Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the respondents not to shift and locate any burial ground in R.S.No.7 (water course Poramboke) Ullur Village and Panchayat, Kumbakonam Taluk, Thanjavur District.
W.P.(MD).No.8253/2010 A.Ganesan S/o.S.Ayyavu Pillai, 8, Vattipillaiyarkoil Street, Kumbakonam, Thanjavur District. . . Petitioner Vs
1.The District Collector, Thanjavur.
2.The Revenue Divisional Officer, Kumbakonam.
3.The Tahsildar, Kumbakonam.
4.The President, Ullur Panchayat, Kumbakonam Taluk.
Writ Petition is filed under
Article 226 of the Constitution of India to issue a Writ of Mandamus directing the respondents not to shift the existing burial and burning ground in Survey No.19, Ullur Panchayat in the interest of Public.
!For Petitioner ... Mr.K.Srinivasan in W.P.(MD).No.8000/2010 Mr.N.Balakrishnan in W.P.(MD).No.8253/2010 ^For respondents ... Mr.V.Rajasekaran Special Government Pleader :COMMON ORDER (Order of the Court was made by M.DURAISWAMY,J.)
W.P.(MD).No.8000 of 2010 is filed by the petitioner seeking for a relief of Writ of Mandamus directing the respondents not to shift and locate any burial ground in R.S.No.7 (Water Course Poramboke) Ullur Village and Panchayat, Kumbakonam Taluk, Thanjavur District.
2. W.P.(MD).No.8253 of 2010 has been filed by the petitioner as Public Interest Litigation seeking for a relief of Writ of Mandamus directing the the respondents not to shift the existing burial and burning ground in Survey No.19, Ullur Panchayat in the interest of Public.
3. Since the issue involved in both the writ petitions is in respect of shifting of burial ground from R.S.No.19, Ullur Panchayat to R.S.No.7 of the same Panchayat, both the writ petitions are disposed of by this common order.
4. The brief case of the petitioner in W.P.(MD).No.8000 of 2010 is as follows;
a)According to the petitioner, the property bearing R.S.No.8/3, Ullur Village, measuring as extent of 34,880 sq.ft, Kumbakonam Taluk, belongs to him and his sister-in-law by virtue of a registered sale deed dated 27.07.2006. The Kumbakonam Town Co-operative House Building Society developed a residential layout in Ullur Panchayat in various Survey Numbers under the name and style of Annai Anjugam Nagar in the year 1989 for residential purpose. The layout comprised of 322 residential plots with necessary provisions given for schools, shops, parks, open spaces, a burial ground and also an area prohibited for construction within 90 meters from the burial ground. The said layout was duly approved by the Director of Town and Country Plan on 31.08.1989. The entire approved housing plots were sold and allotted by Kumbakonam Town Co-operative House Building Society and was purchased by various individuals. Most of the plot owners have constructed their houses in their respective plots. The cremation and burial ground in Ullur Panchayat is situated in R.S.No.19 from time immemorial. The said burial ground is also located in the topographical sketch of the Village Panchayat, Revenue Records, Master Plan, DTP approved plan of the layout and also in all the relevant records.
b) In order to enrich from and out of the housing plots, the 12th respondent has persuaded the officers of the building society, and in connivance with the local authorities, to shift and relocate the burial ground from from R.S.No.19 to elsewhere stating that a school is being located very near to the existing burial ground.
c) According to the petitioner, school was constructed only about a year ago within 90 meters of the existing burial ground purposely to show as a reason to shift the burial ground on the instigation by the 12th respondent, who is an Ex-President of Ullur Panchayat. When the Master Plan and the layout plan specifically prescribed that no construction can be made within 90m radius of the burial ground in R.S.No.19 and in the absence of any authority from the State Government, the 12th respondent in connivance with the officials of the building society, is selling the lands for his personal gain.
d) Further, developing the plots without closing the existing burial ground and without approval of the Health Officers is objectionable, according to the petitioner. Contrary to the objection by the Deputy Director, Health Services, Thanjavur, the State Government has decided and granted permission to construct a school within 90 metres radius of the burial ground. The school building was constructed and completed in the year 2009 and the School has begun to function from 01.06.2009. The 12th respondent had purchased the properties from the said co-operative society, contrary to the Rules and also developed the same as housing sites and have begun to sell the same to the Public. In these circumstances the official respondents have decided to shift the burial ground from R.S.No.19 to R.S.No.7, which situate in the Water Course of river Cauvery. The same was brought to the notice of the Public through a Public notice by the Revenue Inspector, Kumbakonam dated 11.06.2009 inviting objections to shift the cremation ground from R.S.No.19 to R.S.No.7. On behalf of the petitioner his sister-in-law had objected to the same pointing out that no burial ground can be shifted to a water course of river, which is contrary to the Tamil Nadu Protection of Tank and Eviction of Encroachment Act, 2007.
e) According to the petitioner, there is a school within the 90 meters radius of the proposed burial ground in R.S.No.7. That apart, the same is also in the water course of river cauvery. The Tahsildar, Kumbakonam based on the objections, dropped the proposal of shifting the burial ground to R.S.No.7 and recommended for shifting the burial ground to R.S.No.100/1 which is an existing burial ground. The Revenue Divisional Officer also dropped the proposal to shift the burial ground to R.S.No.7 and recommended for R.S.No.100/1.
f) By order dated 13.01.2010 the Block Development Officer, Kumbakonam had issued a communication to the Tahsildar, Kumbakonam communicating the stand of the authorities not to shift the cremation ground to R.S.No.7. On 05.02.2010, the Revenue Divisional Officer, Kumbakonam recommended for shifting of burial ground to R.S.No.100/1, Ullur Panchayat. By order dated 09.03.2010, the Assistant Director of Panchayat, Thanjavur, passed an order directing the 10th respondent to place a notice board reflecting the words that the burial ground is shifted to R.S.No.100/1 and no cremation shall be allowed in R.S.No.19.
g) In the meanwhile, the Executive Engineer Cauvery River Basin was addressed with a communication by the District Revenue Officer, Thanjavur dated 11.02.2010 requesting a "No Objection Certificate" for shifting the burial ground to R.S.No.7. The Executive Engineer refused to issue No Objection Certificate to shift the burial ground to R.S.No.7. While so, on 13.06.2010, the respondents 6 and 7 along with the revenue officials demolished the entire structure in the cremation ground in R.S.No.19. Thereafter, a Peace Committee Meeting was convened on 17.06.2010 and the 6th respondent has stated in the Peace Committee Meeting that he had inspected the land in R.S.No.7 and the cremation ground will be shifted to R.S.No.7 in spite of the objections made by the Public. Therefore, challenging the proposed action of the respondents 6 and 7, the petitioner has filed the above writ petition.
5. The brief case of the petitioner in W.P.(MD).No.8253 of 2010 is as follows;-
a) The petitioner is a resident of Ullur Village and Panchayat, Kumbakonam Taluk, Thanjavur District and he has filed the writ petition as Public Interest Litigation.
b) According to the petitioner, the burial ground in R.S.No.19 is existing from time immemorial and the said layout was developed leaving the prescribed 90M radius as prohibited area and plots were developed as Annai Anjugam Nagar approved by the Director of Town and Country Planning. The burial ground situated in Annai Anjugam Nagar was a common one and used by all communities. The 4th respondent colluding with the persons who had converted the prohibited zone as layout violating the provisions of Panchayat Act and Town and Country Planning Act, has passed a resolution for a construction of Government Girls Higher Secondary School in the prohibited area. The Government has also granted sanction for the construction of the school and the same was also constructed a year ago and even after construction of the school, the burial and burning of the corpses took place in R.S.No.19 without any interruption till March 2010.
c) The 4th respondent sought for permission to shift the burial ground to R.S.No.7. Since the said R.S.No.7 was situated near the river Cauvery, the Public Works Department, Engineer, in his letter to the District Revenue Officer, Thanjavur had rejected the request of the 4th respondent stating that it cannot be done as it could pollute the environment and the river course.
d) Thereafter, the fourth respondent has sought for shifting of the burial ground from R.S.No.19 to R.S.No.100/1 and the Assistant Director of the Panchayat, had given permission to shift the existing burial ground to R.S.No.100/1 which is exclusively used by "Valluvar Community" and the said community having custom only to bury the corpse but not cremating them. Thereafter, the Assistant Director, Panchayats, Thanjavur had ordered to advertise through a notice board that in R.S.No.19, the burial ground has been shifted to R.S.No.100/1. The members of the Valluvar Community had instituted a civil suit in O.S.No.131 of 2010 on the file of Principal District Munsif, Kumbakonam claiming a relief of permanent injunction restraining the fourth respondent and other Government officials to convert their communal burial ground as burial and also as burning ground. Therefore, if the other persons were allowed to burn or bury their corpses, a law and order problem would arise and therefore, people of Ullur Panchayat never attempted to bury or burn in R.S.No.100/1. In this regard a Peace Committee Meeting was also convened on 17.06.2010. Since the officials are trying to shift the burial ground from R.S.No.19, the petitioner has filed the above writ petition.
6. The Tahsildar, Kumbakonam in his counter affidavit has stated that a Peace Committee Meeting was conducted on 17.06.2010 by the Revenue Divisional Officer, Kumbakonam along with important persons of the Ullur village and officials of Revenue Department, Rural Development and Local Administration Department and police officials. In the said Peace Committee Meeting opinion of the Public and other persons were sought regarding the shifting of burial ground. According to the Tahsildar, most of the villagers and important persons of the village agreed to shift the burial ground to R.S.No.7, Ullur Panchayat. Shifting of burial ground from R.S.No.19 to R.S.No.7 was objected by one or two persons only.
7. According to the Tahsildar, one Thiru Manoharan, Ex-President of Ullur Panchayat objected to the shifting of burial ground from R.S.No.19. However, the said Manoharan, when he was President of Ullur Panchayat, had passed a resolution for the shifting of burial ground from R.S.No.19 to some other place stating that it would affect the students studying in the nearby Government Girls Higher Secondary School.
8. Further, the land selected for constructing the school was transferred to the Education department from the respondent Panchayat and the school building was constructed and the school started functioning from 01.06.2009. In the Government Order, the Government has also ordered to close the adjacent burial ground in R.S.No.19 and ordered to shift the burial ground to some other place. On considering a few other places finally a land in R.S.No.7 of the same village was selected to shift the burial ground, since the land is in the bank of river Cauvery and it is a Public Works Department's Paromboke land.
9. According to the 12th respondent in W.P.(MD).No.8000 of 2010, the Society donated the land comprised in different survey numbers in favour of the Government for putting up a Girls High School and the gift made by the Society was accepted by the Government in the year 2007 itself. Even prior to the gift made by the 12th respondent, the local panchayat has also passed a resolution in favour of putting up a Girls High School. The construction was commenced and completed in the year 2008 and as of now 1200 girls are studying in the said school. By deed of sale, dated 27.07.2006, the petitioner in W.P.(MD).No.8000 of 2010 purchased an extent of 34,888 sq.ft from the 12th respondent. The 12th respondent to show his bonafide offered to purchase the said property from the said writ petitioner and his sister-in-law and undertook to donate 15000 sq.ft out of the said land in favour of the Government or the local panchayat.
10. According to the 12th respondent, he is not behind the move to shift the cremation ground to R.S.No.7. The shifting of burial ground from R.S.No.19 was taken only by the authorities concerned and the 12 respondent is not concerned with the same. According to the 12th respondent, he is not a necessary party.
11. Heard, Mr.K.Srinivasan, the learned counsel appearing for the petitioner in W.P.(MD).No.8000 of 2010, Mr.N.Balakrishnan, the learned counsel appearing for the petitioner in W.P.(MD).No.8253 of 2010 and Mr.V.Rajasekaran, the learned Special Government Pleader, appearing for the respondents in both the writ petitions.
12. On a careful consideration of the materials available on record and the submission made by the respective counsels, it could be seen that by G.O.Ms.No.60 Rural Development and Panchayat (C2) Department, dated 18.04.2007, an extent of 4.12 acres of vacant land lying in different survey numbers adjoining the burial ground in R.S.No.19 was selected and transferred to Education Department for construction of a Government Girls Higher Secondary School. Since the burial ground was within a distance of 300 feet from the proposed school building, the Government in the said Government Order, ordered that the burial ground should be shifted to a suitable site and a compound wall should be erected around the site so that no one shall enter the land and utilise for such purpose. Admittedly, the school building was constructed and Government Girls Higher Secondary School, started functioning in the new building from 01.06.2009.
13. Thereafter, there was a proposal to shift the burial ground from R.S.No.19 to R.S.No.49/1B of Umamaheswarapuram Village of Thiruvidaimarudur Taluk as alternative site to shift the burial ground. Objecting to the shifting of burial ground to R.S.No.49/1B, a writ petition was filed in W.P.(MD).No.1955 of 2009 and this Court by order dated 17.03.2009 directed the authorities to consider the request of the petitioner therein. Considering the law and order situation, the proposal to shift the burial ground to R.S.No.49/1B was dropped.
14. Thereafter, on 10.06.2009 a public hearing meeting with the villagers of Ullur village and officials was conducted by the then, Revenue Divisional Officer, Kumbakonam. In the said meeting it was decided that the burial ground in R.S.No.19, which is very near to the Government Girls Higher Secondary School should not be used as a burial ground and as a permanent measure a land in R.S.No.7 of Ullur village classified as Cauvery river bank was selected for shifting the burial ground. The said decision was reported to the District Collector, Thanjavur and District Revenue Officer, Thanjavur. Since one Thiru.S.Seetharaman, S/o.Subramanian and another Tmt.Anitha Rajasekaran, objected for forming the burial ground in R.S.No.7, the Tahsildar, Kumbakonam by order dated 27.07.2009 recommended for shifting the burial ground to R.S.No.100/1. However, the said burial ground in R.S.No.100/1 is being used by a particular community (viz) the Valluvar Community people. The said community people objected for the shifting of the burial ground from R.S.No.19 to their burial ground. According to their custom, the Valluvar Community people who are using the burial ground in R.S.No.100/1 used only to bury the corpse and do not cremate corpse. Since the usage of burial ground is pertaining to the sentiments of the people, it will only create law and order problem.
15. In such circumstances, the authorities conducted a Peace Committee Meeting on 17.06.2010 and in the said meeting majority of the participants agreed to shift the burial ground to R.S.No.7, of Ullur Panchayat. However, one Thiru.Manoharan, the former President of Ullur Village Panchayat objected for the shifting of burial ground from R.S.No.19. However, when the said Thiru.Manoharan was the President of Ullur Panchayat, he had passed a resolution in favour of shifting the burial ground from R.S.No.19 to some other place for the reason that the location of burial ground in R.S.No.19 would affect the students studying in the nearby school. However, contrary to his own resolution, Thiru.Manoharan had objected for the shifting of the burial ground from R.S.No.19 in the Peace Committee Meeting. The other person who had objected in the Peace Committee Meeting was one Thiru.G.Vasikaran, who is the petitioner in W.P.(MD).No.8000 of 2010. He objected to the shifting of the burial ground to R.S.No.7 since the authorities had already abandoned the proposal to shift the burial ground to R.S.No.7. In his objection, Thiru.G.Vasikaran had stated that if the burial ground is located in R.S.No.7, the same would affect his own adjoining house site and the other residents. The said G.Vasikaran also stated that if the burial ground is located in R.S.No.7, the same would affect the students of a nearby School named Karthik Vidyalaya Matric School. Based on the objections raised by Thiru.G.Vasikaran, the Revenue Divisional Officer inspected the school and he observed that the proposed burial ground is not in the vicinity of the school, which would falsify the objection raised by the petitioner. That apart, the petitioner in W.P.(MD).No.8000 of 2010 is objecting to the shifting of burial ground to R.S.No.7 for the reason that it would affect the real estate value of his own house site.
16. The learned counsel appearing for the petitioner Mr.K.Srinivasan, relied upon the following judgments in support of his contentions;
i) 2005 (4) CTC 1 (KRISHNAN, L. V. STATE OF TAMIL NADU) wherein a Division Bench of this Court held that under
Article 51 A(g) of the Constitution of India, it is a fundamental Duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life;
ii) (2010) I MLJ 1396 (DR.R.S.LAL MOHAN V. EXECUTIVE ENGINEER (WRO)), wherein a Division Bench of this Court held that the stagnant organic rich water caused by the cultivation of lotus leaves and other weeds also indirectly contribute for the diseases like malaria, filaria, chikungunya, dengue and other viral diseases. Waterborne diseases occur when parasites or other disease causing micro organisms, are transmitted via contaminated water, particularly water contaminated by pathogens originating from excreta;
iii) 2010 CIJ 8 GBJ (M.VELU V. STATE OF T.N. & ORS), wherein, a Division Bench of this Court held that the State is duty bound to preserve the environment and authorities were directed to incorporate suitable conditions for the preservation of the water bodies; and
iv)2010 (4) CTC 737 (R.CHANDRAN V. STATE OF TAMIL NADU), wherein the Division Bench of this Court held that the Right to life is not only fundamental right but also right to lead a decent life and to enjoy fresh air and water by using parks and grounds, which is meant for public at large.
17. We fully agree with the principles laid down in the judgments relied upon by the learned counsel appearing for the petitioner. However, the facts and circumstances of the case reported in the above judgments differs from the present case. Therefore, the judgments are not applicable to the case on hand.
18. The learned Special Government Pleader in support of his contention relied upon the judgment reported in (2010) 3 SCC 402 (STATE OF UTTARANCHAL V. BALWANT SINGH CHAUFAL) whereby the Honourable Apex Court laid down the following guidelines relating to filing of a Public Interest Litigation;- (1)The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations. (2) . . .
(3)The Courts should prima facie the credentials of the petitioner before entertaining a PIL.
(4)The Courts should prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL. (5)The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition.
(6)The Courts should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions. (7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.
(8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations."
19. It is also pertinent to note that though the petitioners had filed the writ petitions challenging the shifting of burial ground from R.S.No.19 to R.S.No.7, they have not challenged the Government Order G.O.Ms.No.60 Rural Development and Panchayat (C2) Department, dated 18.04.2007, whereby the State Government ordered the shifting of burial ground from R.S.No.19 to a new location in view of the construction of a School building nearby the said survey number. Therefore, without challenging the Government Order dated 18.04.2007, the petitioner cannot maintain the present writ petitions objecting to the shifting of the burial ground from R.S.No.19.
20. From the Materials available on record, it could be seen that the land in R.S.No.7 is not in a water course and it is only on the banks of the river Cauvery. The authorities also after taking into consideration various aspects, proposed to locate the burial ground in R.S.No.7. The Public Works Department by letter dated 22.06.2010 issued "No Objection Certificate" for shifting the burial ground to R.S.No.7. Further, there is nothing on record to show that the proposed burial ground in R.S.No.7 is in the water course of river Cauvery.
21. The State Government had constructed the Girls Higher Secondary School near the burial ground in R.S.No.19. That being the case, no malafide can be attributed for construction of the school near R.S.No.19, by the State Government.
22. The shifting of cremation ground is only in the interest of people of the locality and for the students studying in Government Girls Higher Secondary School. The former Panchayat President namely Thiru.Manoharan though objected to the shifting of burial ground from R.S.No.19 in the Peace Committee Meeting held on 17.06.2010, he himself as President of Ullur Panchayat passed a resolution to shift the burial ground from R.S.No.19 to some other place stating that the location of the burial ground in R.S.No.19 would affect the students studying in the nearby Government Girls Higher Secondary School. Therefore, the said Thiru.Manoharan is estopped from objecting to the shifting of the burial ground from R.S.No.19.
23. The decision taken in the Peace Committee Meeting reflects the majority decision of the villagers and the decision taken in a Peace Committee Meeting should be given preference while deciding the issue.
24. As already stated the proposal to shift the burial ground to R.S.No.100/1 was objected by a particular community people, namely the Valluvar Community, since the said community have custom only to bury corpses and do not cremate the corpses. Therefore, the shifting of burial ground from R.S.No.19 to R.S.No.100/1 would only create law and order problem and unpleasant happenings among the people. The sentiments of the people of that community should be given highest priority. Therefore no useful purpose would be served by shifting the burial ground from R.S.No.19 to R.S.No.100/1.
25. The authorities are the proper persons to fix the location of the burial ground since they are the persons directly interacting with the people of the village and they are in a better position to ascertain the ground realities and the difficulties faced by the people in that village. Therefore, it is for the authorities to fix the appropriate location of the burial ground. This Court cannot fix the location of the burial ground in the writ proceedings.
26. Insofar as W.P.(MD).No.8000 of 2010 is concerned, as already stated the proposed burial ground in R.S.No.7 is not on the water course of river Cauvery and it is only on the river bank and the environment will not be affected. In matters like this, the Government or the Government Officials are always better placed as to the suitability of the site/location and this Court will be very slow to interfere in such decision unless for compelling reasons.
27. In 2010 (3) SCC 402 (cited supra) the Hon'ble Supreme Court laid down the guidelines for filing the Public Interest Litigation. Pursuant to the judgment of the Apex Court, this Court also notified the guidelines for filing the Public Interest Litigation. Having regard to the guidelines laid down by the Hon'ble Apex Court and this Court, we are of the view that the Public Interest Litigation in W.P.(MD).No.8253 of 2010 does not come within the said purview.
28. In these circumstances, we are of the considered view that both the writ petitions deserve no merits and they are liable to be dismissed. Accordingly the writ petitions are dismissed. Consequently, the connected miscellaneous petitions are closed. There shall be no order as to costs.
jikr To
1.The Secretary to Government, Revenue & Land Administration Department, Secretariat, Chennai.
2.The Secretary to Government, Public Works Department, Secretariat, Chennai.
3.The Principal Secretary and Commissioner of Land Administration, Chepauk, Chennai.
4.The District Collector, Thanjavur District, Thanjavur.
5.The Assistant Director of Panchayat, Katcheri Road, Collectorate, Thanjavur.
6.The Revenue Divisional Officer,Kumbakonam.
7.The Tahsildar, Kumbakonam.
8.The Chief Engineer, Water Resource Department, Trichy Region, Trichy.
9.The Executive Engineer, Public Works Department, Water Resource Division, Cavery River Basin, Thanjavur.
10.The President, 27, Ullur Panchayat, Kumbakonam Panchayat Union, Thanjavur District.
11.The Executive Engineer, Tamil Nadu Pollution Control Board, Thanjavur.