REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 5860-5861 OF 2011 [Arising out of SLP(C) No(s). 20136-20137 of 2011]

[IN SLP(C)..CC No. 11834/2011]

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.