (whether of a Sunni Muslim or a Shia Muslim) from one place to another as un-Islamic or contrary to Koran. That it is neither un-Islamic nor contrary to Koran is proved by two things. First, as pointed out in one of the affidavits, in a meeting convened by the Divisional Commissioner on Oct. 4. 1983, Maulana Abdul Salam Nomani, Pesh Imam of Gyan-Vapi Masjid, Varanasi was present and when the Commissioner asked him regarding the shifting of the graves as directed by this Court, he replied that a grave can never be shifted except only in the circumstances when the graves are dug on the land belonging to others and the graves are set up illegally on others' land. (In our order dated Sept. 23, 1983, we have pointed out that the two graves in question have come up on the land of Maharaja unauthorisedly and illegally in contravention of Court's injunction.) Secondly, two historical instances of such removal have been placed on record before the Court, namely, the grave of Mumtaz Mahal was removed from Burhanpur and brought to Taj Mahal at Agra and the grave of Jahangir was removed from Kashmir and taken 10 Lahore. There is, therefore, no question of this Court's direction being un-Islamic or contrary to Koran or amounting to desecration of the two graves as suggested,"
8. However, it has to be assumed that the consolidation authorities under Section 11 would give the greatest consideration to the fact that the land is consecrated as a Kabristan. But, as a matter of law. it will be both erroneous and anomalous to exclude it from that scope on merely grounds of sentiment. It calls for notice; that under Section 11(3) of the Act, other lands specifically assigned for religious purposes are also expressly placed within the ambit of consolidation. These may also be other than agricultural, but the fact that the same are consecrated or dedicated to religious purposes would not, in any way, take it out of the scope of consolidation or the powers of the Assistant Consolidation Officer in the preparation of a draft scheme,
9. In fairness to Mr. S.S. Asghar Hussain, learned Counsel for the petitioners, reference must be made to Sved Mohd. Salie Labbai's case (AIR 1976 SC 1569) (supra). This, however, merely lays down the larger incidents of Wakf property and of Kabristans, including family or private graveyards and a public graveyard. There is no quarrel with rhe general proposition laid down therein. But. 1 am unable to see how this, in any way, advances the case of the petitioners with regard to the ambit and applicability of the Act to the said lands.
10. To conclude, the answer to the question posed at the outset is rendered in the affirmative and it is held that a Kabristan is within the ambit of the wide sweep of the definition of 'land' in Section 2(9) of the Act.
11. In the light of the above, the solitary argument raised on behalf of the petitioners must necessarily fail. The revision petition is accordingly rejected, but without any order as to costs.
Lalit Mohan Sharma, J.
12. I agree.