Customary Right To Conduct Religious And Burial Activities Near Protected Monument Cannot Be Claimed Without Substantive Proof: Gujarat High Court
Safiya Malik
The High Court of Gujarat, Single Bench of Justice J.C. Doshi, dismissed a second appeal challenging the State Government's authority to restrict burial activities near a protected monument in Vadodara. The dispute arose when the appellant, claiming to be a religious head and lineal descendant of the individual interred at the site, sought to conduct burial activities within the protected monument area without requisite permission. The Court held that the appellant had failed to establish any customary or legal right over the site through evidence.
The appellant, claiming to be a religious head and descendant of a Sufi saint whose tomb is situated at Bada Hajira, Pratapnagar, Danteshwar, Vadodara, filed a civil suit seeking a declaration that a notice issued by the Collector restraining him from carrying out religious and burial activities at the suit land was null and void.
The appellant contended that as a religious head of the Qadariya order and lineal descendant of the saint interred at the site, he and his family members possessed a customary right to conduct burials in the surrounding area of the tomb. He further argued that relevant statutory provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958, recognised customary religious rights at protected monuments.
The State Government maintained that the site was a protected monument and that the applicable statute restricted activities including digging within the protected area. The appellant submitted oral and documentary evidence before the trial court, though several documents were not formally exhibited.
The Court examined the scope of interference in a second appeal and recorded the legal position governing such proceedings. Referring to precedent, the Court stated that “under Section 100 CPC, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence.”
Addressing the contention that the appellate court relied upon unexhibited documents, the Court noted that the documents referred to by the appellate court were produced by the plaintiff himself during the trial. The Court observed that “the learned appellate Court has referred only those documents, which were placed by the plaintiff along with his plaint… Plaintiff cannot turn blind from those documents, regardless they are exhibited or not.”
It further recorded that the documents relied upon were not private records but public documents such as revenue entries and official orders. The Court stated that “these are not the private documents… they are either revenue entries or the order of the Superintending Archaeologist, Archaeological Survey of India or Farmaan issued by the Former Maharaja of the Baroda State.”
On the plaintiff’s claim of a customary right to bury family members near the tomb, the Court examined the pleadings and evidence and recorded that “the plaint lacks the necessary averments that how the plaintiff became the Dharma Guru… and how he is carrying the activity as a Dharma Guru.”
The Court further noted that the plaintiff had not produced evidence to establish the alleged custom. It observed that “plaintiff, except pleading bare words in this regard, did not lead any evidence to establish custom that he is a lineal descendant… and custom exists that the family members of the plaintiff would be buried in the surrounding area.”
The Court also addressed the legal status of the monument and recorded that “Bada Hajira… is a ‘protected monument’… duly governed by the Archaeological Survey of India.”
While examining the statutory framework, the Court stated that although certain provisions recognize religious observances, restrictions exist on excavation in protected areas. The Court observed that “the right, even if exists, is clearly barred… The plaintiff intends to dig the surface of the soil for more than one foot for the burial and for making a Mazar thereof.”
Considering the overall record, the Court also recorded that “the submission of the appellant… that learned appellate Court committed serious error in reading the unexhibited documents… does not lie as those documents are the documents of the plaintiff produced before the trial Court.”
The Court directed: “this Second Appeal sans merit and it is accordingly dismissed. Interim-relief, if any, stands discontinued. Record and Proceedings, if any, be sent back to the concerned Court forthwith.”
Advocates Representing the Parties
For the Petitioners: Mr. MTM Hakim, Advocate
For the Respondents: Ms. Urvashi Purohit, Assistant Government Pleader
Case Title: Pirzada Saiyed Bahauddin B. Kadri (Since Deceased Through Heirs) v. State of Gujarat
Case Number: R/Second Appeal No. 27 of 2006
Bench: Justice J. C. Doshi
