1. Heard.
2. This petition has been filed praying for the following main relief:
"(i) Issue a writ, order or direction in the nature of Mandamus thereby directing the opposite party no.2 and 3 to consider and pass appropriate orders to reserve the land bearing gata no.1739 area 0.4210 H. for the purpose of Cemetery for Muslim Community, which is recorded as Usar in revenue records and having several graves, situate at village Asahn Jagatpur, Tehsil Maharajganj, District Raebareli in view of the report of the area Lekhpal, contained in Annexure No.3 and also the request letter of the District Minority Welfare Officer, contained in Annexure No.4 to this writ petition"
3. It has been submitted by learned counsel for the petitioner that there is no land reserved for Muslim cemetery/ grave yard in Village Asahn Jagatpur. The villagers have been burying their dead in plot no.1739 area 0.4210 hectare for the past several years and the petitioners' ancestors as well as that of several other villagers' graves are existing over the land in question which land is recorded as usar land in the revenue records.
4. The petitioners approached the District Minority Welfare Officer earlier for him to get the land in question reserved for the purpose of muslim grave yard and he called for a report from the Lekhpal regarding the correctness of the prayer made in the representation. The Lekhpal by his report dated 24.05.2016 stated that the land has been recorded as Usar was being used by Aziz Ahmad and others to bury their dead. In the same land soak pit was also situated. On the basis of such report, the District Minority Welfare Officer recommended the Sub Divisional Officer Maharajganj Raebareili to take appropriate measures to change the class of the land from Usar to Kabrastian. However, no action was taken on such report. Recently, the Gram Pradhan started digging up the land in question to construct a overhead water tank therefore the petitioners moved a representation to the District Magistrate and thereafter approached this Court in Writ Petition praying for the relief as quoted hereinabove.
5. This writ petition was taken up earlier and learned Standing Counsel was asked to seek instructions.
6. Learned Standing Counsel has produced before this Court the instructions sent from the office of the Sub Divisional Magistrate, Maharajganj, Raebareli dated 27.07.2021. As per the instructions, the total population of the village is 5100 where the proportion of Hindu to Muslim population is 4:1. There are 600 houses of Hindu and 125 Houses of Muslim community in Village Asahn Jagatpur. In the revenue records and khatauni of 1424 to 1429 fasli Khata No.1291 Gata No.1216 having area of 0.051 hectare is already recorded as Muslim Kabristan and there are only three graves situated in such Gata. The entire land is lying vacant. In village Asahn Jagatpur there is no land reserved for cremation ground/ shamshan. Since the land has already been reserved during consolidation operations as burial ground/ cemetery for Muslim community, there is no need for further reservation. Besides, the Sub Divisional Magistrate is not empowered to change the class of the land reserved for public purpose. With regard to plot no.1739/0.421 hectare, the same is recorded as Usar and there is a metalled road passing through it. On the eastern side there is a grave of Irshad Ahmad s/o Mustafa in 5x10 feet of land which has been built only 4 to 5 years ago. When the said grave was being dug up, the local residents had objected and the police was called to restore law and order. The entire land is vacant and it is now being used for construction of overhead water tank which is a greater public public purpose. It is only for the purpose of unauthorized encroachment over the public utility land that this writ petition has been filed.
7. Learned counsel for the petitioners says that class of land can be changed by the State Government under Rule 84 of the U.P. Revenue Code Rules, 2003 and the representation of the petitioner is already pending before the District Magistrate and this Court may direct the District Magistrate to forward the representation to the State Government for a decision.
8. This Court finds no good ground to issue such order as it is considered opinion of this court that under Rule 84, the State Government can change the class of any public utility land only where there is justification of such change, as under proviso to Section 77 of the U.P. Revenue Code, it has been provided that the class of any public utility land can be changed only in exceptional cases on such terms and conditions as may be prescribed. The reason for changing the class of public utility land shall be recorded in writing.
9. Since the Muslim population of the village concerned is very low and there are only 125 Muslim household in the village and they have already got land in Gata No.1216 reserved for Muslim kabristan, this Court finds no good ground to entertain the petition or the request made by the learned counsel for the petitioner.
10. This petition is accordingly dismissed with the cost of Rs.20,000/- which shall be deposited by the petitioners who are five in numbers, in the office of the Collector within one month. In case of failure to deposit the said amount, the District Magistrate shall recover the same as arrears of land revenue from the petitioners proportionately and forward it to the Child Welfare Committee of District Raebareli, to be utilized for the welfare of children in need of care and protection.
Order Date :- 29.7.2021 Rahul