"Religious Rights Of Muslim Community Infringed":Allahabad High Court Orders To Stop Encroachments On Kabaristan By Ant-social Elements

The Bench of Justice Jayant Banerji and Justice Sanjay Yadav further observed

"Wherever, the High Court has reason to believe that fundamental and Constitutional rights of citizens are threatened, Article 226 of the Constitution of India vests sufficient powers to intervene and issue necessary directions."

The matter before the Court

The petitioners filed the instant public interest litigation seeking directions to the State of Uttar Pradesh, Ministry of Revenue Affairs, District Magistrate, Kaushambi & Sub Divisional Magistrate, Chayal, Kaushambi, to take necessary action against illegal encroachment/ damage made by the respondent nos. 4 to 8 and associated persons on a particular Kabristan [situated at plot no. 193 area 0.3880 hectares situated at Village Boonda, Pargana & Tehsil Chayal, District Kaushambi].

A further prayer was made seeking a mandamus directing the respondents not to interfere in the peaceful construction of the boundary wall of the Kabristan.

It was stated in the plea that the private respondents have opened the doors of their houses on the Kabristan side and are using middle of the Kabristan as a road and now they are raising a constructed road in the middle of the area.

During the enquiry, the petitioners and other signatories to the statement stated that on the land of the Kabristan, the road which was being customarily used was being reinforced with cement concrete from the funds of the District Panchayat which road is being used by the petitioners for taking 'Tazias', etc. and for daily passage.

Additionally, it was admitted that road is being customarily used by the villagers on a daily basis regarding which the petitioners have no objection.

Importantly, the petitioners' demand was only that the villagers stop their movement over the Kabristan land and a boundary wall be made from the funds of the Government for protecting the same so that in future no dispute arises regarding any encroachment.

Court's observations

When the standing counsel sought to urge that the petitioners have an alternative remedy under Section 133 of the Code of Criminal Procedure and so this Court may not interfere, the Court said that it could not close its eyes to the ground realities.

Importantly, the Court said,

"This Court is of the opinion that the customary and religious rights of the Muslim community of village Boonda are being threatened and infringed by the acts of certain persons encroaching on the aforesaid kabristan."

Under the circumstances, the petition was disposed of with the following directions:

• Steps shall be taken forthwith by the District Magistrate, to stop any encroachment over the aforesaid Kabristan by the private respondents or their associates.
• Any vandalism or attempts to vitiate the communal harmony by the private respondents or their associates shall be dealt with promptly by the Inspector Incharge of the police station concerned. The Court directed the Senior Superintendent of Police to ensure compliance.
• A boundary wall with proper gates for the aforesaid kabristan on plot no.193 aforesaid shall be allowed to be constructed by the petitioners, after demarcation being done by the revenue authorities forthwith, and no one should be permitted to create any hindrance in its construction.
• Caretakers of the kabristan belonging to the Muslim community shall be entitled to lock its gates. The District Magistrate shall ensure compliance.
• No part of the plot no.193, over which the kabristan exists, would be used as a road by the general public for passage through the kabristan.

Lastly, the Court directed that compliance of the order be reported to this Court by affidavit/s within a period of three months.

The matter has been listed for further hearing on 17.4.2021.

Case title - Mohammad Shahid And 2 Others v. State Of U P And 7 Others [Public Interest Litigation (PIL) No. - 1720 of 2020]

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