D. Govindaraju v. Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.12.2009CORAM:THE HON’BLE MR.JUSTICE K.CHANDRUW.P.No.17600 of 2009 andM.P.No.1 of 2009D.Govindaraju...Petitioner Vs1.Government of Tamil Nadu, Rep. By its Secretary, Local Administration Department, St.George Fort,Chennai.2.The Collector of Thiruvannamalai, Thiruvannamalai District.3.The Block Development Officer, Peranamallur Panchayat Union, Thiruvannamalai District. ...RespondentsPrayer :Petition under Article 226 of the Constitution of Indiapraying for a Writ of mandamus, directing the respondents tomaintain and keep the Survey No.184 as a burial Ground situatedat Vallam village, Vallam Panchayat, Vandavasi Taluk,Thriuvannamalai District as before and consequently prevent themfrom constructing a pond on the burial ground. For Petitioner : Mr.T.Mohan for Mr.R.Tholkappian For Respondents: Mr.R.Neelakandan,G.A.- R1 and R2 Mrs.C.K.Vishnupriya for R3O R D E RHeard Mr.T.Mohan, learned counsel appearing for thepetitioner, Mr.R.Neelakandan, learned Government Advocate appearingfor respondents 1 and 2 and Mrs.C.K.Vishnupriya, learned counselappearing for the third respondent.2.The petitioner, who is the resident of Vallam Village,Vandavasi Taluk has filed the present writ petition seeking for adirection to the respondents to maintain and keep the SurveyNo.184 as a burial Ground situated at Vallam village andconsequently prevent the respondents from constructing a pond inthe burial ground. https://hcservices.ecourts.gov.in/hcservices/

3. Notice was ordered to the respondents on 31.08.2009. Onnotice from this Court, on behalf of the second respondent DistrictCollector, Thiruvannamalai, a counter affidavit dated 18.11.2009was filed. On behalf of the third respondent – Block DevelopmentOfficer, a counter affidavit dated 09.10.2009 was filed. Thepetitioner has filed a reply affidavit dated 21.11.2009.4. Pending the writ petition, this Court had granted an orderof status quo on 31.08.2009, which order was extended from time totime.5. The case of the petitioner was that there is a burialground in the village at Survey No.184 and it has been in existencefrom time immemorial and that is the only burial ground which isused by the village people. According to him, the village mapclearly demarcates the survey number to be a burial ground. On13.08.2009, few staff from the Revenue Department came to theburial ground and was marking some areas. When enquired as to whatwas to be executed in the said place, it was informed that 3/4thportion of the burial ground are to be converted into a pond. Thevillage people objected to the same and their representation wasalso not considered. 6. On 25.06.2009, a bulldozer was brought in along withcertain men and started digging the burial ground for converting itinto a pond. According to the petitioner, this was in totalviolation of the provisions of the Tamil Nadu Village PanchayatAct, 1994 and the Tamil Nadu Village Panchayats (Provision ofBurial and Burning Grounds) Rules 1999. The contention of thepetitioner was that no construction shall be put up within adistance of 90 metres from a place used as a burning or burialground. It was also stated that if any pond is constructed thatwill be a source of pollution because of the activities that willbe carried out in the said burial ground. 7. The second respondent (District Collector) in his counteraffidavit stated that all the village panchayat in each Block arecategorized and tabulated for every year to implement schemes foran estimated amount of Rs.20 lakhs to improve the basic amenities.The said scheme is implemented by Anaithu Grama Anna MarumalarchiThittam. In so far as the Vallam village is concerned, that wasalso listed for implementation of the scheme. The Village LevelCommittee for implementing the said scheme has selected theparticular place where a pond was already situated. Such anecessity is also there because of the activities that may go on inthe burial ground and the water from the pond can be used forconducting cremation ceremonies. The pond which is in existence inSurvey No.184 is in a bad condition. It was also stated that thepetitioner's objection was unjustified and it is to dismantle theeffective scheme implemented by the State Government. In so far asthe village is concerned, it has got sufficient drinking watersource available to meet the needs of the public with a Over Head https://hcservices.ecourts.gov.in/hcservices/ Tank (OHT) with capacity of 60,000 Litres and two other Tanks witha capacity of 30,000 Litres. The renovation of the pond will not inany way affect the village. On the contrary, it may help thevillage people. The reference to the provisions of Tamil NaduVillage Panchayat Act and Rules are not relevant. The petitionerwas a retired teacher and is having a piece of land in SurveyNo.183, adjacent to the present burial ground and the attempt ofthe petitioner is to grab the excess land from the burial ground.8. The third respondent in his counter affidavit had statedthat the amount received from the scheme is to be utilised for thedigging of the pond and already work order has been given to aContractor. It was also stated that the pond was in existence formore than ten decades in Survey No.184 to the extent of 25 centsout of 2.10 acres. The said pond will only occupy only 1/8th of thetotal extent. It was stated that they are not digging a new pond.The present survey number is described as "Kuttai Poramboke" and itis only a renovation work which is going on. It was also statedthat the said renovation has been done so far three times under theleadership of the previous panchayat presidents namelyM/s.Panduranga Naidu, Sampath Naidu and Savari Naidu. It was alsofurther stated that the petitioner's attempt to stall the work isonly malafide and after his owning the Survey No.183, he has alsoencroached to an extent of about 10 cents in the said land byplanting Teak Wood saplings at the bank of the existing pond. 9. In the reply affidavit, it was stated that the petitionerhas come forward with public interest and that digging the pond isonly to siphon of funds from the public ex-chequer. Apart fromthis, he has also dealt with at length about their being nonecessity to have the pond in the said land. The petitioner alsoproduced certain photographs and a village map. It is seen thatsubstantial excavation have already been done in one corner of theburial ground and it cannot be said there is no necessity to have apond in the burial ground. 10. On the other hand, the respondents have stated that formore than ten decades, the pond has been in existence and from timeto time it has been restored from being put to disuse. TheDistrict Collector has concurred with the view and the work hasalready been started. The respondents have also come forward toassert these facts. At the instance of a neighbouring land owneragainst whom allegations of encroachment had also made, it is notsafe to entertain the writ petition. Further, the decision has beentaken by the Village Panchayat. If the petitioner is aggrieved byany such decision, he cannot file a writ petition challenging thesaid decision. He should have found a remedy in terms of Section202 of the Tamil Nadu Village Panchayat Act. In any event,accepting the stand taken by the respondents, the writ petitionfiled by the petitioner cannot be countenanced by this Court. https://hcservices.ecourts.gov.in/hcservices/

11. In the light of the above, the writ petition standsdismissed. No costs. Consequently, connected miscellaneous petitionis closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsvkiTo1.The Secretary, Government of Tamil Nadu, Local Administration Department, St.George Fort,Chennai.2.The Collector of Thiruvannamalai, Thiruvannamalai District.3.The Block Development Officer, Peranamallur Panchayat Union, Thiruvannamalai District.+ 2 CCS to Government Pleader, High Court, Madras SR NO 69996&69574 + 1 CC to Mr.R.Tholkappian, Advocate SR NO 69371Pre-Delivery Order inW.P.No.17600 of 2009RSI (CO)SS (30.12.2009)