Allowed

Shankar S/O. Shivappa Belgavi v. the Commissioner

Karnataka HC4 Oct 2023WP/84442/2013

Case brief

AI extract

What is this about?

Petitioners challenged the respondents' inaction regarding the illegal burial of a wife's corpse at a private residence. The Court interpreted the Karnataka Municipal Corporation Act, holding that burial in unregistered places is illegal and directed authorities to exhume the body and bury it in an authorized place.

What did the court decide?

Petition allowed. Directions issued to respondents to exhume the corpse and bury it in an authorized place as per Section 394 of the Karnataka Municipal Corporation Act.

Shankar S/O. Shivappa Belgavi Vs the Commissioner — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC-D:11743 WP No. 84442 of 2013

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 4^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO. 84442 OF 2013 (LB-RES)

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BETWEEN:

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SHRI SHANKAR SON OF SHIVAPPA BELGAVI, AGE: 46 YEARS, OCC: BUSINESS, RESIDING AT: ‘SHIVAGANGA’ NO.40, VISHWESHWARANAGAR, HUBLI-580 032, DHARWAD DISTRICT.

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VISHNU HABIB SON OF GANGATHISA HABIB, AGE: 36 YEARS, OCC: BUSINESS, RESIDING AT: NO. 180, VISHWESHWARANAGAR, HUBLI-580 032, DHARWAD DISTRICT.

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VEMAN MANKANI SON OF VENKIREDDI MANKANI, AGE: 41 YEARS, OCC: BUSINESS, RESIDING AT: NO. 31, M.H.B. COLONY, VISHWESHWARANAGAR, HUBLI-580 032, DHARWAD DISTRICT.

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MOHANKUMAR B SHELAR

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Digitally signed by MOHANKUMAR B SHELAR Date: 2023.10.13 11:43:04 +0530

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UDAY N. BADKAR SON OF NANDA, AGE: 49 YEARS, OCC: BUSINESS, RESIDING AT: NO. 39, UMA NIWAS VISHWESHWARANAGAR, HUBLI-580 032, DHARWAD DISTRICT.

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(BY SRI G.S. BHAT & SRI N.S. KINI, ADVOCATES)

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…PETITIONERS

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AND:

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THE COMMISSIONER, HUBLI-DHARWAD MUNICIPAL CORPORATION, ASHOK ROAD, HUBLI, DHARWAD DISTRICT.

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THE ASSISTANT COMMISSIONER, ZONE-5, HUBLI-DHARWAD MUNICIPAL CORPORATION, HUBLI, DHARWAD DISTRICT.

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2 - NC: 2023:KHC-D:11743 WP No. 84442 of 2013

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THE DEPUTY COMMISSIONER, OFFICE OF THE DEPUTY COMMISSIONER, DHARWAD, DHARWAD DISTRICT.

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THE ASSISTANT COMMISSIONER, OFFICE OF THE ASSISTANT COMMISSIONER, HUBLI DIVISION, HUBLI, DHARWAD DISTRICT.

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THE TAHSILDAR, OFFICE OF THE TAHSILDAR, HUBLI TALUK, HUBLI, DHARWAD DISTRICT.

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DR. PATIL PUTTAPPA S/O. SIDDALINGAPPA, AGE: 90 YEARS, RESIDING AT: NO. 40/A, VISHWESHWARANAGAR, HUBLI, DHARWAD DISTRICT.

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ASHOK S/O. DR. PATIL PUTTAPPA, AGE: 41 YEARS, RESIDING AT: NO. 40/A, VISHWESHWARANAGAR, HUBLI, DHARWAD DISTRICT.

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…RESPONDENTS (BY SRI G.I. GACHCHINAMATH, ADV. FOR R1 & R2; SRI P.N. HATTI, HCGP FOR R3 TO R5; SRI SHARAD V. MAGADUM, ADV. FOR R7; R6 DECEASED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF MANDAMUS OR SUCH WRIT DIRECTION OR ORDER DIRECTING THE RESPONDENTS 1 TO 5 TO TAKE STEPS TO EXHUME THE BODY WHICH IS ILLEGALLY BURIED IN THE COMPOUND OF PREMISES NO.40/A OF VISHVESWARANAGAR, HUBLI IN TERMS OF SECTION 394(5) OF KARNATAKA MUNICIPAL CORPORATION ACT AND FURTHER DIRECTING THEM TO BURY IT IN A DESIGNATED GRAVEYARD AT HUBLI.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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3 - NC: 2023:KHC-D:11743 WP No. 84442 of 2013

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ORDER

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Captioned petition is filed seeking mandamus against respondents 1 to 5 to take steps to exhume the body, which is illegally buried in the compound premises of property bearing No.40/A, Vishweashwar Nagar, Hubballi, in terms of Section 394(5) of the Karnataka Municipal Corporation Act.

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2. The facts leading to the case are as under:

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The wife of respondent No.6 died on 02.10.2013 at about 5.30 p.m. Respondent No.6 moved an application seeking permission to burry his wife at his private residence and simultaneously proceeded with burial process without waiting for the authorities to consider his application. On account of complaint lodged by the adjacent residents of locality, respondent No.1-Corporation referred the matter to respondent No.3-Deputy Commissioner as well as to the respondent No.5Tahasildar to take further course of action in the matter. The communication sent by respondent No.1 is produced at Annexure-G to the writ petition. Alleging inaction on the part of respondents 1 to 5 in not taking any action on the communication sent by respondent No.1-Corporation vide

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4 - NC: 2023:KHC-D:11743 WP No. 84442 of 2013

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Annexure-G, the petitioners have knocked the doors of this

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Court. Section 394 of the Act reads as under:

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“394. Register of registered, licensed and provided places and prohibition of use of other places.-

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(1) A book shall be kept at the corporation office in which the places registered, licensed or provided under section 391, section 392 or section 393 and all such places registered, licensed or provided before the commencement of this Act, shall be recorded and the plans of such places shall be filed in such office.

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(2) Notice that the such place has been registered, licensed or provided as aforesaid shall be affixed in English and in Kannada to some conspicuous place at or near the entrance to the burial or burning ground or other places aforesaid.

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(3) The Commissioner shall annually publish a list of all places registered, licensed or provided as aforesaid or provided by the Government.

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(4) No person shall bury, burn or otherwise dispose of any corpse except in a place which has been registered, licensed or provided as aforesaid.

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(5) Where a magistrate on a complaint preferred by the Commissioner or otherwise is satisfied that a corpse has been buried in a place which has not been registered, licensed or provided as aforesaid,

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5 - NC: 2023:KHC-D:11743 WP No. 84442 of 2013

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he may direct the exhumation of the corpse and its burial in an authorised place.

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On reading of section cited supra, it is seen that

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the dead bodies have to be buried at registered or licenced places and if a complaint is made to the Magistrate by the Commissioner of local authorities, the authorities are required to exhume the corpse and order to burry it in an authorized place. On reading of the above said section what emerges is that any burial made in a place, which is not registered or licenced as burial grounds, would contravene the rules and such bodies are to be exhumed and buried in proper designated places. Admittedly, the dispute in regard to burial in the present case has taken place at Hubli city, which has designated burial grounds. If a city has designated land for cremation and burials, the burial cannot take place other than the places designated as burial ground. If such violation is brought to the notice of the concerned authority within a reasonable time and if despite notice to exhume the body to be buried at designated places is not adhered to by the persons concerned, the authorities are under bounden duty to exhume the body and collect the costs from the person, who has caused for such illegal burial. In the light of the discussions made

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NC: 2023:KHC-D:11743 WP No. 84442 of 2013

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supra, this Court is of the view that this is a fit case where mandamus needs to be issued. Hence, the following:

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ORDER

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i) The writ petition stands allowed.

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ii) Respondents 1 to 5 are hereby directed to adopt further course of action as contemplated under Section 394 of the Karnataka Municipal Corporation Act and take appropriate action for exhumation of the corpse and its burial in an authorised place.

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iii) In view of disposal of the petition, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.

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Sd/JUDGE

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YAN

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List No.: 1 Sl No.: 62

Shankar S/O. Shivappa Belgavi v. the Commissioner

Case brief

What is this about?

What did the court decide?

Shankar S/O. Shivappa Belgavi v. the Commissioner

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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