Alleging that the first respondent had prohibited the petitioner from entering upon the property covered by Ext.P5 in his favour and has permitted the third respondent to cremate dead bodies in the said property, the petitioner has come up before this Court. 2. The petitioner alleges that he is the owner of 1 acre and 71 cents of land comprised in Re.Sy.No.71/3 of Pallikkunnu village. This property originally belonged to one Narayana Naik, S/o Vinayaka Naik who obtained the right over the property as per Ext.P1 patta. He had been enjoying and possessing the same exclusively. After the death of Narayana Naik, the above said property has been assigned to the petitioner by the legal heirs of Narayana Naik as per Ext.P5. The petitioner alleges that mutation has been effected in his favour and is enjoying the same absolutely.
3. The petitioner alleges that the respondents are taking steps to cremate dead bodies in the aforesaid property on the false claim of the third respondent that the said property was originally a cremation ground. It is with this background, the petitioner has come up before this Court.
4. The first respondent filed a counter affidavit stating that the petitioner is in possession of 1.71 acres of land in Re.Sy.No.71/3 which the petitioner had purchased from the legal heirs of Narayana Naik. According to them, unidentified dead bodies and dead bodies of children were being buried in the portion of the said land from time immemorial for a very long period as evidenced by the ancient tombs on the north-western part of the property. There is yet another cremation ground by name Payyambalam Cremation Ground in Re.sy.No.72/1 which is in the possession of the Pallikkunnu Grama Panchayat and the disputed property as well as the said cremation ground are separated by a road.
5. It is further stated that some of the tombs as aforesaid was seen demolished and a hartal was declared by some organisations in the locality on 16.8.2013 in protest against such anti-social activities. In order to ensure the public tranquility, the Additional District Magistrate issued orders under Section 144(1) and 144(2) of the Criminal Procedure Code and a prohibitory order was passed prohibiting entry upon the property in Re.sy.No.71/3.
6. The stand taken by the State is that the issue regarding the use and enjoyment of the property would cause law and order problem in the locality.
7. The third respondent filed a counter affidavit contending that the writ petition is not maintainable as the dispute is of civil nature. It was pointed out that the previous suit filed by the petitioner for injunction against burying dead bodies in his property was dismissed by a civil court and the same was confirmed by the appellate court. Therefore, according to the respondent Panchayat, there is no bona fides in the claim of the petitioner that as on today the Panchayat has no right or interest over the subject matter of the property.
8. Subsequent to the filing of the writ petition, the additional fourth respondent was impleaded. They also supported the case put forward by the respondent Panchayat.
9. Arguments have been heard.
10. The grievance of the petitioner is that there is an attempt on the part of the respondents to cremate dead bodies in his property which was purchased as per Ext.P5. The petitioner alleges that the property originally belonged to one Narayana Naik as per Ext.P1 and after his death, the legal heirs have executed Ext.P5 assignment in favour of the petitioner. Therefore, according to the petitioner, he is the absolute owner of the property.
11. It was argued by the learned senior counsel for the petitioner that the respondent Panchayat has only one burial ground at Payyambalam which is in Re.Sy.No.72/1 of Chalad Desom and no other place can be used as a burial ground whatsoever. However, the State has made a contention that over a portion of the property in dispute, unidentified dead bodies as well as the dead bodies of children were being buried as evidenced by certain existing tombs.
12. It is also the case of the state that recently, some of the tombs were seen demolished and according to the State, there is a law and order situation in the area. The stand taken by the petitioner is that as the property in dispute is a private property, the first respondent should not have interfered in the matter and could not have passed any prohibitory orders.
13. Rule 3 of the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998 empowers any Panchayat to provide land to be used as burial or burning grounds or cemeteries by meeting the expenditure from the panchayat fund with the previous sanction of the District Collector, if no sufficient provision for the same exists. The issue of license in such cases shall be subject to Rule 6 of the said Rules.
14. Rule-4 is a deeming provision by which the cemetries existing at the commencement of these rules and registered under the Kerala Panchayat (Burial and Burning grounds) Rules 1967 shall be deemed to have been registered under the present rules also. A dispute regarding the same also shall be subject to the decision of the District Collector concerned.
15. In the case on hand, the petitioner has approached this Court alleging that an attempt is being made to convert his property as a cremation/burial ground. Therefore, undoubtedly, it is a dispute of civil nature which has to be adjudicated by a competent civil court.
16. Evidently and admittedly too, there was a previous suit as O.S.No.203/2008 before the Munsiff's Court, Kannur filed by one of the predecessors in interest of the petitioners. The suit was for an injunction simplicitor. Though the patta in respect of the property was in respect of 1 acre 71 cents, the plaintiff in the suit claimed possession over 90 cents only. As the plaintiff failed to substantiate the identity of the property through a proper measurement, the suit was dismissed. There was no other option for the civil court but to dismiss the suit as the plaintiffs in the suit has sought a remedy, the violation of which would entail penal consequences.
17. As it was the bounden duty of the plaintiff to point out the exact boundaries of the property over which the relief was claimed and as the plaintiffs in the previous suit failed to do so, the suit ended in a dismissal. This was confirmed by the appellate court also. This is evident from Exts.P16 and P17.
18. Though the additional respondents herein would claim that the property in dispute was used as a burial ground, in Ext.P16 suit it was found that the defendant had failed to establish that the suit property in that suit was a burial ground. In Ext.P16 suit, the Secretary of the respondent Panchayat was also examined. The defendant in that suit contended that the suit property in the suit was under the management and possession of Thiyya Samudaya Smasana Samithy. However, the Secretary of the Panchayat who was examined as DW3 in Ext.P16 suit stated that the Panchayat has not entrusted its burial ground to any committee.
19. As already pointed out, there is a burial ground called Payyambalam burial ground which is managed by the respondent Panchayat.
20. It is also relevant to note that the Secretary of the Panchayat, who gave evidence as DW3, has admitted that no tombs can be constructed or no dead bodies can be buried within a distance of 25 metres from the residential area of the people. It was found by the civil court in Ext.P16 suit that people are residing on the immediate eastern side of the plaint schedule property.
21. As the respondents herein have set up an adverse claim against the property covered by Ext.P5, the matters can be set at right only on a decision arrived at by a competent civil court.
Therefore, this writ petition is disposed of permitting the petitioner to approach a competent civil court for redressel of his grievance bringing the rival claimants on the array of parties. This shall be done within a period of three months from the date of receipt of a copy of this judgment.
It is hereby made clear that the respondents shall not try to cremate or bury dead bodies in the disputed properties unless and until the dispute is adjudicated and settled by the competent civil court as above.
Sd/-A.V.RAMAKRISHNA PILLAI JUDGE css/ true copy P.S.TO JUDGE