Mohd.Hamid & ANR
Etc., Vs. Badi Masjid Trust & Ors. Etc.,
O R D E R
for permission to file SLP is allowed.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
considered the said submissions, we propose to dispose of these appeals by
giving our reasons.
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.
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.
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".
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.
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.
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.
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
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.
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.
the aforesaid observations, these appeals are dismissed but leaving the parties
to bear their own costs.
(Dr. MUKUNDAKAM SHARMA)
(ANIL R. DAVE)