The Telegraph
Since 1st March, 1999
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Double hurdle to airport land claim
- Court shield for graveyard, state damper on shift plan

Calcutta, April 23: The final word on the shifting of the masjid-mazhar-graveyard outside the airport may already have been uttered by the Supreme Court which, at least on two separate occasions, has ruled that it is well nigh impossible to change the character of land once used as a graveyard.

Experts on Muslim law — already sounded by the West Bengal Minorities’ Commission — have cited the two instances which, officials feel, may be the biggest roadblock yet to the Airports Authority of India’s plans to shift the mosque complex outside the airport boundary. Another speedbreaker has appeared from the direction of the state administration, which has — in an official communique — categorically said there is “at present, no proposal” to shift any of the religious structures outside the airport boundary.

Taken together, they “appear to set back” AAI plans to do away with the Mathpara Burra Masjid for the construction of a cargo-handling unit, admit officials.

The minority commission has taken up the issue suo motu following reports in The Telegraph earlier this month and has asked the North 24-Parganas district administration to furnish a detailed report on the imbroglio. Officials said the reply —from North 24-Parganas district magistrate H.K. Dwivedi — did not hedge on the issue, saying there was “no proposal” to shift either the mosque or the mazhars and the graveyard.

Minority commission chairman K.M. Yusuf did not elaborate on the communication between his office and the district administration. “All I can say is that we have received a brief note from the administration,” he said. “But I am waiting for a more detailed report from them following which the commission may visit the spot for a thorough probe,” he said.

Legal experts consulted by the commission, however, have been unanimous in their reading of the situation, say officials. The two Supreme Court rulings, taken together, come to only one conclusion: once a graveyard, always a graveyard.

“Two Supreme Court rulings — one delivered in 1976 and the other in 1998 — on graveyards and wakf properties make it abundantly clear that changing the character of a plot of land once used as a graveyard is next to impossible,” one of the experts sounded by the commission said. “The absence or presence of documents to prove whether the land was really a graveyard is of no relevance,” he added.

The 1976 case was originally filed in Madras High Court (Syed Md Labbai versus Md Hanifa). It went up to the Supreme Court, where a bench of Justice Goswami and Justice Murtuza Fazle Ali ruled that “no direct evidence of dedication to public” was required to prove whether a plot of land was a public graveyard.

“It may be presumed to be a public graveyard… (if) corpses of members of a community have been buried there without objection from the owners,” the order states. “Revenue or historical papers” could be offered as evidence but even lack of them would not be important, the bench ruled, saying that a large number of burials could themselves act as evidence irrespective of the fact whether it continued to be used as a graveyard or not. The order added that any Muslim graveyard automatically became a wakf property.

The 1998 case (Syed Ali versus Andhra Pradesh Wakf Board), arbitrated by Justice A.S. Anand and Justice V.N. Khare, ruled that a wakf property was a “permanent dedication of property for purposes dictated by Muslim law”.

Taken together, the verdicts made it “almost impossible” for the administration to acquire the land in question unless its owners voluntarily gave up their claim on the land, the experts said.

Civil aviation minister Shahnawaz Hussain had spoken to chief minister Buddhadeb Bhattacharjee following which officials were asked to go slow on shifting the masjid inside the airport. The administration then targeted the unauthorised structures outside the boundary, reportedly at Hussain’s behest, and the mosque outside the airport — outside any controversy till then — was unsuccessfully sought to be included in the drive.

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