[Ruling on Passing over Graves in Case of Necessity]

Answer—and Allah is the One who grants success: The answer differs according to the situation:
1. If the homeowner built the house and only discovered the graves after construction, then what is closer to gentleness is to transfer the occupant of the grave to a clean, suitable place.
2. If the homeowner built knowing he would have no path except over the graves, and knowing that passing over them is forbidden, then he regretted his deed and sought a fatwā—he must be referred by the guide to one of the senior scholars.
3. If the houses are old and the graves are old, then as we said at the start (case no. 1).
The proof for permissibility of transfer on the basis of interest is the practice of many from the People of the House—peace be upon them—who transferred their dead from one place to another for a benefit, without objection. Here there is benefit for both the living and the dead: the graves are protected from insult and people’s passing over them, and transferring them is an honoring of them and a keeping them from the trampling of feet; while there is also a great benefit for the living—safety from sin, and the ability to utilize their homes, which are only obtained with long toil and the expenditure of much wealth.
Source : Min Thimār al-ʿIlm wa al-Ḥikmah vol.1