CASE: Mohammad Shahid and 2 others v. State of U. P. and 7 others
CORAM: Hon’ble Justice Sanjay Yadav and Hon’ble Justice Jayant Banerji
‘Every person has an equal and inalienable right to live peacefully, without fear of antisocial elements and to enjoy religious freedom,’ noted the Allahabad HC last week, while issuing some directions in a plea seeking appropriate action against illegal invasion/damage to a Kabristan (Muslim cemetery) located in Uttar Pradesh’s Kaushambi District.
Justice Jayant Banerji and Justice Sanjay Yadav further said,
“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 CASE BEFORE THE COURT
The petitioners filed the instantaneous 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 the required action against the unlawful infringement/damage by respondent No. 4 to 8 and related persons against a particular Kabristan.
An even further prayer was made to seek a mandamus that instructed the respondents not to interfere with the peaceful construction of the Kabristan border wall. In the plea, it was claimed that the private respondents opened the doors of their houses on the side of Kabristan and used the middle of Kabristan as a road and are now constructing a road in the middle of the area.
During the inquiry, the petitioners and other signatories to the statement stated that the road that was typically used on the land of Kabristan was reinforced with cement concrete from the funds of the Panchayat District, which road is used by the petitioners to take Tazias, etc., and for regular passage. Furthermore, it has been agreed that the road is generally used by villagers on a regular basis, which is not objected to by the petitioners.
Notably, the demand of the petitioners was only that the villagers stop their movement across the land of Kabristan and that a border wall be made from the government funds to secure it so that no conflict occurs about any interference in the future.
OBSERVATIONS OF THE COURT
When, according to Section 133 of the Code of Criminal Procedure, the standing counsel tried to urge the petitioners to have an alternative remedy, so that the Court could not intervene, the Court stated that it could not close its eyes on the facts of the ground realities.
Notably, 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.”
The petition was, under the circumstances, disposed of with the following directions:
- The District Magistrate shall immediately take action to avoid any invasion of the above-mentioned Kabristan by private respondents or their associates.
- Any vandalism or attempts by private respondents or their associates to vitiate community peace shall be handled promptly by the inspector in charge of the police station concerned. To ensure enforcement, the Court instructed the Senior Superintendent of Police.
- A boundary wall with proper gates for the aforementioned kabristan on plot no.193 aforesaid shall be permitted to be built by the petitioners immediately after demarcation by the revenue authorities, and no one should be permitted to establish any obstacle in its construction.
- The District Magistrate shall ensure compliance that caretakers of the kabristan belonging to the Muslim community shall be entitled to lock its gates.
- 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.
- Finally, the Court ordered that compliance with the order be reported within a span of three months to this Court by affidavit/s. On 17.4.2021, the matter was listed for further hearing.