Dismissed

Sreenivasan v. State of Kerala

Kerala HC6 Mar 2017WP(C)/34093/2010

Case brief

AI extract

What is this about?

Petitioners claimed a right to use reserved Tharwad land for cremation and challenged rejection of their application under Kerala Panchayat Raj Rules by the Panchayat Secretary, District Collector, and State Government. The Court held that burial/cremation rights are not absolute and must conform to statutory rules. Finding the orders reasoned and non-arbitrary, the Court dismissed the writ petiti

What did the court decide?

Petitioners were granted liberty to prove that facts recorded in the impugned orders are wrong by approaching a Court of civil jurisdiction, but the writ petition was dismissed confirming the rejectio

Sreenivasan Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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MONDAY, THE 6TH DAY OF MARCH 2017/15TH PHALGUNA, 1938

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WP(C).No. 34093 of 2010 (J)

PETITIONERS :

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1. SREENIVASAN

NEDIYAMPARAMBATH HOUSE, BEYPORE PO, KOZHIKODE DISTRICT.

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2. BHASKARAN, S/O.KUTTAN, NEDIYAMPARAMBATH HOUSE, BEYPORE PO, KOZHIKODE DISTRICT.

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3. RAMAKRISHNAN, S/O.SUBRAMANIAN, NEDIYAMPARAMBATH HOUSE, BEYPORE PO, KOZHIKODE DISTRICT.

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BY ADV. SMT.I.SHEELA DEVI

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RESPONDENTS :

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1. STATE OF KERALA SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.

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2. DISTRICT COLLECTOR, KOZHIKODE 673 020.

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3. THE SECRETARY BEYPORE GRAMA PANCHAYATH, BEYPORE PO, KOZHIKODE DISTRICT 673 015.

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WP(C).No. 34093 of 2010 (J)

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*ADDL.R4 IMPLEADED :

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4. ANEESH S/O. LATE BALAN, AGED 28 YEARS, RESIDING AT VENNAKKAT HOUSE, ASARIKANDYPARABA, BC ROAD WEST, P.O.BEYPORE, KOZHIKODE - 670 015

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ADDL.R4 IS IMPLEADED AS PER ORDER DT 15/12/2010 INIA 17243/2010.

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R1 & R2 BY GOVERNMENT PLEADER SMT.MABLE C.KURIAN R3 BY SRI.K.D.BABU,SC, ADDL R4 BY ADV. SRI.P.V.KUNHIKRISHNAN BY ADV. SRI.P.K.RAMKUMAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 34093 of 2010 (J)

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APPENDIX

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PETITIONER'S EXHIBITS :

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P1:	COPY OF THE PARTITION DEED EXECUTED by THE ANCESTORS OF THE NEDIYAMPARAMBATH TARWAD.
P2:	COPY OF THE SIGHT PLAN PREPARED by the TOWN PLANNER OF CALICUT DEVELOPMENT AUTHORITY.
P3:	COPY OF THE ORDER IN IA 7267/2000 IN OS 923/2000 DT 15/3/2001 OF THE MUNISFF COURT, KOZHIKODE II.
P4:	COPY OF THE ORDER NO.19150/2001 DT 4/7/2001 ISSUED BY THE R2.
P5:	COPY OF THE ORDER OF THE R1 GO.(RT) NO.1161/2007/LSGD DT 10/4/2007 ISSUED BY THE R1.
P6:	COPY OF THE JUDGMENT IN WPC NO.13671/2007.
P7:	COPY OF THE SAID TAX RECEIPTS.
P8:	COPY OF PERMIT NO.328/2000-2001 DT 3/10/2000 ISSUED by the R3 IN RS NO.26/3F.
P9:	COPY OF THE LIST OF THE MEMBERS WHO WERE CREMATED in the SAID CEMETERY.
P10:	COPIES OF THE DEPOSITIONS of the WITNESSES.
P11:	COPY OF THE ORDER NO.F4-48257/2006 DT 11/8/2008 ISSUED BY THE R2 TO THE PETITIONER.
P12:	COPY OF THE ORDER NO.66823/DB3/08/LSGD DT 30/4/2010 ISSUED BY THE R1 TO THE PETITIONERS.

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RESPONDENT'S EXHIBITS : NIL.

//TRUE COPY//

P.A. TO JUDGE

DEVAN RAMACHANDRAN, J.

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WP(C) No.34093 of 2010

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Dated this the 6^th day of March, 2017

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JUDGMENT

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The petitioners claim to be the members of a Hindu

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Tharwad and they assert that they have reserved an area of about 16.24 cents, which is part of their Tharwad, where the members of the Tharwad can be cremated.

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Whatever be the assertion of the petitioners, Law requires and mandates that any such activity shall be done only under the provisions of the Kerala Panchayat Raj [Burial and Burning Grounds] Rules, 1998 [for brevity, the Rules]. The petitioners, also being aware of this, applied for licence/ permission for such purposes with the Local Self Government Institution, namely the 3^rd respondent Panchayat herein, which was apparently rejected by its Secretary. The petitioners appear to have thereafter invoked the jurisdiction of the District

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WP(C) No.34093 of 2010

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Collector, who confirmed the orders of the Secretary of the Panchayat, by Ext.P11, thus rejecting the petitioners' request to treat the property as a burial ground. This was also confirmed by the Government as per Ext.P12. The petitioners challenge Exts.P11 & P12 under various grounds in this writ petition.

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I have heard Smt.Sheela Devi I., the learned counsel for the petitioners, Sri.Ramkumar, the learned counsel appearing for the 4^th respondent [who informs this Court that his client is now

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no more], the learned Standing Counsel appearing for the 3^rd respondent and the learned Government Pleader appearing for respondents 1 & 2.

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I have examined Exts.P11 & P12 orders impugned in this writ petition. However, I am unable to find any reason to interfere with the same. The right of a family to conduct burial or cremation is not an unimpeachable right but which has to confirm to the Rule of Law. Any such right can be founded only within the precincts of the Rules and any application for such privilege have to be made by the persons, claiming such privilege, in the manner mandated under the Rules.

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WP(C) No.34093 of 2010

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I see that the District Collector and the Government have, in Exts.P11 & P12, considered the issue in great detail. They have found that the area is a thickly populated one and that the nearest house is only about four meters away. These considerations are very relevant and the factors that have been taken into account are the most apposite. I do not see that Exts.P11 & P12, therefore, suffer from the vise of arbitrariness, capriciousness or any other illegality. I, therefore, confirm the same.

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The learned counsel for the petitioners, however, contests very vociferously that the factual basis on which Exts.P11 & P12 have been edificed are not the truth. According to her, the area is not thickly populated and that there are no residences close by. These are issues which are disputed by the parties and therefore, cannot be considered by this Court acting under Article 226 of the Constitution of India. The factual disputations are beyond the jurisdictional realm of this Court and will have to be pleaded, proved and adjudicated in a Court of competent civil jurisdiction.

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WP(C) No.34093 of 2010

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Even though I have considered the validity of Exts.P11 & P12 and have found favour with it, the petitioners would have the liberty of proving that the facts recorded in those orders are wrong. For this purpose if they choose to approach a Court of civil jurisdiction, nothing contained in the judgment would in any manner constrain or trammel such Court and it would be obliged to consider all claims made before it independently and in terms of the applicable laws.

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In the result, I dismiss this writ petition, confirming Exts.P11 & P12, subject to the liberty granted to the petitioners as afore.

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The writ petition is ordered as above. In the facts and circumstances of this case, I make no order as to costs and I direct the parties to suffer their respective costs.

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Sd/-

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DEVAN RAMACHANDRAN, JUDGE.

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//True Copy//

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P.A. to Judge

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sp/09/03/17

Sreenivasan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sreenivasan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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