Dismissed

Nazeer Ahmed M N v. the State of Karnataka

Karnataka HC26 Jul 2024WA/1067/2022

Case brief

AI extract

What is this about?

In a Writ Appeal, this Court dismissed the appeal challenging the Deputy Commissioner's order allotting land for a graveyard. The Court held that the statutory restrictions in Section 95 of the Karnataka Panchayat Raj Act do not bar the allotment when the site is registered and the proposal was vetted by health authorities.

What did the court decide?

The Writ Appeal was dismissed and the impugned order of the Single Judge validating the Deputy Commissioner's lands was upheld.

Nazeer Ahmed M N Vs the State of Karnataka — Public Procurement and Tenders | Karnataka HC (2024)

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WA NO. 1067/2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF JULY, 2024

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PRESENT

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THE HON'BLE MR JUSTICE V KAMESWAR RAO

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AND

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THE HON'BLE MR JUSTICE C M JOSHI

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WRIT APPEAL NO. 1067 OF 2022 (KLR-RES)

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BETWEEN:

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NAZEER AHMED M.N, S/O K. SOOFI, AGED ABOUT 39 YEARS, R/AT BABLAKODI HOUSE, SAJIPA MOODA POST AND VILLAGE, BANTWAL TALUK, D.K. DISTRICT-574 323.

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...APPELLANT

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(BY SRI LETHIF B, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, DEPARTMENT OF REVENUE, VIDHANA SOUDHA, DR. B.R. AMBEDKAR VEEDHI, BENGALURU-560 001.

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REP. BY ITS PRINCIPAL SECRETARY.

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TAHASILDAR, BANTWAL TALUK, D.K. DISTRICT-575 018.

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WA NO. 1067/2022

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THE ASST. COMMISSIONER, MANGALURU SUB-DIVISION, MANGALORE, D.K. DISTRICT-575 001.

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THE DEPUTY COMMISSIONER, DAKSHINA KANNADA DISTRICT, MANGALORE, D.K. DISTRICT-575 001.

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SAJIPA MOODA GRAMAPANCHAYATH, BANTWAL TALUK, DAKSHINA KANNADA DISTRICT, MANGALORE, D.K. DISTRICT-575 018.

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…RESPONDENTS

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(BY SRI BHOJEGOUDA T KOLLER, ADDL. GOVERNMENT ADVOCATE FOR R-1 TO 4;

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SRI AKHIL.S, ADVOCATE FOR CAVEATOR/R-5 )

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THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 29/09/2022 PASSED IN WP NO.37037/2017 AND CONSEQUENTLY ALLOW THE WRIT PETITION.

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THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED ON 11.07.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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WA NO. 1067/2022

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CORAM: THE HON'BLE MR JUSTICE V KAMESWAR RAO AND THE HON'BLE MR JUSTICE C M JOSHI

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CAV JUDGMENT

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(PER : HON'BLE MR JUSTICE C M JOSHI)

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Being aggrieved by the dismissal of W.P.No.37037 of

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2017 by order dated 29-09-2022 of the learned Single Judge, the writ petitioner is before this Court in this intra Court appeal.

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The appellant had approached this Court in W.P.No.37037/2017 with the following prayer:

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"(A) Call for the records.

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(B) Issue Writ of Certiorari by quashing the order dated 22.7.2016 vide No.LND (1)PDR:95-201516/B8 passed by the 4^th respondent as per AnnexureA in the interest of justice and equity.

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(C) Issue Writ of Mandamus direct the 4^th respondent to implement the order passed at Annexure-C bearing No.LND(1) PDR.252/14-15 dated 09-03-2015, in the interest of justice and equity.

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(D) Pass such other order/s as this Hon'ble Court deems fit in the facts and circumstances of the case."

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The factual background of the case relates back to the request of the Panchayat in the year 1995 to allot a land for the cremation/burial ground for the residents of Sajipa Mooda village, Bantwala Taluk of Dakshina Kannada District. The said application was considered by the Deputy Commissioner on 22-08-2000 in the light of the certain objections raised by the villagers, ultimately, an order was passed earmarking 45 cents in Survey No.246/1A2 of Sajipa Mooda village. Then on 09-03-2015, the Deputy Commissioner of Dakshina Kannada passed a detailed order by noting the demography of the Sajipa Mooda village and the comparative distances available for the villagers to approach a graveyard/crematorium and came to the conclusion that the order dated 22-08-2000 is to be implemented. Thereafter, it appears that a Writ Petition was filed in W.P.No.13949/2015 as a Public Interest Litigation

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and it came to be dismissed by this Court by order dated 13-04-2015 on the ground that, it is not a fit case for holding an enquiry into the facts for exercising the extra ordinary jurisdiction of the Court under Article 226 of the Constitution and that it was not in the interest of the public. Thereafter, another writ petition came to be filed in W.P.No.44161/2016 and later the same came to be withdrawn. The Deputy Commissioner, Dakshina Kannada, passed another detailed order on 22-07-2016 by changing the place which was earmarked for the graveyard/ crematorium. It was noticed that, earlier in the order dated 22-08-2000, 45 cents of land in Survey No.246/1A2 was earmarked and since the land was not surveyed or identified, it was found necessary that the land needs to be surveyed and therefore, 45 cents of land was earmarked in Survey No.246/1A1. It is the said order dated 22-07-2016 which was challenged before the learned Single Judge in the writ petition.

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The order dated 22-07-2016 was challenged on the ground that the previous order of the Deputy Commissioner dated 09-03-2015, whereby a portion of land was earmarked in Survey No.246/1A2, was a well considered and speaking order and it had attained finality and therefore, there was no necessity to alter or change the location of the graveyard/crematorium. It was contended that the Deputy Commissioner has wrongly concluded that survey No.246/1A1 is suitable to develop the graveyard. It was contended that the Deputy Commissioner/4^th respondent has violated the provisions of Section 95 of the Karnataka Panchayat Raj Act; and even though there are houses within 100 meters from the land earmarked for the graveyard, there being a drinking water source, the requirements of Section 95 of the Karnataka Panchayat Raj Act was not adhered to. Whereas, the earlier order had adequately considered the situation of the houses and the water sources and therefore, there was no need for changing the location.

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By impugned order, the learned Single Judge concluded that Section 95 of the Act does not attract to the orders passed by the Panchayat or the Deputy Commissioner and therefore, the writ petition is not maintainable. As a result, the writ petition came to be dismissed.

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The learned counsel appearing for the appellant/ writ petitioner submitted that the learned Single Judge has not properly appreciated the factual matrix of the case especially, the provisions of Sections 92,93 and 95 of Karnataka Panchayat Raj Act. He submits that the provisions of Section 95 of the Panchayat Raj Act, contemplates that, a graveyard cannot be constructed or maintained within 100 meters from the dwelling houses and

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the water sources, and this cardinal principle involved in Section 95 had not been considered. It is contended that the dwelling house of the writ petitioner is within the distance of 100 meters from the land earmarked for the graveyard and therefore, the learned Single Judge should

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WA NO. 1067/2022

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have allowed the writ petition and directed the Deputy Commissioner to allow the construction and maintenance of the graveyard/crematorium in Survey No.246/1A2 as per the previous order.

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Per contra , the learned counsel appearing for respondent No.5-Gram Panchayat submits that, the Panchayat had insisted for allotment of land several times since 1995, but due to resistance by the people of the locality, the construction of graveyard/crematorium was stalled and after dismissal of the writ petition, the graveyard has been constructed and maintained by a Development Committee. He submits that the land earmarked for the graveyard is in use by the residents of Sajipa Mooda Village and therefore, the writ appeal is liable to be rejected.

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The learned Government Advocate appearing for respondent Nos. 1 to 4 contend that after several rounds of the talks with the people of locality as well as after

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considering the report submitted by the Tahasildar and the Taluk Health Officer, the Deputy Commissioner has passed the impugned order and therefore, no fault can be found with the impugned order. He also submit that the provisions of Section 95 of the Karnataka Panchayat Raj Act are applicable only to the private entities who have their own graveyards/crematorium and it would not be applicable to the Village Panchayat and the Local Bodies.

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The provisions of Section 92, 93 and 95 of the Karnataka Panchayat Raj Act, deal with the manner in which the dead bodies have to be disposed of in the Panchayat area. For better understanding, the provisions of Section 92,93 and 95 of the Act are reproduced below:

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"92. Registration of burial and burning grounds.- (1) Every owner or person having the control of any place used at the commencement of this Act, as a public place for burying, burning or otherwise disposing of the dead in a panchayat area, shall, if such place be not already registered under any law applicable thereto, apply to the Grama Panchayat to have such place registered under this Act.

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(2) If it appears to such Grama Panchayat that there is no owner or person having control of such place, the Grama Panchayat shall assume such control, and register such place or may close it.

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Licensing of places for disposal of the dead . - (1) No new place for the disposal of the dead whether private or public, shall be opened, formed constructed or used in a panchayat area unless after an application for the purpose is made and a licence is obtained from, the Grama Panchayat.

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(2) Such application for a licence shall be accompanied by a plan of the place to be licenced showing the locality, boundary and extent thereof, the name of the owner or person or community interested therein, the system of management and such other particulars as the Grama Panchayat may require.

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(3) The Grama Panchayat to which an application is made, may,-

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(a) grant, or refuse a licence, or

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(b) postpone the grant of a licence until objections, if any, to the site, considered reasonable by the Grama Panchayat have been removed or any particulars called for by it have been furnished.

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xxx xxx xxx

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Prohibition against burying or burning, in unauthorised places .- No person shall in any panchayat area bury, burn or otherwise dispose of or cause or suffer to be buried, burnt or otherwise disposed of any corpse in any place within hundred meters of a dwelling place or any source of drinking water supply other than a place registered under section 92 or licensed under section 93, or provided by the Grama Panchayat.”

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The provisions of Section 95 of the Karnataka Panchayat Raj Act do not contemplate an absolute bar for constructing graveyards or crematoriums within 100 meters of residential houses. It is pertinent to note that, the prohibition against burying, burning of the corpses or disposal of the corpses in any manner is prohibited within 100 meters of a dwelling house or any source of drinking water and the said condition is clarified by the word "other than" the place which is registered under Section 92 or licenced under Section 93 of the Act. A closer look of Sections 92 and 93 would demonstrate that every person having control of any place used at the commencement of the Act, as a public place or for the purpose of burying, burning or other wise disposing of the dead body has to

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WA NO. 1067/2022

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register under the provisions of the Act. If the Gram Panchayat thinks that there is no such owner in respect of such place which are used for burying, burning or disposal of the corpses then it may assume control and register such place or may close it. Section 93 deals with the licensing of places for disposal of the corpse. It is pertinent to note that if any new place is earmarked for disposal of the corpses, whether private or public, a licence must be obtained from the Panchayat. In the case on hand, Section 93 is not applicable since the place is earmarked by the Panchayat itself. It is not by any person, but the Panchayat had made request to the Government i.e., the Deputy Commissioner, Dakshina Kannada District, for earmarking and allotting the government land for the purpose of using the same as a graveyard/ crematorium. Therefore, the Government has acted upon such a request and had called for the report of the Tahasildar.

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It is to be noted that the order passed by the Deputy Commissioner on 22-08-2000 clearly mention that

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45 cents was earmarked in Survey No.246/1A1. Subsequently, by order dated 09-03-2015 the Deputy Commissioner earmarked the land in Survey No.246/1A1. The order dated 09-03-2015 does not show any sketch or survey map which would establish the exact location of the 45 cents of the land. It was subject matter of challenge in W.P.No.13949/2015.

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The order of the Deputy Commissioner dated 22-07-2016 which is under challenge in the present writ petition mention that there is no change in respect of Survey Number i.e., Survey No.246/1A1, but while passing the order in 2015, only eye sketch was prepared but exact survey was not done and therefore, there is a confusion in respect of location of 45 cents. Therefore, he has sought the report of the Health Department as well as the Tahasildar and after the spot visit by them, a sketch was prepared by Survey Authorities and 45 cents of land is earmarked. The Deputy Commissioner, respondent No.4 also mention that the earlier land which was identified was

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at a location where more than 60 houses were located within 100 meters distance and there was also a report by the Health Department that the said location was not suitable for the graveyard/crematorium and therefore, there was a need for the change. The order also notices that there are only four houses within the distance of 100 meters and it is on the higher level and therefore, the said piece of land measuring 45 cents is suitable.

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The learned Single Judge in the impugned order has considered the effect of Section 95 of the Panchayat Raj Act, and rightly come to the conclusion that the submission of the appellant is not sustainable in law. We find no reason for our indulgence in the same. We are also of the view that the provisions of Section 95 of the Karnataka Panchayat Raj Act cannot come to the rescue of the appellant herein.

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Having said so, we wish to reiterate that the restrictions imposed in Section 95 of the Act is to prevent and protect the residents of the locality from any health

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hazards. The opinion of the report of the Taluk Health Officer and the report of the Panchayat as well as the Tahasildar are properly considered by respondent No.4 while passing the impugned order. We also have bestowed our attention to the report of the Health Officer and the Survey report depicting the distances of the houses situated in the locality and particularly that the location is at a height and is accessible by road. Therefore, we find no merit in the appeal and hence pass the following:

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ORDER

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The appeal is dismissed.

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In view of the dismissal of the appeal, IA No.1/2022

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does not survive for consideration. Hence, it is disposed of.

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Sd/(V KAMESWAR RAO) JUDGE

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Sd/(C M JOSHI) JUDGE

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tsn*

Nazeer Ahmed M N v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Nazeer Ahmed M N v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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