Chittatosh Mookerjee, J. - (1.) The petitioners as representatives of the Muslim Community of Padmapukur, Police Station and District Howrah.filed this writ application challenging an order under Section 3 (I) of the West Bengil Land (Requisition and Acquisition) (Act If of 1948) Act, 1948 made by the Additional District Magistrate, Howrah as the Collector under the said Act for requisition of a portion of R S. Plot No. 147 in Khatian No. 90 of Mouza Sibpore, District Howrah for the purpose of construction of Kona Express High Way. The petitioners obtained leave under Order 1 Rule 8 of the Code of Civil Procedure.
(2.) The petitioners' case is that the said Plot No. 147 and the Plot No. 178 situated respectively on the western and eastern sides of Currie Road, Howrah were being used as graveyards by the Muslim public from time immemorial. The said grave - yards were known as Abdullshah Burial Ground. They have annexed a copy of the R S. Khatian No. 90 of Mouza Sibpore. In the said record the name of one Abdul Manna Khan son of Indaj Ali Khan had been recorded in the Column 13 as a non-agricultural (Dakhalkar) tenant under Amitava Roy and others at a rent of Re. 1/ -. The said Plot No. 147 had been classified as 'Kabarsthan' with the remarks that it was for the use of Muslim Public. The total area recorded was 4498. The area attempted to be requisitoned by the order impugned in this Rule is 1945 in the middle part of the said Plot No. 147. The petitioners have challenged the said requisition order under the West Bengal Act II of 1948 on the ground that the said Plot No. 147 being a grave - yard must be considered as their 'place of worship', within the meaning of the proviso to Section 3 (1) of the said Act and the said Sand cannot be requisitioned. The petitioners also tried to contend before me that the requisition order is mala fide
(3.) The respondents in this Rule have denied the claim of the petitioners that the disputed Plot No. 147 is a grave - yard and have contended that the remark to the said effect in the R. S. Khatian No. 90 is incorrect and stands rebutted by other evidence. The respondents have also disputed that a Muslim Grave - Yard is a 'place of religious worship' within the meaning of the proviso to Section 3 (1) of the West Bengal Land (Requisition and Acquisition) Act. 1948 (Act II of 1948). The respondents have also denied that the said requisition order has been made mala fide for collateral purposes.;