Bombay High Court
Janab Salehbhai Saheb Safiyuddin vs The Municipal Corporation Of Gr. Bom. ... on 22 February, 1993
Equivalent citations: 1993(3)BOMCR282
Author: B.N. Srikrishna
Bench: B.N. Srikrishna
JUDGMENT B.N. Srikrishna, J.
1. This is a writ petition under Article 226 of the Constitution of India, which impugns a Notice of Termination dated 19th March, 1982 issued by the First respondent-Corporation to the petitioner and another Notice dated 23rd November, 1982, issued by the First respondent to the petitioner, under section 105B of the Bombay Municipal Corporation Act, 1888 (hereinafter referred to as "the Act"), and all further proceedings consequent thereupon. The Notice under section 105-B by the Bombay Municipal Corporation Act proposes to take over possession and management of a burial ground, known as "Dawoodi Bohra Cemetery" at Sewri, which is presently managed by the petitioner and other trustees of a trust.
2. The petitioner is a citizen of India, a member of the Dawoodi Bohra Muslim Community and the Head Amil of Bombay appointed by the Dai-ul-Mutlaq, the religious head of the Dawoodi Bohra Community. The petitioner is the Mukasir-e-Dawat, who ranks, in the religious hierarchy of Dawoodi Bohra Muslims, next only to the Dai -ul-Mutlaq. The petitioner is also the President of the Anjuman-e-Shiatali, the Jamaat of the Dawoodi Bohra Community of Bombay. The First respondent is the Municipal Corporation of Greater Bombay (hereinafter referred to as "the Corporation") established under the provisions of the Bombay Municipal Corporation Act, 1888, the Second respondent the Commissioner of the Corporation, the Third respondent an officer of the Corporation and the Fourth respondent is the Chairman of the Central Board of Dawoodi Bohra Community, who has been impleaded as respondent on his application.
3. The Dawoodi Bohra Community is a section of the Muslims who believe that the Imam is a representative of God on Earth and that the Dai is the representative of the Imam and conveys God's message to His people. According to the religious tenets of this community, the 21st Imam, whom they considered to be the representative of God on Earth, Vanished and went into seclusion. the Dai-ul-Mutlaq acts on his behalf in all matters religious, and, when the Imam comes out of seclusion, the powers of the Dai would come to an end. According to their religious tenets, the chain of intercession with the Almighty is :
Dai - Imam - Holy Prophet - Allah.
4. The Dai-ul-Mutlaq is the spiritual leader and head of the Dawoodi Bohra Community. Every member of this religious denomination is initiated into the fold of the community upon giving an oath of allegiance to the Dai-ul-Mutlaq, known as `Mishaq'. He has to declare and maintain his unquestioned faith in the Dai as the Head of the Community and observe unswerving loyalty to him. As far as the members of this religious denomination are concerned, the Dai-ul-Mutlaq is not only their spiritual and religious head, but is also considered to be the trustee of all property possessed by members of the Dawoodi Bohra Community. They believe that he has the sole right of management and general control over the property of the Dawoodi Bohra Community. These religious tenents, and the fact that the Dawoodi Bohra Community is a religious denomination by itself, have been recognized and upheld in the judgment of the Privy Council in Hasan Ali v. Mansoor Ali, 75 Indian Appeals Page 1, and the decision of the Supreme Court in Saifuddin Saheb v. State of Bombay, . A detailed discussion of the religious tenets and beliefs of the Dawoodi Bohra Community became necessary, as this petition alleges that there has been infringement of the fundamental rights of the said community guaranteed under Articles 25 and 26 of the Constitution of India.
5. The provisions of sections 435 to 441, contained in Chapter XV of the Bombay Municipal Corporation Act, 1888, invest the Corporation and its specified officers with powers, and charge them with duties with regard to the disposal of the dead. Section 435 of the Act requires every person in control of a place used for burying, burning or otherwise disposing of the dead to have the same registered in the manner prescribed therein and after paying the prescribed fee. Under section 436, if the Commissioner finds the existing place for disposal of the dead to be insufficient, or if such place is closed down under the provisions of section 438, the Commissioner is required, with the sanction of the Corporation, to provide other fit and convenient place, for the said purpose either within or without Greater Bombay and to cause the same to be registered in the register kept under section 435, and comply with other formalities. Section 437 prohibits a place, which has never previously been lawfully used as a place, for disposal of the dead and registered as such, being opened by any person for the said purpose without written permission of the Commissioner and also empowers the Commissioner, with the approval of the Corporation, to grant or withhold such permission. Section 438 empowers the State Government to close down any place used for the disposal of the dead if it is of the opinion that such place is likely to become injurious to health. Section 439 empowers the Commissioner to reopen any such place in question under section 438, if he is satisfied that it is no longer injurious to health and may without risk of danger be again used for the said purpose. Section 440 prohibits the using of any place as a grave or for interment or otherwise for disposing of any corpse without the written permission of the Commissioner. Section 441 prohibits the burning, burying or digging of grave in any burial ground which is not earmarked for the said purpose by the order of the Commissioner. The manner of disposition of dead body contemplated under this section is burial, burning or otherwise disposing of. Interestingly, in the fasciculus of sections 435 to 441, there is no reference to any religious community or sect, the emphasis being only upon the manner of disposal of the dead. Thus, while granting permission for any plot of land to be used for the purposes of the disposal of the dead by burial, burning or otherwise disposing of there appears to be no provision in the Act requiring or empowering the Commissioner to earmark the land for such use by any particular religious sect or community.
6. On 25th November, 1942, the Commissioner of the Bombay Municipal Corporation submitted a Report to the Corporation on the subject of acqusition of a plot of ex-Trust land at Sewri for a Cemetery for the Dawoodi Bohra Community and suggested that the proposals made by him in his letter of 5th February, 1942 be approved. On 7th January, 1943, the Corporation, by its Resolution, granted sanction under sections 92(c) and 436 of the Act to a plot of ex-Trust land at Sewri admeasuring about 14,100 sq. yards, as particularly marked on the plan, being taken up and set apart for the purpose of a Cemetery for the Dawoodi Bohra Community, subject to the understanding that the Cemetery would not be reserved for use by any particular section of the community as recommended by the Medical Relief and Public Health Committee.
7. On 24th November, 1985, the Municipal Commissioner noted that the trust-deed for the burial ground for the Dawoodi Bohra Community had been delayed and that the old burial ground was nearing exhaustion. The Commissioner proposed four conditions, which were required to be incorporated in the trust-deed, and they were :
(i) No additional amount be charged for burial other than those fixed by Trustees and the Commissioner.
(ii) No special place be reserved in any part of the ground without the Commissioner's previous approval.
(iii) No plot be reserved for any family.
(iv) There shall be a maximum of 9 to 11 trustees.
There was copious correspondence between the officers of the First respondent-Corporation and M/s. Hooseini Doctor and Co., representing the Dawoodi Bohra Community, on the subject of the terms under which the plot of ground at Sewri was to be granted on lease in perpetuity to the trust composed of members of the Dawoodi Bohra Community earmarked for use as Cemetery for the dead of the said community. Incidentally, it may be mentioned that another plot of land at a place, known as "Narielwadi", was made available by the First respondent-Corporation for the same purpose under a perpetual lease granted by the First respondent-Corporation.
8. Since the execution of the lease-deed was taking time, by a letter dated 20th May, 1946, M/s. Hooseini Doctor & Co., requested the Health Officer to permit the user of the Sewri plot of land as a Cemetery for burial of the dead of the Dawoodi Bohra Community pending preparation and completion of the trust-deed, as it was likely to take a long time. The Health Officer of the First respondent by his letter dated 23rd July, 1946, addressed to M/s. Hooseini Doctor & Co., informed them that the Municipal Commissioner would consider handing over of the charge of the said cometery to the persons appointed as trustees of the said Cemetery, pending execution of the trust-deed, provided the trustees gave a regular undertaking in the approved form to abide by the rules and regulations for the time being in force and from time to time framed by the Corporation for the maintenance of the said cemetery and to execute a trust-deed in respect thereof immediately on being called upon to do so by the Municipal Commissioner and also to hold the said land as bare licensees pending the execution of the lease and to pay all costs, charges and expenses of the Legal Officer of the Municipality. He also called upon them to confirm whether their clients were willing to give such undertaking and informed them that on such undertaking being given, charge of the cemetery would be handed over to the trustees. M/s. Hooseini Doctor and Company confirmed by their letter dated 26th July, 1946 that their client, Khan Bahadur Mahomedally Allabux, as one of the trustees, was prepared to enter into possession of the cemetery at Sewri on the terms and conditions set out in the letter of the Municipal Commissioner dated 23rd July, 1946. A list of the proposed trustees was also forwarded for the Corporation's consideration. The undertaking, as suggested by the First respondent-Officer, was also executed by 11 proposed Trustees and returned to the Corporation.
9. On 3rd September, 1946, the Acting Municipal Commissioner approved the names of the 11 persons as trustees of the said cemetery. Correspondence ensued between the parties for fixing an appointment for taking over possession of the said cemetery.
10. On 4th October, 1946, M/s. Allabux and Jasdanwalla, two prominent members of the Dawoodi Bohra Community, acting on behalf of the trustees of the Dawoodi Bohra Cemetery, took possession of the plot of land at Sewri, which was proposed to be used as cemetery for burial of the dead of the Dawoodi Bohra Community.
11. Between 1946 and 1950, as seen from the compilation of the notes and correspondence placed on record by the First respondent, there were prolonged discussions with regard to the persons who could be accepted as trustees of the trust which was to manage the Dawoodi Bohra Cemetery at Sewri. There were also discussions with regard to the terms of the lease. The draft of the lease appears to have been exchanged back and forth, several conditions being suggested, modified and disagreed upon.
12. While the issues of execution of deed of trust and lease deed in favour of such trust were hanging fire, there were certain complaints made by some members of the Dawoodi Bohra Community about management of the four cemeteries which had been made available by the Firsst respondent-Corporation to be used exclusively for the burial of the dead of the Dawoodi Bohra Community in the City of Bombay. Some queries were raised by the then Government of Bombay with the Municipal Commissioner on the subject, and, by his letter dated 29th August, 1950, the Municipal Commissioner made a detailed report to the Dy. Secretary to the then Government of Bombay, Home Dapartment, on the subject. The report points out that the four cemeteries, including the Sewri Cemetery, which was the latest, were in-charge of the Hizbul Huda Committee. The names of the Committee Members were indicated in the said report. The report states that the cemeteries 3 and 4 (Narielwadi and Sewri) were to be used on the following terms and conditions :
(i) The land and premises shall be kept open for burial at all times ;
(ii) The trustees shall not use the land for any other purpose than burial;
(iii) The trustees shall be responsible and conform to all rules, regulations and byelaws of the Corporation;
(iv) The trustees shall not, under any pretext whatsoever, change for burial any additional amount other than that fixed by the trustees and approved by the Municipal Commissioner;
(v) The trustees shall not reserve any special place for any person or family etc. without previous written approval of the Municipal Commissioner.
(vi) The trustees can make provision for charging fees for digging graves and other matters in connection with burial (but not for the use of the land and premises) as and in accordance with the scale, which the Municipal Commissioner may, from time to time, lay down for the upkeep and management of the Cemetery.
The report indicates that, for burial of the dead in the Sewri Cemetery, certain donations were sought and taken by the Committee in charge of management of the cemetery. There was dispute as to whether these donations were voluntary or were in the nature of exactions. After pointing out that the question of legality of the procedure adopted by the Committee managing the Cemetery for collecting donation was being looked into with a view to take suitable action, if necessary, the Municipal Commissioner pointed out that "neither the Bombay Municipal Corporation Act, nor the rules, regulations and byelaws appeared to take cognizance of such instances, and the existing terms of available Trust Deeds too did not contain provisions to avert such instances".
13. By a letter dated 24th August, 1951, the Executive Health Officer of the First respondent-Corporation cautioned the Honorary Secretary of the Hizbul Huda Committee that, if there was any further complaint about exactions of donations for allowing burial in the Dawoodi Bohra Cemetery, the Corporation would be constrained to take steps for closing down the said cemetery.
On 1st October, 1955, the Municipal Commissioner submitted a further report to the Secretary, the Government of Bombay, on the subject of the complaints about alleged extortion of money for burial of the dead in the Dawoodi Bohra Cemeteries. After discussing the rival versions with regard to the so-called "donations" for burial in the Narielwadi Cemetery and the encouraging of burials in the Sewri Cemetery without donations, the Municipal Commissioner went on to say in his report :
"Whatever may be the case, in the new draft of the Deed, it is proposed to provide that the Trustees shall not charge for burial any amount other than those fixed by the Trustees and approved by the Commissioner and that this fixation of charges will be made with due regard to the expenses to be incurred from year to year on the maintenance of the cemeteries. It is further proposed to provide that no special place for any person or family or families in any part of the cemeteries shall be reserved without the previous approval of the Commissioner. The Corporation under Corporation Resolution No. 344 of 5-7-1951, while confirming Medical Relief & Public Health Committee Resolution No. 38 of 3-4-1951 approved of the proposal to warn the management of these cemeteries that on receipt of any further complaints about exacting monies, the Corporation would take steps for closing down the said cemeteries. In my letter No. H/555 of 10-9-1953 underlying Medical Relief and Public Health Committee Resolution No. 204 of 14-9-1954 I had reported that the closure of the cemeteries would cause considerable hardship to the community at large and that, therefore, the question of taking over the management of the cemeteries at Narielwadi and Sewri have to be considered .... Having gone into the question more thoroughly, I had then explained that it would not be expedient to municipalise the cemeteries in view of heavy liabilities that will have to be undertaken in this behalf and that the better course seems to be to set up a new Board of Trustees who would be effectively in control of the management of the cemeteries. It was then further suggested by some members that a Municipal representative be nominated on the Board of Trustees. The suggestion is neither feasible nor desirable and I consider that the management of the cemeteries should be left fully in the hands of the chosen representatives of the community."
The report further points out that the Commissioner had detailed discussions in the matter in a joint meeting of the trustees of Sewri and Narielwadi Cemeteries, and, after several deliberations with prominent members of the community, it had been unanimously agreed that there should be only one Board of Trustees for both Narielwadi and Sewri Cemeteries, composed of 15 persons, of which the first person was the petitioner in his ex officio capacity. The Commissioner ended the letter by saying that the request for appointment of the new trustees and the execution of the new lease-deed with them be approved. The compilation of documents placed on record by the First respondent-Corporation shows that the petitioner and others of the Dawoodi Bohra Community owing allegiance to him were strongly opposed to inclusion of any non-member of the community, or one not owing allegiance to the petitioner, in the Board of Trustees to manage the cemeteries. The matter came to be examined by the Commissioner, and he made a Report on 6th April, 1964, in which he pointed out :
"In this connection, Janab Salebhai Saheb Safiyuddin Saheb, Head Amil to His Holiness in Bombay, has informed that on religious grounds, it would not be possible to appoint a non-Bohra Municipal Councillor as a Trustee of these Cemeteries and that for this reason the suggestion could not be accepted."
The Municipal Commissioner then stated :
"There is no objection to accept the suggestion of Janab Salebhai Saheb Safiyuddin Saheb, the Head Amil to His Holiness in Bombay."
14. While the controversy with regard to composition of the Board of Trustees was being settled, the First respondent-Corporation appears to have raised a fresh controversy as to re-use of the cemetery land. The Public Health Committee passed a Resolution No. 528 dated 30th March, 1971, recommending to the Corporation that approval be given to the proposal in connection with the establishment of two types of cemeteries, (i) for burning and (ii) for burial in Greater Bombay as proposed. During the discussion of the Resolution No. 103 before the Public Health Committee, one of the Municipal Councillors moved a Notice of Motion during the discussion of which he pointed out that the pieces of land in Greater Bombay were soaring in price, and that, when land is allotted for the use of the cemetery for one community, demand from other communities also comes simultaneously, resulting in wastage of land. He, therefore, suggested that the Corporation should consider the establishment of two types of cemeteries, one, for burning and other for burial, at convenient places in Greater Bombay, taking into consideration the population etc., instead of having cemeteries for different communities at different places. The Commissioner's response to the aforesaid suggestion, as appears from his Report dated 21st January, 1971, was that the suggestion was laudable and deserved serious consideration in view of the fact of scarcity of land in Greater Bombay, however, if the said suggestion was sought to be implemented, objections would come from religious communities that their religious sentiments were hurt. The Commissioner states :
"It is a fact that we have practical difficulties to provide land for cemeteries for different communities as per their religious practices. On due consideration of the various aspects, I make the following proposals for consideration and orders of the Corporation :
(i) At places where burning is allowed, burning should be allowed irrespective of the religious practices of the deceased.
(ii) In the case of places in the city reserved for burial ground, if a community agrees to re-use the places after a period of 18 months, such requests should be considered.
(iii) Those communities, which insist that each dead body should be provided with a separate place and the same should never be reused even after 18 months, will have to be asked to go to distant places and for this purpose, the Corporation should acquire some place 40 to 50 miles away where land is available cheaper and we should specially reserve this land for such communities."
On 30th March, 1971, the Public Health Committee, by its Resolution, approved of the Commissioner's recommendations made by its Report of 21st January, 1971.
On 27th September, 1971, the Corporation approved of the recommendations of the Commissioner and the Public Health Committee.
Some time in 1976, the Legal Officers of the First respondent-Corporation forwarded a copy of the draft lease-deed to be executed by the trustees of the Dawoodi Bohra Community, in which the following provisions were made :
(i) That the lease would be in perpetuity.
(ii) That the Trustees were to comply with the Municipal byelaws and regulations.
(iii) That the trustees would not levy any additional charges for burial.
(iv) That there would be no reservation of special space for any person or family.
(v) That the burial facility would be afforded to any member of the community.
(vi) That there would be rules and regulations framed for the use of the cemetery.
(viii) That the Corporation would have certain powers reserved in it with regard to rent.
15. At this point of time, some of the dissident members of the Dawoodi Bohra Community, though claiming allegiance to the Dawoodi Bohra Faith, yet disclaiming allegiance to the petitioner in his capacity as the Head Amil, started making complaints to the authorities that the trustees headed by the petitioner had refused burial facilities to a section of the community, known as the "Reformist Section". There was copious correspondence between the Reformist section and Public Authorities on this issue. There were also numerous news reports and articles written regarding refusal of burial facility to the dead belonging to the Reformist section of the Dawoodi Bohra Community.
Perhaps, on account of the wide publicity given to the dissension and dissidence amongst the members of the Dawoodi Bohra Community, and the constant barrage of adverse publicity, the Municipal Corporation passed a Resolution on 11th January, 1982, to the effect that possession and management of the cemeteries at Narielwadi, Mazagaon, Bombay and Sewri, allotted to the Dawoodi Bohra Community, be taken over by the Corporation, by institution eviction proceedings under section 105-B of the Act against all interested persons and/or occupants of these cemeteries by rescinding all their previous Resolutions in connection with these cemeteries. It would appear that this Resolution was the result of active lobbying by Municipal Councillors, A.S. Contractor and K.G. Jilani, probably belonging to the Reformist section of the Dawoodi Bohra Community.
16. Even after the Resolution was passed, the then Mayor, Shri Memon, was opposed to the Resolution being implemented. In a strongly worded letter, to the Commissioner dated 18th January, 1982 Abbas Contractor, Municipal Councillor, strongly pleaded that the Resolution passed by the Corporation be implemented immediately, that a new Board of Trustees be appointed for taking over management of the two cemeteries, and, pending that, the cemeteries be managed departmentally by an ad hoc Committee appointed by the Corporation. It is pursuant to these developments that the Corporation, through its advocate, issued a Notice dated 19th March, 1982, addressed to the Dawoodi Bohra Cemetery Trust, the petitioner and the other members of the Hizbul Huda Committee, who were in charge of the Sewri Cemetery.
The notice dated 19th March, 1982, states, inter alia :---
"My clients have noticed various irregularities in the management of the said Cemetery and have received various complaints of malpractices. I am, therefore, instructed to state that my clients now require this land for the purpose of taking over the management of the Cemetery departmentally so as to render proper facilities for the burial of the dead bodies.
17. The notice purported to terminate the permission given to the petitioner and others by the Corporation to occupy the land concerned for the purpose of management of the cemetery and called upon them to quit, vacate and deliver vacant and peaceful possession of the said land bearing C.S. No. 216 at Dadar Naigaon Division, area admeasuring 14,101 sq.yds. (12,831.91 sq.mtrs. or thereabout) within a period of one month, failing which the Municipal Corporation threatened to take necessary proceedings against the petitioner and others for vacating them from the land in question.
18. By a reply dated 8th April, 1982, addressed on behalf of the petitioner, the First respondent-Corporation was informed that its notice contained no particulars of the alleged `complaints' or alleged `malpractices' or `irregularities', nor did the notice furnish the trustees with any adverse material, nor were they afforded any opportunity to meet the allegations of the complaints and that the Notice was, therefore, contrary to the principle of natural justice, illegal and void. The petitioner pointed out, in his reply, that the Cemetery at Sewri had been made available to the Dawoodi Bohra Community by the Corporation for burial of the dead of members of the said community, having regard to the need of the community and the fact that the Narielwadi Cemetery was not adequate for its needs and that there was no cause or occasion for taking any action as purported to be taken or threatened under the notice issued to them. The reply concluded by saying :
"..the Dawoodi Bohra Community is entitled in law to continue with the user of the said cemeteries, which, according to the religious tenets of the Community, are religious places, and in accordance with the religious tenets of the Community, the Community has been enjoying and is entitled to undisturbed and uninterrupted use of the said cemeteries according to its religious tenets. It is submitted that any distrubance of the use by the Dawoodi Bohra Community of the said two cemeteries or any of them or enforcement of any action which is not in conformity with the religious tenets will be in violation of their constitutional rights as a religious denomination and a religious minority."
The petitioner, therefore, called upon respondent No. 1 to withdraw the notice in question and refrain from taking any action.
19. The petitioner challenged the notice issued to him and other Trustees of the Dawoodi Bohra Community by Writ Petition No. 878 of 1982. When the said writ petition came up for Admission before this Court, a statement was made to this Court on behalf of the First respondent-Corporation that, although, in the Corporation's Notice dated 19th March, 1982, it had been stated that the Corporation required the land for the purpose of taking over the management of the cemetery departmentally etc., the Corporation had no intention of taking over the management of the cemetery at that stage, and that such statement had been made only as a ground for serving the quit notice on the petitioner. It was further stated that, unless the Corporation adopted legal proceedings for ejectment and succeeded in them, they would not take over the management of the cemetery. Upon this statement being made, the Court rejected the writ petition as premature by holding :
"If and when proceedings for eviction are initiated, it will be open for the petitioner either to face them or to challenge their legality if the same are found not warranted by law. The petition, being premature at this stage, is rejected."
The petitioner was thereafter issued with a Notice dated 23rd November, 1982 under section 105-B of the Act, threatening him with eviction on the grounds, (a) that the petitioner was in unathorized occupation of the premises described in the schedule to the Notice, and (b) that the premises described in the schedule were required by the Corporation in the public interest, viz., for taking over possession and management of the cemetery. The schedule to the notice describes the plot of land at Sewri being presently used as a cemetery for the Dawoodi Bohra Community which is under possession and occupation of the petitioner and other trustees.
Rule and interim order in terms of prayer (b) in the said writ petition were issued on 16th February, 1983.
20. The Fourth respondent took out Chamber Summons No. 1325 of 1989, which was made absolute on 16-2-1990, and the Fourth respondent has been made a party to the present petition.
21. In another petition pertaining to the Narielwadi Cemetery, Writ Petition No. 1653 of 1983, between the same parties, I had occasion to deal with several of the contentions which have been raised in the present petition. One basic difference between the facts in the two writ petitions is that, whilst in the case of the Narielwadi Cemetery a deed of lease leasing the land in perpetuity had already been executed, in the present case such a lease has not been executed. Although, in my view, the rest of the contentions are mostly similar, it has been vehemently contended for the respondents by Mr. Dalal, learned Counsel, that as far as the present petition is concerned, the Trustees were "bare Licensees", and, therefore, the decision in Writ Petition No. 1653 of 1983 cannot govern the present case. It has, therefore, become necessary to deal with the contentions afresh and to decide them by a separate judgment.
22. Mr. Andhyarujina, learned Counsel appearing for the petitioner, formulated his submissions in the following manner :
(i) Though the trustees were initially given possession of the land at Sewri as "bare licensees", the fact that the said land was intended exclusively for the purpose of burial of the dead of the Dawoodi Bohra Community makes them something more than mere licensees. As far as the Dawoodi Bohra Community is concerned, their religious beliefs and tenets do not permit exhumation of an interred body, which is considered a desecration by them. That the respondents 1 to 3 knew this, or, at any rate, ought to have known this fact when giving licence to the petitioner and other trustees to use the land at Sewri for the exclusive purpose of burial of the dead belonging to the Dawoodi Bohra Community. The peculiar nature of the user to which the land was to be put, to the knowledge of the First respondent-Corporation, coupled with the fact that there would be construction of a tomb on each of the graves, would turn the licence into something more than "a bare licence". The situation would be squarely covered by section 60(b) of the Indian Easements Act, 1882, so that the licence would not be revocable at the sweet will of the licensor.
(ii) That Notice of Termination dated 19th March, 1982 is illegal and contrary to the principles of natural justice. It is evidently the result of the respondent-Corporation attempting to take sides in a purely inter-religious or intra-communal dispute at the instance of some of the local Municipal Councillors who were opposed to the petitioner's religious hegemony. Inasmuch as the notice is based upon "various irregularities in the management of the said cemetery" and "various complaints of malpractices", it was incumbent upon the First respondent-Corporation to disclose the allegations, if any, to the petitioner and his co-trustees and also to make available, for their perusal, any adverse material before acting to terminate their licence under the Notice dated 19th March, 1982. Failure to do so vitiates the Notice due to breach of principles of Natural Justice.
(iii) Section 105 of the Act is not intended to adjudicate the complicated legal issues, which would be thrown up in the inquiry, and, therefore, the proceedings are bad.
(iv) The terms of both the Notices dated 19th March, 1982 and 23rd November, 1982 make it clear that the intention of the First respondent-Corporation in issuing the notice is to take over management of the cemetery which is to be maintained exculsively as a cemetery for the burial of the dead of the members of the Dawoodi Bohra Muslim Sect. That this amounts to an infringement of the Fundamental Rights of the said religious sect guaranteed under Articles 25 and 26 of the Constitution of India.
23. At the very outset, Mr. Dalal, learned Counsel for the respondents 1 to 3, urged that the undertaking given by the trustees of the Dawoodi Bohra Community, in terms, stated that, pending the constitution of a trust and the execution of a lease-deed, the proposed trustees would hold the plot of land in question as "bare licensees". Mr. Dalal invited attention to the discussion with regard to the nature of a licence, in paragraphs 8 and 9 of Halsbury's Laws of England, (Fourth Edition, Volume 27, pp 16 to 19), and the discussion at page 832 in Hanbury and Maudsley on Modern Equity (13th Edition), and contended that, pending the execution of a lease-deed, the proposed trustees, inclusive of the petitioner, held plot of land at Sewri as "bare licensees" without grant of rights vis-a-vis the plot of land, which they were permitted to occupy. He also relied on the definition of the expression "Licence" under the Indian Easements Act, 1882, and contended that a licence merely gave the petitioner and other proposed trustees permission to do upon the property acts which otherwise would have amounted to trespass.
24. In my view, it is not possible to accept this oversimplistic argument. As rightly contended by Mr. Andhyarujina, learned Counsel for the petitioner, one cannot ignore the provisions of section 60(b) of the Indian Easements Act, which provide that a licence may not be revoked if the licensee, acting upon the licence, has executed work of a permanent character and incurred expenses in the execution. It is obvious that the provisions of section 60(b) operates in the nature of an estoppel against the licensor. If the licensor, after having granted the licence, stands by idly watching the licensee erecting a construction of a permanent nature upon the property, which is the subject-matter of the licence, the licensor cannot, at a subsequent point of time in future, be heard to contend that the licensee had no right to make a construction upon the property. In my judgment, the situation in the petitioner's case is not much different. If, at all, it is much more complicated.
25. I have already indicated, in sufficient details, the sequence of events spanning the period from 1942 to 1982. One thing is clear from the sequence of events. The Municipal Corporation, to begin with, agreed that the plot at Sewri would be utilized by the members of the Dawoodi Bohra Community exclusively for the purpose of the burial of their dead. Somewhere along the line; possibly as a result of lobbying by the so-called Reformist section of the Community, the Corporation shifted its stand and proposed that the management of the Sewri Cemetery would be vested in a Committee comprising some of the nominees of the Corporation, whether Dawoodi Bohras or not. The Corporation also approved of the view canvassed by some of the Municipal Councillors that, in view of the acute shortage of land within Greater Bombay, graves may be re-cycled by bodies being exhumed periodicaally, the same ground being re-used as a grave. This was another bone of contention between the First respondent-Corporation and the petitioner and other Trustees of the Dawoodi Bohra Cemetery Trust. The petitioner and other Trustees maintained that management of the Cemetery ought not to be vested in any person other than a Dawoodi Bohra, and, secondly, that the exhumation of interred bodies and reusing of the same grave was opposed to their religious tenents. Disagreement on these two issues resulted in the lease not being executed in favour of the Dawoodi Bohra Community.
26. Though, when the land was made available to the Dawoodi Bohra Community as bare licensees, the purpose of making available the land was known to the First respondent Corporation as well as the petitioner and other trustees, namely, for being used as an exclusive graveyard for burial of the dead belonging to the Dawoodi Bohra Community, the Corporation must be presumed to know, or ought to have known, the religious beliefs held by the Dawoodi Bohras with regard to non-exhumation of bodies interred in graves. The circumstances of the case suggest that the Corporation must be deemed to have had knowledge that the graves erected upon the plot given to the Dawoodi Bohras even on bare licence, would be of a permanent charter. In my view, therefore, the provisions of section 60(b) of the Indian Easements Act would apply in a situation like this.
27. Mr. Andhyarujina relied on the judgment of the Nagpur High Court in Dwarka s/o. Kaludin Ahir v. Gourishankar Thakur s/o. Sunder, A.I.R. (30)1943 Nagpur 77. The said judgment takes the view that the important factor to be onsidered for the purpose of application of section 60(b) is not the nature of construction, but the intention with which the structure has been built. In the said case, although the structure built by the licensee upon a plot of land was only a wooden structure, which might not have amounted to a permanent structure in any sense of the term, the Court took the view that the intention of building the said structure by the licensee was to use it as a residence, and, therefore, it must be presumed to be of a permanent character. Section 60(b) was held to apply to the situation and the purported revocation of the licence was held to be bad. The Court pointed out that whether a structure is of a permanent character or not is not a pure inference of fact, but is apparently an inference of law. In my view, the ratio of this judgment would equally apply to the case of the petitioner and it must, therefore, be held that the licence granted to the petitioner and other co-trustees, though styled as "bare licence", under the peculiar circumstances of the case, amounts to an irrevocable licence within the meaning of section 60(b) of the Indian Easements Act.
28. Mr. Dalal relied upon the judgment of the Supreme Court in Rameshwar Proshad Khandelwal & others v. Commissioners, Land Reforms & Jagirs, Madhya Bharat (now Madhya Pradesh) and others, to contend that, unless the licence is coupled with a grant with respect to certain moveable property, no rights with regard to the land or the property would vest in the licensee. That was a case where the Forest Officer had granted licence to the petitioner to work in the forest, but there was no legal transfer of the title to the trees felled in favour of the petitioner at any point of time. In these circumstances, the Supreme Court negatived the contention of the petitioner therein that he had legal title to the trees felled in the area worked by him. I hardly see any relevance of this judgment to the petitioner's case. There is no question of title to any moveable. The Supreme Court decision does not deal with the contention urged by the petitioner based upon section 60(b) of the Indian Easements Act.
29. Mr. Dalal then contended that section 116 of the Evidence Act required that the petitioner could not be permitted to deny the title of the Bombay Municipal Corporation to the plot of land, unless possession thereof is first surrendered. This is not a case of tenant of the immoveable property, during the continuation of the tenancy, denying the title of the landlord. Section 115 of the Evidence Act would have no application. Although Mr. Dalal places reliance on the judgment of the Privy Council in Musammat Bilas Kunwar v. Desraj Ranjit Singh, XVII Bom.L.R. 1006, in support of his contention. I am of the view that the said judgment is distinguishable on facts and does not apply to the facts of the petitioner's case.
30. I am at this stage itself disposing of an argument made by Mr. Andhyarujina on the basis that there was dedication of the property as understood in Mohammedan Law. I have already held in the judgment delivered on 20th April, 1991, in Writ Petition No. 1653 of 1983, that the lease in perpetuity of the plot of land at Narielwadi by the Municipal Corporation to the trustees of the Dawoodi Bohra Muslim Community did not amount to a dedication or waqf, as understood in Mohammedan Law. For the same reasons, I am of the view that a licence granted to the petitioner and other Dawoodi Bohras also does not amount to a waqf or dedication of the land as understood in Mohammedan Law.
31. Mr. Andhyarujina relied upon the meaning of "dedication" in the Law Lexicon and Legal Maxims, Volume 1, page 622, and the observations in Currimbhoy & Co. Ltd. v. Creet, 60 Indian Appeals 297. I have not discussed the said judgment in detail as in my view it is inapplicable to the facts of the petitioner's case. I would prefer to follow the reasoning given in the judgment in Writ Petition No. 1653 of 1983 and hold that there was no dedication of the plot of land at Sewri, as understood in Mohammedan Law.
32. Mr. Dalal relied on the judgment of the Supreme Court in D.H. Maniar and others v. Waman Laxman Kudav, , at paragraph 10. In my view, the judgment has no application, as it was concerned with the peculiar provisions of section 15A of the Bombay Rent Act, which is not invoked in the present case.
Before taking up the other contentions of Mr. Andhyarujina, I must make it clear that, although the attempt on the part of the respondents has been to treat the petition as raising only issues of law affecting property rights, Mr. Andhyarujina contends that the issues of law thrown up by the petition are more in the realm of administrative and constitutional laws.
33. It is urged for the petitioner that respondents 1 to 3, being State Authorities, are charged with the duty of acting reasonably and refraining from acting arbitrarily in whatever action they take. It is urged that the said respondents do not lose their character of "state", within the meaning of Article 12 of the Constitution, merely because they enter into contractual relation with citizens. The judgment of the Supreme Court in Kumari Shrilekha Vidyarthi and others v. State of U.P. and others, , is pressed into service in support of the porposition. That was a case of appointment of District Government Counsel in the State of U.P., which was a purely professional engagement. Nonetheless, the Supreme Court observed:
"24. The State cannot be attributed the split personality of Dr. Jekyll and Mr. Hyde in the contractual field so as to impress on it all the characteristics of the State at the threshold while making a contract requiring it to fulfil the obligation of Article 14 of the Constitution and thereafter permitting it to cast off its garb of State to adorn the new robe of a private body during the subsistence of the contract enabling it to act arbitrarily subject only to the contractual obligations and remedies following from it. It is really the nature of its personality as State which is significant and must characterize all its actions, in whatever field, and not the nature of function, contractual or otherwise, which is decisive of the nature of scrutiny permitted for examining the validity of its act. The requirement of Article 14 being the duty to act fairly, justly and reasonably, there is nothing which militates against the concept of requiring the State always to so act, even in contractual matters. There is a basic difference between the acts of the State which must invariably be in public interest and those of a private individual, engaged in similar activities, being primarily for personal gain, which may or may not promote public interest. viewed in this manner, in which we find no conceptual difficulty or anachronism, we find no reason why the requirement of Article 14 should not extend even in the sphere of contractual matters for regulating the conduct of the State activity."
After citing approvingly two passages from Wade's Administrative Law (6th edn.), pp. 400-401, the Supreme Court further observes :
"The view, we are taking, is, therefore, in consonance with the current thought in this field. We have no doubt that the scope of judicial review may vary with reference to the type of matter involved, but the fact that the action is reviewable, irrespective of the sphere in which it is exercised, cannot be doubted."
It was pointed out by the Supreme Court that Article 14 applies also to matters of governmental policy, and, if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional.
The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone, irrespective of the field of activity of the State, has long been settled. The basic requirement of Article 14 is fairness in action by the State and it is difficult to accept that the State can be permitted to act otherwise in any field of its activity, irrespective of the nature of its functions when it has the uppermost duty to be governed by the rule of law. Non-arbitrariness, in substance, is only fairplay in action and this obvious requirement must be satisfied by every action of the State or its instrumentality in order to satisfy the test of validity. (See observations in paragraphs 29 and 30 of this judgment.)
34. In my view, the observations of the Supreme Court in the above judgment put it beyond doubt that the action of the respondents purporting to terminate the licence given to the Dawoodi Bohra Community for using the Sewri Plot as a cemetery for burial of its dead, transcends the limits of property rights or contractual right and has to be judged on the touchstone of fairness and lack of arbitrariness.
35. Applying the test laid down by the Supreme Court to the action of the First respondent, I am not satisfied that the First respondent has acted fairly or that there is lack of arbitrariness. It is not disputed that although the Bombay Municipal Corporation Act recognizes disposal of dead body by burial, cremation or other means, without reference to the religion professed by the person before his death, the Corporation took a policy decision, way back in the year 1942, to make available the Sewri plot of land for the exclusive burial of the dead of the Dawoodi Bohra Muslims. It went a step further and decided to vest the management thereof in the hands of trustees belonging to the said sect. The status and position of the petitioner amongst the Dawoodi Bohras has been made more than amply clear at the beginning of the judgment. It is unfortunate that a section of the Dawoodi Bohras, styling themselves as "Reformist Section", attempted to challenge the religious hegemony of the petitioner. It is more unfortunate that the Bombay Municipal Corporation, whatever its motivation, attempted to take sides in this religious controversy. The Supreme Court's decision in Saifuddin's case (supra) has recognized the authority of the Dai-ul-Mutlaq to refuse permission for burial of the dead of families which failed to owe allegiance to him. Despite this clear exposition of law by the Supreme Court, the First respondent Corporation was induced to act in favour of the Reformist Section, in the garb of terminating the licence.
Two things stand out in the Notice of Termination dated 19th March, 1982. The Notice of Termination of the licence has been issued---
(a) because of complaints of alleged malpractices and irregularities.
(b) because the Corporation desires to take over management of the cemetery departmentally.
Mr. Andhyarujina vehemently contended that the least that the Corporation should do as "State", was to follow the principles of natural justice and anything falling short of that, would amount to arbitrary action on its part, which would be hit by Article 14 of the Constitution. There is considerable merit in the contention. Even assuming that there were legitimate complaints made to the Corporation with regard to irregularity in the management of the Sewri Cemetery, principles of natural justice required that such complaints and any material in support ought to have been disclosed to the petitioner and he ought to have been given an opportunity of making a representation against the proposed termination of licence. Unfortunately, without any further ado, the First respondent chose to issue the Notice dated 19th March, 1982 abruptly, arbitrarily and unilaterally terminating the licence. This is the infirmity in the Notice dated 19th March, 1982, which has been highlighted by the petitioner. The contention of the petitioner must, therefore, be upheld. The notice is bad in law, arbitrary and contrary to the well established principles of natural justice.
36. The petitioner then impugns the Notice dated 23rd November, 1982, issued under section 105-B of the Act. A reading of this notice would suggest that the notice is based upon two grounds :
"(i) that the petitioner is in unauthorized occupation of the land in question.
(ii) that the land in question is required by the Corporation in public interest, viz., "for taking over possession and management of the cemetery".
The first one is the direct consequence of the arbitrary action on the part of the Corporation. The Corporation first arbitrarily terminates the licence of the petitioner by its Notice dated 19th March, 1982, and then issues a notice under section 105B that it proposes to evict the petitioner as an unauthorized occupant. The vice affecting the former must necessarily vitiate the latter.
37. It is also rightly contended for the petitioner that section 105B is not intended to be a forum for adjudication of intricate questions of law.
Reliance was placed on the judgment of the Supreme Court in Express Newspapers Pvt. Ltd. & others v. Union of India and others, . Reliance was also placed on the observation of the Supreme Court in M. Chhagganlal v. The Greater Bombay Municipality, , which was also a case under section 105B of the Act. This contention was examined in depth in the judgment in Writ Petition No. 1653 of 1983. Without resorting to repetition, for reasons detailed in the said judgment, I uphold the contention of the petitioner that section 105B is not the right remedy to evict the petitioner from the land and this is one of the exceptional cases where, if at all the First respondent-Corporation wanted to evict the petitioner from occupation and possession of the land at Sewri being used as cemetery by the Dawoodi Bohras, then it ought to have resorted to a regular suit.
38. Apart from section 105B being unsuitable and improper remedy on account of complicated issues of law, it is also contended that an attempt to take over management of the cemetery by the Municipal Corporation amounts to an interference in the religious affairs of the Dawoodi Bohra Muslims and would contravence their fundamental rights guaranteed under Articles 25 and 26 of the Constitution of India. I am aware that, in the writ petition pertaining to Narielwadi Cemetery, there were structures such as a tomb of one of the religious leaders and a Madrassa on the land and that no such structures are present on the land at Sewri. This, by itself, would not make much difference to the contention based on Articles 25 and 26 of the Constitution. This aspect of the matter has also been discussed at length in the judgment in Writ Petition No. 1653 of 1983. While adopting the reasoning in the said judgment, I may only highlight a few further facets of the issue exposed in the present case.
39. The petitioner had clearly averred in paragraph 8 of the writ petition that all graveyards used by the Dawoodi Bohra Community, including the Sewri Graveyard, were used according to the religious tenets and beliefs of the Dawoodi Bohra Community and under the spiritual guidance of the Dai-ul-Mutlaq. The petitioner pointed out that the burial in the Dawoodi Bohra Graveyard was performed by the Amil or the Vali Mulla appointed by the Dai-ul-Mutlaq, or, in their absence, by their authorized deputy, and that the burial and funeral rites involved bathing of the dead body accompanied by recitation of prayers, covering the dead body with Kafan, offering Namaz-e-Janaza, carrying the dead body to the graveyard, laying the dead body in the grave in appropriate posture as required by the Islamic Shariat, recitation of Fateha and Sadaqullah after the burial, recitation of `Quraan-e-Majeed" and `Sadaqallah' as a matter of religious obligation on the second and the third day after death and voluntary recitation of Quraan-e-Majeed and Sadaqalla till chehlum, i.e., the fortieth day after death. It was contended by the petitioner that burial of the dead of the Dawoodi Bohra Muslim was a matter of religious faith accompanied by religious practices. Surprisingly, in the reply given by the First respondent-Corporation, the stand taken is ;
"I say that the use of the said Sewri plot of land for burial purposes has nothing to do with the religious rites and prayers as far as the Municipal Corporation is concerned. Performance of religious rites and prayers have nothing to do with the right to property in the said Sewree land... I deny that the burial of the dead bodies of the Dawoodi Bohras is to take place in accordance with the tenents of the Dawoodi Bohras or religious practice of the Dawoodi Bohra Community and/or under the spiritual guidance of the Dai-ul-Mutlaq... I deny that the Sewree Cemetery land is to be used according to the religious tenets and/or beliefs of the Dawoodi Bohra Community or under the supervision of the Dai-ul-Mutlaq... Religion has no relation with regard to the property rights when a lease was agreed to be granted to the trustees on certain terms and conditions which are to be laid down in the deed of lease."
The denial has no substance. The First respondent assumed that the matter was free from all questions of religious faith and tenets, governed purely by the property laws of the land. In my view, this is a wholly erroneous approach and contrary to the First respondent's earlier stand. I repeatedly queried Mr. Dalal to show me any provision in the Bombay Municipal Corporation Act under which a plot of land could be made available for exclusive use by a religious sect. He could not show any such provision, as, obviously there exists none. I then asked him that, if religious practices had nothing to do with the burial of the dead, what motivated the Corporation to reserve burial plots for exclusive use of various religious communities or even sects of religious communities. There was, understandably, no reply to this question. In any event, I am not willing to accept the word of the Health Officer of the First respondent-Corporation, who has sworn the First respondent's Affidavit, in reply, as against the word of the petitioner, who is, admittedly, the representative of the Dai-ul-Mutlaq and the acknowledged leader of the religious community, on matters of religious faith, tenets or practices. I would prefer to go by the assertions made in paragraph 8 of the writ petition, coming as they do from a person of high rank in the religious hegemony of the Dawoodi Bohra Muslims, particularly when it is traversed in such unsatisfactory manner.
I am also not impressed by the denials made by the Fourth respondent in his Affidavit-in-reply. I repeatedly asked Mr. Sebastian, learned Counsel for the Fourth respondent, as to whether his client disclaimed or refuted the religious authority of the Dai-ul-Mutlaq or the petitioner. Mr. Sebastian fairly conceded that his client owed allegiance to the Dai-ul-Mutlaq and to the petitioner as his representative. He, however, maintained that the Fourth respondent and his members, while owing religious allegiance to the Dai-ul-Mutlaq and the petitioner, were insisting upon the freedom of the Dawoodi Bohra Community to bury the dead in such manner as they liked. This right, according to Mr. Sebastian, flowed from Article 21 of the Constitution of India and was incidental to the right guaranteed therein. I asked Mr. Sebastian as to whether his client and followers were willing to bury their dead in a Christian graveyard or in a graveyard maintained by Hindus. The answer, understandably, was a shocked negative. I am, therefore, not impressed by the argument founded on Article 21 or the stand taken up by the Fourth respondent. In matters of religion, the Court must go by the faith of the believer and not by the rationalization of a non-believer. If the believer owes allegiance or Mishaq, to the Dai-ul-Mutlaq or the petitioner as his representative, he cannot continue to be a follower of the Dawoodi Bohra Sect and, at the same time, disclaim the religious hegemony of the Dai-ul-Mutlaq. Freedom of conscience is, doubtless, guaranteed by the Constitution. But what is not guaranteed is the dichotomy of choosing a religious leader, claiming to follow his tenets, and yet denying his authority in matters of religion. Approbation and reprobation is as much anathema to religion as it is to law.
40. In addition to the reasons already adumbrated in the judgment in Writ Petition No. 1653 of 1983, for the reasons advanced herein also, I am of the considered view that, as far as the Dawoodi Bohras are concerned, disposal of their dead is a matter of religious faith, and management of the graveyard is very much a matter of religious practice and faith for them. Any attempt to take over management of such graveyard would, therefore, amount to a direct interference with their religious faith and practice, and would amount to an infringement of their fundamental rights guaranteed under Articles 25 and 26 of the Constitution of India. I would, therefore, hold that the Notice dated 23rd November, 1982 issued under section 105B of the Act to the petitioner abridges the fundamental rights guaranteed to the petitioner and other Dawoodi Bohras under Articles 25 and 26 of the Constitution of India and, therefore, bad in law and invalid.
41. Mr. Dalal relied on a number of authorities to persuade me to hold that a Muslim Graveyard is not an institution, nor a religious activity, falling within the protective umbrella of Articles 25 and 26 of the Constitution. I am not impressed by the contentions for two reasons. Firstly, the same authorities cited here have been considered in detail in the judgment delivered by me in Writ Petition No. 1653 of 1983, wherein I have taken the view that it is a religious activity. Secondly, we are neither concerned with Mohammedan Law in general, nor the religious beliefs of all Muslims. We are concerned here with the religious faith and practices of the Dawoodi Bohra Muslims. It is unquestionably accepted that the Dai-ul-Mutlaq is the supreme head of this religious sect. The status of the Dai-ul-Mutlaq and the Head Amil in the religious hegemony of the Dawoodi Bohra Muslims had already been established and recognized by the Supreme Court. If the Head Amil asserts that the management of the graveyard and exhumation of body is a matter of religious faith and practice, it is not possible for this Court to take any different view of the matter merely on the ipse dixit of an officer of the First respondent-Corporation.
42. In the circumstances, for the reasons given in the judgment dated 20th April, 1991 in Writ Petition No. 1653 of 1983 and for the additional reasons stated hereinbefore, it is held as under:
(i) The Notice dated 19th March, 1982 is bad in law, arbitrary, contrary to the principles of natural justice, and, therefore, illegal.
(ii) The Notice dated 23rd November, 1982, purportedly issued under section 105B of the Bombay Municipal Corporation Act, 1888, is bad in law. The proceedings contemplated therein are bad in law and illegal.
(iii) The Notice dated 23rd November, 1982, particularly ground 5 thereof, is in contravention of the fundamental rights of the petitioner guaranteed under Articles 25(1) and 26(a), (b), (c) and (d) of the Constitution of India.
In the result, both the impugned Notices dated 19th March, 1982 and 23rd November, 1982 are liable to be quased and set aside. They are hereby quashed and set aside. Rule made absolute in terms of prayers (a), (b) and (c). Respondents 1 to 3 shall pay the costs of the petition.