JUDGMENT 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 (1) of the West Bengal Land (Requisition and Acquisition) (Act II of (948) 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 RS. 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 (I) of the said Act and the said land 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 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 co)lateral purposes. 4. The sub-section (4) of Section 44 of the West Bengal Estates Acquisition Act, 1953, inter alia, provides that every entry in the Record of Rights finally published under sub-section (2) shall be presumed to he correct. The entries in the R.S. Khatian No. 90 that the Plot No. 147 was a 'Kabarsthan' for the .use of Muslim public raise a presumption of correctness. At- this stage I may observe that the petitioners were not right in- contending that there had been no revisional survey operations in the Mouza in question. The respondents in their Affidavit-in-Opposition have satisfactorily established that the Khatian No. 90 which was produced in this case was prepared under Revisional Survey Operations. Accordingly, the description of the land as R.S. Plot No. 147 in the requisition order was not incorrect. 5. According to the petitioners, the aforesaid Plot No. 147 wag comprised in holding Nos. 18 and 19, Currie Road of Howrah Municipality and that the previous holding number was No. 11, Currie Road. According to the petitioners, in the Demand Register prepared by the Municipality in the year 1919, the said holding was shown as a private burial ground. In the subsequent Demand Registers prepared in the years 1921 to 1926-27 the said holding was continued to be recorded as a burial ground (vide Annexures 'Q' and 'R' to the Affidavit-in-Reply of the petitioners). The petitioners also purported to produce a list of private burial grounds within the Howrah Municipalities claiming that the disputed Plot was included, therein. The petitioners both in their writ petition and also in their Affidavit-in-Reply have made lengthy averments regarding the said claim that the disputed Plot No. 147 was a Muslim Burial Ground. 6. The petitioners also purported to produce a list of private burial grounds within the Howrah Municipalities claiming that the disputed Plot was included, therein. The petitioners both in their writ petition and also in their Affidavit-in-Reply have made lengthy averments regarding the said claim that the disputed Plot No. 147 was a Muslim Burial Ground. 6. The respondents 1 to 5 and also added respondents, who were represented by Mr. Sudhis Dai Gupta have denied the above claims of the petitioners. The respondents 1, 2 and 5 in their Affidavit-in-Opposition affirmed by Dilip Kumar Ghosal have, inter alia, stated that during the survey of the lands within the Howrah Municipality conducted in the years 1917-18, there was no mention of any C. S. Plot No. 147 or 178. According to the said record, the disputed land appertained to holding Nos., It and 19, Currie Road in Ward No. to of the Howrah Municipality. The Holding No. 18, Currie Road was described as a tenanted Bastu land of Salish Chandra Mukherjee of 'Sanapara' Sibpore, Howrah and the Holding No. 19 was a khas rent-free land of Emab Ali Khan and others. According to the Demand Register of the Howrah Municipality for the year 197273 the disputed land was a taxable vacant bastu land owned by private persons (vide Annexures 'A' and 'B' to the said Affidavit-in-Opposition). The Deputy Assessor, Howrah Municipality by his letter, dated April 10, 1974 had also informed that the said holdings were taxable 'open bastu lands. According to the respondents the description of the disputed land as ‘Kabarsthan' in the R. S. Khatian was erroneous as rent has been assessed for the said disputed land. According to the said respondents, the public burial ground for the Muslim community of the locality known as Abdulla Shah Burial Ground was situated at a distance of one mile from the disputed plot. The said deponent to the Affidavit-in-Opposition also relied upon an alleged local inquiry report submitted by R. Goswami, a Kanungo, according to which the disputed plot was not a burial ground. The respondents 3 and 4 in their Affidavit-in-Opposition affirmed by Amiya Kumar Chatterjee have also denied the claim of the petitioners that the disputed plot No. 147 is a burial ground. The respondents 3 and 4 in their Affidavit-in-Opposition affirmed by Amiya Kumar Chatterjee have also denied the claim of the petitioners that the disputed plot No. 147 is a burial ground. They have claimed that said plot was necessary for construction of Kana Express High way and that the Collector had already taken possession and delivered the same to the said respondents who had carried out some works thereon. 7. In my view it would not be possible to satisfactorily decide in this writ application the above highly disputed question as to the nature of Plot No. 147-whether the same was in fact a 'Kabarsthan' for the use of members of the Muslim public. It is well-settled that the question whether or not the presumption of correctness of entries in a Settlement Khatian has been rebutted by evidence adduced in a case is primarily one of fact. In this case to decide this point it would require reception of elaborate oral and documentary evidence and consideration of other facts and circumstances which could be much more conveniently done in a civil suit. A mere trial on evidence under Rules 1 and 2 of Order 19 of the Civil Procedure Code held in this proceeding in order to decide the correct ness of the statements contained in the affidavits would be quite insufficient, in my view, for making a pronouncement as regards the claim of the petitioners that the disputed plot is a grave-yard or 'Kabarsthan' over which Muslim public have rights. 8. The Supreme Court in (I) Century Spinning & Manufacturing Co. Ltd. and another v. The Ulhasnagar Municipal Council and another, A.I.R. 1971 S.C. 1021 rejected the argument made on behalf of the said Municipality that the questions of fact raised by the petitioners in the said case could not be appropriately tried in the extra-ordinary jurisdiction under Article 226. The Supreme Court had observed at page 1025 of the reports: “Merely because a question of fact is raised, the High Court will not be justified in requiring the party to seek relief by the somewhat lengthy dilatory and expensive process by a civil suit against a public body. The question of fact raised by the Petitioner in this case are elementary.” Unlike the said case, the question of facts raised by the parties are complicated and relate to both title and possession. The question of fact raised by the Petitioner in this case are elementary.” Unlike the said case, the question of facts raised by the parties are complicated and relate to both title and possession. A satisfactory determination of the said question is not feasible without a prolonged trial of various issues of fact and law. On this ground this writ petition is liable to fail and the petitioner ought to be relegated to a civil suit. In my view the order dated the 27th August, 1974 in F.M.A. No. 1039 of 1974 (Janab Nasiruddin Khan and others v. The Officer-in-charge, Police Station Shibpur, Howrah and others) creates an additional obstacle in the way of petitioner claiming any relief in the instant Rule. The petitioner’s had filed a writ application against a prohibitory order of the Officer-in-charge, Police Station Sibpore made under section 154 of the Indian Penal Code in respect of the Holding Nos. 18 and 19, Currie Road Sibpore. Amiya Kumar Mookherji, J. had summarily rejected the said application, Against the said decision the petitioners preferred the aforesaid appeal and filed an application for interim order C.N. Laik and N.C. Mukherji, JJ. Dismissed the said application and also the appeal inter alia, observing : “We have carefully gone through the record of rights and the said register of the Municipality and we are more than satisfied that Mr. Ali has misread the said documents. The Municipal record show the burial ground as a private burial ground. The C.S. record of rights recorded the plot in the name of a particular person. But on the remark column it has been shown that it has been used by the Muslims as a burial ground. In our opinion, that does not give a right to the Muslim Public to use it as a burial ground as of right. Moreover, that is a matter of evidence to be gone into which in our opinion, the proper forum would be civil court and not for a writ court to decide.” I understand the petitioner’s application for certificate to prefer an appeal to the Supreme Court against the aforesaid decision has been also dismissed. In view of the aforesaid decision has been also dismissed. In view of the aforesaid decision has been also dismissed. In view of the aforesaid observation made by the Division Bench it would be difficult for the petitioners to contend by way of a writ application against the aforesaid requisition order that according to the above record of right they have right to use aforesaid plot as a burial ground as of a right. 9. The parties before me have made lengthy submission on the question whether or not a Muslim Burial ground can be considered as a place of religious worship within the meaning of the proviso to Section 3(1) of the Act. Therefore, I propose to consider the said question. In case the disputed plot was a place of religions worship, it would be exempt from requisition under proviso to Section 3(1) of the Act. 10. Mr. Kazi Mohammad Ali, learned Advocate, appearing on behalf of the petitioners has drawn my attention to the observations in paragraph 188, Chapter XII in Mulla's 'Principles of Mahomedan Law', 16th Edition : "If land has been used from time immemorial for a religious purpose, e.g., for a mosque or a burial ground or for the maintenance of a Mosque, then the land is by user wakf although there is no evidence of an express dedication.” The learned Author in the Notes below the said paragraph has discussed a number of reported decisions relating to Muslim public grave-yards. I fail to see .how this passage in Mulla's 'Principals of Mahomedan Law' can assist the petitioners of this case. A grave• yard may be subject matter of wakf. Even in the absence of express dedication a long user may lead to an inference that a land in question had been dedicated for use as a grave-yard. 11. A description in a settlement register of a site as a 'Kabarsthan' is primafacie evidence that it is a public grave-yard in the sense known to Mahomedan Law [vide 2. Ballabh Das & Anr, v. Nur Mohammad & Anr., 40 CWN 449 (P.C.)] Mulla in paragraph 173, Chapter XII of his 'Principles of Mahomedan Law', 16th Edition, has quoted the definition of 'wakf' given in the Mussalman Wakf Validating Act, No. VI of 1913. But every item of property dedicated for purposes recognized by the Mussalman Law as religious, pious or charitable cannot be necessarily considered as a 'p]ice of worship'. But every item of property dedicated for purposes recognized by the Mussalman Law as religious, pious or charitable cannot be necessarily considered as a 'p]ice of worship'. By such dedication 'wakif's ownership in the property is extinguished and imply ownership of God (vide Notes below the said paragraph 173). Both movable, immovable, tangible and intangible property may be so dedicated. It is true that one essential feature of wakf is that it is made with a religious motive to approach God. But approach to God may be made by any act which is meritorious in Islam (See Tya15ji's Muslim Law, 4th Edition). 12, Thus a permanent dedication under which not less than seventy five per cent of the net available income is for the time being payable to the waklf for himself or any member of his family or descendants would be also valid wakf-al-al-aulad (vide Section 6 (ii) of the Bengal Wakf Act, 1934). 13. The expression 'religious worship' genrally means observance of acts of reverence or devotion according to one's particular religious faith and belief. If religion be considered as a set of institutionalised system of belief, worship would be commitment and devotional acts in conformity with such system. The expression, 'place of worship' indicates that the place is used for doing devotional acts according to faith and belief of a particular religion, e. g., church, mosque, temple, etc. In case a land is used for more than one purpose, the land must be primarily used for acts of reverence or devotion to classify it as a place of worship. 14. Mahmood, J. in his dissenting judgment in (3) Queen Empress v. Ramzan and others, I.L.R. 7 All 461 at page 474 stated that 'mosque in question was a place of religious worship. Subsequently, in (4) Ataullah v. Azimullah, I.L.R. 12 All 494 the Full Bench of the, Allahabad High Court of which Mahmood, J. was a member held that a mosque cannot be dedicated or appropriated to any particular school or sect of Sunni Muhammadans. It is a place where all Muhammadans are entitled to go and perform their devotions as of right, according to their conscience. 15. The Supreme Court in 5. Shastri Yagnapurushdasji & Ors. v. Muldas Bhundardas & Anr, 1966 (2) SCA 10. upheld the constitutional validity of the Bombay Hindu Places of Worship (Entry Authorisation) Act,. 1956. It is a place where all Muhammadans are entitled to go and perform their devotions as of right, according to their conscience. 15. The Supreme Court in 5. Shastri Yagnapurushdasji & Ors. v. Muldas Bhundardas & Anr, 1966 (2) SCA 10. upheld the constitutional validity of the Bombay Hindu Places of Worship (Entry Authorisation) Act,. 1956. The Court upheld the decision of the Bombay High Court that temples belonging to Swaminarayan sect were places of worship within the meaning of the said Act, and, therefore, Harijans were entitled to enter these temples for performing religious service, offering prayers, etc. 16. The House of Lords in (6) Church of Jesus Christ of Later-Day Saints v. Henning (Valuation Officer), (1963)3 All ER 733 considered whether a Mormon temple can be held to be a place of public religious worship and entitled to exemption from rates under Rating and Valuation (Miscellaneous Provisions) Act, 1955. The House of Lords held that the Mormon Church was not open to the public nor to every Mormon, only to Mormons of good standing, therefore,• it was not exempted from rates under Rating and Valuation (Miscellaneous Provisions) Act, 1955 under Section 7(2). Lord Evershed in his speech at page 735 adopted the meaning of the word 'worship' given in the Shorter Oxford English Dictionary by observing: "I am content to take the relevant meaning given in the Shorter Oxford Dictionary, namely, 'the actions or practices of displaying reverence or veneration to a being regarded as Divine by appropriate...rite or ceremonies'; and it must be essential to the participation of any worshipper that his words and actions are addressed and directed to the Deity." 17. Mr. Sudhis Das Gupta, learned Advocate for the added respondents has also placed before me the decision of the Court of Appeal in (7) Regina v. Registrar General. Ex parte Segerdal and another, (1970) Law Reporter 2 QB. 697. In the said case an application for registration of a Chapel under Places of Worship Registration Act, 1855 was rejected. The Court of Appeal affirmed the decision of Queen's Bench Division Court which had refused an order or Mandamus. Ex parte Segerdal and another, (1970) Law Reporter 2 QB. 697. In the said case an application for registration of a Chapel under Places of Worship Registration Act, 1855 was rejected. The Court of Appeal affirmed the decision of Queen's Bench Division Court which had refused an order or Mandamus. Lord Denning, M. R. in his judgment at page 707 adopted the following meaning of the place of meeting for religious worship as used in the Places of Worship Registration Act, 1855 : "It connotes to my mind a place of which the principal use is as a place where people come together as a congregation or assembly to do reverence to God. It need not be the God which the Christians worship. It may be another God or an unknown God, but it must be reverence to a deity. There may be exception. For instance, Buddhist temple are properly described as places of meeting for religious worship. But apart from exceptional cases of that kind, it seems to me the governing idea behind the words place of meeting for religious worship is that it should be a place for the worship of God. Lord Justice Buckley in his judgment at page 709 in same case indicated some of the characteristics or elements of worship as submission to the object worshipped veneration of that object praise, thanks giving prayer or intercession. According to the Court of Appeal in a Scientology Church creed there was no idea of reverence or veneration of God and God did not come into their schemes of things at all. I respectfully agree with the observations made in Regina v. Registrar General, Ex-parte Segerdal and another (supra) with regard to the test for considering whether a particular land should be considered as a place of public worship. Therefore, unless the respondents can establish that people come to the disputed plot either in congregation or attend individually primarily for doing religious worship, the proviso to sub-section (1) of Section 3 of Act II of 1948 would be inapplicable. 18. Mr. Kazi Mohammad Ali, learned Advocate for the petitioners placed before me ‘Al-Hadis’ – An English Translation & Commentary of Mishkat-ul-Masabih by M Al-Haj Maulana Fazlul Karim, Book-III, 3rd Edition, 1970. The Chapter XXXIV of the said book contains provisions to relating to prayers, etc. 18. Mr. Kazi Mohammad Ali, learned Advocate for the petitioners placed before me ‘Al-Hadis’ – An English Translation & Commentary of Mishkat-ul-Masabih by M Al-Haj Maulana Fazlul Karim, Book-III, 3rd Edition, 1970. The Chapter XXXIV of the said book contains provisions to relating to prayers, etc. Section 1-1580 at page 141 with reference to prayers offered by Muslims lays down. “It is the outpouring of heart to the Great Maker. A sense of faith in a higher Power than oneself for help and guidance, fear of that power, humility in the presence of the Power, hope for mercy and a feeling of repentance and regret for the omissions and commissions constitute prayer. Again mind has the natural attribute of soaring higher and higher as it came from the Most High….” 19. The same book at page 145 onwards mentions the direct and indirect objection of prayer in Islam. The two direct objects of prayer are to remember God and to come in touch with him and self-purification. The Section II-Chapter XXXIV of Al-Hadis Book III specifies the item for five compulsory prayers, namely Farz, Zuhr, Asr, Magrib and Islam. In addition there are two optional prayers called fore-noon Prayers. According to the said authority each prayer consists of three parts-‘Farz’, ‘Sunnat’ and ‘Nafi’. “Farz is a compulsory prayer directed by the Qurah, Sunnat is a prayer observed by the Holy Prophet in addition to Farz Prayer, and Nafi is an optional prayer recommended by the Holy Probhet. Each prayer consists of two or four rak ats and each rak’at is a single unit in a prayer consisting of standing, bowing, prostration and sitting…Except the Farz prayers, no other prayer can ordinarily be said in congregation, and prayer other than Farz may be said at the wish of the worshipper either in the mosque or in a convenient place.” Al-Hadis Book-III Section-7-1641 at page 208 under the heading Mosques and Praying Places states : “Every place in the world is a place of prostration. It is a specialty in Islam that prayer can be offered any where under God’s earth. The Holy Prophet said. The world the whole of it, is a mosque-34 : 147. It is a specialty in Islam that prayer can be offered any where under God’s earth. The Holy Prophet said. The world the whole of it, is a mosque-34 : 147. Wherever you turn, there is the fact of god (2:115Q), Therefore, as God is every where, He can be remembered everywhere under God’s earth…..Some exceptions have been made regarding place of prayer on the ground of impurity or un-cleanliness, namely, graves and grave-yards, bath-rooms, Public roads, Public slaughter-houses, places of dungs and filths, houses of beasts, camels and cows and the top of Holy Ka’Ba-34 : 148, 129.” Thus according to the authority cited by the learned Advocate for the petitioners in the tenets of Islam there are some exceptions to the general rule that every place in the earth is a place of prostration. It is for bidden to use graves and graves-yards and other places mentioned at page 208 as places of Mr. Kazi Mohammad Ali to the above passage but he was unable to explain away the said prohibition about offering prayers at graves and grave-yards. 20. Mr. Kazi Mohammad Ali tried to emphasize before me that to Muslims graves and grave-yards are Holy places and they are considered as resting place for the dead. He also mentioned about the religious ceremonies which attend the funeral of a Muslim. The same Book ‘Al-Hadis’ of Mishkat-ul-masabin, by Al-Hadis Maulana Fazlul Karim Book-III Section 4-1470 at pages 33-34 mentions about funeral prayer and procession called Janaja Prayer. Mr. Ali also relied upon the contents of section 5-1499 of the above book which contains detailed provisions regarding the procedure for burial. The said book itself indicates that source of the deremonies are optional and under certain circumstances some of the funeral rites may be made a place other than burial ground. It appears to me that the primary object of the religious rites and practices associated with Muslim burial is internment of the dead body under the Muslim religion deed-bodies are respected and bodies being made of earth nourished by fruits and crops grown from the earth after death they are returned to earth because everything returns to its origin (vide Al-Hadis-Section 5-1499 at page 49). My attention was not drawn to any text which lays down that a Muslim burilal ground is a place of religious worship. My attention was not drawn to any text which lays down that a Muslim burilal ground is a place of religious worship. These provisions which relate to the procedure for disposal of dead-bodies cannot be considered primary as religious worship. In any case the dominant or primary use of a burial ground is as disposal place for dead bodies and not religious worship. Further every sacred or Holy place is not necessarily a place for religious worship. 21. Therefore, I am unable to accept the contention that a burial ground should be considered as a place of worship under the Mohomedan Law within the meaning of the proviso to Section 3(1) of the Act. In the result, even assuming the plot No. 147 has been correctly recorded as 'Kabarsthan' the petitioner can get no relief in the instant Rule. 22. The Section 3(2) of the West Bengal Act II of 1948 requires the services of the order upon the owner and the occupier, if any. I have already observed that the petitioners have not been recorded as owners in the column I3 of the revisional Khatian No. 90. But the said Khatian contained remarks regarding its alleged mode of user and about existence of the alleged rights of Muslim Public to burial. Therefore, the petitioners cannot claim that they were entitled to be served with the notice of the requisition order. Further, the heirs and successors-in-interest of the recorded owners of Plot No. 147 themselves have not filed any writ application claiming that no notice of the order was served upon them. According to the respondents one of the sons of the recorded owners in token of service of the said notice had signed the returns. Thus the petitioners cannot agitate the question regarding the service of notice of the requsition order. 23. There is no substance in the last contention raised on behalf of the petitioners that the Collector in the copy of the requisition order served upon the sons of the recorded owners did not strike out the alternatives of different purposes for which lands may be requisitioned under the Act. The original requisition order signed by the Collector was produced before me. I find that there the words 'drainage'/'irrigation' have been penned through. The original requisition order signed by the Collector was produced before me. I find that there the words 'drainage'/'irrigation' have been penned through. Therefore, in this present case the order was made for maintaining supplies and services essential to the life of the community and for providing proper facilities for transport/communication/irrigation/drainage. The said order further specified the purpose by mentioning the object of the proposed requisition as construction of Kona Express High Way. There is no substance in the contention that the respondents did not apply their minds of that the satisfaction of the Collector was made without application of his mind. This point is concluded by the decision of D. Basu, J. (as he then was) in (8) Pramatha Nath Mukherjee and others v. State of West Bengal amd others, 70 CWN 503. I respectfully agree with the views expressed by D. Basu, J. in the said - case. 24. The learned Advocate for the petitioners did not argue before me that the suit plot being a religious property was not capable of requisition. It is well-settled law that even religious property is not exempt from the power of eminent domain under Article 31 of the Constitution and in case of acquisition and requisition of properties according to law the Article 26 shall be irrelevant. 25. The burden was upon the petitioners to establish mala fide. The writ petition contains no particulars or mala fide against the respondents. The affidavit-in-reply also does not improve the cast of the petitioners. The construction of an Express High Way shall be certainly in the interests of the general public. It is not for this Court to consider whether such high way can be more conveniently constructed over some other place. It was a matter for decision by the administrative authorities. The petitioners have not proved that the decision to requisition was made mala fide, therefore, I cannot allow the petitioners to question by way of writ application the correctness of the alignment of the high way. In the result, all the grounds taken in the petition fail. I accordingly discharge this Rule. There will be no order as to costs. Operation of this order will remain stayed for two weeks from the date, as prayed for.