Karnataka High Court
Nazeer Ahmed M N vs The State Of Karnataka on 26 July, 2024
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WA NO. 1067/2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE C M JOSHI
WRIT APPEAL NO. 1067 OF 2022 (KLR-RES)
BETWEEN:
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.
...APPELLANT
(BY SRI LETHIF B, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
DEPARTMENT OF REVENUE,
VIDHANA SOUDHA,
DR. B.R. AMBEDKAR VEEDHI,
BENGALURU-560 001.
REP. BY ITS PRINCIPAL SECRETARY.
2. TAHASILDAR,
BANTWAL TALUK,
D.K. DISTRICT-575 018.
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WA NO. 1067/2022
3. THE ASST. COMMISSIONER,
MANGALURU SUB-DIVISION,
MANGALORE,
D.K. DISTRICT-575 001.
4. THE DEPUTY COMMISSIONER,
DAKSHINA KANNADA DISTRICT,
MANGALORE,
D.K. DISTRICT-575 001.
5. SAJIPA MOODA GRAMAPANCHAYATH,
BANTWAL TALUK,
DAKSHINA KANNADA DISTRICT,
MANGALORE,
D.K. DISTRICT-575 018.
...RESPONDENTS
(BY SRI BHOJEGOUDA T KOLLER, ADDL. GOVERNMENT
ADVOCATE FOR R-1 TO 4;
SRI AKHIL.S, ADVOCATE FOR CAVEATOR/R-5 )
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.
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
CORAM: THE HON'BLE MR JUSTICE V KAMESWAR RAO
AND
THE HON'BLE MR JUSTICE C M JOSHI
CAV JUDGMENT
(PER : HON'BLE MR JUSTICE C M JOSHI)
Being aggrieved by the dismissal of W.P.No.37037 of
2017 by order dated 29-09-2022 of the learned Single
Judge, the writ petitioner is before this Court in this intra
Court appeal.
2. The appellant had approached this Court in
W.P.No.37037/2017 with the following prayer:
"(A) Call for the records.
(B) Issue Writ of Certiorari by quashing the
order dated 22.7.2016 vide No.LND (1)PDR:95-2015-
16/B8 passed by the 4th respondent as per Annexure-
A in the interest of justice and equity.
(C) Issue Writ of Mandamus direct the 4th
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.
(D) Pass such other order/s as this Hon'ble
Court deems fit in the facts and circumstances of the
case."
3. 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
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.
4. 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/4th
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.
5. 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.
6. 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
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
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.
7. 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.
8. 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
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.
9. 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:
"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.
(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.
93. 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.
(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.
(3) The Grama Panchayat to which an application is
made, may,-
(a) grant, or refuse a licence, or
(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.
94. xxx xxx xxx
95. 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."
10. 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
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.
11. It is to be noted that the order passed by the
Deputy Commissioner on 22-08-2000 clearly mention that
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.
12. 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
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.
13. 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.
14. 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
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:
ORDER
The appeal is dismissed.
In view of the dismissal of the appeal, IA No.1/2022
does not survive for consideration. Hence, it is disposed of.
Sd/-
(V KAMESWAR RAO)
JUDGE
Sd/-
(C M JOSHI)
JUDGE
tsn*
