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

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.

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.

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.

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.

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.

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.