RSA No.887 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.887 of 2010 Date of decision: 24.2.2010 Balbir Singh and others ......Appellant(s) Versus Municipal Council Yamunanagar and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Dr. Pawan Kumar Aryan, Advocate for the appellants. Rakesh Kumar Garg, J. This is plaintiffs' second appeal challenging the judgment and decrees of the Courts below whereby their suit for permanent injunction restraining the defendant-respondent from using the land for cremation and constructing the shed in the suit land and further restraining it, not to allow the peoples to burn the dead bodies which creates pollution, in any manner, was dismissed. As per the pleadings, the plaintiff-appellants are residents of Professor Colony, Yamuna Nagar. They are having their residential houses adjacent to the suit land which is shown as Marghat (cremation ground) in the revenue record. According to the appellants, the suit land has not been used for cremation of dead bodies for the last more than 25 years. They have built their houses near the land in dispute after getting the site plan sanctioned from the defendant-respondent. There is another cremation ground in HUDA, Jagadhri which the residents usually use for cremation of dead persons. It was further averred that the defendant with an ulterior motive and design wanted to construct the cremation shed in the RSA No.887 of 2010 2 suit land illegally and harass the appellants and to create pollution. The defendant was requested not to act illegally and a memorandum was also given to the Deputy Commissioner, Yamuna Nagar but despite that the defendant remained adamant. So they were constrained to file the present suit. It was also prayed that the defendant be restrained from using the land for cremation and constructing the shed and further not to allow the people to burn the dead bodies of deceased persons and creating any kind of nuisance and pollution in the suit land in any manner whatsoever. Upon notice, the defendant appeared and filed written statement raising various preliminary objections. On merits, it was submitted that the land in dispute is graveyard/Shamshan Bhumi and the same is being used by the residents as funeral site. It was further pleaded that the site in dispute was reserved as Shamshan Bhumi since the time of consolidation with the consent of proprietors of village Govindpuri and the plaintiffs and others raised construction of their houses knowing fully well that the site in question is reserved as Shamshan Bhumi. It was further submitted that there was also a cremation ground near Sector-17, HUDA but the site in question was reserved as cremation ground for village Govindpuri and cremation ground situated in Sector 17, HUDA was at a long distance. It was further pleaded that on the representation of residents of village Govindpuri, Member of Parliament had sanctioned a sum of Rs.50,000/- out of Local Area Development Scheme for construction of sheds in the land in dispute and the process was going on for raising construction of that shed. It was further submitted that the plaintiffs had no right to raise any obstruction in the construction of shed on this cremation ground which is reserved for the purpose of cremation since the time of consolidation. On appreciation of evidence, the Courts below have recorded RSA No.887 of 2010 3 a finding of fact that the land in dispute was reserved for cremation ground. Earlier the aforesaid land was owned by the Panchayat Deh of village Govindpuri and it came to be owned by the respondent-Municipal Council, Yamuna Nagar as per mutation Ex.D2 but the nature of the property remained the same i.e. cremation ground. The Courts below also found that initially the houses were raised by the plaintiffs and other persons illegally and they did so at their own peril and they cannot compel the defendant to shift the cremation ground. On the basis of the aforesaid findings, it was held that in such circumstances the Civil Court cannot restrict the use of the land in question which was reserved for that very purpose since the time of consolidation and was duly recorded as such in the revenue record Not satisfied with the findings of the Courts below, the plaintiffs have filed the instant appeal challenging the aforesaid judgment and decrees. Learned counsel for the appellants has vehemently argued that under Section 116 of the Haryana Municipal Act, 1973, the respondent can make an order of closing burial or burning ground and in fact it was the duty of the respondent to protect the health of residents in the Municipal Area and the people cannot be allowed to burn the dead bodies and create pollution in the suit land and thus, the judgment and decrees of the Courts below are liable to be set aside. On the basis of the aforesaid argument, learned counsel for the appellants has submitted that the following substantial question of law arises in this appeal: “(i) Whether provisions of Section 116 of the Municipal Act, 1973 can be overlooked and the respondent can allow the incineration of dead human flesh causing pollution in the area?” RSA No.887 of 2010 4 I have heard learned counsel for the appellants and perused the impugned judgment and decrees. It is an admitted fact that the land in question is recorded as Gair Mumkin Graveyard/Shamshan Bhumi in the revenue record. It is also not in dispute that the land in dispute was owned by the Panchayat Deh of village Govindpuri and later on, it was mutated in the name of defendant- Municipal Council, Yamuna Nagar, and at present is owned and possessed by defendant-Municipal Council, Yamuna Nagar. Once, it being an admitted position that the land in question is recorded as Gair Mumkin Graveyard in the revenue record and defendant-Municipal Council is owner in possession of the same, in such circumstances, the Civil Court cannot restrict the user of the land in question which was reserved for that very purpose since the time of consolidation and has been duly recorded as such in the revenue record. No doubt, under Section 116 of the Haryana Municipal Act, 1973, the Municipal Committee can make an order of closing of burial and burning ground but the aforesaid order is subject to fulfillment of other conditions as envisaged in the aforesaid provisions. The present suit has not been filed by the appellants seeking mandatory injunction against the defendant-respondent for direction to take action under section 116 of the Haryana Municipal Act, 1973 but a simple suit for permanent injunction has been filed for restraining the defendant-respondent from making use of the land for which it is reserved. With regard to the argument of the learned counsel for the appellants that burning of dead bodies is causing pollution in the locality, suffice it to say, that except a bald argument, no factual basis has been laid by the appellants in this regard and the aforesaid argument has been raised without laying any factual foundation in the pleadings. RSA No.887 of 2010 5 The Courts below have recorded a finding of fact based upon appreciation of evidence. I do not find any fault in the findings returned by the Courts below. Thus, I find no merit in this appeal. No substantial question of law, as argued by the learned counsel for the appellants, arises for consideration by this Court. Dismissed. February 24, 2010 (RAKESH KUMAR GARG) ps JUDGE