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2011 SCC OnLine Bom 882 : (2012) 1 Bom CR 304 : (2011) 5 AIR Bom R 1 :
2011 AIR CC 3078

Affirmed in Mohd. Hamid v. Badi Masjid Trust, (2011) 13 SCC 61

In the High Court of Bombay
(BEFORE B.P. DHARMADHIKARI AND P.D. KODE, JJ.)

Writ Petition No. 3123 of 2011

Badi Masjid Trust, Through its Secretary Sajit Anwar s/o Abdul
Wadood, Aged about 40 years, r/o. Mominpura, Nagpur, District
Nagpur and Another … Petitioners
Versus
State of Maharashtra, through its Secretary, Urban Development
Department, Mantralaya, Mumbai and Others … Respondents
With
Writ Petition No. 3177 of 2011
Shri Mohd Zuber s/o Abdul Rahim, Age 30 years, Occupation
Business, R/o. Plot No. 525, Near Bada Kua, Near Mominpura,
Ansar Nagar, Nagpur … Petitioner
Versus
State of Maharashtra, through its Secretary, Urban Development
Department, Mantralaya, Mumbai and Others … Respondents
Writ Petition No. 3123 of 2011 With Writ Petition No. 3177 of 2011
Decided on July 12, 2011
Advocates who appeared in this case:
Mr. Anand Parchure, Advocate for Petitioner.
Mrs. B.H. Dangre, Addl. Govt. Pleader with AGP Mrs. Joshi for Respondent Nos. 1, 2,
4 & 5.
Mr. C.S. Kaptan, Advocate for Respondent No. 3.
Mr. A.M. Qazi, Advocate for Respondent No. 6.
Mr. M.G. Bhangde, Senior Advocate with Mr. R.M. Bhangde, Advocate for
Respondent No. 7.
Mr. R.L. Khapre, Advocate for Respondent No. 8.
Mr. S.S. Sharma, Advocate for Respondent No. 9.
Mr. M.V. Samarth, Advocate for Applicants/Intervenors (C.A.W. No. 1677/2011)
Mr. A.A. Naik, Advocate for Applicants/Intervenors (C.A.W. No. 1678/2011)
Mr. S.M. Ukey, Advocate for Petitioner.
Mrs. B.H. Dangre, Addl. Govt. Pleader with AGP Mrs. Joshi for Respondent Nos. 1 &
3.
Shri C.S. Kaptan, Advocate for Respondent No. 2.
The Judgment of the Court was delivered by
B.P. DHARMADHIKARI, J.:— Both these Writ Petitions are filed under Article 226 of
the Constitution of India. Petitioner No. 1 in Writ Petition No. 3123/2011 is a
Registered Public Trust bearing No. B-32(N)-1961, which has majority of Muslim
community as its members. Petitioner No. 2 is resident of Mominpura area since birth
where the said Masjid of petitioner no. 1 is situated. The petitioners seek relief from
indefinite curfew imposed in the Mominpura area because of burial of one “Mohd.
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is permitted even by Mohammedan Law.

11. He has further pointed out that, here respondent no. 6 Trust is not the owner of
land in question and the land has been leased out to it by State Government. The only
purpose for which the land can be used is school and garden, and there is no consent
given by the State Government for such burial. Hence, burial being illegal and bad, the
body of Lt. Baba needs to be exhumed.
12. Our attention has been also invited to judgment of Hon'ble Apex Court reported
at (1984) 2 SCC 138 (Abdul Jalil v. State of U.P.), AIR 1983 SC 1368 (Gulam Abbas v.
State of U.P.) and Division Bench judgment of Nagpur High Court reported at AIR
1956 Nag 38 (Motishah v. Abdul Gaffar Khan).
13. By inviting our attention to the various other paras of reply filed by respondent
no. 6, to intervention applications and submissions filed by other respondents, learned
Counsel for petitioners has contended that the group opposing the exhumation, is
raising irrelevant and non existent issues. The burial, contrary to law has sparked of
the law and order problem and that problem still continues. Petitioner no. 1 being a
Public Trust, having its own Masjid in the area, its followers and community members
are affected by this illegal act. Residents are also affected and as the law and order
situation continues to be worst, according to him, intervention of this Court is
essential. Our attention has been also invited to the affidavit filed on behalf of
respondent no. 3 Municipal Corporation to urge that, though respondent Corporation
found burial in violation of provisions of Section 269 of the City of Nagpur Corporation
Act, has come up with a defence that the provisions of Sections 266 and 270 are not
applicable in the present facts. He states that the Corporation authorities are
therefore, refusing to exercise the powers available to them and hence this Court has
to issue necessary directions to respondents to exhume that body and to take further
action in accordance with law. He has invited attention to the fact that earlier a
Criminal Writ Petition vide Criminal Writ Petition No. 376/2011 was filed before this
Court and the Division Bench of this Court on 01.07.2011 found that Crime No.
138/2011 to 142/2011 were already registered and police machinery was expected to
take action in accordance with law. Prayer for restoration of law and order situation
was also held not necessary as the learned Government Pleader made a statement
that all necessary steps were being taken by the Police Commissioner. According to
him in this situation, the present petition has been filed for issuing appropriate
directions to the respondents to exhume the body and to perform its burial honourably
at place earmarked for such burial by respondent no. 3 Corporation.
14. Shri Samarth, learned Counsel has then invited attention to the grievance made
in Civil Application (W) No. 1677/2011. He points out that the death took place in the
night between 27.06.2011 and 28.06.2011 and after illegal burial on 29.06.2011 the
problem has cropped up. He has stated that Mominpura is a congested locality without
any play ground and hence, school ground is the only space for children to play or to
hold public functions. Because of this burial, the entire locality is in shock and so
called followers of lt. Baba have made the lives of general public miserable. He has
relied upon the judgment reported at (1984) 1 SCC 81 : AIR 1983 SC 1268 (Gulam
Abbas v. State of U.P.) and (1984) 2 SCC 138 (Abdul Jalil v. State of U.P.) to urge that
such type of illegal act cannot be justified or protected by taking recourse to Articles
25 and 26 of the Constitution of India. He also contended that how the encroachers
need to be dealt with is laid down by the Hon'ble Apex Court in judgment reported
(1985) 3 SCC 545 : AIR 1986 SC 180 (Olga Tellis v. Bombay Municipal Corporation).
According to him it is not necessary to hear such wrong doers and he has placed
reliance upon a judgment reported at (2005) 2 Mah LJ 1112 (M.P. Women's Hockey
Association v. State of Maharashtra). He has contended that near about 950 students
taking education in the school run by respondent no. 6 Trust are affected directly as
their School is closed from 29.06.2011, and their right to education and also right to