Md. Anwar Eqwal vs The State of Bihar and Others

Chandramauli Kr. Prasad, J.—This application has been filed for issuance of a writ in the nature of mandamus commanding the Respondents to protect the graveyard from illegal encroachment and prohibit Respondent No. 4 from making settlement thereof.

According to the Petitioner, Plot Nos. 143, 145, 146, 147, 148, 149, 157, 240, 241, 242, 243, 247 and 249 situated in Thana No. 98 at Mohalla Baridargah, Bihar Sharif town form part of a Kabristan and it is his grievance that Respondent Nos. 1 to 3 are not taking action to protect the same from being encroached and preventing Respondent No. 4 from holding Chiragha Mela on the same.

Respondent No. 2, in his counter affidavit, has stated that Chiragha Mela is held on the barren land and during that period for few days, shops are settled.

In the counter affidavit, filed on behalf of Respondent No. 4, it has been clearly stated that the temporary licenses to run shops are given over a portion of Plot Nos. 147 and 1407 which are not part_ of Kabristan since time immemorial for few days. It has been specifically stated that Plot Nos. 147 and 1407 do not form part of the Kabristan, and as such, the assertion made by the Petitioner that Plot Nos. 147 and 1407 are Kabristan, is not correct.

Learned Counsel for the Petitioner contends that the authority of the State is obliged to protect the Kabristan from encroachment and hence obliged to restrain Respondent No. 4 from settling the shops.

In view of the pleading of the parties it is difficult for this Court to come to the conclusion that the licences are granted for shops over the Kabristan land. Respondent No. 4 has categorically stated in the counter affidavit that Plot Nos. 147 and 1407 over which temporary licences are granted to run the shops, do not form part of the Kabristan.

In that view of the matter, the relief sought for by the Petitioner, is not fit to be granted in exercise of the power under Article 226 of the Constitution of India.

In case, the Petitioner believes that Plot Nos. 147 and 1407 also form part of Kabristan, nothing shall prevent him to bring an appropriate action for the said purpose before a Civil Court.

Application stands dismissed with the liberty aforesaid.