Holding

Exhumation and reburial of a Muslim body from an unauthorised site is permissible, does not violate Islamic law or Articles 25/26, and the High Court correctly exercised jurisdiction under Article 226.

Summary

The Supreme Court considered appeals against a Nagpur High Court order directing the exhumation of a saint's body that had been buried without permission on school premises. The appellants argued that Islamic law (fatwas) prohibited exhumation and that the High Court lacked jurisdiction, contending the matter should be decided by a civil court. The Court examined relevant fatwas, which allow exhumation when the land is usurped or the owner objects, and held that the unauthorised burial violated statutory provisions and public order. It further ruled that shifting the grave does not contravene Articles 25 and 26 of the Constitution, as public order is a paramount consideration. Consequently, the Court affirmed the High Court’s jurisdiction under Article 226 and dismissed the appeals, ordering the body to be reburied in a lawful location with dignity.

Issues considered

Whether exhumation of a Muslim grave buried in an unauthorised place is permissible under Muslim law and the Constitution.
Whether the High Court had jurisdiction to entertain writ petitions under Article 226 for the unauthorised burial.
Whether shifting or exhuming the grave violates Articles 25 and 26 of the Constitution of India.
Whether statutory violations (Section 269 of the City of Nagpur Corporation Act and Section 133 of the CrPC) justify the writ relief.

Legislation cited

City of Nagpur Corporation Acts. 269
Code of Criminal Procedure, 1973s. 133

Subjects

Muslim personal lawexhumationgrave shiftingpublic orderArticle 226Articles 25 and 26unauthorised burialfatwaconstitutional lawreligious rights

Judgment

[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

D
consent of the owner and lessee of the property amounts to •
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
into their own hands, took the dead body away forcibly from
E 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
available, which could be taken for immediate redressal of the
c
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 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 respondent no. 7. [para 16-17] [356-
E C-G]

Hanafi Law Relating to Wakf or Trusts, p.406; and Hadis,
Fatwa Rajviya Jild 4 Safah 119 - referred to.

1.2 In Abdul Jalil & Ors.*, it was held that Muslim
F 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-lslamic and
also would not be violative of Articles 25 and 26 of the
G Constitution of India. [para 19) [357-G-H; 358-A] -...

*Abdul Jalil & Ors. Versus State of U.P. & Ors. (1984) 2
SCC 138; and Gu/am Abbas & Others Versus State of U.P.
=
& Ors 1984 (1) SCR 64 (1984) 1 sec 81 - relied on.

H 1.3 In the instant case, the situation which was .
MOHD:HAMID & ANR ETC.ETC. v. BADI MASJID 351
~
TRUST & ORS.ETC.ETC.
created and under which the burial had taken place A
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 B
unauthorised place without permission or consent of the
owner and lessee of the property amounts to usurping
somebody else's property. The entire action was illegal,
without jurisdiction and in violation of the law which
brought in disturbances in the area and also created c
huge law and order problem for the Government. [para
14 and 20] (355-G-H; 356-A; 358-B]
; 2.1 Since there was statutory violation in the
"' unauthorised action of burial of the saint, Article 226 of
the Constitution of India was the only remedial measure D
available, which could be taken. for immediate redressal
of the grievances. There was statutory violation of s. 269
of the City of Nagpur Corporation Act and, as held by the
High Court, there was also violation of s.133 of the Code
of Criminal Procedure, 1973. The action done created E
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
"
j a writ petition cannot be said to be unwarranted. [para 21]
[358-C-E] F

2.2 There is no reason to interfere with the orders
passed by the High Court. It is directed 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
G
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. [para 22] [358-F-G]
H
352 SUPREME COURT REPORTS [2011] 9 S.C.R
......
Case Law Reference:

1984 (1) SCR 64 relied on para 18

(1984) 2 sec 138 relied on para 18
)_

CIVIL APPELLATE JURISDICTION : Civil Appeal
B
No.5860-5861 of 2011.

From the Judgment & Order dated 12.07 .2011 of the High
Court of Judicature at Bombay, Nagpur Bench, Nagpur in Writ
Petition No. 3123 and 3177 of 2011.
c
U.U. Lalit, Manish Pitale, Shubail Farook, Wasi Haider,
Chander Shekhar Ashri for the Appellants.
).

Shyam Divan, Rushikesh Marathe, Ravindra Keshavrao,
Anand Parchure, Gopal Balwant Sathe, Huzefa Ahmadi, Ejaz
•
D
Maqbool, Mrigank Prabhakar, Garima Kapoor, Shakil Ahmed
Syed, S.A. Saud, Shuaibuddin, Parvez Dabas, Sanjay V.
Kharde, Sachin J. Patil, Asha Gopalan Nair for the
Respondents.

E The following order of the Court was delivered

ORDER

1. Application for permission to file SLP is allowed.
'I
F 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 .,
G 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
H
MOHD.HAMID & ANR ETC.ETC. v. BADI MASJID 353
,.>..;:;
TRUST & ORS.ETC.ETC.

nos. 3 and 5 therein to exhume the body of late Baba with full A
respect to his saintly~hood and to arrange for its appropriate
.. honourable burial in accordance with law, within a period of
three days.
,I
1 5. One of the other directions was to the respondent nos.
1, 2, 4 and 5 therein to forthwith take all appropriate steps within B
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.
c
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 D
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
E
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 .
.,,j
j 7. On his death, his body was taken to Tajbagh. After
performing some religious functions there, a group of persons F
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 G
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 H
354 SUPREME COURT REPORTS [2011] 9 S.C.R.
'-'1.

A 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 loca!ity
and consequently there was also disturbance of the communal
harmony amongst two sects at Mominpura.
>
B 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.
c
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
D
disposed of in terms of the observations made therein referred
to earlier.
10. Being aggrieved by the afore.·said findings recorded,
the Appellants are before this Court by filing the present
E 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
F 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
G 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,
H which are annexed in the present appeals.
MOHD.HAMID & ANR ETC.ETC. v. BADI MASJID 355
TRUST & ORS.ETC.ETC.
;t;>
12. The aforesaid submissions of the counsel appearing A
I 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
•f to dispose of these appeals by giving our reasons. B

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 c
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
D
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 E
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 Governmer:it, 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 F
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
f burial within the aforesaid premises, which was leased out by G
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 H
356 SUPREME COURT REPORTS [2011] 9 S.C.R.

"-·1'
A. 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 J
B 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
c 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 4
the counsel appearing for the Respondents. Page 406 of the
D )

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,
E 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 !
F 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
G 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.
H
MOHD.HAMID & ANR ETC.ETC. v. BADI MASJID 357
TRUST & ORS.ETC.ETC.
'
/
µ 18. In this connection, we may also refer to the decision A
of this Court in Gu/am 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 B
~ 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 c
''
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 D
• 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
E
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
j the fundamental rights under Articles 25 and 26 are expressly F
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 G
between Abdul Jalil & Ors. Versus State of UP. & Ors.
Reported in (1984) 2 SCC 138, wherein it was held that Muslim
graves coming up unauthorisedly and illegally on others' land
1
can be shifted in the larger interest of society for maintaining
public order. It was also held that such action of shifting of
.. H
358 SUPREME COURT' REPORTS [2011] 9 S.C.R.

A graves would not be un-lslamic 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 ,
B 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.
c
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
D •
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
E 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
F 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.
G
23. With the aforesaid observations, these appeals are
dismissed but leaving the parties to bear their own costs.
R.P. Appeals dismissed.
H