Madhya Pradesh High Court
Kazi Mohammad Hanif vs The State Of Madhya Pradesh on 25 November, 2016
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No.No.560/2008
Kazi Mohammad Hanif
Vs.
State of M.P. and others
â¦...............................................................................................
............
Present:- Honâble Shri Justice R.S. Jha
Hon'ble Shri Justice C.V. Sirpurkar
...................................................................................................
............
Shri A.T. Faridee, counsel for the petitioner.
Shri Deepak Awasthi, Government Advocate for the
respondents /State.
...................................................................................................
............
ORDER
(25-11-2016) Per C.V.Sirpurkar, J.
1. This writ petition is directed against order 10.4.2007 passed by Collector, Jabalpur in Revenue Case No.4/A-59/2006-07 whereby land user head of 0.050 hectares of land comprised in Survey No.125/3 of Village Katangi, Tehsil Patan, District Jabalpur, was directed to be changed from that of graveyard and for dumping ground for rubbish and manure to that of Abadi for the purpose of Community building.
2. The facts giving rise to this writ petition may be summarized as hereunder: Some members of Muslim community made a representation to the authorities for construction of community building in Ward No.8 of Nagar Panchayat, Katangi. Pursuant to aforesaid demand, the Nagar Panchayat Katangi in its Meeting No.18 dated 15.3.2007, passed a resolution for allotment of suitable land by Sub- Divisional Officer for aforesaid purpose and also accorded financial and administrative sanction of Rs.7,00,000/- for construction of community building. Survey No.125/3 of Patwari Halka No.1, Revenue Circle Katangi, Tehsil, Patan was reserved in the Nistar Patrak for the composite purpose of graveyard and for dumping rubbish and manure; however, it was not shown in the Revenue records as to which specific part of the land was reserved for which of the aforesaid two specific purposes. The Court of Sub-Divisional Officer, Patan in Case No. 2A and 3A-59/06-07 vide order dated 7.4.2007 published advertisement inviting objections for changing the land user head of Survey No.125/3 in the Newspaper and after considering the objections so received and after considering Spot Inspection Report and Report of Patwari recorded a finding to the effect that the land situated in the north-east side of the tamarind tree was earmarked for the purpose of dumping rubbish and manure and remaining land was reserved for the purpose of grave-yard. The SDO recommended that 0.40 of hectare of land reserved for dumping of rubbish and manure can be allotted to the Nagar Panchayat, Katangi for the purpose of community building by changing the land user head. Consequently the Collector, by impugned order dated 10.4.2007, directed that 0.050 hectare of land comprised in Survey No.125/3 be separated from the remaining land in the Nistar Patrak and be allotted for the purpose of construction of community building.
3. The petitioner, claiming to be a resident of Katangi, filed this writ petition challenging order dated 10.4.2007 on the ground that in the Nistar Patrak, Survey No.125/3 has been reserved for the purpose of graveyard, wherein the Muslims have been burying their dead since time immemorial and continue to do so. A land once dedicated to graveyard becomes wakf property and becomes inalienable; therefore, its land user head cannot be changed in exercise of power under Section 237 of the M.P. Land Revenue Code (Herein after referred to in this order as "the Code"). The land for community building could have been allotted from Survey No.125/1 and 125/2 which is government land. The members of Muslim Community raised several objections against the conversion of land user head; however, those objections were not considered and decided. No demarcation was made in order to ascertain as to which specific part of the land comprised in Survey No.125/3, was earmarked for which specific purpose.
4. The respondent Nos. 1 to 3 have opposed the writ petition submitting that the land for the purpose of community building was allotted on the demand of members of Muslim community. The Survey No.125/3 admeasuring 0.995 hectares was never reserved exclusively for the purpose of graveyard. It was earmarked in the Nistar Patrak for the composite purpose of graveyard as well as dumping refuse and manure; thus, entire area never became wakf property. On the representation made by public at large, the revenue authority, after following due procedure, inviting objections by publication of notice in the newspapers and after considering objections, identified the part of the land that was never used as graveyard and the same was duly allotted for the construction of community building. The impugned order passed by the Collector is in larger public interest. The petition has been filed for securing narrow personal ends and is liable to be dismissed.
5. On perusal of the record and due consideration of the rival contentions, we are of the view that this writ petition is liable to be dismissed for the reasons hereinafter stated:
6. Firstly, we shall consider the objections with regard to the land in question being dedicated for the purpose of graveyard and thus, having become wakf property. It may be noted in this regard that it is not the case of the petitioner that the procedure laid down in Sections 4, 5 and 6 of the Wakf Act, 1954 was adopted in the case; therefore, the petitioner cannot take a ground that the land in question is wakf property and is thus, inalienable under Section 237 of the Code. In this regard, reference may be made to the judgment rendered by the Supreme Court in the case of Tamil Nadu Wakf Board Vs. Hafiza Ammal, AIR 2002 SC 402.
7. Now, we shall consider the objections with regard to the alleged failure of the authorities to decide the objections raised and demarcate the land.
8. It is not in dispute that Survey No.125/3 comprising 0.995 hectares has been earmarked in Nistar Patrak for the composite purposes of graveyard and for dumping refuse and manure. After receiving a petition from members of Muslim community, Janpad Panchayat, Katangi, passed a resolution on 15.03.2007 to the effect that a letter be written to Sub- Divisional Officer/Collector for demarcation of land in ward No.8 of Katangi town and for construction of a community building on the allotted land. Accordingly, a letter was written on 21.03.2007 to the Collector, Jabalpur. On a direction received from the Collector vide letter no.1697/Reader/ Additional Collector-2/07 Jabalpur dated 27.02.2007, the Court of S.D.O (Revenue), Patan, wrote a letter to the Naib- Tehsildar, Katangi to conduct an inquiry in this regard and submit a report accordingly. The inquiry report was submitted to Sub-Divisional Officer on 07.04.2007. Naib-Tehsildar, Patwari and Counsellor of the concerned ward conducted spot inspection of survey no.125/3 in the presence of fifteen panch witnesses belonging to Muslim community. They identified the land which was used as graveyard. It was found that there were about 10 or 12 graves on aforesaid land which were about 50-100 years old. They also identified 0.050 hectares of land on which there were no graves. Accordingly, a spot-map was prepared. On the basis of aforesaid spot-map, the Court of S.D.O (Revenue) got advertisement duly published in two newspapers inviting objections. The Naib-Tehsildar heard the objections and decided the same and recommended that 0.050 hectare of land comprised in survey no.125/3 and situated in north-east of old tamarind tree, had been reserved for dumping refuse and manure. The land user head of aforesaid portion of survey no.125/3 could be changed and allotted for construction of community building. The rest of the land may remain reserved for the purpose of graveyard. On the basis of aforesaid recommendation, the Collector passed the impugned order dated 10.04.2007.
9. Thus, it is obvious that due procedure was followed before passing the impugned order and after taking wishes of the members of Muslim community into account, 0.050 hectares of land comprised in survey no.125/3 and which was never used as graveyard, was allotted for construction of community building.
10. In aforesaid circumstances, no interference in the impugned order is warranted. Consequently, this writ petition deserves to be and is accordingly dismissed.
(RAVI SHANKAR JHA) (C V SIRPURKAR)
JUDGE JUDGE
b