A.Palaniappan.. v. The Collector

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:21.02.2008CORAM:THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALW.P.No.49994 of 2006 andM.P.Nos.1 and 2 of 2006 A.Palaniappan.. PetitionerVs1.The Collector, Namakkal District.2.The Revenue Divisional Officer, Tiruchengode, Namakkal District.3.The Hereditrary Trustee, The Arulmigu Karpoora Vinayagar Alagunachiamman Temple Mangalam Village & Post, Tiruchengode Taluk, Namakkal District.4.The Commissiner, HR & CE Board, Chennai.(R-4 impleaded as 4th respondents by order dt.23.1.2007) .. RespondentsPrayer: Writ Petition filed under Article 226 of theConstitution of India for issuance of a Writ of CertiorarifiedMandamus calling for the entire records inNa.Ka.No.39318/2006/l3 dated 27.11.2006 passed by the 1strespondent and quash the same and consequently direct the firstrespondent to allot permanently the existing burial groundsituated in the Government land comprised in Survey No.112/2 forthe Nathamedu Village people for performing their last funeralrites in the burial ground continuously. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr.N.G.R.Prasad, For M/s.T.SundaravadanamFor RR 1 & 2: Mr.D.Srinivasan, A.G.P.For RR 3: Mr.N.Manoharan & Mr.V.AnandhamoorthyFor RR 4: Mr.T.Chandrasekaran, S.G.P.O R D E RM.VENUGOPAL,J.The petitioner has filed this writ petition as a residentin the larger interest of the public Nathamedu, praying for therelief of issuance of Writ of Certiorarified Mandamus callingfor the entire records in Na.Ka.No.39318/2006/l3 dated27.11.2006 passed by the first respondent viz., the DistrictCollector, Namakkal District and quash the same and consequentlydirecting the first respondent viz., the Collector, NamakkalDistrict to allot permanently the existing burial groundsituated in the Government land comprised in Survey No.112/2 forthe Nathamedu Village people for performing their last funeralrites in the burial ground continuously.2.According to the petitioner, in the Mangalam VillagePanchayat there are 16 hamlets one among them is the Nathameduhamlet wherein there are population of 500 persons residing inthe Nathamedu hamlet for more than years together for 3generations by their forefathers and that Village people livingin Nathamedu hamlet was having their free access in theGovernment land in Survey No.112/2 and they were performing lastfuneral rites in the said land for these years using the same asburial ground.3.It is the further case of the petitioner that this custompractice was disturbed when the third respondent, HereditaryTrustee, Arulmigu Karpoora Vinayagar Alagunachiamman Temple,Mangalam Village and Post, Tiruchengode Taluk, Namakkal Districtconstructed a temple in Government land comprising in S.No.112/2on 20.05.2005 and that the kumbabishekam was performed andbefore the construction of new temple, the third respondent https://hcservices.ecourts.gov.in/hcservices/ temple was situated in the opposite side of the existingposition in Survey No.123 and when the death of a lady tookplace in Nathamedu hamlet on 20.09.2005, the third respondentand their men restrained the Nathamedu hamlet Village people forthe first time from entering into the said Government Pormbokelands comprised in Survey No.112/2 for carrying out the lastfuneral rites in the burial ground and among the two groups ofpeople there was a law and order problem in this regard and tosettle the problem, a peace meeting on 31.5.2005 took place inthe presence of the Tahsildar, Tiruchengode and DeputySuperintendent of Police and the two groups agreed to restorethe original position that existed before the construction ofthe temple from 07.07.2005 after the completion of the mandalapoojas.4.On behalf of the petitioner, it is stated that the thirdrespondent along with Police Officials and with the help ofsecond respondent caused serious mental agony and pressure on20.09.2005 when a death took place in the Nathamedu hamlet andsuccessfully prevented the said Village people from enteringinto a Government land in Survey No.112/2 for performing theirlast rites and that the officials of the Government buried thesaid persons body in the Government land comprising in SurveyNo.112/2, which cannot be disputed by them at any point of timeand in fact, the Panchayat Administration viz., Mangalam VillagePanchayat passed a resolution on 02.10.2005 seeking the firstrespondent to permit the Nathamedu hamlet people to continue todo their last funeral rites in the Government land in SurveyNo.112/2 without any obstacle.5.The stand of the writ petitioner is that the thirdrespondent filed a suit for permanent injunction on the file ofDistrict Munsif, Tiruchengode in O.S.No.349 of 2005 as if he isthe lawful owner of the Government land in Survey No.112/2against the Nathamedu hamelet Villagers and that the peacemeeting dated 30.08.2005 referred to in the order was not at allheld on the said day and the Village people never accepted theproposal in regard to the performance of the last funeral ritesin the watershed (Odai Poramboke) lines and as a matter of fact,the signatures of four villagers were taken by the RevenueOfficials for the purpose of circumventing and setting right thelaw and order problem pertaining to the death of one villagerand his body was buried in the Government land comprised in 123. https://hcservices.ecourts.gov.in/hcservices/ The learned counsel for the petitioner submits that the firstrespondent, the Collector, Namakkal District has rejected therequest of the Nathamedu Villagers and passed orders on27.11.1996 suggesting an alternative place Survey No.125/3belonging to a private individual concerned with the temple andthe other one being in Survey No.89, a watershed in the riverbank and therefore, the order of the first respondent isillegal, arbitrary and violation of Government orders.6.The plea of the first respondent is that the land inSurvey No.112 of Mangalam Village, Tiruchengode Taluk, NamakkalDistrict is classified as Temple poramboke as per the SettlementRevenue Record of the year 1937 and in Survey No.112, the extentof land is about 3.99.5 hectares and there are four temples andthat in a portion of land in Survey No.112/2 the Mudaliarcommunities and Pandaram communities claimed to have utilised asmall extent of temple poramboke in Survey No.112/2 as a burialground. 7.The first respondent also taken a stand that akumbabishegam was performed on 21.5.2005 for the templeArulmighu Alagunachiamman Temple, constructed by the Goundercommunity of the Village and on 30.05.2005 a death occurred inPandaram community and the said community people wanted toperform funeral rites at the said Survey No.112/2 for whichGounder communities raised objection for the reason that templebeing constructed and that Mandala Pooja was in progress for aperiod of 48 days after kumbabishegam viz., till 07.07.2005 andthat in the Peace Committee, conducted by the RDO, it was agreedthat Pandaram community people can utilise their place in SurveyNo.112/2 as burial ground after the completion of the MandalaPooja and till then suggestion was made to them to use analternative site as burial ground. As a matter of fact, thealternative site suggested is in Survey N.89 of Mangalam Villagefor being used as burial ground by the Mudaliyar and Pandaramcommunity people and the said land is classified as OdaiPoramboke as per the Revenue Records and another alternativesite in Survey No.125/3 of Mangalam Village is proposed to beutilised as burial ground for the said communities.8.Earlier one A.Palaniappan filed W.P.No.29350 of 2006before this Court and on 31.08.2006, this Court has passed anorder directing the District Collector, Namakkal to consider the https://hcservices.ecourts.gov.in/hcservices/ representation of the petitioner in regard to the purportedright of access through the burial ground to do funeral ritesand take appropriate decision thereto in accordance with lawwithin a period of three weeks and disposed of the writaccordingly. Only after considering the said representation bygiving adequate opportunity, the impugned order dated 27.11.2006has been passed, which is the subject matter of challenge in thepresent writ petition before us.9.The learned Additional Government Pleader appearing forthe first and second respondents contends that the fact is on20.09.2005 Perumayee wife of Ramasamy Pandaram expired and thatpandaram themselves as per the police complaint formed anunlawful assembly with deadly weapons took the dead body bytrespassing into the temple poramboke land in Survey No.112/2and buried the dead body in a hurried manner and that a case inCrime No.300/2005 was registered by the Inspector of Police,Mallasumuthiram under Section 147, 148, 447, 153(A), 188, 353,506(ii) I.P.C. and that a petition under Section 107 Cr.P.C. wasalso filed before the Sub Divisional Magistrate and RevenueDivisional Officer, Tiruchengode on 24.09.2005 by the Inspectorof Police and the same is enquiring and in this background, thecontention of the petitioner that "Government officialsthemselves buried the said person in the said Government landcomprising in Survey No.112/2 for performing last funeralrights" is denied.10.Moreover, in the counter of the first respondent it iscategorically stated that the writ petitioner and his communitymen were given the alternative land for burial ground in SurveyNo.89, which is classified as "Odai Poramboke" considering thelocal situation, classification of lands and with a view tomaintain law and order on permanent basis and after taking noteof all the aspects, with reference to records in Survey No.89Odai Poramboke, it was decided to allot a portion out of 1.71acres land, after changing the classification as burial groundand apart from the above said land as patta land to an extent of0.35 ½ acres in S.No.125/3 was purchased by the third respondentalso to be used as burial ground and this was also suggested andtherefore, the first respondent/District Collector, Namakkal hasissued orders on 27.11.2006 in above terms and further that theland in S.No.112/2 which is classified as Temple Poramboke was https://hcservices.ecourts.gov.in/hcservices/ never allotted to any section of people to be used as burialground.11.The stand taken by the third respondent [herein aftercalled the Temple rep. By its Hereditary Trustee] is that thereare number of temples situate in S.No.112 belongs to aparticular community and the entire extent of property is comingunder the purview of HR & CE Department and that theAlaganachiamman Temple is in existence from time immemorial andthe temple was reconstructed in Survey No.112/2 [in lieu ofdeterioration] after due intimation to HR & CE Department and in1998 an endeavour was made to convert a portion of the land inS.No.112 as burial ground, which was objected to by the fourthrespondent/HR & CE Department and as per the Revenue Records, anextent of 9.87 acres in Survey No.112 was classified as "TemplePoramboke" and later the second respondent viz., RevenueDivisional Officer, Tiruchengode Taluk, Namakkal District by hisproceedings dated 15.12,1939 has subdivided the lands inS.No.112 and reclassified S.No.112/1-0.24 acres as Play groundand S.No.112/2-9.63 acres as Sivan Temple and that theclassification made in 1928 is prevalent all along and the landwas not used or notified as burial ground in the recent past. 12.In the counter of the third respondent, HereditaryTrustee of the Temple, it is categorically mentioned thatalready there is a burial ground in S.No.96/4 and the same isused by all the community peoples and therefore, in the guise ofpublic interest litigation to create communal disharmony in theVillage, the petitioner has filed this writ petition and thatthe revenue classification existing from the year 1928 has notbeen altered till date and the Zonal Deputy Tahsildar has issueda copy of the A register on 03.10.2005, as if, the entire extentof lands in S.No.112/1 and S.No.112/2 are Government Porambokelands and in the case on hand, the Zonal Deputy Tahsildar hasprepared the A Register on 03.10.2005 unmindful of the Revenueclassification mentioned in the original records. In short, theplea of the temple is that land in Survey No.112 has not beenused as burial ground at any point of time and that the saidland is a temple poramboke in which temples are in existence ofseveral 100 years and if the temple poramboke lands are allowedto be used as burial ground, it would create communal disharmonyand sanctity of the deity will be spoiled. https://hcservices.ecourts.gov.in/hcservices/

13.The learned counsel for the third respondent cited theHon'ble Supreme Court decision 2004 (3) Supreme 8 State ofKarnataka and Another V. Dr.Praveen Bhai Thogadia, whereunderit is laid down as follows:"(i)Criminal Procedure Code, 1973 – Section 144 –Order passed by Additional District Magistrate wherebyrespondent was restrained from entering DakshinaKannada District and from participating in anyfunction in District for 15 days – ADM felt thatspeech by respondent would result in stoking communalfeelings vitiating harmonious social and communalatmosphere – High Court set aside the order in apetition u/s 482 Cr.P.C. - Appeal – Courts should notnormally interfere with matters relating to law andorder which is primarily domain of concernedadministrative authority – Decision as to the need andnecessity to take prohibitory actions must be left todiscretion of authorities and inter position of Courtswas not possible unless a concrete case of abuse orexercise of power for extraneous consideration wasmade out – Court cannot substitute its views for thatof competent authority – Impugned order could not besustained".14.The stand of the fourth respondent/HR & CE Department inthe counter is that in Survey No.112/2 in 9.87 acres MangalamVillage, Tiruchengode Taluk, Namakkal District 1.ArulmighuChokkanathaswamy Temple, 2.Arulmighu Periyamariamman and ChinnaMariamman Temple, 3.Arulmighu Lakshmi Narayanaperumal Temple and4.Arulmighu Karpoora Vinayagar, Athanooramman and NachiammanTemple and is situated in Survey No.123/1 in 4.87 acres MangalamVillage, Tiruchengode Taluk, Namakkal District and these areunder its control and come within the purview of AssistantCommissioner, HR & CE, Salem and that the land in S.No.112 to anextent of 3.95.5 Hectares (9.87 acres) in Mangalam Village isclassified as "Temple Poramboke" as per the settlement RevenueRecords and the original extent of 9.87 acres in S.F.No.112 wasclassified as Temple Poramboke and later S.No.112 was subdividedas 1)S.F.No.112/1 containing 0.24 acres as play ground and 2)9.63 acres appended to S.F.No.112/2 as Sivan Temple in the year1937. The fourth respondent also pleads that the new templeconstructed in S.F.No.112/2 is classified as "Sivan Temple" and https://hcservices.ecourts.gov.in/hcservices/ not as the Government Poramboke land as alleged and that in theprior peace committee meetings on 31.05.2005 and 31.08.2005, theofficials of HR & CE Department did not participate and it isascertained in the meeting held on 31.08.2005 in the presence ofrevenue officials and police, a decision was taken to the effectthat an another land with an extent of 0.69 hectares comprisedin S.No.89 shall be used as burial ground in order to keep thesanctity of the temple and to preserve the place earmarked forArulmighu Alagunachiamman Temple in S.No.112/2 and the lands arenot used as cremation ground and that the Village interested isnot considered by the writ petitioner and is very particularabout the temple lands in S.No.112/2.15.According to the fourth respondent/HR & CE Department,its Assistant Commissioner, Salem in his letter dated 09.11.1998has objected to the usage of land in Survey No.112 as burialground and that the Assistant Commissioner, HR & CE in hisletter dated 01.09.2006 has reiterated the same and that thereis no evidence to show that there was a burial ground in thetemple land and that already there are two other burial groundsin Mangalam Village and as such, there is no merit in the writpetition.16.According to the learned counsel for the petitioner, inthe memorandum of understanding dated 31.05.2005 between "A"party and "B" party reached in the presence of RevenueDepartment officials and Police officials, it was resolved thatsince the temple of Aalagunachiamman has been presentlyconstructed on the same survey number and Kumbabishekam wasperformed and that Mandala Pooja was going on for 48 days till07.07.2005 no burial be made in the survey number for thepresent and after 07.07.2005 it could be done as usual andtherefore, the decision of understanding dated 31.05.2005 mustbe implemented in letter and spirit. In this connection, it isto be pointed out that no writ will lie for implementing thememorandum of understanding dated 31.05.2005, in our consideredopinion.17.The learned counsel for the petitioner laid muchemphasis to the entry in "A" Register dated 03.10.2005 issued bythe Zonal Deputy Tahsildar, Tiruchengode wherein SurveyNo.112/1, 0-95 is classified as Government Poramboke and SurveyNo.112/2, 3-90.0 is classified as Government Poramboke. On https://hcservices.ecourts.gov.in/hcservices/ behalf of first and third respondents, it is submitted that theland in Survey No.112 of Mangalam Village, Tiruchengode Taluk,Namakkal District is classified as Temple Poramboke as perRevenue Records. In the extract of "A" Register of the year1928, Survey No.112 is mentioned as Temple Poramboke. It isspecifically contended on behalf of the third respondent thatthe "A" Register extract relied on by the petitioner's sideissued by the Zonal Deputy Tahsildar, Tiruchengode dated03.10.2005 is contrary to the revenue classification mentionedin the original records. In view of the respective stands takenby the parties, we are of the considered opinion, whether landin Survey No.112 is a Government Poramboke or Temple Porambokeis purely a question of fact. In this connection, it is usefulto refer to Rule 4 of the Tamil Nadu Village Panchayats(Provision of Burial and Burning Grounds) Rules, 1999 whichreads as follows:"4.Registration of burial and burning grounds.-(1) Every owner or other person having the controlover any place used as a place for burying or burningof the dead shall, if such place is not alreadyregistered under the Act or any other Act, apply tothe village panchayat to have such place registered.(2)If it appears to the village panchayat thatthere is no owner or person having the control of suchplace, the village panchayat shall assume such controland register such place or may, with the sanction ofthe Assistant Director (Panchayats) close it".Further, the Rule 7 of the aforesaid Rules also enjoins asfollows:"Place for burial and burning grounds.- (1) Noperson shall bury or burn or cause to be buried orburnt any corpse in any place within ninety metres ofa dwelling place or source of drinking water-supplyother than a place licenced as a burial and burningground.(2)The person having control of a place forburying or burning the dead shall give information ofevery burial or burning of a corpse at such a place to https://hcservices.ecourts.gov.in/hcservices/ any officer appointed by the village panchayat forthis purpose.(3) If a village panchayat is satisfied -(a) that any registered or licenced place buryingor burning of the dead is in such a state or situationas to be or likely to become dangerous to the healthof persons living in the neighbourhood thereof; or(b)that any burial ground is overcrowded withgraves, and if in the case of a public burial orburning ground, another convenient place dulyauthorised for burying or burning of the dead existsor has been provided for the persons who wouldordinarily make use of such place, it may with theprevious sanction of the Assistant Director(Panchayats) give notice that it shall be not lawfulafter the expiry of a period of not less than twomonths to be specified such notice to bury or burn anycorpse at such place.(4)Every notice given under sub-rule (3) shall bepublished by affixture to the notice board of thevillage panchayat and by beat of drum in the village.(5)No person shall in contravention of any noticeunder sub-rule(3) and after expiration of the periodspecified in such notice bury or burn or cause orpermit to be buried or burnt any corpse at such place.(6)The Inspector may cancel or modify any noticeissued by a village panchayat under sub-rule(3).(7)Whoever contravenes any of the provisions ofthese rules shall be punishable with fine which mayextend to one hundred rupees or in case of acontinuing breach, with fine not exceeding fifteenrupees for every day during which the breach,continues after conviction of the first breach: https://hcservices.ecourts.gov.in/hcservices/ Provided that no prosecution shall be institutedfor contravening the provisions of sub-rule (1) ofrule 7 without the written sanction of the executiveauthority of the village panchayat, concerned".18.It is well settled that the Hon'ble High Court will notentertain a writ petition involving disputed questions of fact.Moreover, if an individual wants a relief in the hands of aCourt independent of a statutory remedy, he must establish thathe is injured or subjected to or threatened with a legal wrong.As a matter of fact, legal wrong requires judicially enforceableright and the touchstone to judiciability in injury to a legallyprotected right. Admittedly, a civil suit in O.S.No.349 of 2005filed by the temple trustee on the file of District MunsifCourt, Tiruchengode, praying for the relief of permanentinjunction restraining the defendants therein in converting thesuit property as burial ground, etc. is pending and we are notexpressing any opinion regarding the same.19.At this juncture, the plea of the first respondent thatland in Survey No.112/2, classified as Temple Poramboke wasnever allotted to any section of the people to use it as aburial ground, cannot be lost sight of on the facts andcircumstances of the matter in issue. It is pertinent to pointout that the first respondent has passed orders on 27.11.2006suggesting that a patta land to an extent of 0.35 ½ acres inSurvey No.125/3 purchased by the respondents also be used asburial ground or in the alternative granting a portion of OdaiPoramboke in Village Survey No.89 out of an extent of 0.69.0hectare after changing the classification as burial ground. Itis not known whether the registration of burial and the burningground in the alleged Survey No.112/2 is made as per the TamilNadu Village Panchayats (Provision of Burial and BurningGrounds) Rules, 1999. As far as the present case is concerned,equally, there is no material before this Court whether Section7 of the Tamil Nadu Village Panchayats (Provision of Burial andBurning Grounds) Rules, 1999 has been complied with by thepetitioner or his community people. In fact, there is no M.T.R.Proceedings for conversion or reclassification of the land inissue before this Court.20.In the light of the foregoing discussions, we are of theconsidered view that the petitioner has no legal enforceable https://hcservices.ecourts.gov.in/hcservices/ right to maintain the present writ petition and in any event,the claim of the petitioner cannot be adjudicated in exercise ofpowers under Article 226 of the Constitution and in that view ofthe matter, the Writ is disposed of without costs. Beforeparting, it is suggested that it is open to the Government toallot any Government Poramboke land free from any dispute (andnot the Temple Poramboke land) for the purpose of NathameduVillage people to use it as a burial ground for performing theirlast funeral rites permanently. Consequently, connectedmiscellaneous petitions are closed.sglSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.The Collector, Namakkal District.2.The Revenue Divisional Officer, Tiruchengode, Namakkal District.3.The Hereditrary Trustee, The Arulmigu Karpoora Vinayagar Alagunachiamman Temple Mangalam Village & Post, Tiruchengode Taluk, Namakkal District.4.The Commissiner, HR & CE Board, Chennai.•One cc to M/s N. Manokaran, Advocate SR 9505•One cc to Mr. T. Sundaravadanam, Advocate sR 9437•One cc to Spl Govt Pleader SR 9171•One cc to Govt Pleader SR 9168SJI (co)sg 26/02/08 Order in W.P.No.49994 of 200621.02.2008