IMPORTANT POINT
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.

Headnote:Constitution of India,1950-Article 226- Appeals against judgment passed by High Court, directing that appropriate steps would be taken by respondent nos. 3 and 5 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- Said direction was issued as some people took the body of Baba and forcibly entered into the premises of Respondent no. 7, dug portion of land in the playground of the school and buried the dead body there. - The situation which was created and under which said burial had taken place within the school premises created disturbances of public order and in order to maintain public order, there could be shifting of Muslim grave from an unauthorised place to a place which was authorised by law for such burial- Since there was statutory violation in the unauthorised action of burial of the saint, Article 226 was the only remedial measure available, which could be taken for immediate redressal of grievances-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, recourse taken of filing a writ petition could not be said to be unwarranted-No reason to interfere with orders passed by High Court - Appeals dismissed. (Paras 20 to 23)
       Facts of the Case :
        Present Appeals have been filed against judgment and order passed by High Court, allowing two writ petitions .While allowing said writ petitions, High Court issued certain directions that appropriate steps would be taken by respondent nos. 3 and 5 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.
       Findings of the Court :
        The situation which was created and under which burial of Baba had taken place within the school premises created disturbances of public order and in order to maintain public order, there could be shifting of Muslim grave from an unauthorised place to a place which was 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. Since there was statutory violation in the unauthorised action of burial of the saint, Article 226 was the only remedial measure available, which could be taken for immediate redressal of grievances. 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, recourse taken of filing a writ petition could not be said to be unwarranted. No reason was found to interfere with orders passed by High Court .Direction was given that dead body of 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 .Appeals were dismissed.

ORDER

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

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2011 Supreme(SC) 687

2011 (5) Supreme 157SUPREME COURT OF INDIADr. Mukundakam Sharma and Anil R. Dave, JJ.Mohd. Hamid & Anr Etc.Etc. — Appellant(s)versusBadi Masjid Trust & Ors.Etc.Etc. — Respondent(s)Civil Appeal No(s). 5860-5861 of 2011[Arising out of SLP(C) No(s). 20136-20137 of 2011]Decided on : 20-7-2011

IMPORTANT POINT 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.

Cases Referred (2)

IMPORTANT POINT
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.