Mohd.Hamid & Anr Etc.Etc vs Badi Masjid Trust & Ors.Etc.Etc

MOHD.HAMID & ANR ETC.ETC. Appellant(s)

VERSUS

BADI MASJID TRUST & ORS.ETC.ETC. Respondent(s)

O R D E R

1. Application for permission to file SLP is allowed.

2. Leave granted.

3. These Appeals are directed against the judgment and

order dated 12.7.2011 passed by the Bombay High Court,

Nagpur Bench at Nagpur allowing the two writ petitions being

Writ Petition No. 3123 of 2011 and Writ Petition No. 3177 of

2011.

4. By the said judgment and order, while allowing the writ

petitions, the High Court issued certain directions contained in

paragraph 49 and 50. One of the directions issued by the High

Court was that appropriate steps would be taken by respondent

nos. 3 and 5 therein to exhume the body of late Baba with full

respect to his saintly-hood and to arrange for its appropriate

honourable burial in accordance with law, within a period of

three days.

5. One of the other directions was to the respondent nos.

1, 2, 4 and 5 therein 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.

6. The aforesaid directions have been issued in the light of

the facts that 'Mohd. Mustafa Mohd. Ansari', popularly known

as "Baba" died on 28.6.2011 at about 00.30 hours and the

burial was done about 5.30 a.m. on 29.6.2011. Said Baba, who

was respected by the people of the locality, used to sit regularly

outside the school area being managed by the respondent no. 7,

Central Tanzeem Committee. The school authority had a

hostel classrooms, playground, etc., within the aforesaid

premises leased out to it by the State Government under a

lease deed to which reference shall be made hereinafter. In the

ground floor of the said hostel, there are certain shops facing

the main road and in front of shop no. 11 and off the road,

Baba used to sit regularly.

7. On his death, his body was taken to Tajbagh. After

performing some religious functions there, a group of persons

decided to take the dead body to Mominpura burial ground on

29.6.2011, where necessary arrangements were also made for

his burial. However, all of a sudden, some people took a

decision otherwise and took the body of Baba and forcibly

entered into the premises of Respondent no. 7, dug portion of

the land in the playground of the school and buried the dead

body there. The aforesaid action was done by the said group of

persons by forcibly occupying the area by breaking open the

lock of the school and also despite opposition from the lessee,

namely, Respondent no. 7, who informed the police about the

illegal action committed by the said group of people. As a

result of the aforesaid act, and forcible action taken by the

group of people, there was disturbance of law and order in the

locality and consequently there was also disturbance of the

communal harmony amongst two sects at Mominpura.

8. Since no action could be taken by the police, some writ

petitioners filed three writ petitions in the High Court. The

first writ petition came to be filed which was registered as

Criminal Writ Petition No. 375 of 2011. The said writ petition

was disposed of with certain directions on 1.7.2011.

9. However, as the situation did not improve, two other

writ petitions came to be filed, which were registered as W.P.

No. 3123 of 2011 and W.P. No. 3177 of 2011. All the parties

entered appearance and thereafter the writ petitions were

heard in presence of all the parties and they were allowed and

disposed of in terms of the observations made therein referred

to earlier.

10. Being aggrieved by the aforesaid findings recorded, the

Appellants are before this Court by filing the present Appeals,

in which we have heard the learned counsel appearing for the

contesting parties.

11. Counsel appearing for the parties have drawn our

attention to various documents on record and also drawn our

attention to two judgments of this Court to which reference

shall be made hereinafter. One of the contentions that is

raised by Shri Lalit, the senior counsel appearing for the

Appellants is that the High Court acted illegally and without

jurisdiction in entertaining the writ petition in the manner in

which it was entertained and that the High Court should have

relegated the parties to the civil court for deciding the disputes

between the parties. The next contention which is raised by

him is that according to the Fatwa issued under Mohammden

law, a dead body, once buried, cannot be exhumed and in

support of the same, he has referred to certain passages from

the Fatwas, which are annexed in the present appeals.

12. The aforesaid submissions of the counsel appearing for

the appellants are refuted by the counsel appearing for the

respondents, who have also placed reliance on similar but other

Fatwas and also on the two decisions of this Court.

13. Having considered the said submissions, we propose to

dispose of these appeals by giving our reasons.

14. Records placed before us clearly disclose the very fact

that a group of people took law into their own hands, took the

dead body away forcibly from where it was proposed to be

buried and proper arrangements were made to give a proper

burial with honour and dignity and after taking it to the school

premises, which is leased out in favour of the respondent no. 7

herein, broke open forcibly the lock of the door of the school in

the entry point and thereafter forcibly occupied the area

concerned and buried the dead body in the said school

premises, without permission and without any authority. The

justification that is sought to be given now for the aforesaid

illegal action is that Baba used to sit at that place where he has

been buried. That position is also not borne out from the

records as Baba was not sitting at the place where he has been

buried but he was sitting at a place away from that place,

outside the school premises and off the road and in front of

shop no. 11. No permission was taken by the said group of

people from the concerned authority, namely, the Government,

the owner and the respondent No. 7, the lessee. The said land

was given by the Government to Respondent no. 7 for the

purpose of establishing a Sarai. In column no. 12 of the Nazul

Khasra of the land in dispute, it is recorded that land cannot be

used for any purpose other than Dharamshala and Garden.

Even the lessee, namely, Respondent No. 7, could not have

given any permission for any burial within the aforesaid

premises, which was leased out by the Government in favour of

Respondent No. 7. Despite the fact, the group of persons

forcibly occupied the said place and buried the body of the

Baba at an unauthorised place without any authority. The

entire action, therefore, was illegal, without jurisdiction and in

violation of the law which brought in disturbances in the area

and also created huge law and order problem for the

Government.

15. We are informed that curfew had to be imposed in the

area in order to maintain law and order and peaceful

atmosphere. Same situation, namely, curfew, is still being

imposed even today for a particular period of time.

16. Counsel appearing for the Appellants also submitted that

the dead body cannot be exhumed under the Muslim law, once

it is buried at a particular place. In order to appreciate the

aforesaid contention, we have looked into the records. The

High Court has also referred to some of the religious

authorities, which were placed before it by the parties hereto.

Page 406 of Hanafi Law Relating to Wakf or Trusts was also

placed before the High Court and has also been placed before us

by the counsel appearing for the Respondents. Page 406 of the

said law reveals a Fatwa contained in Fatawi Alamgiri at page

556, in which it is stated under the heading "A burial-ground"

in the following manner:

"When a body has been buried in the ground,

whether for a long or short time, it cannot be

exhumed without some excuse. But it may lawfully

be exhumed when it appears that the land was

usurped, or another is entitled to it under a right of

pre-emption".

17. There is yet another Fatwa referred to by the High Court

in paragraph 29 of the judgment which is Fatwa Rajviya Jild 4

Safah 119 in Hadis, which is recognised Deoband Madarsa and

which is known as 'Fatwa Darululoom Deoband (Mez 403).

According to the said Fatwa, if such burial is without consent

of land owner, land owner is entitled to remove it and use the

land for proper purpose. Besides, the aforesaid burial and using

the place as a burial ground is also against the specific

condition of the Nazul Khasara by which the Government had

leased out the land in favour of the respondent no. 7.

18. In this connection, we may also refer to the decision of

this Court in Gulam Abbas & Others Versus State of U.P. & Ors

reported in (1984) 1 SCC 81. In the said decision, this Court

has considered the scope and ambit of Articles 25 and 26 of the

Constitution of India and also the jurisdiction of this court

under Article 32 of the Constitution of India. In the said

decision, the question which arose for consideration was that

whether two graves could be shifted to some other place for the

purpose of finding out some permanent solution to perennial

problem of clashes between the two religious communities.

While dealing with the aforesaid issue, this Court considered

various Fatwas issued by religious heads, namely, Head Muftis

and Shahi Imams from Delhi, Banaras and Patna stating the

position of law for shifting the graves under the Sheriat law.

After going through all those Fatwas, this Court found that the

common theme in all these Fatwas is that under Sheriat law

respecting of graves is the religious obligation of every Muslim,

that shifting of dead bodies after digging old graves in which

they are lying buried is not permissible and to do so would

amount to interference with their religious rights. It was

further found that such religious rights of every person and

every religious are, however, subject to "public order", the

maintenance whereof is paramount in the larger interest of the

society. It was also held that if it becomes necessary to shift

graves in certain situations and exigencies of public order, the

same would surely provide a requisite situation, especially as

the fundamental rights under Articles 25 and 26 are expressly

made subject to public order.

19. However, another decision which may also have

relevance is one which arises out of the same subject matter

and heard subsequently in another writ petition filed in this

Court between Abdul Jalil & Ors. Versus State of U.P. & Ors.

Reported in (1984) 2 SCC 138, wherein it was held that Muslim

graves coming up unauthorisedly and illegally on others' land

can be shifted in the larger interest of society for maintaining

public order. It was also held that such action of shifting of

graves would not be un-Islamic and also would not be violative

of Articles 25 and 26 of the Constitution of India.

20. The situation which was created and under which the

aforesaid burial had taken place within the school premises

created disturbances of public order and in order to maintain

the public order, there could be shifting of Muslim grave from

an unauthorised place to a place which is authorised by law for

such burial. Besides, interring a corpse in an unauthorised

place without permission or consent of the owner and lessee of

the property amounts to usurping somebody else's property.

21. Since there was statutory violation in the unauthorised

action of burial of the saint, in our considered opinion, Article

226 of the Constitution of India was the only remedial measure

available, which could be taken for immediate redressal of the

grievances. There was statutory violation in the instant case of

Section 269 of the City of Nagpur Corporation Act and as held

by the High Court, there was also violation of Section 133 of

the Code of Criminal Procedure. The action done created

disturbance of law and order and public order and in that

situation to restore peace and communal harmony and to

control the volatile situation, the recourse taken of filing a writ

petition cannot be said to be unwarranted.

22. In that view of the matter, we find no reason to interfere

with the orders passed by the High Court and dismiss these

appeals. We also direct that the dead body of the saint would be

exhumed from the place of its present burial and shifted to

another appropriate place and buried in accordance with law

with all dignity and respect and he shall be laid in peace for

enabling his devotees to offer their prayers and respects as and

when they desire in accordance with law.

23. With the aforesaid observations, these appeals are

dismissed but leaving the parties to bear their own costs.

............................................J

(Dr. MUKUNDAKAM SHARMA)

...........................................J

(ANIL R. DAVE)

NEW DELHI,

JULY 20, 2011.