IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No. 13812 of 2008 Date: 04.08.2014 Between:
E. Mallikarjuna Reddy … Petitioner And Govt., of A.P., rep., by its Principal Secretary, Municipal Administration & Urban Development Department, Hyderabad & others.
… Respondents This Court made the following:
THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION No. 13812 of 2008 ORDER: (Per the Hon’ble The Chief Justice Sri Kalyan Jyoti Sengupta) This is an old matter of 2008. This has been filed by one E. Mallikarjuna Reddy challenging G.O.Rt.No.278, dated 20.02.2008 issued by the Government according permission to alienate a piece of land to the Christian community for use of its members as burial ground, on the ground of violation of Articles 25 and 26 of the Constitution of India as well as the statutory provisions of the Hyderabad Municipal Corporation Act (for short, “the Act”) and the rules made thereunder.
This G.O. concern lands having area of Ac.1.93 cents being Sy.Nos.186/B1B, 186/B3B, 188/1B1A, 188/1B1D and 212/A1, situate at village Mamidala Padu within Municipal Corporation, Kurnool. The petitioner in paragraph 11 of the writ affidavit alleged that the action of the respondents in issuing the above Government order alienating the land to Christian community for use of its members as burial ground is arbitrary, illegal, capricious, highhanded and violation of fundamental rights guaranteed to the citizens under Articles 25 and 26 of the Constitution of India apart from being in violation of the principles of natural justice and fair play. It is further alleged that the respondents acted illegally in issuing the said Government order without following the procedure contemplated under the provisions of the Act, as is applicable to the Municipal Corporation of Kurnool.
In paragraph 12 it has been alleged further that the respondents ignored the provision of Section 569 of the Act before recommending any alienation of land thereunder it is their duty to see that the disposal of the dead in a particular place will not cause injuries to any place of public worship and become injurious to health. Under Section 571 of the Act there is restriction to cremate or exhume any body or corpse within the place of worship.
The above allegations have been dealt with by filing a counter affidavit by the 1st respondent. In paragraph 8 of the counter affidavit it is stated that the allegation that issuance of G.O.Rt.No.278, dated 20.02.2008 alienating the land to Christian community for use of its members as burial ground is arbitrary, illegal, capricious, highhanded, violative of fundamental rights guaranteed to the citizens under Articles 25 and 26 of the Constitution of India apart from being in violation of the principles of natural justice and fair play, is baseless. It is asserted that the respondent has not acted illegally in issuing the Government order in any manner let alone procedure contemplated under the provisions of the Act.
In paragraph 9 it has been stated that before issuing the impugned G.O., the Government has examined the entire proposal and the fact finding report submitted by the authorities, reveal that the land occupied by the temple has been excluded from alienation. The allegation that the action will result injury to the health of the public, is baseless. As the land in question is adjoining to the existing burial ground of the Christian community and as there is no place in the existing burial ground to bury the dead bodies of a particular community, the proposal has been examined in that prospective by the Government and issued the impugned G.O. It is further submitted that Section 571 has no application to the present case, as the land in question is adjoining to the existing burial ground and dead bodies of the particular community are being buried regularly. Neither the petitioner nor any public has objected at any point of time. First time the petitioner filed the present writ petition as an after thought exercise. The petitioner did not raise any objection nor filed any representation before the District Collector or before the Commissioner, Municipal Corporation, Kurnool before approaching this Hon’ble Court.
The counter affidavit of the 5th respondent – Municipal Corporation, is very relevant in this regard. In paragraph 6 of the counter affidavit it is stated that the contention raised by the petitioner is not correct. It is submitted that the Government has issued orders basing on the recommendations of this respondent Municipal Corporation, Kurnool, in G.O.Rt.No.278, dated 20.02.2008 to alienate the land to the Christian community for use as burial ground. In paragraph 7 it is stated that the place of worship was located near the land, but it was separated and the remaining land alone was ordered for alienation by the Government for use as burial ground. Hence, the disposal of dead in the said land would no way cause injurious to any place of worship or to the health of public. Section 571 of the Act has no application to the temple located in the land.
In spite of repeated opportunities being given, the petitioner did not file any affidavit in reply. It appears from the writ petition that the Government has issued the impugned order according permission to alienate the land, based on decision taken by the Municipal Corporation by valid resolution intending to alienate a piece of land. This resolution has not been questioned, but the decision of the Government has been questioned. It is not the contention before us that the Government and the Municipal Corporation have no power to alienate the land. It is said that this is violative of Section 571 of the Act. Both the respondents have stated that the aforesaid Section has no manner of application to the present case. We also agree to this contention taking note of factual basis. We notice that there is existence of a temple in the land in question, but it is not clear whether it is a place of regular worship. It is also not clear that whether the temple was built before the decision was taken. The report of the Municipal Corporation says that this land at which the temple situate is completely separated from the land, which is made available for burial ground. In these circumstances, we find no merit in this writ petition.
The writ petition is accordingly dismissed.
Miscellaneous petitions, if any, pending in this writ petition shall stand closed. No order as to costs.
K.J. SENGUPTA, CJ SANJAY KUMAR, J Date: 04.08.2014 ES