Badi Masjid Trust vs State Of Maharashtra

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4.Commissioner of Police,

Civil Lines, Nagpur.

5.Station House Officer, Police Station Tahasil, Nagpur.

6.Central Tanzeem Committee, Through its President, Mohd. Ali Sarai, Mominpura, Nagpur.

7.Engineer Mohd. Hamid

8.Sheikh Mohd. Faruki Ashrafi,

Both 7 and 8, c/o. Indian

Muslim Association, Head Office Haidri Road Complex, Block No.12, Mominpura, Nagpur - 18.

9.Sheikh Shajada, C/o. Ahmad Khawaja Garib Nawaj

Social Welfare Society, Kamgar Nagar, Nagpur. ....RESPONDENTS .

---------------------------

Mr. Anand Parchure, Advocate for Petitioner. Mrs. B.H. Dangre, Addl.Govt. Pleader with AGP Mrs. Joshi for Respondent Nos.1,2,4 & 5. Mr. C.S. Kaptan, Advocate for Respondent No.3. Mr. A.M. Qazi, Advocate for Respondent No.6.

Mr. M.G. Bhangde, Senior Advocate with Mr. R.M. Bhangde, Advocate for Respondent No.7. Mr. R.L. Khapre, Advocate for Respondent No.8. Mr. S.S. Sharma , Advocate for Respondent No.9. Mr. M.V. Samarth, Advocate for Applicants/Intervenors (C.A.W.No.1677/2011) Mr. A.A. Naik, Advocate for Applicants/Intervenors (C.A.W.No.1678/2011) --------------------------

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W I T H

WRIT PETITION No. 3177 OF 2011.

Shri Mohd Zuber s/o Abdul Rahim, Age 30 years, Occupation Business, R/o. Plot No.525, Near Bada Kua,

Near Mominpura, Ansar Nagar, Nagpur. .... PETITIONER.

VERSUS

1.The State of Maharashtra, through its Secretary, Urban Development Department, Mantralaya,

Mumbai - 400 032.

2.The City of Nagpur Corporation Through its Municipal Commissioner,

Civil Lines, Nagpur.

3.The Commissioner of Police, Civil Lines, Nagpur. ..... RESPONDENTS.

-------------------------- Mr. S.M. Ukey, Advocate for Petitioner. Mrs. B.H. Dangre, Addl. Govt. Pleader with AGP Mrs. Joshi for Respondent Nos.1 & 3. Shri C.S. Kaptan, Advocate for Respondent No.2.

------------------------

CORAM : B.P. DHARMADHIKARI & P.D. KODE, JJ.

Date of reserving the Judgment. - 8th July, 2011. Date of Pronouncement. - 12th July, 2011.

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JUDGEMENT. (Per B.P. Dharmadhikari, J).

Both these Writ Petitions are filed under Article 226 of the

Constitution of India. Petitioner No.1 in Writ Petition No. 3123/2011 is

a Registered Public Trust bearing No. B-32(N)-1961, which has majority

of Muslim community as its members. Petitioner No.2 is resident of

Mominpura area since birth where the said Masjid of petitioner no.1 is

situated. The petitioners seek relief from indefinite curfew imposed in

the Mominpura area because of burial of one "Mohd. Mustafa Mohd.

Ansari", popularly known as "Baba" in the premises of respondent no.6

- Central Tanzim Committee (hereinafter referred to as CTC for short) .

They contend that because of this, education of about 7000 to 8000

students studying in 15 to 20 schools and junior colleges within the

said area is disturbed. It is also alleged that the religious sentiments of

muslim community who offer their prayers in 5 - 6 masjids located in

the area are also hurt and livelihood of several others who earn it by

carrying small trades, has been adversely affected. Claim is that the

curfew has affected about 3 lacs of people directly or indirectly. The

Baba in relation to whose burial controversy has arisen was a revered

figure. He is referred to as "Late Baba" in the body of this petition.

::: Downloaded on - 09/06/2013 17:29:21 ::: 5 2. Respondent no.1 before us is the State of Maharashtra,

through its Secretary, Urban Development Department. Respondent

no.2 is Collector and District Magistrate of Nagpur; Respondent no.4 is

Commissioner of Nagpur and Respondent no.5 is Station House Officer

of concerned police station. Respondent no.3 is Nagpur Municipal

Corporation. Respondent nos. 6 to 9 have been added later on.

Respondent no.6 is Central Tanzim Committee (CTC), within whose

premises the body of lt. Baba has been buried. Respondent nos. 7 to 9

are the persons whose names were disclosed by the office of the Police

Commissioner at first hearing before this Court, as persons who may

want to oppose the petition and petitioners in Writ Petition

No.3123/2011 impleaded them accordingly.

3. Civil Application No. 1677 of 2011 has been filed by two

residents of Mominpura to direct the Authorities to remove the

encroachment from play ground of the school and to perform

honourable burial of lt. Baba at a place earmarked as muslim Kabrastan

by Nagpur Municipal Corporation.

Civil Application No. 1678 of 2011 is filed by 5 members of

the Central Tanzim Committee, a Public Trust and they also seek similar

relief.

::: Downloaded on - 09/06/2013 17:29:21 ::: 6 Writ Petition No. 3177/2011 is filed by a citizen resident of

Ansar Nagar, who claims to be interested in the welfare of muslim

community at large and he has also prayed for the relief of exhuming

the body of lt. Baba and to bury it honourably at a specified place in

accordance with the law.

Looking to the nature of the controversy, we have heard

learned Counsel appearing for the petitioners, respondents and

applicants/intervenors finally in both the petitions and with the consent

of all by making Rule returnable forthwith.

4. Shri Parchure, learned Counsel has argued for petitioners in

Writ Petition No. 3123/2011, while Shri Ukey, learned Counsel has

argued for petitioner in Writ Petition No.3177/2011. Mrs. Dangre,

learned Additional Government Pleader appeared for respondent nos.

1,2,4 and 5 on earlier dateS and on 08.07.2011 Mrs. Joshi, learned

Assistant Government Pleader appeared on their behalf. Shri C.S.

Kaptan, learned Counsel represented respondent no.3 Corporation. Shri

Qazi, learned Counsel argued for respondent no.6 CTC. Shri M.G.

Bhangde, learned Senior Counsel with Shri R.M. Bhangde, learned

Counsel argued for respondent no.7. Shri R.L. Khapre, learned Counsel

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presented the case of respondent no.8 and Shri S.S. Sharma, learned

Counsel has argued for respondent no.9.

5. It is not in dispute that lt. Baba expired on 28.06.2011 at

about 0.30 hours and the burial has been done at about 5.30 a.m. on

29.06.2011. The case of petitioners is, the body of lt. Baba was taken to

Tajabagh, where after performing some religious functions, group of

persons decided to take the dead body to Mominpura Burial Ground on

29.06.2011. At that burial ground necessary arrangements were

already made and instead of taking the body there, some of the persons

belonging to said sect, on their own took the law in their hand and

ignoring the opposition of the police authorities, made forcible entry

into the premises of respondent no.6, dug portion of land adjacent to

Sarai in the play ground of the school and buried the dead body there.

It is stated that said persons thus disturbed the communal harmony

amongst two sects at Mominpura, which has led to law and order

problem in Nagpur. Petitioners state that complaints were filed with

respondent no.5 Police Station by different persons, including a suo

moto complaint by the police constable Sheikh Kumar Pande bearing

Crime No.143/11 for offences under Sections 143, 144, 148, 149, 353,

354, 355 read with Section 134 of the Indian Police Act. Respondent

no.4 Police Commissioner is stated to have arranged a joint meeting of

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both the groups on 30.06.2011 and made attempts to resolve the

controversy amicably. The situation could not be diffused and

petitioners made representation to respondents on 28.06.2011. It is

further pointed out that the police called two additional companies of

State Reserve Police Force to maintain peace in the area, and since

29.06.2011, curfew has been imposed under the orders of Joint

Commissioner of Police.

6.

In this background, Shri Parchure, learned Counsel has

invited our attention to the provisions of Section 35 of the Bombay

Police Act, 1951; Section 133 of the Criminal Procedure Code; Section

269 of the City of Nagpur Corporation Act, 1948 and urged that the

burial is illegal, it has given rise to law and order problems and

imposition of curfew is still going on. Body of lt. Baba should be

exhumed by issuing appropriate writ to respondents and to direct the

authorities to restore law and order situation in the region.

7. While arguing, he has invited attention to the reply filed by

respondent no.6- CTC to urge that the large number of students are

taking education in the School wherein burial is done run by the

respondent no.6 Trust and education of those students is suffering. He

points out the events as disclosed by respondent no.6, particularly the

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fact that the Executive Committee Meeting of respondent no.6 was held

at about 2 a.m., on 28.06.2011 to consider application made to it to

give consent to perform burial of lt. Baba in the premises of respondent

no.6 and Executive Committee did not permit said burial. He points out

that on 28.06.2011 at about 3 a.m., after giving last bath to lt. Baba,

grave was dug in one of the class rooms just behind the hostel building.

He further states that funeral procession of lt. Baba reached Tajabagh at

about 12 a.m. where last prayers (Namaz-e-Janaza) came to be

performed. At about 1.00 O'clock in the morning; Secretary of

respondent no.6 heard announcement that body was being taken to

Mohd. Ali Sarai i.e. a Sarai managed by respondent no.6. Secretary

apprehending wrong burial, informed the police control room. Till 3

a.m. no police help was made available except few personnel already

present. He states that at 3 a.m., the Secretary and President found

"janaza" brought back by about 10,000 peoples and a lock on entry gate

to School premises was then broken by the mob and the mob entered

the premises of respondent no.6 through passage between old sarai

building and existing school building. President and Secretary of

respondent no.6 were man-handled and in couple of minutes the entire

open ground of the school was full of peoples and nobody could enter

the premises. The police force in the meanwhile reached, but found it

difficult to enter or to reach the school ground or to control the mob.

::: Downloaded on - 09/06/2013 17:29:21 ::: 10 The Executive Committee Members were thus helpless and burial of lt.

Baba was completed adjacent to the school building where he was given

last bath. It is stated that the burial place is approximately at the center

of the school ground. Attention has been invited to map filed along

with the reply. It is being stated that another meeting of the Executive

Committee was called and a FIR was decided to be filed by respondent

no.6. The F.I.R. then came to be registered as FIR No.138/2011. Some

of the persons were then found preparing for a permanent construction

of grave by bringing construction material from 11 a.m. onwards on

29.06.2011. Shri Parchure, learned Counsel therefore, states that these

facts clearly show that burial was without consent and permission of

respondent no.6. He has invited attention to the various documents on

record including "Fatwas" and stated that when such burial takes place

against the wish of owner, the exhumation of body is permitted even

by Mohammedan Law.

8. He has further pointed out that, here respondent no.6 Trust

is not the owner of land in question and the land has been leased out to

it by State Government. The only purpose for which the land can be

used is school and garden, and there is no consent given by the State

Government for such burial. Hence, burial being illegal and bad, the

body of Lt. Baba needs to be exhumed.

::: Downloaded on - 09/06/2013 17:29:21 ::: 11 9. Our attention has been also invited to judgment of Hon'ble

Apex Court reported at 1984 (2) SCC 138 (Abdul Jalil and others .vrs.

State of U.P. And others), AIR 1983 SC 1368 (Gulam Abbas and others

.vrs. State of U.P. And others) and Division Bench judgment of Nagpur

High Court reported at AIR 1956 Nagpur 38 (Motishah and others .vrs.

Abdul Gaffar Khan).

10. By inviting our attention to the various other paras of reply

filed by respondent no.6, to intervention applications and submissions

filed by other respondents, learned Counsel for petitioners has

contended that the group opposing the exhumation, is raising irrelevant

and non existent issues. The burial, contrary to law has sparked of the

law and order problem and that problem still continues. Petitioner no.1

being a Public Trust, having its own Masjid in the area, its followers and

community members are affected by this illegal act. Residents are also

affected and as the law and order situation continues to be worst,

according to him, intervention of this Court is essential. Our attention

has been also invited to the affidavit filed on behalf of respondent no.3

Municipal Corporation to urge that, though respondent Corporation

found burial in violation of provisions of Section 269 of the City of

Nagpur Corporation Act, has come up with a defence that the provisions

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of Sections 266 and 270 are not applicable in the present facts. He

states that the Corporation authorities are therefore, refusing to exercise

the powers available to them and hence this Court has to issue

necessary directions to respondents to exhume that body and to take

further action in accordance with law. He has invited attention to the

fact that earlier a Criminal Writ Petition vide Criminal Writ Petition No.

376/2011 was filed before this Court and the Division Bench of this

Court on 01.07.2011 found that Crime No.138/2011 to 142/2011 were

already registered and police machinery was expected to take action in

accordance with law. Prayer for restoration of law and order situation

was also held not necessary as the learned Government Pleader made a

statement that all necessary steps were being taken by the Police

Commissioner. According to him in this situation, the present petition

has been filed for issuing appropriate directions to the respondents to

exhume the body and to perform its burial honourably at place

earmarked for such burial by respondent no.3 Corporation.

11. Shri Samarth, learned Counsel has then invited attention to

the grievance made in Civil Application (W) No. 1677/2011. He points

out that the death took place in the night between 27.06.2011 and

28.06.2011 and after illegal burial on 29.06.2011 the problem has

cropped up. He has stated that Mominpura is a congested locality

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without any play ground and hence, school ground is the only space for

children to play or to hold public functions. Because of this burial, the

entire locality is in shock and so called followers of lt. Baba have made

the lives of general public miserable. He has relied upon the judgment

reported at AIR 1983 SC 1268 ( Gulam Abbas and others .vrs. State of

U.P. and others) and (1984) 2 SCC 138 ( Abdul Jalil and others .vrs.

State of U.P. and others) to urge that such type of illegal act cannot be

justified or protected by taking recourse to Articles 25 and 26 of the

Constitution of India. He also contended that how the encroachers

need to be dealt with is laid down by the Hon'ble Apex Court in

judgment reported AIR 1986 SC 180 (Olga Tellis and others .vrs.

Bombay Municipal Corporation and others). According to him it is not

necessary to hear such wrong doers and he has placed reliance upon a

judgment reported at 2005 (2) Mh.L.J. 1112 ( M.P. Women's Hockey

Association .vrs. State of Maharashtra and others). He has contended

that near about 950 students taking education in the school run by

respondent no.6 Trust are affected directly as their School is closed

from 29.06.2011, and their right to education and also right to play has

been taken away. He contends that in the light of the provisions of

Section 269 of the City of Nagpur Corporation Act, the Municipal

Commissioner has to interfere and take appropriate steps to exhume the

body and to bury it honourably at designated place.

::: Downloaded on - 09/06/2013 17:29:21 ::: 14 12. Shri Naik, learned Counsel appearing for applicants in Civil

Application (W) No. 1678/2011 has supported the arguments of Shri

Parchure and Shri Samarth. He states that his application for

intervention is by the members of the respondent no.6 C.T.C. According

to him powers of this Court under Article 226 have been invoked and

this Court, therefore, should not hear the wrong doers in the present

facts. Section 269 of the N.M.C. Act, has to prevail and violators thereof

need to be condemned unheard. The circumstances being pressed into

defence will be relevant only if burial is shown to be at place prescribed

therefor by Municipal Law and illegality cannot be perpetuated by

permitting body to lie in the school compound. He invites attention to

the judgment of Hon'ble Apex Court reported at (2006) 3 SCC 399

(M.C. Mehta .vrs. Union of India and others), to urge that Constitutional

Courts have to step in to protect the fundamental rights of a citizen in

such circumstances.

13. Shri Ukey, learned Counsel in Petition No. 3177/2011 has in

addition to his contentions in the writ petition, invited attention to the

reply filed by respondent nos. 6 and 7 to urge that it's perusal clearly

shows an admission of wrongful nature of burial. The alleged

differences in two sects of Sunni Muslim community, as pointed out in

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the affidavit of respondent no.7 in paragraph no.26 and the statement

that Muslim Law prohibits exhumation of dead body is stated to be

incorrect. Our attention has been invited to additional affidavit filed by

petitioner Mohd. Juber son of Abdul Rahim to point out 3 most revered

books for Muslims and 2 translations of relevant paragraphs in

"Hadees". According to him, those translations and Fatwas clearly show

that as burial of lt. Baba is not in accordance with Mohammedan Law

and it is against the wish and without consent of the owner of the land,

the body needs to be exhumed.

14. Shri Qazi, learned Counsel appearing for respondent no.6

CTC has invited attention to written submissions filed on affidavit on

07.07.2011. We have briefly referred to the said affidavit earlier as

attention of Court was invited to the same by Shri Parchure, learned

Counsel for petitioners. Shri Qazi, learned Counsel points out that at

about 5 p.m. on 29.06.2011 about 400 - 500 peoples entered

Mohammad Ali Sarai - a building occupied by respondent no.6 Trust,

broke open the locks of the office, particularly of Chambers of President

and Secretary, damaged the furniture and fixtures of Trust. The

Secretary wanted to register FIR immediately, but it was not

registered by Police stating that investigation with respect to the

incident was already in progress. D.C.P., Mr. Waghmare, was then

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approached and thereafter, respondent no.5 Police Station accepted and

registered that FIR. Shri Qazi, learned Counsel states that after said

incidents, there were chain of events like - bringing building articles/

materials, stone pelting by group of peoples which ultimately resulted in

creating law and order situation and police then proclaimed prohibitory

orders to control the situation. He states that before police authorities

could take any action, some of the Scholars of Shariyat claimed that

though burial of lt. Baba without the consent of owner was improper,

after burial was over, exhumation of body is not permissible. The

respondent no.6 Public Trust is formed with an aim and object of

providing religious and secular education to muslims by muslims, and

hence the Executive Committee had absolutely no alternative but to

abide by said claim in the Fatwa. The efforts made by respondent no.4

Police Commissioner to call for meeting of the various groups are then

pointed out and it is contended that respondent no.6 was hoping that

some consensus would be arrived at and inspite of very lengthy

meetings and debates, no such solution could be worked out. It is

stated that after burial, clashes continued and regular life and business

of the residents has been jeopardized. The office bearers of the

respondent no.6 are being threatened by the un-known persons and

their houses are being made target. Shri Qazi, learned Counsel invites

attention to paragraph no.23 to show that despite the best possible

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efforts by the Executive Committee to prevent burial of lt. Baba in the

school ground, after issuance of Fatwa, the Executive Committee had to

accept the same as there was no final decision in the joint meetings held

with due efforts of the Authorities. Shri Qazi, learned Counsel points

out that the entire area and community at large is made to suffer and

due to the uncertainty, tension prevails in the locality resulting into loss

of education to students. Shri Qazi, learned counsel states that to

maintain law and order situation in the area, it is necessary for this

Court to intervene and to decide the controversy. He during the

arguments also communicated that as burial has taken place in the

school compound, some people have started making efforts to cancel

government grants to the school and to terminate the lease.

15. As learned Additional Government Pleader was not available,

the incharge Assistant Government Pleader informed the Court that

curfew was being relaxed daily and on 08.07.2011 it was relaxed

between 8 a.m. to 2 p.m. to enable the residents to complete their daily

routines. She further urged that respondent nos. 1,2 and 4 will abide

by the decision of the Court in the matter. To a pointed query, as to

why reply affidavit is not filed either by respondent no.1 or by

respondent no.2 or then on behalf of respondent nos. 4 and 5, she has

communicated that appropriate answer or submissions in this respect

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will be made little later. However, till the closing of the case for delivery

of judgment or till the dictation thereof, no statement in this respect has

been made.

16. Shri Sharma, learned Counsel appearing for respondent no.9

has contended that the petition as filed is not maintainable, as

petitioners are not the owners of the land in dispute and are not

relatives of lt. Baba. He has further contended that the petition as filed

is not in public interest. He points out that though mandamus has been

claimed in the petition, demand has been made on 02.07.2011 just for

the sake of compliance and petition has been filed on 04.07.2011 i.e.

shortly thereafter. He contends that respondent no.6 C.T.C., is not

opposing the burial and has also not asked for any exhumation.

Attention has been invited to the interim measures adopted by the

Hon'ble Apex Court in judgment reported at (1984) 4 SCC 607 (Gulam

Abbas and others .vrs. State of U.P. and others) to urge that similar steps

can be at the most be directed to be taken by this Court in the matter.

17. Shri M.G. Bhangde, learned Senior Counsel with Shri R.M.

Bhangde, learned Counsel appearing for respondent no.7 has invited

attention to paragraph nos. 27 to 31 of the reply affidavit of the said

respondent. He points out that lt. Baba was a Holy Saint sitting on the

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same place for last more than 20 years i.e. on land of Mohammad Ali

Sarai (under respondent no.6), below the gallery of hostel of the said

Sarai. He had followers from various communities and religions

including Muslims, Hindus, Sikhs etc. People from all walks of life

visited him at that place and were benefited. The burial on 29.06.2011

was over peacefully at about 5.30 a.m. and also process of burial was

with consent and in presence of the Executive Committee members of

respondent no.6 and in presence of police personnel. As Baba had

great affinity with the place, which he occupied for about 20 years, he

was laid to rest at very same place. Shri Bhangde, learned Senior

Counsel further states that in Kabrastan, non-muslims and ladies are not

permitted and hence, to enable peoples of all religions to pay visit and

also to enable the ladies to get blessings, decision of burial at that place

was taken. He further states that reasons for performing Namaj at

Tajabagh was gathering of more than 1 lakh people who attended the

funeral procession. After burial was over, people from all walks of life

started visiting mazaar of lt. Baba to pay their respect throughout the

day and everything was going on smoothly till 5.30 p.m. on 29.06.2011.

The school also was open on 29.06.2011 and functioned normally

without any disturbance. At 5.30 p.m. some persons from Wahabi Sect

came in mob and pelted stones on persons offering respect at Mazaar.

They burnt the articles and belongings of lt. Baba and this triggered off

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dispute between two sects, which led to imposition of curfew. It is

contended that petitioners and other persons seeking a direction to

remove the body of lt. Baba are thus responsible for the beginning and

continuation of law and order problem. It is further pointed out to this

Court that the situation can become worse if body is exhumed at the

instance of a few persons and sentiments of lacs of followers of Baba are

hurt. It is stated on affidavit that law and order problem would arise if

body is exhumed and there will be no such problem, if body is

continued at same place. It is urged that neither respondent no.6 nor

followers of lt. Baba have any grievance about the burial of lt. Baba at

its current location. Further instances of such burial in public place or

at residential places are also given in paragraph no.32 and it is stated

that all these Dargahs/Mazaars are situated within the vicinity of Badi

Masjid area since last several decades and no one has ever objected.

18. In the light of this material Shri Bhangde, learned Senior

Counsel has urged that facts reveal that burial did not lead to any law

and order problem, but it is stone pelting, more than 12 hours

thereafter which created that situation. Attention is also invited to

paragraph no.16 of the affidavit filed by respondent no.6 CTC to urge

that law and order problem was created in the evening because of these

peoples.

::: Downloaded on - 09/06/2013 17:29:21 ::: 21 19. It is alleged that prayer clause [2] in Writ Petition No.

3123/2011 is already adjudicated upon by this Court while deciding

Criminal Writ Petition No. 376/2011 and learned Senior Counsel

reiterates that there can be no law and order problem now. Thereafter

it is pointed out that prayer clause [1] in Writ Petition seeks mandamus

and therefore, petitioners have to demonstrate legal right in them and a

corresponding duty in respondents. Section 35 of the Bombay Police

Act is stated to be not applicable, as no Rules framed therein have been

pressed into service by the petitioners and it is contended that

exhumation is not envisaged in Section 35. Section 133 of the Criminal

Procedure Code does not deal with burial. Section 269 of the City of

Nagpur Corporation Act, particularly clauses [c] and [d] thereof, do not

deal with burial at unauthorized place and hence not relevant.

Attention is invited to Section 269[3] to state that such burial is only

made a cognizable offence and no exhumation is permitted. Judgment

of Hon'ble Apex Court reported at (2003) 12 SCC 627 (Union of India

and others .vrs. C. Krishna Reddy) is relied upon to urge that in absence

of a statutory duty no writ of mandamus can be issued.

20. Our attention has been invited to various religious Fatwas,

relied upon either by petitioners or by the applicants and other

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respondents to urge that it is owner who can remove the body from his

land. Here owner is respondent no.6 CTC and learned Senior Counsel

by inviting attention to paragraph nos. 20 and 23 of the reply affidavit

filed by C.T.C., contends that the C.T.C., does not want removal of body

of lt. Baba. Hence, petitioners can not ask for it. In the alternative it is

contended that remedy for such removal, even if sought for by the

respondent no.6, would be a Civil Suit and not a Writ Petition before

this Court.

21. Learned Senior Counsel contends that the consent of

respondent no.6 to burial is apparent on record and in any case,

whether there was no such consent or then a consent was infact given,

are disputed question, which cannot be resolved by this Court in a Writ

Petition. It is also contended that finding out persons responsible for

creation of law and order problem, is also a disputed question, which

needs to be resolved only by filing a Civil Suit. Again by relying on the

reply affidavit of respondent C.T.C., learned Senior Counsel contends

that acceptance of religious fatwas by respondent no.6 is nothing but a

grant of ex-post facto sanction.

22. It is further stated that petitioners have stated in paragraph

no.2 of their petition that they were approaching this Court in

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representative capacity under Order 1 Rule VIII of the Code of Civil

Procedure. However, petitioners have not obtained necessary orders

and in absence of proper steps and proper advertisement inviting

members of general public, what ever orders this Court may pass, would

be binding only on parties and will not affect others, who are not parties

before this Court. Judgment of Hon'ble Apex Court reported at (1999)

9 SCC 105 (Ramchander Sunda and another .vrs. Union of India and

others), is pointed out in this respect. It is contended that petitions as

filed, therefore, can at the most be treated as one in their individual

capacity by petitioners.

23. In the alternative and without prejudice, learned Senior

Counsel states that there cannot be any direction by this Court to

exhume the body, as the issue needs to be decided by the Municipal

Commissioner under Section 269, and hence that discretion must be left

open to him. The judgment of Hon'ble Apex Court reported at (2009)

16 SCC 601 (Union of India and another .vrs. Bilash Chand Jain and

another) is pressed into service for this purpose.

24. Shri Khapre, learned Counsel who appears for respondent

no.8 has also opposed the petition. Adopting the line of argument of

learned Senior Counsel Shri Bhangde, Shri Khapre, learned Counsel

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states that in AIR 1981 SC 2198 (Gulam Abbas and others .vrs. State of

U.P. and others), the Hon'ble Apex Court has appointed a Committee,

called for its report and after ascertaining facts, a finding that the body

was buried without consent has been delivered. As here, there is no

such exercise, this Court cannot record any finding about it. The

absence of any reply of respondent nos.1 and 2 is also capitalized to

contend that Government also is not averse to said burial. Learned

Counsel states that respondent no.6 CTC has already accepted the burial

and hence, there is no question of even looking into the fatwas which

are being pressed into service by the petitioners.

25. Out attention is invited to judgment of Hon'ble Apex Court

reported at AIR 2008 SC (supp) 478 (Faqruddin [dead] through L.Rs.

.vrs. Tajuddin [dead] through L.Rs.), to point out that brief history

leading to formation of Dargas and Tombs. Judgment reported at AIR

1962 SC 853 (Sardar Syedna Taher Saifuddin Saheb .vrs. State of

Bombay) is also relied upon to urge that law enacted by the State

Government struck down by the High Court was found valid by Hon'ble

Apex Court. It is contended that Article 25 of the Constitution of India

would be violated, if Late Baba is directed to be buried in Kabrastan, as

non-muslim followers and ladies would be prohibited from seeking his

blessings. Judgment reported at AIR 1985 (Patna) 229 (Pooja Samiti,

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Fulwaria and others .vrs. State of Bihar and others) is relied upon to

show how the High Court there issued directions to regulate the affairs.

26. Shri Khapre, learned Counsel points out that here lease

granted by the State Government to respondent no.6 is only for Sarai

and Garden and not even for school. He contends that sarai and

tomb/mazar of lt. Baba can co-exist. In the alternative and without

prejudice, he states that only option for petitioners is to approach the

Authorities under the Bombay Public Trust Act and seek their sanction

under Section 50 of that Act and to proceed to file suit thereafter.

27. Shri Parchure, learned Counsel in his brief reply contends

that things can be set right by respondent nos. 2 and 3 by exercising

powers given to them under section 269 of the City of Nagpur

Corporation Act and under Section 133 of the Criminal Procedure Code.

He points out that those authorities have not been acting and have also

not assisted this Court in any way. Respondent no.6 is only a lessee

and State Government is the owner. In this situation, according to him

there is no disputed question which requires adjudication and fatwas, if

any, contrary to law cannot stand.

28. We find it proper to refer to various Fatwas to which our

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attention has been invited by respective parties. We also wish to place

it on record that issuance of those fatwas or correctness of the text

thereof, has not been disputed before us. Perusal of page no.406 of

Hanafi Law relating to Wakf or Trust, reveals a Fatwa contained in

Fatawai Alamgiri, Vol-II at page no.536. The said fatwa shows that,

when a body has been buried in a ground, whether for long or short

time, it cannot be exhumed without some excuse. But, it may lawfully

be exhumed when it appears that said land was usurped or another is

entitled to it, under a right of preemption.

29. Respondent no.8 has along with the reply affidavit filed

Fatwa Rajviya Jild 4 Safah 119 in Hadis, which according to it, is

recognized by Deoband Madarsa and which is known as 'Fatwa

Darululoom Deoband (Mez 403). Perusal of this fatwa shows that, if

such burial is without consent of land owner, land owner is entitled to

remove it and use the land for proper purpose. Non removal seems to

be contemplated only when burial is proper. Fatwa filed by respondent

no.6 as Annexure-R6-1 with its reply affidavit also reveals the same

position. The intervenors in Civil Application No. 1378/2011 have also

filed Nazul Khasara of land in dispute, which shows that respondent

no.6 CTC Trust is in possession and sarai and garden as purpose. In

column no.12, it is recorded that the land cannot be used for any

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purpose other than Dharmshala and Garden. Even Annexure-7B filed

with reply of respondent no.7 shows that, in answers to the questions

simply asking, whether body can be shifted after its burial?, the

answers given are against such removal. Perusal of hindi translations

of Durre Mukhtar which is referred to in this Annexure-7B reveals the

position which respondent no.7 has avoided to point out. Vol-1, Page

no.145 shows that, if burial is in land which has been procured by force

or illegally, the owner thereof can remove the body and use the land

for his own purpose. Hindi translation of Fatwai Alamgiri page 167,

again shows the very same position. Hindi translation of page no.391 of

Bahare Shariat, authored by Moulana Amjad Ali Rizwi again shows a

right of owner to remove such body buried without his consent. One

document (Al-jawab) has been produced by petitioners to show that

when land is given on lease by Government for school, playground or

for public purpose to a Trust, and Trust is only its protector and not

owner, no muslim can be buried on such land even with consent of such

Trust. If such burial is already over, body should be honourably

removed and buried again in a public kabrastan. 5 Authorities are

quoted in support of those authorities are - Durre Mukhtar Bab Salvatul

Janaza, Fatwa Qazi Kha, Alamgiri, Irfan-e- Sheriyat and Bahare

Sheriyat. Hindi translation of page no.195 supports this view.

Similarly, hindi translation of page 1 of part 2 of Irfan-e-sheriyat again

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shows the same position. Petitioners have procured from Internet the

Islamic Laws of Ayatullah Khoei and reliance has been placed on various

paragraphs therein. Perusal of chapter dealing with exhumation,

particularly paragraph 650 thereof shows that digging up of a grave is

allowed when dead body has been buried in usurped land and owner of

land is not willing to let it remain there.

30. None of the respondents/parties have pointed out that this

position emerging from fatwas is incorrect. No challenge has been put

to translated copies read over to us.

31. Perusal of judgment in case of Abdul Jalil and others .vrs.

State of U.P. And others (supra), reveals that there the question of

shifting of graves coming up un-authorizedly and illegally in the light

of Articles 25 and 26 of the Constitution of India has been examined.

Paragraph no.3 of this judgment shows that right conferred under

Articles 25 and 26 of the Constitution of India are not absolute, but

exercise thereof has to yield to maintenance of public order and

suggestion mooted by Court to shift the grave was in larger interest of

the society. The reference to fatwas relied upon by Sunni Muslims,

quoting Hadis also appears in this paragraph and the Hon'ble Apex

Court has noted that it may become necessary to shift graves in certain

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situation and exigencies of public order surely provides the requisite

situation. The Hon'ble Apex Court has recorded that it persistently

enquired from counsel appearing for both the sides before it, as to

whether, there was anything in Holy Koran which prohibited shifting of

grave and the Counsel for Sunni Muslim was not able to say that there

was any thing to be found in this respect in Koran. The counsel

appearing for Shia Muslim categorically stated that there is no text in

Holy Koran which prohibits removal of or shifting of graves. The

contingency of grave being dug on land belonging to others or illegally,

is also noted by the Hon'ble Apex Court, as a circumstance in which

shifting is possible. Two historical incidence i.e. shifting of grave of

Mumtaz Mahal from Burhanpur to Taj Mahal at Agra and Jahangir from

Kashmir to Lahore, are also quoted by the Hon'ble Apex Court in that

paragraph. In this background, the Hon'ble Apex Court has noted the

circumstances which revealed law and order problem and found that it

left no choice for Court but, to direct shifting of graves. Such direction

is held to be in larger interest of the society, for the purpose of

maintaining public order on every occasion on performance of their

respective religious ceremonies and functions by members of both the

sects.

32. It is to be noted that earlier judgment in this respect in

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reported in the case of Gulam Abbas and others .vrs. State of U.P. and

others (AIR 1983 SC 1268)(supra) and still earlier judgment in the

case of Gulam Abbas and others .vrs. State of U.P. and others (AIR

1981 SC 2198)(supra). For our purpose, it is not necessary to go into

those judgments. Shri Khapre, learned Counsel has attempted to point

out that there steps taken by the Hon'ble Apex Court after ascertaining

the facts by appointing a Committee. We do not see said circumstance

as a distinguishing feature in the present matter, as we are concerned

with the law, as noted by the Hon'ble Apex Court and stated by us

above. In this view of the matter, it is again not necessary to refer to

the Division Bench judgment of Nagpur High Court in case of Motishah

and others .vrs. Abdul Gaffar Khan (supra), which in paragraph no.27

notices how Wakf is created. Said paragraph again shows that a body

buried for long or short time can be exhumed lawfully when it appears

that land was usurped or another is entitled to it under right of

preemption. Judgment of Hon'ble Apex Court AIR 1988 SC 93 (Ishtiaq

Hussain Farooqui .vrs. State of U.P. And others) may be noted in this

respect, where the Hon'ble Apex Court has held that maintenance of law

and order is function of District Magistrate. The exercise of fundamental

rights under Articles 25 and 26 of the Constitution of India, is not an

absolute right, but must yield or give way to maintenance of public

order and Hon'ble Apex Court has found that these principles are well

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settled, hence no further discussion in this respect is necessary.

33. The alleged disputed questions pressed into service by

respondent no.7 are that burial is with consent of respondent no.6, and

in presence of entire Executive Committee and Police personnel. In the

alternative, it is urged that there is specific acceptance of that burial and

hence, an ex-post facto sanction. The other disputed question is stated

to be about the group responsible for behaviour/conduct leading to law

and order situation. Facts noted by us above clearly show that the law

and order situation is still worse and is being controlled by imposing

curfew. Relaxation of curfew from 8 a.m., to 2 p.m., cannot be viewed

as restoration of normalcy. The effort by learned Senior Counsel to

contend that prayer made in Criminal Writ Petition No.376/2011 has

been repeated unnecessarily in present writ petition, therefore, needs to

be rejected. In that writ petition, this Court has noted statement of

learned Government Pleader that all necessary efforts were being made

by the Police Commissioner and his police force for restoring law and

order and ensure that peace and tranquility of the area is not disturbed.

This Court did not then doubt that statement and found that in Criminal

writ petition there was no allegation to the contrary. The imposition

and continuation, after said date, of curfew till date thereafter, not

opening of schools, inability of the students to attend the school; all

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show how this argument about unnecessary repetition of said prayer is

misconceived. Similarly, the contention that said grievance is already

redressed, is equally misconceived. The grievance still survives and

respondent nos. 4 and 5 along with respondent nos. 1 and 2 have failed

to bring normalcy in the area. Even before this Court, learned

Additional Government Pleader had on first hearing i.e. on 06.07.2011

requested this Court to conclude the hearing and pass appropriate

orders at the earliest as about 1500 police personnel were required to

be deployed in Mominpura and its vicinity. It is obvious that this police

force is seeing to it that everything remains closed and calm. Efforts

made by police were only to attempt to bring out a settlement between

parties and State or police did not use its power as such to force

normalcy in the area.

34. The land belongs to somebody else and not to lt. Baba or his

descendants. The burial, therefore has been on land not belonging to

deceased, but on land belonging to somebody else. According to

respondent nos. 6 and 7, consent of respondent no.6 already exists. The

fact that such consent is required under Mohammedan law is, therefore,

not in dispute. When a artificial body like Public Trust expresses its

consent, it has to be necessarily in writing and in the form of a

resolution. Perusal of affidavit of respondent no.6, itself reveals that

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there were only two resolutions after the death of lt. Baba and till the

eruption of law and order situation. The first such resolution is at 2

a.m., on 28.06.2011 when application seeking consent of the Trust to

burial was rejected by it. The other such resolution is after burial of

Baba was completed i.e. 29.06.2011 when decision to lodge FIR against

wrong doers was taken. Copy of that resolution is also produced before

us and that resolution does not show either acceptance of burial or then

consent to burial. On the contrary it expressly puts on record the fact

that burial was without the permission. And consultation with Mufti and

Ulema in Nagpur City, is also recorded therein. The resolution

therefore, decides to lodge a police complaint. Inability of respondent

nos. 4 and 5 to help the Executive Committee members is also pointed

out on affidavit and then registration of Crime No. 138/2011 is also

pleaded. These facts therefore, no where show any consent of CTC.

Respondent no.6 has thereafter pointed out entry into its office by

group of 400-500 peoples and destruction of its furniture, refusal by

respondent no.5 Police Station to register its FIR, intervention of DCP

Mr. Waghmare and then recording of FIR on 01.07.2011 vide FIR

144/2011. Effort of respondent no.7 to urge that these averments in

paragraph nos. 16 of affidavit of respondent no.6 give credence to its

plea that group of persons burnt or disturbed articles of Baba and that

created law and order situation, cannot be accepted. These allegations

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only show destruction of property of respondent no.6 and nothing

more. There is no FIR either lodged or pointed out to us about

destruction of the articles or belongings of lt. Baba. In any case, we are

not required to record any finding about these claims as it is sufficient

to demonstrate that there never was any consent by respondent no.6

CTC for burial. It can not be ignored that consent or permission of State

Government was essential for such burial and no attempts were made

to obtain it.

35. The affidavit of respondent no.6 thereafter also points out

opinion of Scholars, that such burial without consent was improper and

another opinion that after burial, exhumation is not possible. The

affidavit states that fatwa in this respect is binding on Executive

Committee of respondent no.6, as they are bound by the provisions of

Shariyat. The affidavit shows acceptance of that fatwa and claims that

Executive Committee accepted it, but then alleged acceptance is not out

of free will, but under compulsion. Again as already noted above, there

is no resolution passed in this respect by the Executive Committee. In

absence of this vital requirement, said statement on affidavit as made by

the Secretary of respondent no.6 CTC, does not mean that CTC ever

gave ex-post facto sanction. Correct position about exhumation is

already noticed by us above and respondent no. 6 has also requested us

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to decide said controversy. Consent which is not out of free will and

after knowing true and correct facts, cannot be said to be a consent in

the eye of law. The absence of any such decision by respondent no.6

also becomes apparent from the fact that one group within respondent

no.6 has chosen to file Civil Application (W) No. 1677/2011 before us

for exhumation and removal of body of lt. Baba.

36. One of the fatwas - Al Jawab, noted above clearly states that

respondent no.6 being its lessee and not owner cannot give such

consent. Here it is not in dispute that the State Government is the

owner and persons who buried the body of lt. Baba in premises of

respondent no.6, applied to respondent no.6, but then they did not

apply to the State Government for such permission or consent at any

point of time. The respondent nos. 1 and 2 have not come forward to

file any reply pointing out that they have either consented to such burial

or then accepted such a burial. Burial by mob, by overpowering the

Executive Committee members and police force on usurped land cannot

be said to be a legal burial, which can be binding on anybody. It is

obvious that there is no consent or permission from the State

Government.

37. In view of this discussion, it is apparent that there is no

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consent, either before or after by respondent no.6 CTC and in any case

by owner of the land i.e. State Government. The land has been granted

to respondent no.6 for particular purpose and not for use as a space for

burial. In this situation, we find no substance in the contentions of

learned Senior Counsel that any disputed questions arise in that respect.

38. This Court is concerned with the situation which

has been pointed out to it on the date of filing of the petition i.e. on

04.07.2011. Who is responsible for creating that situation is not very

important at this stage. Effort of respondent nos. 7 and 8 is only to

continue with the status quo and to show that disputed questions arise,

and therefore to attempt to force a prolonged litigation in civil Court as

the only appropriate remedy. As we have noted that even today the

law and order situation is worst in the area, it is apparent that the

adjudication of responsibility for bringing about that situation is not

relevant at all. The situation obviously has arisen out of forcible,

unauthorized and illegal burial of lt. Baba. The contention that said

burial was over on 29.06.2011 at 5.30 a.m., and thereafter everything

was normal for about 12 hours is, again therefore not relevant. We

therefore, do not see any disputed question of fact arising in the matter.

The situation has cropped up because of illegal and unauthorized burial

by a mob by taking law in its own hand and by overpowering the

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Executive Committee members and police force. Contention of learned

Senior Counsel that removal of body of lt. Baba may not solve the

problem is, therefore, not again relevant. The further contention that

such removal may give rise to law and order situation, again cannot be

accepted. The respondent nos. 1, 2, 4 and 5 have to take all necessary

steps for restoring normalcy and for controlling the situation. They can

take help of all necessary forces for said purpose. The learned counsel

for petitioners has attempted to urge during arguments, that this was

infact a threat being given by respondent no.7 to oppose the honourable

removal of lt. Baba. We do not wish to record any finding in this

connection, as it is the job of the Executive to see that situation does not

deteriorate, but improves. Respondents can not force an illegality on

citizens because of the threat to law and order situation and State has

to implement the law. It can not forget that it is custodian of all faiths

with duty to maintain law and order, and has also to assure peace and

public tranquility.

39. Having found that no disputed questions of facts arise in the

present matter, we now proceed to consider the legal provisions which

operate in the field. Section 35 of the Bombay Police Act, 1951 gives

power to competent authority to make rules, prohibiting disposal of

dead at places other then those set apart for said purpose. Its proviso,

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expressly states that such Rules cannot be made in respect of any town

or places where such places have not been so set apart. Further proviso

contemplate an application to be made to Competent Authority and that

grant of permission accordingly for a disposal of corps at any place

other than a place so set apart. The Competent Authority in that

situation is required to form opinion whether such disposal, is not likely

to cause obstruction to traffic of disturbance of the public peace or is

not objectionable for any other reason. No Rules framed in pursuance of

said Section 35 are pointed out to us. Similarly, it is not a case of any of

the parties that any application under Section 35 was moved before the

Authority under Section 35. As in city of Nagpur, such places are

already set apart, this provision has no application.

40. Section 133 of the Code of Criminal Procedure deals with

passing of the conditional orders for removal of nuisance. Its subsection

1[a][f][i] prohibits unlawful obstruction and contemplates its removal

or removal of nuisance from any public place. Section 269 of the City

of Nagpur Corporation Act appears in Chapter XXII, which deals with

disposal of dead. Section 266 permits Corporation to provide fit and

convenient places for disposal of dead, if existing place for disposal are

insufficient. Section 269 deals with prohibition of certain acts without

the permission of the Commissioner. It reads as under :

::: Downloaded on - 09/06/2013 17:29:22 ::: 39 "Section 269 - Prohibition of certain acts without

the permission of Commissioner.

(1) No person shall, without the written permission of the Commissioner -

(a)make any vault, grave or interment within any wall, or underneath any passage, porch, portico, plinth or verandah, or any place of

worship; or

(b) make any interment or otherwise dispose of any corpse in any place which is closed for the

disposal of the dead under Section 268; or

(c) build, dig or cause to be built or dug any grave or vault, or in any way dispose of, or

suffer or permit to be disposed of, any corpse, at any place other than a place for the disposal of

the dead; or

(d) exhume any body from any place for the

disposal of the dead, except under the provisions of Section 176 of the Code of Criminal Procedure 1973, or of any other enactment for

the time being in force.

(2) Such permission may be granted by the Commissioner only and subject to such general or special orders as the State Government may make in this behalf.

(3) An offence under this section shall be deemed to be a cognizable offence within the meaning

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of Sections 149, 150 and 151 of the said Code."

Section 270, then deals with the removal of corpse. The said section

deals with the routes by which the funeral procession can be taken to

burial ground or burning places.

41. Perusal of Section 269 shows that a grave or vault cannot be

dug or any corpse cannot be disposed of at any place other than a place

of disposal of dead without written permission of the Commissioner.

Corporation being planning authority and having fixed or

predetermined places specified for burial, Section 35 of the Bombay

Police Act is not made applicable by the Legislature. The language of

Section 269 shows that the person who suffers such disposal or permits

it, is also responsible for its violation. Sub-section [2] enables the

Municipal Commissioner to grant such permission subject to such just or

special orders as State Government may make in this behalf. Offence

under Section 269 is deemed to be cognizable offence within the

meaning of Section 149, 150 and 151 of the Code of Criminal

Procedure, 1973. Exhumation is also not permitted by its clause [d],

but then obviously that exhumation is from a legal place where the

body is buried i.e. from a place specified for disposal of dead. It is not

in dispute that being planning authority the Nagpur Municipal

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Corporation has specified such places for disposal of dead and kabrastan

have been provided in City for burial. Facts shows that body of lt. Baba

was to be buried in one such Kabrastan where preparations therefor

were also undertaken. It is, therefore, obvious that Section 269 [c][d],

does not prohibit exhumation from a place which is not set apart or

specified for disposal of dead. On the contrary we find insistence by

respondent no. 7 on a specific provision in the statute permitting such

exhumation, unnecessary and unwarranted. When such illegal burial is

made a cognizable offence, it becomes apparent, that exhumation from

such unauthorized or wrong place is implicit, and the authorities are

duty bound to restore the place to its former use or purpose by

removing the body un-authorisedly/illegally buried there. The local

authority and State can not permit and tolerate such encroachments

and usurpation against public interest.

42. Perusal of Section 149 of the Code of Criminal Procedure is

also relevant. Said provision occurs in Chapter XI, which deals with

preventive action of the police. It permits every police officer to use

force for the purpose of preventing and to the best of his ability,

prevent, the commission of any cognizable offence. Thus, burial of lt.

Baba on 29.06.2011 at 5.30 a.m. by outnumbering/overpowering police

cannot be presumed to confer any entitlement upon anybody to contend

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that once body is laid to rest there, it cannot be exhumed. The

contention runs contrary to the various fatwas noted by us above,

contrary to the position laid down by the Hon'ble Apex Court in this

respect and also contrary to the express mandate of Section 269 of the

City of Nagpur Corporation Act. Perusal of Section 150 of the Criminal

Procedure Code shows obligation of a police office receiving

information of a design to commit any cognizable offence, to

communicate it to his superior whose duty is to prevent or to take

cognizance of commission of any such offence. Section 151 then deals

with powers to arrest to prevent commission of cognizable offences.

Here, facts show that the mob had outnumbered police force,

overpowered the Executive Committee of respondent no.6 and then

committed a cognizable offence. In this situation, we are not concerned

with the identity of these violators or then question, whether violation is

established beyond reasonable doubt, as it is in the province of the

Criminal jurisprudence. Admitted burial at a place not set apart for that

purpose is sufficient for this Court. The question whether removal

honourably of body of lt. Baba will resolve the issue or not, is also not

very relevant factor before us as a Court of Law. Respondent nos. 1 to 5

have not expressed any such apprehension before us. The affidavit of

respondent no.6 itself shows that some efforts were made by

respondent nos. 4 and 5 to induce both the groups, to arrive at some

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compromise and those efforts have failed. Hence, the situation

prevailing is on account of illegal use of its power by the mob, leading

to burial of lt. Baba at unauthorized and illegal place, and then

insistence of other group to capitalize on it to urge that said illegality or

violation must be allowed to continue. Various judgments looked into

by us above clearly show that it is a law of land which has to prevail

ultimately, and Article 25 of Article 26 of the Constitution of India

cannot be invoked to perpetuate such illegality and do not protect such

usurpation. The apprehension or belief affirmed on oath by respondent

no.7 of some deterioration in law and order situation, in case body of lt.

Baba is removed, is a signal for respondent nos. 1,2 and 4 to show that

in this Country it is law that is honoured and violators are not permitted

to enjoy the benefits of their wrongful acts or force it upon others

against their wish. We are required to express this, because of inaction

on the part of the respondent nos. 4 and 5, when they got the

complaints from respondent no.6 to take appropriate steps and to

restore normalcy in the area which continues till date. They could have

summoned the forces at its command and shown it to violators or

wrong does that it is the law of land which holds the field. Their

inability or failure to take any specific stand before this Court again

speaks for itself. Contention of respondent no. 9 that representation for

sustaining the demand of mandamus was very short is liable to outright

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rejection as it is time element available to injured citizen which is

determinative and decisive.

43. The affidavit filed by the Municipal Commissioner is again

not very satisfactory. It does not look into the provisions of Section 269

or its violation or then powers available to Municipal Commissioner to

take appropriate steps for making amends in the matter. It is to be

noted that Section 269[2] expressly authorizes the Commissioner only

to grant permission to bury at a place not specified for disposal of dead.

We, therefore, find that respondent no.3 Municipal Commissioner has

also avoided to take appropriate steps in the matter in accordance with

law.

44. The other objection raised by learned Senior Counsel to the

locus of the petitioners in the matter now needs to be looked into.

Status of petitioner no.1 as public trust is not in dispute. The facts also

show that it is a religious public trust. Petitioner no.2 is resident of the

area and petitioner in other petition is a citizen of India professing

muslim religion who is alarmed by the prevailing situation. The

continuous on going curfew and therefore, absence of law and order is

also brought on record. We have also noted the arguments of respective

counsel opposing the prayers in the petition. It is, therefore, obvious

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that the cause which needed attention of this Court has been brought to

it by a religious body, which is having its roots in the very same area.

Map produced before us shows that premises of respondent no.6 CTC

and premises of petitioner no.1 Badi Masjid are just adjacent to each

other. All residents in Mominpura area are affected by law and order

situation. Their children are not in a position to attend the schools and

respondent no.6 is not in a position to open the school. Burial is in the

middle of their playground. Respondent nos. 1,2,5 and 6 have thought

it wise to sit tight by putting lock on everything. The contention that

citizens residing in the area or vicinity, therefore, lack locus to

approach this Court in the matter is, erroneous and liable to be rejected.

All residents there or others who are required to visit the area are

adversely affected because of this highhanded act of mob and inability

on part of the respondents to discharge their statutory obligations. In

view of this finding, we do not find it necessary to comment on

judgment of Hon'ble Apex Court reported in the case of Union of India

and others .vrs. C. Krishna Reddy (supra), as we find that facts here

cloth petitioners with necessary locus and status.

45. The objection about mention of Order I Rule VIII in one of

the paragraphs in writ petition, also does not hold any water. The

petitioners are aggrieved individually and relief which they are seeking

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is not for themselves, but for the benefit of one and all. They are

seeking honourable removal of grave representing an illegal and high

handed action by mob, which has led to present situation. The

judgment of Hon'ble Apex Court which considers the effect of absence

of compliance with Order 1 Rule VIII is, therefore, not very relevant.

This Court can always rise to protect the rights of petitioners before it in

such situation and matter. Moreover, petitioners have joined as

respondents such persons as are pointed out by the respondent nos.4

and 5 only.

46. The last contention which now needs to be looked into, is

about the directions to be issued by this Court. Perusal of judgment of

Hon'ble Apex Court in the case of Union of India and another .vrs.

Bilash Chand Jain and another (supra), reveals that High Court cannot

perform the function of a statutory authority. The reliance on

paragraph nos. 6 to 10 in said judgment reveals that the statutory

authority functioning there had a discretion to act or then not to act in a

particular way. Use of that discretion could have been further

challenged by aggrieved party. The Hon'ble Apex Court therefore, upset

the order of the learned Single Judge and of Division bench of High

Court and remanded the matter to the Central Government to consider

the prayer of respondent no.1 under Section 86[3] Code of Civil

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Procedure Code for giving consent to execute the decree. The

respondent there had sought a permission to file suit under Section

86[1] of the Code of Civil Procedure against a Foreign Firm and State

Trading Corporation of India. Permission was initially granted and later

on revoked. The respondent filed a writ petition challenging that

revocation and High Court allowed that writ petition. Respondent then

filed a Civil Suit which was decreed and that judgment and decree

became final. Then permission was sought to execute the decree under

Section 86[3] and the Central Government refused that permission.

The learned Single Judge then allowed the writ petition and directed

Ministry of External Affairs, Union of India to grant that consent. That

grant was maintained by the Division Bench of High Court. The Hon'ble

Apex Court noted distinction between judicial review and appellate

adjudication and therefore, found that while exercising judicial review,

High Court could not have issued such directions.

Here petitioners before us not are not seeking any judicial

review, but are pointing out inability/omission/failure of respondent

nos. 1 to 5 to take appropriate steps as warranted by law in the matter.

No orders passed by any such Authority are being impugned before us.

47. In the judgment in case of M.C. Mehta .vrs. Union of India

and others (supra), the Hon'ble Apex Court has noted that Court has a

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constitutional duty to protect the fundamental rights of Indian Citizen.

What happens when violators and/or abettor of the violation are those

who have been entrusted by law with duty to protect these rights, is the

question looked into and the Hon'ble Apex Court has observed that Rule

of law is to be preserved so that people may not loose faith on it. In

paragraph no.35 the Hon'ble Apex Court has noted that the provisions

of layout plan may be regulatory, but the same was mandatory and

binding. None has any right, human or fundamental to violate the law

with immunity and claim any right to use a building for a purpose other

than the authorized one. It is, therefore, obvious that Rule of law is

ultimately required to be restored and preserved by this Court so that it

is always respected.

48. In judgment in case of M.P. Women's Hockey Association

.vrs. State of Maharashtra and others (supra), the Division Bench of

this Court has held that it was not necessary for it to hear any of the

encroachers in order to issue writ of mandamus to the authorities when

encroachment was on open land allotted to petitioner Association by the

State Government. The Commissioner of Nagpur Municipal

Corporation and Police Commissioner including the State Government

were directed to remove all encroachments from petitioner Association

land within a period of three months and appropriate incidental

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directions were also issued by this Court. Here as already noted

above, we are not dealing with encroachers or violators, but we are

required to deal with persons like respondent nos. 6 and 7 who claim

that as burial is over, the body cannot be exhumed at all. We have find

their contentions contrary to fatwas and principles of Mohammedan

law. We have also found it in violation of Section 269 of the City of

Nagpur Corporation Act.

49.

In view of this discussions, we find the objections to the

maintainability of the petitions raised by the respondent no.7 or then by

the respondent no.9, erroneous and misconceived. Provisions of

Section 269 of City of Nagpur Corporation Act, read with Section 149 of

the Code of Criminal Procedure empower the respondent no.3

Municipal Commissioner and respondent no.4 Police Commissioner and

require the respondent nos. 1 to 5 to restore the law and order in

Mominpura area and to forthwith see that public tranquility and peace

does not remain disturbed by such wrong doers. Honourable removal

of body of lt. Baba and its burial at other place designated/specified for

that purpose in accordance with law, is, therefore essential. We

accordingly direct the respondent nos. 3 and 5 to take appropriate steps

in this respect and to exhume the body of lt. Baba with full respect to

his saintly-hood and to arrange for its appropriate honourable burial in

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accordance with law, within a period of three days from today.

50. We also direct the respondent nos. 1,2, 4 and 5 to forthwith

take all appropriate steps within their powers to restore normalcy in the

area so as to prevent the wrongdoers and mischief mongers from

creating/continuing to affect the law and order situation, so that schools

can be reopened and normal tempo of life is restored.

51.

Writ petitions are accordingly allowed. Rule is made

absolute in the aforesaid terms. However, in the circumstances of the

case, there shall be no order as to costs.

JUDGE JUDGE Rgd

52. At this stage, Shri Bhangde, learned Senior Counsel requests

that directions issued by this Court be stayed for a period of two weeks

to enable the respondent no.7 to move the Hon'ble Supreme Court in

the matter. Request is being opposed by respective counsel for

petitioners as also other respondents, except respondent no.8 and 9.

53. Looking to the nature of the controversy and in the interest

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of justice, we stay the directions as issued today till 19.07.2011 and the

same shall come into force from 20.07.2011. Certified copy expedited.

Copy of this judgment be supplied to Government Pleader.

JUDGE JUDGE

Rgd.

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