LexMOHD.HAMID & ANR ETC.ETC versus BADI MASJID TRUST & ORS.ETC.ETC.
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[2011] 9 S.C.R. 348 """- A MOHD.HAMID & ANR ETC.ETC. v. BADI MASJID TRUST & ORS.ETC.ETC. (Civil Appeal No(s). 5860-5861 of 2011) JULY 20, 2011 1 B [DR. MUKUNDAKAM SHARMA AND ANIL R. DAVE, JJ.] MOHAMMEDAN LAW: c Shifting of a grave - HELD: 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 J consent of the owner and lessee of the property amounts to • D usurping somebody else's property - Shifting of such graves would not be un-lslamic nor would it be violative of Articles 25 and 26 of the Constitution of India - In the instant case, the records clearly disclose that a group of people took law E into their own hands, took the dead body away forcibly from the place where it was proposed to be buried, forcibly entered the school premises and buried the dead body in the said school premises, without permission and without any authority - The entire action, therefore, was illegal, without jurisdiction and in violation of the law which brought in disturbances in \ ' F the area and also created huge law and order problem for the Government - It is directed that the dead body of the saint 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 G for enabling his devotees to offer their prayers and respects -~ as and when they desire in accordance with law - Constitution of India, 1950 - Articles 226 read with Articles 25 and 26. H 348 MOHD.HAMID & ANR ETC.ETC. v. BAD! MASJID 349 TRUST & ORS.ETC.ETC. ~ Constitution of India, 1950: A Article 226 read with Articles 25 and 26 - Writ petition seeking redressal of grievances caused due to unauthorized burial of a saint in the school premises -HELD: The action -" done created disturbance of law and order and public order B ~ 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 - Since there was statutory violation in the unauthorised action of burial of ' the saint, Article 226 was the only remedial measure c available, which could be taken for immediate redressal of the grievances - Mohammedan Law - Code of Criminal Procedure, 1973 - s.133 - City of Nagpur Corporation Act- s.269 . ... 'I Consequent upon the death of a Baba, when his D dead body was taken to the burial ground where the necessary arrangements were made for the burial, some people took the body from the burial ground to the premises of the school run by respondent no. 7- Committee, and by forcibly entering into the school E premises buried the dead body there. This created law and order and public order disturbances and curfew had to be imposed in the area. Writ petitions were filed before " the High Court, which issued directions that appropriate j steps be taken to exhume the body of Baba with full F respect to his saintly-hood and to arrange for its appropriate honourable burial in accordance with law; and to forthwith take all appropriate steps to restore normalcy in the area. -+' In the instant appeals it was contended for the G appellants that according to the Fatwa issued under Mohammden law, a dead body, once buried, could not be exhumed; and that the High Court acted illegally and without jurisdiction in entertaining the writ petitions and H 350 SUPREME COURT REPORTS [2011] 9 S.C.R. A it should have relegated the parties to the civil court for decision of their disputes. Dismissing the appeals, the Court HELD: 1.1 Hanafi Law Relating to Wakf or Trusts, B reveals at p.406, a Fatwa contained in Fatawi Alamgiri at page 556 in which it is stated under the heading "A burial- ground" that a body that has been buried in the ground, may lawfully be exhumed when it appears that the land was usurped, or another is entitled to it under a right of C pre-emption". There is yet another Fatwa, namely, Fatwa Rajviya Jild 4 Safah 119 in Hadis, which is recognised by Deoband Madarsa and which is known as 'Fatwa Darululoom Deoband (Mez 403), which states, if such burial is without consent of land owner, he is entitled to D remove it and use the land for proper purpose. Besides, in the instant case, the burial and using the place as
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