BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 26/09/2007 CORAM: THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN W.P.(MD)No.7463 of 2007, W.P.(MD)Nos.7882 of 2007 and M.P.(MD).Nos.1 and 2 of 2007 Masi ... Petitioner in W.P.7463/2007 Mrs.mani ... Petitioner in W.P.7882/2007 Vs. 1.The President, Palur, Panchayat, Srirangam Taluk, Trichy District. 2.The Commissioner, Anthanallur Panchayat, Union, Anthanallur, Trichy District. 3.The District Collector, Trichy. ... Respondents in both WPs
4.The Superintending Engineer,
Public Works Department,
Trichy. … Respondent in W.P.7882/2007
COMMON PRAYER
Writ Petitions filed under Article 226 of the Constitution of
India, praying for the issuance of a Writ of Mandamus forbearing the respondents
1 and 2 from shifting the cremation ground situated in Cavery Bank of Kanavanoor
Village and Palur Village near A/M Viswanathaswamy temple or to any other place
in Palur Village in Trichy District.
!For Petitioners … Mr.V.K.Vijayaragavan
^For RR 1 … Mr.B.Prahalad Ravi
For RR 2 to 4 … Mr.K.Balasubramanian, A.G.P.
:COMMON ORDER
Both these writ petitions have been filed by persons residing in
Kanavanoor Village and Allur Village respectively of Srirangam Taluk, Trichy
District, seeking the issue of a writ of mandamus to forbear the respondents 1
and 2 from shifting the cremation ground situate on the Banks of Cavery River in
Palur Village, to a place near Arulmigu Viswanathaswamy Temple or to any other
place in Palur Village.
2.Heard Mr.V.K.Vijayaragavan, learned counsel for the petitioners in both
the writ petitions, Mr.B.Prahalad Ravi, learned counsel for the first respondent
and Mr.K.Balasubramanian, learned Additional Government Pleader appearing for
the other respondents.
3.The first writ petition W.P.No.7463 of 2007 was filed only on the simple
ground that the place in which a new cremation ground is proposed to be set up,
is near an ancient temple and that the location of the cremation ground would
pollute the atmosphere and destroy the sanctity of the temple. On 06.09.2007 I
ordered notice in the first writ petition and also granted an interim order.
After service of notice, the respondents 1 and 2 filed independent counter
affidavits refuting the claim of the petitioner that the cremation ground is
proposed to be set up near the temple and that it would pollute the atmosphere.
4.Thereafter, the second writ petition was filed in W.P.No.7882 of 2007 by
a person claiming title to a land adjoining the place where the cremation ground
is proposed to be put up. The objection taken in the second writ petition to
the establishment of the cremation ground is primarily on the procedure adopted
by the Panchayat in going ahead with the proposal.
5.Mr.V.K.Vijayaragavan, learned counsel for the petitioners in both the
writ petitions raised the following contentions:
(a) That the atmosphere around the temple will be polluted and the
sanctity will be destroyed;
(b) That there are already other cremation grounds and hence, there was no
necessity to have a new cremation ground;
(c) That the Anaithu Grama Anna Marumalarchi Thittam, under which the
respondents 1 and 2 mooted the proposal, permitted only the improvement of the
existing burial/cremation grounds and the Collector himself permitted only the
improvement of the existing burial/cremation grounds;
(d) That the procedure contemplated for the construction of a new
burial/cremation ground under the Tamil Nadu Panchayats (Restriction and Control
to Regulate the use of Porambokes in Ryotwari Tracts) Rules, 2000 was not
followed by the respondents 1 and 2 before implementing the proposal; and
(e) That the land in question happens to be a Vaikal Poramboke which is
vested with the Public Works Department and that no sanction of the Government
was obtained for converting the classification of the land, as required by the
Board Standing Orders.
6.In so far as the first two contentions of the learned counsel for the
petitioners is concerned, the respondents 1 and 2 have taken a stand in the
counter affidavits that the proposed site is 256 metres away from the temple and
that there is no danger to the purity and sanctity of the temple. It is further
stated by the respondents 1 and 2 in the counter affidavits that the scheme was
taken up on a representation from the Villagers of Palur Village and that the
Villagers of Palur Village were actually using a temporary crematorium near the
Banks of the Cavery River and that to reach the said place, they had to cross
the main road and also a railway line. The respondents have stated that the
Villagers used to suffer whenever the railway gates were closed and also during
rainy season. Thus the first two objections raised by the learned counsel for
the petitioners have been satisfactorily met by the respondents 1 and 2 and it
is not for this Court, hearing a writ petition under Article 226, to substitute
its own wisdom, for that of the Panchayat. Therefore, I am unable to accept the
first and second contentions of the learned counsel for the petitioners.
7.Coming to the third contention, it is seen that the Government
introduced the Anaithu Grama Anna Marumalarchi Thittam under G.O.Ms.No.115,
Rural Development and Panchayat Department dated 11.09.2006. Paragraph 9 of the
said Government Order lists out the activities to be undertaken under the said
scheme. Clause (vi) of paragraph 9 speaks about burial grounds and crematoriums.
According to the learned counsel for the petitioners, Clause (vi) of paragraph 9
of the said G.O. permits only the maintenance and improvement of the existing
burial grounds and crematoriums and they do not envisage the construction of new
burial grounds/crematoriums. In order to test the veracity of the said
contention, it is necessary to translate the contents of para 9 (vi) of the said
G.O. as follows:
“It is the duty of the Panchayat under Section 110(f) of the Tamil Nadu
Panchayats Act, 1994 to establish and maintain burial ground and crematorium.
Burial grounds and crematoriums are in open lands. They lack basic amenities. It
is a basic necessity to have clearly earmarked burial ground/crematorium in
rural areas. In many villages there is no proper burial ground/crematorium. Even
if there are any, they do not contain basic amenities. Therefore, under the
Scheme they may be provided with proper boundaries, measures for protection of
environment, waiting place, lighting facilities and water facilities. Deep bore
wells with hand pumps can be located. In course of time footpath can be
created. Moreover by planting trees both inside and outside the burial grounds
in Village Panchayats, a healthy environment could be created.”
8.From the above translation of paragraph 9(vi) of the Government Order,
it is clear that what was permitted under the Anaithu Grama Anna Marumalarchi
Thittam is the fulfilment of the obligation of a Panchayat, as prescribed under
Section 110(f) of the Tamil Nadu Panchayats Act, 1994. The said provision reads
as follows:
“110.Duty of village panchayat to provide for certain matters.- Subject to the
provisions of this Act and the rules made thereunder, it shall be the duty of
village panchayat, within the limits of its funds, to make reasonable provision
for carrying out the requirements of the panchayat village in respect of the
following matters, namely:-
(f)the opening and maintenance of burial and burning grounds.”
9.Since the permission given to the Village Panchayats to develop burial
ground/crematoriums within their Panchayat limits under the Anaithu Grama Anna
Marumalarchi Thittam is in the light of Section 110(f) of the Tamil Nadu
Panchayats Act, 1994, I do not think that a restrictive meaning could be given
to the scheme by holding that it was intended only for the improvement of the
existing burial ground or crematorium and not for establishing a new one. If
with the funds allotted for improvement and development, a new burial
ground/crematorium could be constructed, it cannot be said to be prohibited, by
this Court. Therefore, I am unable to countenance the third submission of the
learned counsel for the petitioners.
10.Coming to the fourth contention of the learned counsel for the
petitioners, it is seen that the land on which the crematorium is proposed to be
constructed, is admittedly classified as a “Vaikal Poramboke”, which vests with
the Government. Section 134 of the Tamil Nadu Panchayats Act, 1994 empowers the
Village Panchayat to regulate the use of certain types of porambokes. Sub-
section (2) of Section 134 declares that certain types of porambokes namely,
grazing grounds, threshing floors, burning and burial grounds, cattle sheds,
cart-stands and topes shall vest in the Village Panchayat. Sub-section (4) of
Section 134 empowers the Village Panchayat even to regulate the use of any other
poramboke which is at the disposal of the Government, if the Village Panchayat
is authorised in that behalf by an order of the Government. Section 134 reads as
follows:
“134.Village panchayat to regulate the use of certain porambokes in ryotwari
tracts.- (1) The provisions of this Section shall apply only in ryotwari tracts.
(2)The following porambokes namely, grazing grounds, threshing floors,
burning and burial-grounds, cattle-stands, cart-stands and topes shall vest in
the village panchayat, and the village panchayat shall have power, subject to
such restrictions and control *as may be prescribed to regulate the use of such
porambokes, provided the porambokes are at the disposal of the Government.
(3)The collector, after consulting the village panchayat, may, by
notifications exclude from the operation of this Act, any poramboke referred to
in sub-section (2), and may also modify or cancel such notification.
(4)The village panchayat shall also have power, subject to *such
restrictions and control as may be prescribed, to regulate the use of any other
poramboke which is at the disposal of the Government, if the village panchayat
is authorised in that behalf by an order of the Government.
(5)The village panchayat may, subject to such restrictions and control as
may be prescribed, plant trees on any poramboke, the use of which is regulated
by it under sub-section (2) or sub-section (4).”
11.In exercise of the power conferred under Section 134, the Government
issued The Tamil Nadu Panchayats (Restriction and Control to Regulate the use of
Porambokes in Ryotwari Tracts) Rules, 2000. Rules 3 and 4 of the said rules read
as follows:
“3.Regulation of Poramboke land.- No poramboke at the disposal of the
Government, the use of which is regulated by the village panchayat, shall be
used for any purpose other than that for which it was originally intended except
with the prior approval of the Collector and such use shall be subject to such
conditions and restrictions as may be imposed by the Collector.
4.Procedure for alternate use of poramboke lands.- (1)If a village
panchayat considers that a poramboke mentioned in sub-section (2) of section 134
of the Act is no longer required for the purpose for which it was originally
intended and that it may be used for any other specified public purpose, it
shall cause a notice to be published in the village panchayat in which the land
is situated, specifying its survey number and the purpose for which it is
required and inviting objections to the proposal within a specified date which
shall not be less than thirty days from the date of publication of the notice.
The notice shall be published by beat of tom-tom and by displaying it in some
conspicuous part of the building in which the office of the village panchayat is
located.
(2)On expiry of the date fixed for the receipt of objections, the village
panchayat shall forward its proposal together with the objections received
thereon to the Collector for issue of such orders as may be deemed fit.
(3)When a village panchayat desires to regulate the use of a poramboke
mentioned in sub-section (4) of section 134 of the Act it may apply to the
Collector with a copy of its resolution on the subject specifying –
(a)the survey number or numbers, the boundaries and the extent of the
poramboke;
(b)the purpose for which the poramboke is used; and
(c) a list and description of the trees, if any, standing on it.
(4)The Collector shall, after satisfying himself that the pormaboke is at
the disposal of the Government and that the particulars specified in the
resolution are correct, issue such orders as he may deem fit.”
12.Coming to the facts on hand, it is claimed by the respondents 1 and 2
that a meeting of the Grama Sabha of Palur Village was convened on 12.05.2007.
The elected members as well as the members of the public were duly informed by
the beat of tom-tom on 10.05.2007 about the meeting. Though it is not stated in
the notice of tom-tom that the cremation ground is proposed to be constructed
under the Anaithu Grama Anna Marumalarchi Thittam at the particular place, the
notice was of a general nature indicating the purpose of the meeting as one for
deciding the activities to be taken up and the places to be selected. In the
meeting so convened on 12.05.2007, resolution No.44(12) was passed, approving
the proposal for the construction of a new crematorium at a cost of Rupees 2.5
lakhs at the proposed site. The said resolution was forwarded by the Block
Development Officer (second respondent) to the District Collector on 15.05.2007.
The District Collector passed an order dated 19.05.2007 according administrative
sanction for the list of works enclosed to the order. The decision relating to
the establishment of the cremation ground also finds a place in the list
enclosed to the said order of the District Collector dated 19.05.2007, though it
uses the words “improvement burial ground in Palur Panchayat”, instead of
referring to it as establishment of a new crematorium.
13.Therefore, on the basis of the notices issued in the Village by the
beat of tom-tom and on the basis of the resolution passed in the Grama Sabha and
the administrative sanction accorded by the District Collector, it was contended
by the learned Additional Government Pleader that the requirements of Rule 3 and
4 of the aforesaid rules have been satisfied. But I am unable to accept the said
contention of the learned Additional Government Pleader for the simple reason
that the requirement of Rule 4(3) of the aforesaid rules stands on a different
footing than what was complied with by the respondents.
14.By the order dated 19.05.2007 the District Collector accorded
administrative sanction only to the items of works to be carried out under the
Anaithu Grama Anna Marumalarchi Thittam. This is very explicit from the very
order of the District Collector. In other words, the resolution passed by the
Panchayat for construction of a new crematorium at a cost of Rupees 2.5 lakhs
under the Anaithu Grama Anna Marumalarchi Thittam, is what was approved by the
District Collector.
15.But the procedure prescribed under Rule 4 of the aforesaid rules is
with respect to procedure to be followed for alternative use of poramboke lands.
As seen from rule 4(3) extracted above, when a Village Panchayat decides to
regulate the use of a poramboke, it must make an application to the District
Collector enclosing a copy of its resolution and specifying – (a) the survey
number, boundaries and extent; (b) the purpose for which the poramboke is used;
and (c) the list and description of the trees, standing on it. Thus Section 4(3)
mandates a specific resolution to be passed by the Panchayat exclusively for the
purpose of changing the use of the poramboke land. Rule 4(4) mandates the
Collector to pass appropriate orders, as he deems fit, after satisfying himself
that the poramboke is at the disposal of the Government and that particulars
specified in the resolution are correct.
16.Thus certain safeguards have been prescribed as and when a Village
Panchayat seeks to change the classification of a poramboke land and to put it
to different use. Therefore, the first respondent ought to have passed a
resolution specifically and exclusively, in respect of the change of user of the
land from Vaikal poramboke to a poramboke for establishing the crematorium and
sent the resolution separately for the approval of the District Collector under
Section 4(3) of the aforesaid rules. Thereafter, the Collector ought to have
passed an order as required under Rule 4(4) of the aforesaid rules. Since this
has not been done in the present case, I am constrained to hold that the
impugned action of the respondents 1 and 2 is not in accordance with law.
17.In view of my acceptance of the fourth contention of the learned
counsel for the petitioners, I am of the considered view that the last
contention of the learned counsel for the petitioners based upon the Board
Standing Orders need not be gone into. After all if the action of the
respondents is in accordance with Section 110(f) read with Section 134 of the
Tamil Nadu Panchayats Act, 1994 and The Tamil Nadu Panchayats (Restriction and
Control to Regulate the use of Porambokes in Ryotwari Tracts), Rules 2000, the
Board Standing Orders may lose their relevance. Therefore, the contention of the
learned counsel for the petitioners based upon Board Standing Orders, need not
be gone into these writ petitions.
18.The learned Additional Government Pleader raised a contention regarding
the very locus of the petitioners to file the present writ petitions.
Admittedly, the petitioners in both the writ petitions are not residents of
A.Palur Village, in which the new crematorium is sought to be constructed.
Therefore, the learned Additional Government Pleader contended that they cannot
oppose the construction of a crematorium in a Village in which they are not
residents. But I am unable to reject the writ petitions on this short ground,
for the simple reason that one of the writ petitioners owns a land in A.Palur
Village which adjoins the land in which the crematorium is sought to be put up.
Therefore, the writ petitions cannot be dismissed merely on the ground of locus.
19.In view of the above, both the writ petitions are ordered, directing
the Panchayat to specifically deal with the question of classification of the
land in Survey Nos.8/1 and 8/2 A.Palur Village with reference to Section 134 (4)
of the Tamil Nadu Panchayats Act, 1994 and Rules 3 and 4 of The Tamil Nadu
Panchayats (Restriction and Control to Regulate the use of Porambokes in
Ryotwari Tracts) Rules, 2000 and follow the procedure prescribed in these rules
and send any resolution passed, to the District Collector. The District
Collector shall thereafter consider such resolution in accordance with the Rule
4(4) of the aforesaid rules and take a decision. If the decision of the District
Collector is in approval of any resolution passed by the first respondent, then
there would be no impediment for the first respondent to proceed with the
construction of the crematorium. No costs. Consequently, connected miscellaneous
petitions are closed.
sgl
To
1.The President, Palur, Panchayat,
Srirangam Taluk,
Trichy District.
2.The Commissioner,
Anthanallur Panchayat, Union,
Anthanallur,
Trichy District.
3.The District Collector,
Trichy.
4.The Superintending Engineer,
Public Works Department,
Trichy.