@JUDGMENTTAG-ORDER
S. Manikumar, J.@mdashPetitioners are the members and representatives of Brahmin Community living at Kalugumalai Village. According to the deponent, from time immemorial, Brahmin community members of Kalugumalai Village have been exclusively using the land in S. No. 51/7 as mayanam (burial ground) and the said use has also been recognised by the Government in the records as "Mayanam Poramboke". Even during the zamindari regime, the land in the above survey No. 51/7 has been recognised and classified as "mayanam poramboke" and till date, members of the Hindu Brahmin community of Kalugumalai village are using the land for cremation.
2. The land in S. No. 51/7 originally measured 0.90 cents and because of the encroachments, the area currently available for use as mayanam has shrinked to 20 cents or so. Apprehending further encroachment, the Petitioners made representations to the revenue authorities to put up fencing and also to provide water. In response to one of the representations, the then District Collector ordered for provision for shelter and the third Respondent also complied with the said direction by passing a resolution and called for tenders on 28.06.2004 and consequently work orders for provision of a shelter, at the cost of Rs. 57,000/-was also issued. But before the project was completed, the District Collector, Tuticorin who ordered for provision for shelter was transferred and from that date onwards, there is no progress. While that be so, a Christian Higher Secondary School has come up in that area some time back, and the President of Panchayat by name Mrs. Maria Indira, a Christian, has been helping the above school in many ways and at her behest, the road which previously ended with the "mayanam" has been extended up to the rear compound wall of the above school to facilitate access from the rearside as well. The encroachers and other unapproved plot developers and the school management felt that the presence of a mayanam is a disturbance and with that mala fide intention created problems and disturbed the long usage of the above said cremation ground on some frivolous grounds. Though the mayanam was existing for a long number of years, there is no question of any pollution problems in that area. Even assuming that there was some pollution, it is only minimal as compared to the other mayanams in the same village and it could be solved by providing ample safeguards. As frequent troublesome incidents were reported, two or three peace committee meetings were conducted and the Inspection committee observed that, no solution was arrived at. Though there are other mayanams in Kalugumalai exclusively used by other communities and located within the village, there is no disturbance to other mayanams. While that be so, suddenly, the Revenue Divisional Officer, Kovilpatti, the first Respondent herein passed an order dated 09.09.2005, earmarking an area of 0.01.5 ares in S. No. 136/10, out of a total area of Hc.0.23.5 ares, in the common mayanam S. No. 136/1 of Kalugumalai Village and further directed that the Petitioner and the members of their community have to use the new place as mayanam, instead of the existing and customary mayanam in S. No. 51/7. The above said order is under challenge in this writ petition.
3. Assailing the correctness of the order, Mr. S. Ramesh @ Ramiah, learned Counsel for the Petitioner submitted that the first Respondent has failed to consider that the land in S. No. 51/7 has been used as mayanam by the members of Petitioners community for a long number of years and by the impugned order, the first Respondent has abruptly attempted to curtail the rights of the Petitioners'' community of their long and exclusive usage of "mayanam" and the above said impugned order has been passed, without furnishing a copy of the report which is one of the documents relied on by the first Respondent for ordering the shifting of the said mayanam. It is his further contention that though the first Respondent seemed to have acted on the basis of certain objections of the public of Kalugumalai village, reports of the inspection committee and the report of the Tahsildar were not furnished to the Petitioners or to the representatives of their community and without affording an opportunity of being heard, the Revenue Divisional Officer, Kovilpatti, has abruptly directed shifting of the mayanam. Though the first Respondent in his impugned order has taken into account pollution and health hazard as reasons for shifting the existing mayanam, the first Respondent has not given any details, as regards the intensity of the pollution and various factors, before deciding the extent of pollution and when the other common mayanams in the same village are in the execlusive use of other communities, by arbitrary exercise of power, has ordered for shifting of the mayanam to a place located at a distance of 4.5 kms away from the present distance of 1.5km from the village. He further submitted that the location of the mayanam in the present place in S. No. 51/7, was never a disturbance to the R.C. Soosai Higher Secondary School, whose entrance is on the western side. According to the learned Counsel for the Petitioner, if pollution or the existence of the mayanam was ever a disturbance, the school would not have been permitted to come into existence by the educational authorities and public health authorities would not have granted permission. According to the learned Counsel for the Petitioner, the mayanam is in existence for long number of years, exclusively used by the members of Brahmin community and the alleged objections are instigated by persons enimical to them, motivated and the exercise of power by the first Respondent earmarking a new area for their use as mayanam is not sustainable.
4. Referring to Section 283 of the Tamil Nadu District Municipalities Act, 1920, learned Counsel for the Petitioner further submitted that any registered or licensed place for the disposal of the dead, in such a state or situation as to be, or to be likely to become, dangerous to health of persons living in the neighbourhood thereof; an action can be taken to prohibit the usage of burial ground only, if subjective satisfaction is arrived at by the council and only by previous sanction by the State Government, prohibition can be imposed and in such circumstances, a notice shall be published in District Gazettee fixing a specific period in the said notification, calling for objections and only after the expiry of such notice, a prohibitory order can be issued by the council, with the previous sanction of the State Government.
5. Learned Counsel for the Petitioner further submitted that as statutory powers is conferred on the council and the Government to accord sanction, the first Respondent, by arbitrary exercise cannot issue the impugned order. For the abovesaid reasons, he prayed that the impugned order is liable to be set aside.
6. The Revenue Divisional Officer, Kovilpatti, the first Respondent herein, in his counter affidavit has submitted that as per the revenue records land in S. No. 51/7 is a mayanam poromboke and that members of the Petitioners community are using the same as burial ground. However, he has disputed the usage for more than 200 years. According to him, they are using the same only for 100 years as burial ground. He has also submitted that there is no encroachment in S. No. 51/7 and the extent of 0.36.05 is intact.
7. Mr. Pala. Ramasamy, learned Special Government Pleader submitted that there was a sanction to put up a compound wall and to erect a shed for burial, and when the work was commenced, people in and around the burial ground objected to the same and gave a representation stating that the burial ground is a hindrance to the pathway and that there are children studying in R.C. Susai Higher Secondary School. It was further represented by them that the burial ground is polluting the area and therefore, the Petitioners'' community may be given an alternative land for their use as burial ground. Learned Special Government Pleader denied the contention that there are encroachments and unapproved lay outs near the disputed place. The contention of the writ Petitioner that the management of the R.C. Susai Higher Secondary School objected to the existence of the burial ground and that there is a collusion between the third Respondent and other encroachers are denied. However, he submitted that there are objections from the parents of the children studying in the said school.
8. He further submitted that though the Petitioner has contended that there are other burial grounds causing pollution, the Executive Officer, the third Respondent herein, Town Panchayat has submitted that there is no residential area near other burial grounds and that the new burial ground earmarked for them is only 1.5 km away and not 4.5 k.m, as alleged. According to him, a peace committee was formed to resolve the issue amicably, since the members of the Petitioners'' community and people of Kalugumalai stuck to their stand and no amicable settlement was arrived at and therefore, in order to resolve the issue, the first Respondent has passed the impugned order directing the members of the Petitioners community to use the alternative burial ground in the already existing common burial ground in S. No. 136/1 measuring 0.23.5 hectares and that it would be subdivided to the extent of 0.01.5 hectares for the exclusive use of the members of the Petitioners'' community. He also submitted that the impugned order passed is based on the representation dated 09.07.2004 given by the General Pubic, representation dated 27.07.2004 given by the women self group and as per the report given by the Tahsildar, Kovilpatti, dated 17.02.2004, report given in letter No. 486/2005 dated 18.07.2005 of the Inspection Cell Officer, Tirunelveli, Thoothukudi and Kanyakumari Districts. It is his further contention that since the burial ground is causing pollution, to prevent the public from health hazards, shifting of the existing burial ground has been ordered, only after due inspection of the area.
9. Placing reliance on a judgment reported in
10. The Executive Officer, Kalugumalai Panchayat, the third Respondent herein has filed counter affidavit on the same lines and the learned Counsel for the third Respondent has made similar submissions.
11. Heard the learned Counsel appearing for the parties and perused the entire materials available on record.
12. Before adverting to the factual aspects and the rival contentions raised by the parties, this Court deems it fit to address the question of jurisdiction of the Revenue Divisional Officer, Kovilpatti, the first Respondent herein to issue the impugned order of earmarking a specified area for the use as burial ground. By impugned order, the land in S. No. 136/1 (0.23.5 hectares) has been subdivided to the extent of 0.01.5 hectares and that the new S. No. 136/10 has been allotted for the exclusive use of the members of the Petitioners'' community.
13. Having regard to the contention of the learned Counsel for the Petitioner that the council alone, with the previous sanction of the State Government can impose any prohibition against the use of burial ground and burning ground, if it is dangerous to the health of public in the nearby area, it is necessary to extract the Section 283 deals which prohibition against use of burial and burning grounds as follows:
283. Prohibition against use of burial and burning grounds dangerous to health or over crowded with graves:
(1) if the council is satisfied:
a) that any registered or licensed place for the disposal of the dead is in such a state or situation as to be, or to be likely to become, dangerous to the health of persons living in the neighbourhood thereof; or b)that any aurial ground is over crowded with graves, and, if in the case of a public burial or burning ground or other places as aforesaid another convenient place duly authorised for the disposal of the dead exists or has been provided for the persons who wouldordinarilymakeuseofsuchplace, it may, with the previous sanction of the [State Government], give notice that it shall not be lawful after a period to be named in such notice to bury, burn or otherwise dispose of any corpse at such place.
(2) Every notice given under Sub-section (1) shall be published in the district gazette and by beat of drum.
(3)After the expiry of the period named in such notice, it shall not belaw ful to bury, burnor other wised is pose of a corpseat such place.
14. Though the learned Special Government Pleader has inter alia contended that the Revenue Divisional Officer is empowered to set apart and earmark a particular place for usage as a burial or burning ground, as an executive magistrate and he is duty bound to consider the safety and the health hazards of the general public within his jurisdiction and control and in such circumstances, he can set apart and earmark a portion of land for usage as burial ground for any particular community, the said contention may be accepted in normal circumstances. But when any registered or licensed place for the disposal of the dead is in such a state or situation as to be, or to be likely to become, dangerous to the health of persons living in the neighbourhood area thereof, then as per Section 283 of the Tamil Nadu District Municipalities Act, 1920, the concerned council has to be satisfied of the above said aspects and it may with a previous sanction of the State Government give notice that it shall not be lawful after a period to be named in such notice to bury, burn or otherwise dispose of any corpse at any such place. Sub-Section 2 of Section 283 of the said Act contemplates that every notice given under Sub-section (1) shall be published in the district gazette and by beat of drum and Sub-Section 3 of Section 283 of the said Act contemplates that after the expiry of the period named in such notice, it shall not be lawful to bury, burn or otherwise dispose of a corpse at such place.
15. Admittedly, the land in S. No. 51/7, Kalugumalai Panchayat has been classified as mayanam poramboke as per the revenue records and that it is also the admitted case of the Respondents that the members of the Brahmin community are using the land for nearly 100 years if not 200 years as alleged by the members of the Petitioners community. Both the Respondents have candidly admitted that by the impugned order, a direction has been issued to the members of the Petitioners'' community to use the alternative burial ground in S. No. 136/1 (0.23.5 hectares of land) and that there would be division to an extent of 0.01.5 hectares and that the said extent of land would be allotted a new S. No. 136/10 for the exclusive use of the members of the Brahmin community. Both the Respondents have also submitted that while passing the impugned order the representation dated 09.07.2004 of the general public, the representation dated 27.07.2004 of the women self help group, and the report of the Tahsildar dated 17.02.2004, the report dated 18.07.2005 of the Inspection officer, Tirunelveli and Thoothukudi and Kanyakumari Districts were taken into consideration.
16. Perusal of the impugned order shows that near the disputed burial ground, there are residential houses and a school. The Inspection Officer, Tirunelveli and Thoothukudi and Kanyakumari Districts, after inspection of the site has opined that if the said land is used as burial ground, then environment would be affected. Though the Petitioner has contended that R.C. Soosai Higher Secondary School run by Christians and the President of the Kalugumalai Panchayat Smt. Maria Indira, both belonging to the same religion have colluded and in a biased and arbitrary manner influenced, the Revenue Divisional Officer, Tuticorin District, with a mala fide intention has issued the impugned order, thereby prohibiting the members of the Petitioners community from using the land in S. No. 51/7 in Kalugumalai Village as mayanam, the said allegation is categorically repudiated by both the Respondents. In such circumstances, this Court is not inclined to subscribe to the contention of the Petitioners that there was an element bias or ill motive in earmarking a portion of land in S. No. 136/1, which is an already existing common burial ground. Though the management of the R.C. Soosai Higher Secondary School has not objected to the existence of the burial ground, parents of the students studying in the school have made objections on the ground that existence of the mayanam has caused serious pollution problems and it would affect the health of their children. Perusal of the letter dated 27.07.2004 of the self help group, and general public Kalugumalai addressed to the Executive Officer, Kalugumalai Town Panchayat, Kalugumalai shows that dead bodies are burnt in the disputed mayanam and due to the polluted air, there is a possibility of health hazard to the inhabitants and school going children.
17. The Inspection Officer, Tirunelveli, Thoothukudi and Kanyakumari District in his report dated 18.07.2005 addressed to the District Collector has stated that the disputed place was inspected on 12.07.2005 in the presence of Brahmin community of Kalugumalai, Executive Officer of the Panchayat, Village Administrative Officer have found that on the northern side, there was a land with well and garden, on the southern side there was a road proceeding to the higher secondary school and there are houses and other tenaments, on the western side there was vacant land and in the nearby R.C. Soosai Higher Secondary School, about 1300 students are studying. On enquiry, it was found that though permission was earlier granted by the Collector to put up a shed, it was objected to by the public and by the students in the nearby area, resulting in law and order problem and therefore, the mayanam is being used without any shed. In his report, he has further stated that as on today, the land in S. No. 51/7, is not suitable for use as mayanam, because there are several houses around the same and there is also a school. The village have objected to the proximity and in these circumstances, he has opined that the members of the Petitioners community may be allotted a separate place and that a compound wall could be provided; that after acquisition of land in the place where they desire, a mayanam can be formed and that to prevent environmental pollution, prohibitory orders may be issued to prevent the usage of the existing mayanam.
18. The Tahsildar, Kovilpatti, in his report dated 11.08.2005 addressed to the Revenue Divisional Officer, Kovilpatti has also stated that there are lot of houses near the mayanam and since its existence, causes health hazards to the public, a separate place should be allotted to the members of the Brahmin community. As land in S. No. 136/1, Kalugumalai Villlage is classified as mayanam porampoke in the said village and it is being used as a common burial ground by various community people, he has suggested that about 0.01.5 hectares can be earmarked for the exclusive usage of the Brahmin community. Considering the objections of the public, existence of the houses, school, environmental pollution and public interest, the Revenue Divisional Officer, Kovilpatti has earmarked 0.01.01 hectares of land in S. No. 136/1, by assigning a new S. No. 136/10 to the above said portion for the exclusive usage as burial ground for the members of the Petitioner community.
19. Section 281 of the Tamil Nadu District Municipalities Act, 1920 deals with the registered licensed provided place and prohibition of uses other places it reads as follows:
281. Register of registered, licensed and provided places and prohibition of use of other places:
(1) A book shall be kept at the municipal office in which the places registered, licensed or provided under Sections 278, 279 or 280 and all such places registered, licensed or provided before the commencement of this Act, shall be recorded, and the plan so such places shall be filed in such office.
(2) Notice that such place has been registered, licensed or provided as aforesaid shall be affixed in English and in at least one vernacular language to some conspicuous place at or near the entrance to the burial or burning ground or other place as aforesaid.
(3) No person shall bury, burn or otherwise dispose of any corpse except in a place which has been registered, licensed or provided, as aforesaid.
20. Though the Petitioner has contended that no scientific methods have been applied to find out various factors such as quantum, intensity, periodicity etc., which are relevant before deciding the extent of pollution, the facts remains that the authorities, on inspection have categorically found that there are many houses in and around the area and more than 1000 students are studying in the nearby school. Merely because the educational and other authorities have permitted the establishment of an educational institution, namely R.C. Soosai Higher Secondary School and even assuming that the institution has not made any objection for the existence of burning of dead bodies in the neighbourhood that cannot be a ground to contend that the "mayanam" should be allowed to continue. It is certainly open to the Revenue authorities to decide the location of a burial ground, taking into account various factors, such as pollution, vicinity of houses in the area etc., 21. Though the contention of the learned Counsel for the State that the Revenue Divisional Officer, being an executive authority is competent to assign a portion of the land for the purpose of exclusive use as burial ground by the members of the Petitioners'' community, but at the same time, as per the provisions of the Tamil Nadu District Municipalities Act, the council is the authority to register burning or burial ground within its jurisdiction and as per Section 283 of the Act, if the council is satisfied that any registered or licenced to place for the disposal of the dead is in such stage or situation as to be or to be likely to become dangerous to the health of persons living in the neighbourhood thereof; it may with the previous sanction of the State Government give notice that it shall not be lawful after a period to be named in such to bury burn otherwise or dispose of any corpse at such place and notice contemplated under Sub-Section 1 of Section 283 has to be published in the district gazette and by beat of drum. The fact that the members of the Petitioners community have been using the land in S. No. 51/7 in village for nearly 100 years as admitted by the Respondents.
22. In such view of the matter, this Court is of the view that the procedure contemplated under the Act has not been followed, in preventing the members of the Brahmin community from using the existing burial ground, and therefore, the impugned order has to fail only on that ground. The contention that scientific methods have not been followed in assessing the extent of pollution and therefore, the reports ought not to have been given credence, cannot be accepted in the light of the judgment of the Supreme Court. No mala fides can be attributed to the reports of the Inspection Officer. Though, the impugned order is set aside solely on the procedural aspect, it is always open to the authorities, to take appropriate action in accordance with the statutory provisions.
23. With the above observations, the writ petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
