Freedom Of Religion Does Not Entitle Christian Community To Seek Specific Plot For Housing Cemetery: Allahabad High Court

The Allahabad High Court has held that the right to freedom of religion, including the right to perform last rites in accordance with religious beliefs, does not entitle a community to claim a specific plot of land belonging to a local body for establishing a cemetery.

A Bench of Justice JJ Munir and Justice Indrajeet Shukla made the observation while dismissing a writ petition filed by the Christian Community Welfare Society, which had challenged the rejection of its request to convert a piece of barren land in Ghaziabad into a Christian cemetery.

The Court held that the conversion of land entrusted to a Gaon Sabha or local body into public utility land for use as a graveyard is essentially an executive decision involving the consideration of various factors and contingencies.

There is no right inhering in any one, in the sense of it being justiciable, to seek conversion of a particular non-public utility land into a public utility land, the Court said.

The bench added that it would be another thing if indeed there are short of space and such a request can be considered by the Authorities bearing in mind the larger and diverse public interest of citizens, who are resident in the area.

Case in brief

The petitioner society, registered under the Societies Registration Act, 1860, approached the High Court through its president, Vinay Kumar Paul. One of its stated objectives is to extend assistance in the performance of the last rites of Christians.

The dispute concerned 0.3420 hectare of land situated in Village Visokhar, Pargana Jalalabad, Tehsil Modi Nagar, District Ghaziabad. The land was recorded in government records as barren land (usar).

The society contended that Christian residents in the surrounding area were facing considerable hardship in performing funerals because the existing Christian cemetery at Begamabad Budana was running short of space.

It submitted that the Board of the Nagar Palika Parishad, Modi Nagar, had passed Resolution No. 11 on January 22, 2018, proposing that the land be allotted for a Christian cemetery.

The resolution was forwarded to the district authorities, but the land was not converted or reserved for the proposed purpose.

The society thereafter made several representations to the authorities and obtained information concerning the matter under the Right to Information Act, 2005.

It had also earlier approached the High Court through a PIL seeking directions to permit the Christian community to use the land as a graveyard.

Following directions issued by the High Court in those proceedings, the Additional District Magistrate (Administration), Ghaziabad, rejected the request in January this year under Section 77(2) of the Uttar Pradesh Revenue Code, 2006.

Challenging that order, the bench moved the HC contending that the non-allotment of suitable land impaired its members' fundamental right to freedom of religion, of which the performance of last rites forms a part.

On the other hand, it was the stance of the district authorities that the land was recorded as barren and was lying vacant and the same was not traditionally used by any community as a graveyard.

However, a report of the Sub-Divisional Magistrate referred to applications from other local residents and communities expressing apprehension that allotting the land to the Christian community could give rise to communal differences in the future.

It was also pointed out that a Christian cemetery was already situated nearby and was in use.

In view of these circumstances, the district authorities concluded that there was no justification at that stage for allotting the disputed land for a Christian cemetery.

High Court's observations

Taking into account the provisions of Uttar Pradesh Revenue Code, 2006, the High Court noted that land entrusted to a Gaon Sabha or local body could be converted into public utility land but the same is essentially an executive decision taking into account various contingencies and factors.

It further held that no right inheres in any person, in the sense of being justiciable, to seek conversion of a particular piece of land vested in a Gaon Sabha or local body into public utility land for a graveyard.

On society's argument concerning religious freedom, the Bench acknowledged that the right to perform last rites in accordance with religious beliefs could form part of the right to freedom of religion.

However, it clarified that this right could not be claimed in a manner that entitled the society or members of the Christian community to insist upon the reservation of a particular plot of land vested in a local body for a Christian cemetery.

The Court observed thus:

"It is true that the petitioner might say that the right to perform last rites in accordance with the tenets of their religion is part of their right to freedom of religion, but that right cannot be claimed exercise of in the fashion that may entitle the petitioner or members of the Christian Community for the reservation of a particular plot of land vested in the local body for the purpose of housing a Christian Cemetery".

Hence, finding no justiciable basis to set aside the order rejecting the request for the particular plot, the High Court dismissed the writ petition.