Dismissed

S.Srinivasan, Chartered v. the Secretary to Government

Madras HC27 Apr 2016WP(MD)/8335/2016

Case brief

AI extract

What is this about?

The Madurai Bench of the Madras High Court dismissed a writ petition challenging the construction of a mortuary within Nanguneri Government Hospital premises. The court held that statutory guidelines mandate mortuary construction within hospital limits and customary procession rights do not prevent this. The petition failed to establish a case for notice issuance.

What did the court decide?

Petitioner has not made out a case for issuance of notice; Writ Petition and connected Miscellaneous Petition dismissed. No costs.

S.Srinivasan, Chartered Vs the Secretary to… — Civil Procedure and Limitation | Madras HC (2016)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 27.04.2016

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CORAM:

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THE HONOURABLE MR.JUSTICE S.MANIKUMAR and THE HONOURABLE MR. JUSTICE S.S.SUNDAR

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W.P.(MD)No.8335 of 2016 and WMP(MD)No.6747 of 2016

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S.Srinivasan ... Petitioner

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Vs.

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The Secretary, Health Department, Government of Tamilnadu, St.George Fort, Chennai.

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The Joint Director, Health Services Office, Tirunelveli @ Tenkasi, Tenkasi.

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The District Collector, Collectorate Campus, Tirunelveli. ... Respondents

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PRAYER: Writ petition is filed under Article 226 of the Constitution of India, to issue a writ of Certiorarifed Mandamus to call for the records of the 2^nd respondent relating his order, dated 15.04.2016 and quash the same and further directing the respondents to construct Mortuary in some other place other than the General Hospital premises at Nanguneri which is situated in the path through which idols are taken during festivals and celebrations.

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For petitioner : Mr.M.Vallinayagam Senior Counsel for Mr.D.Nallathambi

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https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Mr.M.Govindan Special Government Pleader

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JUDGMENT

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(Judgment of this Court was delivered by S.S.SUNDAR, J.)

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A Chartered Accountant and Secretary of Sri Varamangai Nachiar Baktha Sabha, claiming himself to be the resident of Madurai District, has filed a writ petition seeking for writ of certiorarified mandamus to quash the order dated 15.04.2016 of the Joint Director, Health Services, Tirunelveli District, respondent No.2. Though in the long cause title in the writ petition and in the supporting affidavit filed by the petitioner has mentioned his address as No.3, East Tank Square Street, Triplicane, Chennai - 5, in the body of the affidavit, he has stated to have been residing at 8-19-18, Malligai Malar Street, Bank Employees Colony, Madurai625 014.

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2.Supporting the prayer sought for, the petitioner has stated that in Nanguneri, there is a temple, which is famous for vaishnavites and during Brahmotsavam in the month of Panguni and Chithirai, the idle was taken by procession in the main street of Nanguneri. The said practise is in time memorial.

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3.According to the petitioner, rituals was performed according to the Agama Sastras and deity is taken on procession. There is a Government hospital in Naguneri. When the idle is taken on procession, it has to go on the path in and around the hospital. It is the further case of the petitioner that if there is a death or if any postmortem has to be performed in the Government hospital, deity cannot be taken through a street or a place, where dead body is kept. The petitioners' further contended that the Government have decided to construct a Mortuary having ten beds in the hospital premises and that the work is in progress. According to him, if the Mortuary is constructed in the Government hospital, Nanguneri, procession cannot be taken and consequently, the worship of the village people would be affected. It is also his contention that the public would deprive of making their offers and receiving the blessings at their door steps.

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4.In the above said circumstances, Sri Varamangai Nachiar Baktha Sabha, has sent a representation, dated 22.03.2016, to the Joint Director of Health Services, Tirunelveli District at Tenkasi, to construct Mortuary to some other place without affecting the right of worship of the general public.

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5.It is the grievance of the petitioner that without considering the representation, in proper perspective, and giving an opportunity of hearing, the Joint Director of Health Services, Tirunelveli District, at Tenkasi, respondent No.2 herein, has https://hcservices.ecourts.gov.in/hcservices/ passed the impugned order.

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6.On the above averments, Mr.M.Vallinayagam, learned senior counsel for the petitioner made submissions and also invited the attention of this Court to the order impugned.

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Heard the learned Senior Counsel appearing for the petitioner and the learned Special Government Pleader appearing for the respondents.

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8.Material on record discloses that Sri Varamangai Nachiar Baktha Sabha, has sent a representation, dated 22.03.2016, to the Joint Director of Health Services, Tirunelveli District at Tenkasi, objecting the construction of Mortuary in Government Hospital in Nanguneri on the grounds extracted supra. On receipt of the representation on 06.04.2016, the Joint Director of Health Services, Tirunelveli District at Tenkasi, has replied to the petitioner as herein:-

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“ghh;itapy; fhZk; fbjj;jpy; njhptpj;Js;sgb ehq;FNehp> muR kUj;Jtkidapy; fl;lg;gLk; gpz itg;giw Rw;Wr;RtUld; $ba kUj;Jtkid tshfj;jpy;jhd; fl;lg;gLfpwJ. gpztiw kUj;Jtkid nray;gLk;; ,lj;jpy; jhd; fl;lg;glNtz;Lk; vd;w tpjpf;Fl;glNl fl;lg;gl;L tUfpwJ. NkYk; ,g;nghUs; njhlh;ghf tug;ngw;w gy;NtW Gfhh;fSf;F gjpy; njhptpf;fg;gl;Ls;sJ. ,g;gpztiw fl;LtJ jdpg;gl;lthpd; tpUg;gNkh nray;ghNlh md;W> murpd; ,irtpid ngw;W jhd; fl;lg;gl;L tUfpwJ vd;w tpguj;ij fdpTld; njhptpj;Jf; nfhs;fpNwd;. ”

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9.Perusal of the communication, dated 15.04.2016, shows that mortuary is constructed within the premises of the Government hospital, Nanguneri, which has a compound wall. The communication of the Joint Director of Health Services, Tirunelveli District at Tenkasi, also indicates that Mortuary should be constructed within the premises of the hospital. The said authority has also stated that the construction of Mortuary is carried out only after the approval of the Government and in this regard, the arguments of the learned senior counsel for the petitioner, cannot be countenanced.

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10.As rightly observed by the Joint Director of Health Services, Tirunelveli District at Tenkasi with the guidelines of the Rules relating to construction of Mortuary, imposes a stipulation that Mortuary should be constructed within the hospital premises, the petitioner/Sri Varamangai Nachiar Baktha Sabha do not have any legal objection for the same. Though the petitioner claims that procession of the deity in and around the hospital premises would be affected and that the public would be deprived of their opportunity to make offerings and get the divine blessings at their door steps and therefore, oppose the construction of the Mortuary within the hospital premises, the

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https://hcservices.ecourts.gov.in/hcservices/ same are not tenable.

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11.In the instant case, on the opposition of construction of Mortuary within the hospital premises, by Sri Varamangai Nachiar Baktha Sabha, the petitioner herein, the Joint Director of Health Services, Tirunelveli District at Tenkasi, has made clear that as per the Rules and the guidelines, Mortuary has to be constructed, where the hospital is functioning. Customs claimed to have been hitherto follow in taking procession of a particular route, cannot have the recognition of Law. When taking procession in a particular route, the petitioner, cannot seek for Mandamus against the authorities, preventing them to construct the Mortuary within the hospital premises. The petitioner cannot suggest that the Mortuary should be constructed at some other place. If the petitioner or the temple authorities, deem fit to take the procession of the deity, it can be done even on a different route, where the public can offer their prayers and get the divine blessings. The contention of the petitioner also appears to be that the offerings and the divine blessings should be at their door steps and therefore, the Mortuary should not be constructed in the hospital premises.

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Blessings can be obtained from any place, if really the public, wish to receive the blessings of god, whereas a mortuary, constructed to preserve the dead bodies, are required to be constructed within the hospital premises and that the hospital authorities, cannot be compelled to construct the Mortuary to some other place, for the sole purpose that a deity has to be taken in procession, near the hospital. Mandamus can be issued only when there is a constitutional, statutory or legal or customary right recognised as Law. Customary right claimed by the petitioner cannot prevent the State, from constructing a Mortuary within the hospital premises. When guidelines stipulate that the Mortuary has to be constructed within the hospital premises, it cannot be stopped.

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13.The contention of the learned senior counsel for the petitioner that the impugned communication is not speaking and that no opportunity of hearing was given and therefore, it is not mandate that on the representation sent, the authorities after issuing notice, should conduct an enquiry and provide an opportunity of hearing. If the said contention is accepted, then the authorities will have no other duty except to conduct of enquiries everyday in all the representations after hearing the applicants. Reasons for rejecting the opposition are specifically sated and therefore, the contention that it is bereft of details and not speaking, cannot be accepted. The Joint Director of Health Services, Tirunelveli District at Tenkasi, has also stated that Mortuary is constructed with the approval of the Government.

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https://hcservices.ecourts.gov.in/hcservices/ 14.In the light of the above discussions, this Court is of the view that the petitioner has not made out the case for even issuance of notice to the respondents. Hence, the writ petition is

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dismissed. No costs. Consequently, connected Miscellaneous Petition is also dismissed.

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Sd/Assistant Registrar (CS-II)

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Sub Assistant Registrar

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The Secretary, Health Department, Government of Tamilnadu, St.George Fort, Chennai.

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The Joint Director, Health Services Office, Tirunelveli @ Tenkasi, Tenkasi.

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The District Collector, Collectorate Campus, Tirunelveli.

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- 1 CC TO SPECIAL GOVERNMENT PLEADER IN SR No. 24679 + 1 CC TO MR.D.NALLATHAMBI, ADVOCATE IN SR No. 25074

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RJ2 TE/SK-SKN/SAR-III : 09/06/2016 : 5P/6C

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W.P.(MD)No.8335 of 2016 and WMP(MD)No.6747 of 2016 27.04.2016

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https://hcservices.ecourts.gov.in/hcservices/

S.Srinivasan, Chartered v. the Secretary to Government

Case brief

What is this about?

What did the court decide?

S.Srinivasan, Chartered v. the Secretary to Government

Case brief

What is this about?

What did the court decide?

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