{"id":38748,"date":"2007-09-26T00:00:00","date_gmt":"2007-09-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/masi-vs-the-president-on-26-september-2007"},"modified":"2019-01-25T02:44:55","modified_gmt":"2019-01-24T21:14:55","slug":"masi-vs-the-president-on-26-september-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/masi-vs-the-president-on-26-september-2007","title":{"rendered":"Masi vs The President on 26 September, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Masi vs The President on 26 September, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDATED : 26\/09\/2007\n\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN\n\n\nW.P.(MD)No.7463 of 2007,\nW.P.(MD)Nos.7882 of 2007 and\nM.P.(MD).Nos.1 and 2 of 2007\n\n\nMasi \t\t\t...\t\tPetitioner\n\t\t\t\t\tin W.P.7463\/2007\n\nMrs.mani\t\t...\t\tPetitioner\n\t\t\t\t\tin W.P.7882\/2007\n\nVs.\n\t\n\n1.The President, Palur, Panchayat,\n  Srirangam Taluk, Trichy District.\n\n2.The Commissioner,\n  Anthanallur Panchayat, Union,\n  Anthanallur, Trichy District.\n\n3.The District Collector,\n  Trichy.                \t...\tRespondents in both WPs<\/pre>\n
4.The Superintending Engineer,
\n  Public Works Department,
\n  Trichy.   \t\t\t…\tRespondent in W.P.7882\/2007<\/p>\n
COMMON PRAYER<\/p>\n
Writ Petitions filed under Article 226 of the Constitution of
\nIndia, praying for the issuance of a Writ of Mandamus forbearing the respondents
\n1 and 2 from shifting the cremation ground situated in Cavery Bank of Kanavanoor
\nVillage and Palur Village near A\/M Viswanathaswamy temple or to any other place
\nin Palur Village in Trichy District.\n<\/p>\n
!For Petitioners  \t…\tMr.V.K.Vijayaragavan<\/p>\n
^For RR 1\t\t…\tMr.B.Prahalad Ravi<\/p>\n
For RR 2 to 4\t\t…\tMr.K.Balasubramanian, A.G.P.\n<\/p>\n
:COMMON ORDER<\/p>\n
\tBoth these writ petitions have been filed by persons residing in
\nKanavanoor Village and Allur Village respectively of Srirangam Taluk, Trichy
\nDistrict, seeking the issue of a writ of mandamus to forbear the respondents 1
\nand 2 from shifting the cremation ground situate on the Banks of Cavery River in
\nPalur Village, to a place near Arulmigu Viswanathaswamy Temple or to any other
\nplace in Palur Village.\n<\/p>\n
\t2.Heard Mr.V.K.Vijayaragavan, learned counsel for the petitioners in both
\nthe writ petitions, Mr.B.Prahalad Ravi, learned counsel for the first respondent
\nand Mr.K.Balasubramanian, learned Additional Government Pleader appearing for
\nthe other respondents.\n<\/p>\n
\t3.The first writ petition W.P.No.7463 of 2007 was filed only on the simple
\nground that the place in which a new cremation ground is proposed to be set up,
\nis near an ancient temple and that the location of the cremation ground would
\npollute the atmosphere and destroy the sanctity of the temple. On 06.09.2007 I
\nordered notice in the first writ petition and also granted an interim order.
\nAfter service of notice, the respondents 1 and 2 filed independent counter
\naffidavits refuting the claim of the petitioner that the cremation ground is
\nproposed to be set up near the temple and that it would pollute the atmosphere.\n<\/p>\n
\t4.Thereafter, the second writ petition was filed in W.P.No.7882 of 2007 by
\na person claiming title to a land adjoining the place where the cremation ground
\nis  proposed to be put up. The objection taken in the second writ petition to
\nthe establishment of the cremation ground is primarily on the procedure adopted
\nby the Panchayat in going ahead with the proposal.\n<\/p>\n
\t5.Mr.V.K.Vijayaragavan, learned counsel for the petitioners in both the
\nwrit petitions raised the following contentions:\n<\/p>\n
\t(a) That the atmosphere around the temple will be polluted and the
\nsanctity will be destroyed;\n<\/p>\n
\t(b) That there are already other cremation grounds and hence, there was no
\nnecessity to have a new cremation ground;\n<\/p>\n
\t(c) That the Anaithu Grama Anna Marumalarchi Thittam, under which the
\nrespondents 1 and 2 mooted the proposal, permitted only the improvement of the
\nexisting burial\/cremation grounds and the Collector himself permitted only the
\nimprovement of the existing burial\/cremation grounds;\n<\/p>\n
\t(d) That the procedure contemplated for the construction of a new
\nburial\/cremation ground under the Tamil Nadu Panchayats (Restriction and Control
\nto Regulate the use of Porambokes in Ryotwari Tracts) Rules, 2000 was not
\nfollowed by the respondents 1 and 2 before implementing the proposal; and<\/p>\n
\t(e) That the land in question happens to be a Vaikal Poramboke which is
\nvested with the Public Works Department and that no sanction of the Government
\nwas obtained for converting the classification of the land, as required by the
\nBoard Standing Orders.\n<\/p>\n
\t6.In so far as the first two contentions of the learned counsel for the
\npetitioners is concerned, the respondents 1 and 2 have taken a stand in the
\ncounter affidavits that the proposed site is 256 metres away from the temple and
\nthat there is no danger to the purity and sanctity of the temple. It is further
\nstated by the respondents 1 and 2 in the counter affidavits that the scheme was
\ntaken up on a representation from the Villagers of Palur Village and that the
\nVillagers of Palur Village were actually using a temporary crematorium near the
\nBanks of the Cavery River and that to reach the said place, they had to cross
\nthe main road and also a railway line. The respondents have stated that the
\nVillagers used to suffer whenever the railway gates were closed and also during
\nrainy season. Thus the first two objections raised by the learned counsel for
\nthe petitioners have been satisfactorily met by the respondents 1 and 2 and it
\nis not for this Court, hearing a writ petition under Article 226, to substitute
\nits own wisdom, for that of the Panchayat. Therefore, I am unable to accept the
\nfirst and second contentions of the learned counsel for the petitioners.\n<\/p>\n
\t7.Coming to the third contention, it is seen that the Government
\nintroduced the Anaithu Grama Anna Marumalarchi Thittam under G.O.Ms.No.115,
\nRural Development and Panchayat Department dated 11.09.2006. Paragraph 9 of the
\nsaid Government Order lists out the activities to be undertaken under the said
\nscheme. Clause (vi) of paragraph 9 speaks about burial grounds and crematoriums.
\nAccording to the learned counsel for the petitioners, Clause (vi) of paragraph 9
\nof the said G.O. permits only the maintenance and improvement of the existing
\nburial grounds and crematoriums and they do not envisage the construction of new
\nburial grounds\/crematoriums. In order to test the veracity of the said
\ncontention, it is necessary to translate the contents of para 9 (vi) of the said
\nG.O. as follows:\n<\/p>\n
“It is the duty of the Panchayat under Section 110(f) of the Tamil Nadu
\nPanchayats Act, 1994 to establish and maintain burial ground and crematorium.
\nBurial grounds and crematoriums are in open lands. They lack basic amenities. It
\nis a basic necessity to have clearly earmarked burial ground\/crematorium in
\nrural areas. In many villages there is no proper burial ground\/crematorium. Even
\nif there are any, they do not contain basic amenities. Therefore, under the
\nScheme they may be provided with proper boundaries, measures for protection of
\nenvironment, waiting place, lighting facilities and water facilities. Deep bore
\nwells with hand pumps can be located. In course of time footpath  can be
\ncreated. Moreover by planting trees both inside and outside the burial grounds
\nin Village Panchayats, a healthy environment could be created.”\n<\/p>\n
\t8.From the above translation of paragraph 9(vi) of the Government Order,
\nit is clear that what was permitted under the Anaithu Grama Anna Marumalarchi
\nThittam is the fulfilment of the obligation of a Panchayat, as prescribed under
\nSection 110(f) of the Tamil Nadu Panchayats Act, 1994. The said provision reads
\nas follows:\n<\/p>\n
“110.Duty of village panchayat to provide for certain matters.- Subject to the
\nprovisions of this Act and the rules made thereunder, it shall be the duty of
\nvillage panchayat, within the limits of its funds, to make reasonable provision
\nfor carrying out the requirements of the panchayat village in respect of the
\nfollowing matters, namely:-\n<\/p>\n
\t(f)the opening and maintenance of burial and burning grounds.”\n<\/p>\n
\t9.Since the permission given to the Village Panchayats to develop burial
\nground\/crematoriums within their Panchayat limits under the Anaithu Grama Anna
\nMarumalarchi Thittam is in the light of Section 110(f) of the Tamil Nadu
\nPanchayats Act, 1994, I do not think that a restrictive meaning could be given
\nto the scheme by holding that it was intended only for the improvement of the
\nexisting burial ground or crematorium and not for establishing a new one. If
\nwith the funds allotted for improvement and development, a new burial
\nground\/crematorium could be constructed, it cannot be said to be prohibited, by
\nthis Court. Therefore, I am unable to countenance the third submission of the
\nlearned counsel for the petitioners.\n<\/p>\n
\t10.Coming to the fourth contention of the learned counsel for the
\npetitioners, it is seen that the land on which the crematorium is proposed to be
\nconstructed, is admittedly classified as a “Vaikal Poramboke”, which vests with
\nthe Government. Section 134 of the Tamil Nadu Panchayats Act, 1994 empowers the
\nVillage Panchayat to regulate the use of certain types of porambokes. Sub-
\nsection (2) of Section 134 declares that certain types of  porambokes namely,
\ngrazing grounds, threshing floors, burning and burial grounds, cattle sheds,
\ncart-stands and topes shall vest in the Village Panchayat. Sub-section (4) of
\nSection 134 empowers the Village Panchayat even to regulate the use of any other
\nporamboke which is at the disposal of the Government, if the Village Panchayat
\nis authorised in that behalf by an order of the Government. Section 134 reads as
\nfollows:\n<\/p>\n
“134.Village panchayat to regulate the use of certain porambokes in ryotwari
\ntracts.- (1) The provisions of this Section shall apply only in ryotwari tracts.
\n\t(2)The following porambokes namely, grazing grounds, threshing floors,
\nburning and burial-grounds, cattle-stands, cart-stands and topes shall vest in
\nthe village panchayat, and the village panchayat shall have power, subject to
\nsuch restrictions and control *as may be prescribed to regulate the use of such
\nporambokes, provided the porambokes are at the disposal of the Government.
\n\t(3)The collector, after consulting the village panchayat, may, by
\nnotifications exclude from the operation of this Act, any poramboke referred to
\nin sub-section (2), and may also modify or cancel such notification.
\n\t(4)The village panchayat shall also have power, subject to *such
\nrestrictions and control as may be prescribed, to regulate the use of any other
\nporamboke which is at the disposal of the Government, if the village panchayat
\nis authorised in that behalf by an order of the Government.
\n\t(5)The village panchayat may, subject to such restrictions and control as
\nmay be prescribed, plant trees on any poramboke, the use of which is regulated
\nby it under sub-section (2) or sub-section (4).”\n<\/p>\n
\t11.In exercise of the power conferred under Section 134, the Government
\nissued The Tamil Nadu Panchayats (Restriction and Control to Regulate the use of
\nPorambokes in Ryotwari Tracts) Rules, 2000. Rules 3 and 4 of the said rules read
\nas follows:\n<\/p>\n
\t“3.Regulation of Poramboke land.- No poramboke at the disposal of the
\nGovernment, the use of which is regulated by the village panchayat, shall be
\nused for any purpose other than that for which it was originally intended except
\nwith the prior approval of the Collector and such use shall be subject to such
\nconditions and restrictions as may be imposed by the Collector.\n<\/p>\n
\t4.Procedure for alternate use of poramboke lands.- (1)If a village
\npanchayat considers that a poramboke mentioned in sub-section (2) of section 134
\nof the Act is no longer required for the purpose for which it was originally
\nintended and that it may be used for any other specified public purpose, it
\nshall cause a notice to be published in the village panchayat in which the land
\nis situated, specifying its survey number and the purpose for which it is
\nrequired and inviting objections to the proposal within a specified date which
\nshall not be less than thirty days from the date of publication of the notice.
\nThe notice shall be published by beat of tom-tom and by displaying it in some
\nconspicuous part of the building in which the office of the village panchayat is
\nlocated.\n<\/p>\n
\t(2)On expiry of the date fixed for the receipt of objections, the village
\npanchayat shall forward its proposal together with the objections received
\nthereon to the Collector for issue of such orders as may be deemed fit.
\n\t(3)When a village panchayat desires to regulate the use of a poramboke
\nmentioned in sub-section (4) of section 134 of the Act it may apply to the
\nCollector with a copy of its resolution on the subject specifying –\n<\/p>\n
\t(a)the survey number or numbers, the boundaries and the extent of the
\nporamboke;\n<\/p>\n
\t(b)the purpose for which the poramboke is used; and\n<\/p>\n
\t(c) a list and description of the trees, if any, standing on it.
\n\t(4)The Collector shall, after satisfying himself that the pormaboke is at
\nthe disposal of the Government and that the particulars specified in the
\nresolution are correct, issue such orders as he may deem fit.”\n<\/p>\n
\t12.Coming to the facts on hand, it is claimed by the respondents 1 and 2
\nthat a meeting of the Grama Sabha of Palur Village was convened on 12.05.2007.
\nThe elected members as well as the members of the public were duly informed by
\nthe beat of tom-tom on 10.05.2007 about the meeting. Though it is not stated in
\nthe notice of tom-tom that the cremation ground is proposed to be constructed
\nunder the Anaithu Grama Anna Marumalarchi Thittam at the particular place, the
\nnotice was of a general nature indicating the purpose of the meeting as one for
\ndeciding the activities to be taken up and the places to be selected. In the
\nmeeting so convened on 12.05.2007, resolution No.44(12) was passed, approving
\nthe proposal for the construction of a new crematorium at a cost of Rupees 2.5
\nlakhs at the proposed site. The said resolution was forwarded by the Block
\nDevelopment Officer (second respondent) to the District Collector on 15.05.2007.
\nThe District Collector passed an order dated 19.05.2007 according administrative
\nsanction for the list of works enclosed to the order. The decision relating to
\nthe establishment of the cremation ground also finds a place in the list
\nenclosed to the said order of the District Collector dated 19.05.2007, though it
\nuses the words “improvement burial ground in Palur Panchayat”, instead of
\nreferring to it as establishment of a new crematorium.\n<\/p>\n
\t13.Therefore, on the basis of the notices issued in the Village by the
\nbeat of tom-tom and on the basis of the resolution passed in the Grama Sabha and
\nthe administrative sanction accorded by the District Collector, it was contended
\nby the learned Additional Government Pleader that the requirements of Rule 3 and
\n4 of the aforesaid rules have been satisfied. But I am unable to accept the said
\ncontention of the learned Additional Government Pleader for the simple reason
\nthat the requirement of Rule 4(3) of the aforesaid rules stands on a different
\nfooting than what was complied with by the respondents.\n<\/p>\n
\t14.By the order dated 19.05.2007 the District Collector accorded
\nadministrative sanction only to the items of works to be carried out under the
\nAnaithu Grama Anna Marumalarchi Thittam. This is very explicit from the very
\norder of the District Collector. In other words, the resolution passed by the
\nPanchayat for construction of a new crematorium at a cost of Rupees 2.5 lakhs
\nunder the Anaithu Grama Anna Marumalarchi Thittam, is what was approved by the
\nDistrict Collector.\n<\/p>\n
\t15.But the procedure prescribed under Rule 4 of the aforesaid rules is
\nwith respect to procedure to be followed for alternative use of poramboke lands.
\nAs seen from rule 4(3) extracted above, when a Village Panchayat decides to
\nregulate the use of a poramboke, it must make an application to the District
\nCollector enclosing a copy of its resolution and specifying – (a) the survey
\nnumber, boundaries and extent; (b) the purpose for which the poramboke is used;
\nand (c) the list and description of the trees, standing on it. Thus Section 4(3)
\nmandates a specific resolution to be passed by the Panchayat exclusively for the
\npurpose of changing the use of the poramboke land. Rule 4(4) mandates the
\nCollector to pass appropriate orders, as he deems fit, after satisfying himself
\nthat the poramboke is at the disposal of the Government and that particulars
\nspecified in the resolution are correct.\n<\/p>\n
\t16.Thus certain safeguards have been prescribed as and when a Village
\nPanchayat seeks to change the classification of a poramboke land and to put it
\nto different use. Therefore, the first respondent ought to have passed a
\nresolution specifically and exclusively, in respect of the change of user of the
\nland from Vaikal poramboke to a poramboke for establishing the crematorium and
\nsent the resolution separately for the approval of the District Collector under
\nSection 4(3) of the aforesaid rules. Thereafter, the Collector ought to have
\npassed an order as required under Rule 4(4) of the aforesaid rules. Since this
\nhas not been done in the present case, I am constrained to hold that the
\nimpugned action of the respondents 1 and 2 is not in accordance with law.\n<\/p>\n
\t17.In view of my acceptance of the fourth contention of the learned
\ncounsel for the petitioners, I am of the considered view that the last
\ncontention of the learned counsel for the petitioners based upon the Board
\nStanding Orders need not be gone into. After all if the action of the
\nrespondents is in accordance with Section 110(f) read with Section 134 of the
\nTamil Nadu Panchayats Act, 1994 and The Tamil Nadu Panchayats (Restriction and
\nControl to Regulate the use of Porambokes in Ryotwari Tracts), Rules 2000, the
\nBoard Standing Orders may lose their relevance. Therefore, the contention of the
\nlearned counsel for the petitioners based upon Board Standing Orders, need not
\nbe gone into these writ petitions.\n<\/p>\n
\t18.The learned Additional Government Pleader raised a contention regarding
\nthe very locus of the petitioners to file the present writ petitions.
\nAdmittedly, the petitioners in both the writ petitions are not residents of
\nA.Palur Village, in which the new crematorium is sought to be constructed.
\nTherefore, the learned Additional Government Pleader contended that they cannot
\noppose the construction of a crematorium in a Village in which they are not
\nresidents. But I am unable to reject the writ petitions on this short ground,
\nfor the simple reason that one of the writ petitioners owns a land in A.Palur
\nVillage which adjoins the land in which the crematorium is sought to be put up.
\nTherefore, the writ petitions cannot be dismissed merely on the ground of locus.\n<\/p>\n
\t19.In view of the above, both the writ petitions are ordered, directing
\nthe Panchayat to specifically deal with the question of classification of the
\nland in Survey Nos.8\/1 and 8\/2 A.Palur Village with reference to Section 134 (4)
\nof the Tamil Nadu Panchayats Act, 1994 and Rules 3 and 4 of The Tamil Nadu
\nPanchayats (Restriction and Control to Regulate the use of Porambokes in
\nRyotwari Tracts) Rules, 2000 and follow the procedure prescribed in these rules
\nand send any resolution passed, to the District Collector. The District
\nCollector shall thereafter consider such resolution in accordance with the Rule
\n4(4) of the aforesaid rules and take a decision. If the decision of the District
\nCollector is in approval of any resolution passed by the first respondent, then
\nthere would be no impediment for the first respondent to proceed with the
\nconstruction of the crematorium. No costs. Consequently, connected miscellaneous
\npetitions are closed.\n<\/p>\n
sgl<\/p>\n
To<\/p>\n
1.The President, Palur, Panchayat,
\n  Srirangam Taluk,
\n  Trichy District.\n<\/p>\n
2.The Commissioner,
\n  Anthanallur Panchayat, Union,
\n  Anthanallur,
\n  Trichy District.\n<\/p>\n
3.The District Collector,
\n  Trichy.\n<\/p>\n
4.The Superintending Engineer,
\n  Public Works Department,
\n  Trichy.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Masi vs The President on 26 September, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-38748","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nMasi vs The President on 26 September, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/masi-vs-the-president-on-26-september-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Masi vs The President on 26 September, 2007 - 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