IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:21.02.2008 CORAM: THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.No.49994 of 2006 and M.P.Nos.1 and 2 of 2006 A.Palaniappan .. Petitioner Vs 1.The Collector, Namakkal District. 2.The Revenue Divisional Officer, Tiruchengode, Namakkal District. 3.The Hereditrary Trustee, The Arulmigu Karpoora Vinayagar Alagunachiamman Temple Mangalam Village & Post, Tiruchengode Taluk, Namakkal District. 4.The Commissiner, HR & CE Board, Chennai. (R-4 impleaded as 4th respondents by order dt.23.1.2007) .. Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus calling for the entire records in Na.Ka.No.39318/2006/l3 dated 27.11.2006 passed by the 1st respondent and quash the same and consequently direct the first respondent to allot permanently the existing burial ground situated in the Government land comprised in Survey No.112/2 for the Nathamedu Village people for performing their last funeral rites in the burial ground continuously. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr.N.G.R.Prasad, For M/s.T.Sundaravadanam For RR 1 & 2 : Mr.D.Srinivasan, A.G.P. For RR 3 : Mr.N.Manoharan & Mr.V.Anandhamoorthy For RR 4 : Mr.T.Chandrasekaran, S.G.P. O R D E R M.VENUGOPAL,J. The petitioner has filed this writ petition as a resident in the larger interest of the public Nathamedu, praying for the relief of issuance of Writ of Certiorarified Mandamus calling for the entire records in Na.Ka.No.39318/2006/l3 dated 27.11.2006 passed by the first respondent viz., the District Collector, Namakkal District and quash the same and consequently directing the first respondent viz., the Collector, Namakkal District to allot permanently the existing burial ground situated in the Government land comprised in Survey No.112/2 for the Nathamedu Village people for performing their last funeral rites in the burial ground continuously. 2.According to the petitioner, in the Mangalam Village Panchayat there are 16 hamlets one among them is the Nathamedu hamlet wherein there are population of 500 persons residing in the Nathamedu hamlet for more than years together for 3 generations by their forefathers and that Village people living in Nathamedu hamlet was having their free access in the Government land in Survey No.112/2 and they were performing last funeral rites in the said land for these years using the same as burial ground. 3.It is the further case of the petitioner that this custom practice was disturbed when the third respondent, Hereditary Trustee, Arulmigu Karpoora Vinayagar Alagunachiamman Temple, Mangalam Village and Post, Tiruchengode Taluk, Namakkal District constructed a temple in Government land comprising in S.No.112/2 on 20.05.2005 and that the kumbabishekam was performed and before the construction of new temple, the third respondent https://hcservices.ecourts.gov.in/hcservices/ temple was situated in the opposite side of the existing position in Survey No.123 and when the death of a lady took place in Nathamedu hamlet on 20.09.2005, the third respondent and their men restrained the Nathamedu hamlet Village people for the first time from entering into the said Government Pormboke lands comprised in Survey No.112/2 for carrying out the last funeral rites in the burial ground and among the two groups of people there was a law and order problem in this regard and to settle the problem, a peace meeting on 31.5.2005 took place in the presence of the Tahsildar, Tiruchengode and Deputy Superintendent of Police and the two groups agreed to restore the original position that existed before the construction of the temple from 07.07.2005 after the completion of the mandala poojas. 4.On behalf of the petitioner, it is stated that the third respondent along with Police Officials and with the help of second respondent caused serious mental agony and pressure on 20.09.2005 when a death took place in the Nathamedu hamlet and successfully prevented the said Village people from entering into a Government land in Survey No.112/2 for performing their last rites and that the officials of the Government buried the said persons body in the Government land comprising in Survey No.112/2, which cannot be disputed by them at any point of time and in fact, the Panchayat Administration viz., Mangalam Village Panchayat passed a resolution on 02.10.2005 seeking the first respondent to permit the Nathamedu hamlet people to continue to do their last funeral rites in the Government land in Survey No.112/2 without any obstacle. 5.The stand of the writ petitioner is that the third respondent filed a suit for permanent injunction on the file of District Munsif, Tiruchengode in O.S.No.349 of 2005 as if he is the lawful owner of the Government land in Survey No.112/2 against the Nathamedu hamelet Villagers and that the peace meeting dated 30.08.2005 referred to in the order was not at all held on the said day and the Village people never accepted the proposal in regard to the performance of the last funeral rites in the watershed (Odai Poramboke) lines and as a matter of fact, the signatures of four villagers were taken by the Revenue Officials for the purpose of circumventing and setting right the law and order problem pertaining to the death of one villager and his body was buried in the Government land comprised in 123. https://hcservices.ecourts.gov.in/hcservices/ The learned counsel for the petitioner submits that the first respondent, the Collector, Namakkal District has rejected the request of the Nathamedu Villagers and passed orders on 27.11.1996 suggesting an alternative place Survey No.125/3 belonging to a private individual concerned with the temple and the other one being in Survey No.89, a watershed in the river bank and therefore, the order of the first respondent is illegal, arbitrary and violation of Government orders. 6.The plea of the first respondent is that the land in Survey No.112 of Mangalam Village, Tiruchengode Taluk, Namakkal District is classified as Temple poramboke as per the Settlement Revenue Record of the year 1937 and in Survey No.112, the extent of land is about 3.99.5 hectares and there are four temples and that in a portion of land in Survey No.112/2 the Mudaliar communities and Pandaram communities claimed to have utilised a small extent of temple poramboke in Survey No.112/2 as a burial ground. 7.The first respondent also taken a stand that a kumbabishegam was performed on 21.5.2005 for the temple Arulmighu Alagunachiamman Temple, constructed by the Gounder community of the Village and on 30.05.2005 a death occurred in Pandaram community and the said community people wanted to perform funeral rites at the said Survey No.112/2 for which Gounder communities raised objection for the reason that temple being constructed and that Mandala Pooja was in progress for a period of 48 days after kumbabishegam viz., till 07.07.2005 and that in the Peace Committee, conducted by the RDO, it was agreed that Pandaram community people can utilise their place in Survey No.112/2 as burial ground after the completion of the Mandala Pooja and till then suggestion was made to them to use an alternative site as burial ground. As a matter of fact, the alternative site suggested is in Survey N.89 of Mangalam Village for being used as burial ground by the Mudaliyar and Pandaram community people and the said land is classified as Odai Poramboke as per the Revenue Records and another alternative site in Survey No.125/3 of Mangalam Village is proposed to be utilised as burial ground for the said communities. 8.Earlier one A.Palaniappan filed W.P.No.29350 of 2006 before this Court and on 31.08.2006, this Court has passed an order directing the District Collector, Namakkal to consider the https://hcservices.ecourts.gov.in/hcservices/ representation of the petitioner in regard to the purported right of access through the burial ground to do funeral rites and take appropriate decision thereto in accordance with law within a period of three weeks and disposed of the writ accordingly. Only after considering the said representation by giving adequate opportunity, the impugned order dated 27.11.2006 has been passed, which is the subject matter of challenge in the present writ petition before us. 9.The learned Additional Government Pleader appearing for the first and second respondents contends that the fact is on 20.09.2005 Perumayee wife of Ramasamy Pandaram expired and that pandaram themselves as per the police complaint formed an unlawful assembly with deadly weapons took the dead body by trespassing into the temple poramboke land in Survey No.112/2 and buried the dead body in a hurried manner and that a case in Crime No.300/2005 was registered by the Inspector of Police, Mallasumuthiram under Section 147, 148, 447, 153(A), 188, 353, 506(ii) I.P.C. and that a petition under Section 107 Cr.P.C. was also filed before the Sub Divisional Magistrate and Revenue Divisional Officer, Tiruchengode on 24.09.2005 by the Inspector of Police and the same is enquiring and in this background, the contention of the petitioner that "Government officials themselves buried the said person in the said Government land comprising in Survey No.112/2 for performing last funeral rights" is denied. 10.Moreover, in the counter of the first respondent it is categorically stated that the writ petitioner and his community men were given the alternative land for burial ground in Survey No.89, which is classified as "Odai Poramboke" considering the local situation, classification of lands and with a view to maintain law and order on permanent basis and after taking note of all the aspects, with reference to records in Survey No.89 Odai Poramboke, it was decided to allot a portion out of 1.71 acres land, after changing the classification as burial ground and apart from the above said land as patta land to an extent of 0.35 ½ acres in S.No.125/3 was purchased by the third respondent also to be used as burial ground and this was also suggested and therefore, the first respondent/District Collector, Namakkal has issued orders on 27.11.2006 in above terms and further that the land in S.No.112/2 which is classified as Temple Poramboke was https://hcservices.ecourts.gov.in/hcservices/ never allotted to any section of people to be used as burial ground. 11.The stand taken by the third respondent [herein after called the Temple rep. By its Hereditary Trustee] is that there are number of temples situate in S.No.112 belongs to a particular community and the entire extent of property is coming under the purview of HR & CE Department and that the Alaganachiamman Temple is in existence from time immemorial and the temple was reconstructed in Survey No.112/2 [in lieu of deterioration] after due intimation to HR & CE Department and in 1998 an endeavour was made to convert a portion of the land in S.No.112 as burial ground, which was objected to by the fourth respondent/HR & CE Department and as per the Revenue Records, an extent of 9.87 acres in Survey No.112 was classified as "Temple Poramboke" and later the second respondent viz., Revenue Divisional Officer, Tiruchengode Taluk, Namakkal District by his proceedings dated 15.12,1939 has subdivided the lands in S.No.112 and reclassified S.No.112/1-0.24 acres as Play ground and S.No.112/2-9.63 acres as Sivan Temple and that the classification made in 1928 is prevalent all along and the land was not used or notified as burial ground in the recent past. 12.In the counter of the third respondent, Hereditary Trustee of the Temple, it is categorically mentioned that already there is a burial ground in S.No.96/4 and the same is used by all the community peoples and therefore, in the guise of public interest litigation to create communal disharmony in the Village, the petitioner has filed this writ petition and that the revenue classification existing from the year 1928 has not been altered till date and the Zonal Deputy Tahsildar has issued a copy of the A register on 03.10.2005, as if, the entire extent of lands in S.No.112/1 and S.No.112/2 are Government Poramboke lands and in the case on hand, the Zonal Deputy Tahsildar has prepared the A Register on 03.10.2005 unmindful of the Revenue classification mentioned in the original records. In short, the plea of the temple is that land in Survey No.112 has not been used as burial ground at any point of time and that the said land is a temple poramboke in which temples are in existence of several 100 years and if the temple poramboke lands are allowed to be used as burial ground, it would create communal disharmony and sanctity of the deity will be spoiled. https://hcservices.ecourts.gov.in/hcservices/ 13.The learned counsel for the third respondent cited the Hon'ble Supreme Court decision 2004 (3) Supreme 8 State of Karnataka and Another V. Dr.Praveen Bhai Thogadia, whereunder it is laid down as follows: "(i)Criminal Procedure Code, 1973 – Section 144 – Order passed by Additional District Magistrate whereby respondent was restrained from entering Dakshina Kannada District and from participating in any function in District for 15 days – ADM felt that speech by respondent would result in stoking communal feelings vitiating harmonious social and communal atmosphere – High Court set aside the order in a petition u/s 482 Cr.P.C. - Appeal – Courts should not normally interfere with matters relating to law and order which is primarily domain of concerned administrative authority – Decision as to the need and necessity to take prohibitory actions must be left to discretion of authorities and inter position of Courts was not possible unless a concrete case of abuse or exercise of power for extraneous consideration was made out – Court cannot substitute its views for that of competent authority – Impugned order could not be sustained". 14.The stand of the fourth respondent/HR & CE Department in the counter is that in Survey No.112/2 in 9.87 acres Mangalam Village, Tiruchengode Taluk, Namakkal District 1.Arulmighu Chokkanathaswamy Temple, 2.Arulmighu Periyamariamman and Chinna Mariamman Temple, 3.Arulmighu Lakshmi Narayanaperumal Temple and 4.Arulmighu Karpoora Vinayagar, Athanooramman and Nachiamman Temple and is situated in Survey No.123/1 in 4.87 acres Mangalam Village, Tiruchengode Taluk, Namakkal District and these are under its control and come within the purview of Assistant Commissioner, HR & CE, Salem and that the land in S.No.112 to an extent of 3.95.5 Hectares (9.87 acres) in Mangalam Village is classified as "Temple Poramboke" as per the settlement Revenue Records and the original extent of 9.87 acres in S.F.No.112 was classified as Temple Poramboke and later S.No.112 was subdivided as 1)S.F.No.112/1 containing 0.24 acres as play ground and 2) 9.63 acres appended to S.F.No.112/2 as Sivan Temple in the year 1937. The fourth respondent also pleads that the new temple constructed in S.F.No.112/2 is classified as "Sivan Temple" and https://hcservices.ecourts.gov.in/hcservices/ not as the Government Poramboke land as alleged and that in the prior peace committee meetings on 31.05.2005 and 31.08.2005, the officials of HR & CE Department did not participate and it is ascertained in the meeting held on 31.08.2005 in the presence of revenue officials and police, a decision was taken to the effect that an another land with an extent of 0.69 hectares comprised in S.No.89 shall be used as burial ground in order to keep the sanctity of the temple and to preserve the place earmarked for Arulmighu Alagunachiamman Temple in S.No.112/2 and the lands are not used as cremation ground and that the Village interested is not considered by the writ petitioner and is very particular about the temple lands in S.No.112/2. 15.According to the fourth respondent/HR & CE Department, its Assistant Commissioner, Salem in his letter dated 09.11.1998 has objected to the usage of land in Survey No.112 as burial ground and that the Assistant Commissioner, HR & CE in his letter dated 01.09.2006 has reiterated the same and that there is no evidence to show that there was a burial ground in the temple land and that already there are two other burial grounds in Mangalam Village and as such, there is no merit in the writ petition. 16.According to the learned counsel for the petitioner, in the memorandum of understanding dated 31.05.2005 between "A" party and "B" party reached in the presence of Revenue Department officials and Police officials, it was resolved that since the temple of Aalagunachiamman has been presently constructed on the same survey number and Kumbabishekam was performed and that Mandala Pooja was going on for 48 days till 07.07.2005 no burial be made in the survey number for the present and after 07.07.2005 it could be done as usual and therefore, the decision of understanding dated 31.05.2005 must be implemented in letter and spirit. In this connection, it is to be pointed out that no writ will lie for implementing the memorandum of understanding dated 31.05.2005, in our considered opinion. 17.The learned counsel for the petitioner laid much emphasis to the entry in "A" Register dated 03.10.2005 issued by the Zonal Deputy Tahsildar, Tiruchengode wherein Survey No.112/1, 0-95 is classified as Government Poramboke and Survey No.112/2, 3-90.0 is classified as Government Poramboke. On https://hcservices.ecourts.gov.in/hcservices/ behalf of first and third respondents, it is submitted that the land in Survey No.112 of Mangalam Village, Tiruchengode Taluk, Namakkal District is classified as Temple Poramboke as per Revenue Records. In the extract of "A" Register of the year 1928, Survey No.112 is mentioned as Temple Poramboke. It is specifically contended on behalf of the third respondent that the "A" Register extract relied on by the petitioner's side issued by the Zonal Deputy Tahsildar, Tiruchengode dated 03.10.2005 is contrary to the revenue classification mentioned in the original records. In view of the respective stands taken by the parties, we are of the considered opinion, whether land in Survey No.112 is a Government Poramboke or Temple Poramboke is purely a question of fact. In this connection, it is useful to refer to Rule 4 of the Tamil Nadu Village Panchayats (Provision of Burial and Burning Grounds) Rules, 1999 which reads as follows: "4.Registration of burial and burning grounds.- (1) Every owner or other person having the control over any place used as a place for burying or burning of the dead shall, if such place is not already registered under the Act or any other Act, apply to the village panchayat to have such place registered. (2)If it appears to the village panchayat that there is no owner or person having the control of such place, the village panchayat shall assume such control and register such place or may, with the sanction of the Assistant Director (Panchayats) close it". Further, the Rule 7 of the aforesaid Rules also enjoins as follows: "Place for burial and burning grounds.- (1) No person shall bury or burn or cause to be buried or burnt any corpse in any place within ninety metres of a dwelling place or source of drinking water-supply other than a place licenced as a burial and burning ground. (2)The person having control of a place for burying or burning the dead shall give information of every burial or burning of a corpse at such a place to https://hcservices.ecourts.gov.in/hcservices/ any officer appointed by the village panchayat for this purpose. (3) If a village panchayat is satisfied - (a) that any registered or licenced place burying or burning of the dead is in such a state or situation as to be or likely to become dangerous to the health of persons living in the neighbourhood thereof; or (b)that any burial ground is overcrowded with graves, and if in the case of a public burial or burning ground, another convenient place duly authorised for burying or burning of the dead exists or has been provided for the persons who would ordinarily make use of such place, it may with the previous sanction of the Assistant Director (Panchayats) give notice that it shall be not lawful after the expiry of a period of not less than two months to be specified such notice to bury or burn any corpse at such place. (4)Every notice given under sub-rule (3) shall be published by affixture to the notice board of the village panchayat and by beat of drum in the village. (5)No person shall in contravention of any notice under sub-rule(3) and after expiration of the period specified in such notice bury or burn or cause or permit to be buried or burnt any corpse at such place. (6)The Inspector may cancel or modify any notice issued by a village panchayat under sub-rule(3). (7)Whoever contravenes any of the provisions of these rules shall be punishable with fine which may extend to one hundred rupees or in case of a continuing breach, with fine not exceeding fifteen rupees for every day during which the breach, continues after conviction of the first breach: https://hcservices.ecourts.gov.in/hcservices/ Provided that no prosecution shall be instituted for contravening the provisions of sub-rule (1) of rule 7 without the written sanction of the executive authority of the village panchayat, concerned". 18.It is well settled that the Hon'ble High Court will not entertain a writ petition involving disputed questions of fact. Moreover, if an individual wants a relief in the hands of a Court independent of a statutory remedy, he must establish that he is injured or subjected to or threatened with a legal wrong. As a matter of fact, legal wrong requires judicially enforceable right and the touchstone to judiciability in injury to a legally protected right. Admittedly, a civil suit in O.S.No.349 of 2005 filed by the temple trustee on the file of District Munsif Court, Tiruchengode, praying for the relief of permanent injunction restraining the defendants therein in converting the suit property as burial ground, etc. is pending and we are not expressing any opinion regarding the same. 19.At this juncture, the plea of the first respondent that land in Survey No.112/2, classified as Temple Poramboke was never allotted to any section of the people to use it as a burial ground, cannot be lost sight of on the facts and circumstances of the matter in issue. It is pertinent to point out that the first respondent has passed orders on 27.11.2006 suggesting that a patta land to an extent of 0.35 ½ acres in Survey No.125/3 purchased by the respondents also be used as burial ground or in the alternative granting a portion of Odai Poramboke in Village Survey No.89 out of an extent of 0.69.0 hectare after changing the classification as burial ground. It is not known whether the registration of burial and the burning ground in the alleged Survey No.112/2 is made as per the Tamil Nadu Village Panchayats (Provision of Burial and Burning Grounds) Rules, 1999. As far as the present case is concerned, equally, there is no material before this Court whether Section 7 of the Tamil Nadu Village Panchayats (Provision of Burial and Burning Grounds) Rules, 1999 has been complied with by the petitioner or his community people. In fact, there is no M.T.R. Proceedings for conversion or reclassification of the land in issue before this Court. 20.In the light of the foregoing discussions, we are of the considered view that the petitioner has no legal enforceable https://hcservices.ecourts.gov.in/hcservices/ right to maintain the present writ petition and in any event, the claim of the petitioner cannot be adjudicated in exercise of powers under Article 226 of the Constitution and in that view of the matter, the Writ is disposed of without costs. Before parting, it is suggested that it is open to the Government to allot any Government Poramboke land free from any dispute (and not the Temple Poramboke land) for the purpose of Nathamedu Village people to use it as a burial ground for performing their last funeral rites permanently. Consequently, connected miscellaneous petitions are closed. sgl Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar To 1.The Collector, Namakkal District. 2.The Revenue Divisional Officer, Tiruchengode, Namakkal District. 3.The Hereditrary Trustee, The Arulmigu Karpoora Vinayagar Alagunachiamman Temple Mangalam Village & Post, Tiruchengode Taluk, Namakkal District. 4.The Commissiner, HR & CE Board, Chennai. • One cc to M/s N. Manokaran, Advocate SR 9505 • One cc to Mr. T. Sundaravadanam, Advocate sR 9437 • One cc to Spl Govt Pleader SR 9171 • One cc to Govt Pleader SR 9168 SJI (co) sg 26/02/08 Order in W.P.No.49994 of 2006 21.02.2008 https://hcservices.ecourts.gov.in/hcservices/