India Tomorrow
AHMEDABAD: British rulers, princely states and other rulers even before the British period had granted lands to their subjects for public use, for instance, for the cremation and burial of their dead. These lands were called ‘inams’. These allocations were made with consideration for community needs and religious practices surrounding cremation/burial. They were used as ‘shamshans’ by Hindus and graveyards, ‘Qabrastan’, or burial grounds by Muslims.
After Independence in 1947, these lands came to be classified as “government lands” by the union government and respective state governments. However, the use and occupation of such lands continued for the cremation/burial of the deceased persons of the respective communities. Thus, while these lands remained under the ownership and administration of the government, they were collectively utilized and managed by the respective communities for their cremation/burial practices.
Muslim communities also utilized these lands for the burial of their deceased, referred to as “Qabrastans.” In some instances, members of the Muslim community donated their privately-owned lands specifically for burial purposes, either for the general Muslim public or for their own family or specific community. Consequently, lands designated for use by the broader Muslim community are known as “public Qabrastans,” while those restricted for use by a particular family or community are termed “private Qabrastans.”
Both public and private graveyards are recognized as dedicated lands for the religious purpose of burial, classified as waqf under Muslim law due to their long-standing and continuous use for this purpose, even if the initial grant and dedication may not have been formally recorded. As a result, many of these lands, while officially designated as government or private property, effectively become “waqf by user.”
This principle is well established in law, as affirmed by the Supreme Court in Saiyed Mohd. Salie Labbai (1976) and by the Gujarat High Court in Miya Md Abdulkarim Jariwala (1977). The same reasoning applies to other Muslim religious properties, such as mosques (places for regular prayers), dargahs (tombs of revered figures), mausoleums, and khanqahs (religious seminaries). The long-term use of these religious sites, even without formal proof of grant or dedication, solidifies their status as waqf by user, affirming their significance for religious purposes.
Unfortunately, many graveyards are recorded in government land revenue records as “government lands,” despite being used for burials. This classification has led to numerous cases of usurpation and disputes, often fuelled by malicious intent. Three instances from Gujarat exemplify the serious malpractices and illegalities arising from these conflicts.
The first dispute involves the village of Dhanduka in the Ahmedabad district, where a portion of land has been recorded in the revenue records and used as a Qabrastan since at least 1923, along with the name of the Muslim administrator. Despite this, the land was officially classified as government property and subsequently allotted by the State Government for the construction of a Mamlatdar office.
This illegality was challenged before the revenue authorities and ultimately taken to the High Court. Although the High Court initially stayed the construction, the Mamlatdar office was hurriedly built despite the stay order. Eventually, the court allowed the completed construction to remain in use. As a result, proceedings are now underway to allocate alternative land to compensate for the portion of graveyard land that was usurped by the government.
A similar situation occurred regarding the graveyard land in Godhra, where collective and adjacent lands having different revenue were being used as a Qabrastan since time immemorial, yet are recorded as government property. Notably, one plot of land within this group was not officially recognized as a Qabrastan, despite being used for that purpose.
Consequently, the Government of Gujarat and the local municipality proposed to construct a fire station on this land and issued a work order. This decision was challenged in the High Court, which directed the District Inspector of Land Records (DILR) to measure the land and confirm its use as a Qabrastan. Fortunately, the DILR found several graves on the land, confirming its status as a burial site.
As a result, the High Court prohibited the construction of the fire station on this land and ordered the government to allocate alternative land for the project, ensuring that the Qabrastan remains available for its intended use.
The third significant instance involves the recent demolition in Prabhas Patan, Somnath, Veraval. In 1895, disputes over Muslim burials in the town led the Nawab of Junagadh to appoint a commission headed by J.M. Hunter. Based on his report, lands were allocated to the Muslim community for burial purposes in 1903, including areas that had historically been used for this purpose.
It is well-documented that several Dargahs and mausoleums existed on these lands, with at least three of the Dargahs designated as protected monuments. The historical significance of these mausoleums and the revered individuals buried there is recorded in various historical documents. During verification of rights and a survey conducted in 1947, before independence, at least nine such religious structures were identified, and their possession was duly recorded in the revenue records on property cards.
After the country gained Independence in 1947, the Somnath Mandir Trust was established in 1955 and the State Government allocated part of the Muslim graveyard land to the Trust without the knowledge of the Muslims who were using it as a Qabrastan. Notably, a possession receipt for this land to Somnath Mandir Trust was created in 1951, even before the formal allotment in 1955. Despite this, the land continued to be utilized as a Qabrastan by the Muslim community.
This resulted in a dispute between the Hindus and Muslims as officially the land was classified as government land but allocated to Muslims by the Junagadh state ruler before Independence and to Somnath mandir Trust by the state government after Independence. However, the particular piece of land continued to be used as Qabrastan by Muslims.
However, the Mandir trust encroached upon the qabrastan land as it claimed it had been allotted to it by the state government on the strength of the possession receipt. The trust also built a religious structure over the qabrastan land. This led to litigations between the two sides. While some litigations have been decided and finalized by the courts, some have been pending before the revenue authorities, civil court, waqf tribunal and the High court.
During the ongoing litigations, the revenue authority, specifically the Collector, initiated proceedings on September 5 and September 12, 2024. These actions were based on the claim that the recordings of the land in the revenue records from 1947 were incorrect and needed rectification. It is noteworthy that these recordings had remained unchanged for 75 years.
The proceedings were scheduled for a hearing on September 17, 2024, but were subsequently adjourned to September 27, 2024. This adjournment was granted because the administrators and managers of the Qabrastan and the associated religious structures requested additional time to obtain relevant documents and submit their responses. They also asked for the proceedings to await the final outcome of the cases pending before the Tribunal and the High Court.
However, on September 27, 2024, no hearing took place regarding the proceedings initiated after 75 years. The application for adjournment was neither rejected nor was any order communicated concerning the status of the proceedings.
In a premeditated move, on September 28, 2024, at 5 AM, a large state apparatus—including police forces, administrative staff, and bulldozers—was deployed. This operation resulted in the arrest of responsible Muslim citizens and the desecration and demolition of religious structures and graves within the Qabrastan. This escalation necessitated the filing of a petition before the High Court.
In the proceedings before the High Court, the government asserted that a notice for demolition was issued on September 5, 2024 and that an order was passed on September 27, 2024, which led to the subsequent demolition. In response, it was argued that the notices dated September 5, 2024, pertained only to some additional structures surrounding the nine existing religious sites, and not to the religious structures themselves, which should not have been demolished.
Furthermore, although the government claimed an order was issued on September 27, 2024, this order was not communicated to the concerned parties. According to the records, it was scheduled for communication on September 30, 2024, in the afternoon. However, the demolition had already occurred on September 28, 2024, in the early morning hours.
In this context, it is important to note that proceedings concerning punitive demolitions targeting Muslims accused of criminal offenses were filed before the Supreme Court. On September 17, 2024, the Supreme Court issued a nationwide restraint order, prohibiting authorities from conducting any demolitions, with certain exceptions.
However, some hutments were demolished in Assam in violation of this order, prompting the filing of a contempt petition before the Supreme Court. In response, the Court issued contempt notices to the authorities and ordered that the status quo regarding the land be maintained.
Consequently, a similar request was made before the Gujarat High Court, mentioning the Supreme Court’s order. It was argued that the demolition carried out in the early morning of September 28, 2024, at Somnath violated the Supreme Court’s directive and was otherwise illegal, as it did not adhere to the due process of law mandated by the Supreme Court in Olga Tellis (1986) case.
Additionally, a contempt petition regarding the Somnath demolition has also been filed with the Supreme Court. As of now, both proceedings—before the High Court and the Supreme Court—are pending consideration. However, no orders to maintain the status quo have been issued.
It is evident that although these lands have long been used as Qabrastans, they are recorded as government property. This classification renders them vulnerable to usurpation, desecration, and the demolition of graves and religious structures situated on these lands.
In light of the above, it is crucial to highlight that the proposed amendments to the Waqf Act, 1995, under the Waqf (Amendment) Bill, 2024, particularly the deletion of “waqf by user” and modifications to the provisions regarding the survey of waqfs, could have serious and detrimental consequences.
Firstly, the surveys of waqf properties, mandated by both the Waqf Act of 1954 and the Waqf Act of 1995, have yet to be conducted. As a result, many waqf properties remain unidentified and unrecorded. The proposed amendments fail to prioritize or expedite this crucial survey work, further jeopardizing the recognition and protection of these waqf properties.
As a result, no surveys are anticipated in the near future. Furthermore, the removal of the “waqf by user” concept means that waqf properties currently in use—such as Qabrastans, Masjids, and Khanqahs—could become disputed properties, particularly when relevant documentation is lacking and these lands are recorded as government or private property. This change exposes these sites to potential usurpation and demolition, causing significant distress within the Muslim community, as their religious properties and lands would be at risk of being taken away.
The deletion of “waqf by user” and the modifications to the provisions regarding the survey of waqfs will undoubtedly be prejudicial and detrimental to Muslims and their religious waqf properties, as evidenced by the numerous instances discussed above. Moreover, there is a strong likelihood of similar incidents occurring in the future.
This predicament must be addressed, and the concerns and anxieties of the Muslim community regarding these changes should be acknowledged and alleviated. It is essential to ensure the protection of their religious properties and to restore their sense of security.
