Madras High Court
The State Of Tamil Nadu vs Lakshmi on 24 June, 2022
W.A.No.718 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 25.03.2022
DATE OF DECISION : 24.06.2022
CORAM
THE HON'BLE MR.JUSTICE T.RAJA
AND
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
W.A.No.718 of 2013
1. The State of Tamil Nadu
rep. by its Secretary
Department of Rural Development
Fort St.George
Chennai 600 009
2. The Executive Officer
Mookanur Panchayat
Dharmapuri .. Appellants
-vs-
Lakshmi
W/o Nagaraj .. Respondent
Appeal filed under Clause 15 of the Letters Patent against the order
dated 27.09.2012 made in W.P.No.22868 of 2008.
For Appellants :: Mr.K.V.Sajeev Kumar
Special Government Pleader
For Respondent :: Mr.R.Sankarasubbu
1/15
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W.A.No.718 of 2013
JUDGMENT
T.RAJA, J.
The present appeal has been brought by the State challenging the
correctness of the impugned order dated 27.09.2012 passed in Writ Petition
No.22868 of 2008.
2. Mr.K.V.Sajeev Kumar, learned Special Government Pleader
appearing for the appellants argued that when the respondent, in memory of
her son Naveen alias Naveen Prasad - a naxalite, who succumbed to the
bullet injuries on 19.04.2008 in an encounter, attempted to construct a
memorial pillar/samadhi in her private land, the second appellant, having
received information about the construction of the said memorial pillar,
issued the notice dated 8.9.2008 impugned in the writ petition calling upon
her to stop the construction, as the respondent has no right to erect a pillar
even in a private land without the permission of the Government. Arguing
further, the learned Special Government Pleader, taking support from the
report dated 22.05.2008 filed by the Inspector of Police, NSD Wing,
Dharmapuri, submitted that the respondent's son, Naveen alias Naveen
Prasad, at the age of 18, joined the maoist organisation and in the year
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2002, a case was registered against him in Mathikonpalayam Police Station
Crime No.30 of 2002 for the offence under Sections 307, 397 IPC and
Section 25(1)(a) of the Arms Act and thereafter, he came out on bail. He
was also absconding since then. Further he was involved in Uthangarai
Police Station Crime Nos.1004, 1005, 1006 of 2002 and Kallavi Police
Station Crime No.434 of 2002 for the offence under Sections 147, 148, 332,
307, 120-B IPC read with Section 25(1)(a) of the Indian Arms Act and also
for the offence under Sections 4 & 5 of the Explosive Substances Act and
again for the offence under Section 3(2)(b), 3(3), 3(5) and 4(b) of the
Prevention of Terrorism Act. Besides, he was also involved in Periyakulam
Police Station Crime No.232 of 2007 for the offence under Sections 147,
148, 120-B, 214, 124A of IPC read with Section 25(1)(b) of the Indian
Arms Act and Sections 4 & 5 of the Explosive Substances Act. Finally, he
was encountered by the STF ‘Q’ Branch and Dindigul District Police and in
this regard, a case in Kodaikanal Police Station Crime No.111 of 2008 was
also registered for the offence under Sections 147, 148, 307 IPC read with
Sections 25(1) & 27 of the Indian Arms Act and Sections 3,4,5 of the
Amendment Act, 1908 and Section 174 Cr.P.C.
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3. Further, the dead body of the said Naveen was taken to
Government Hospital, Kodaikanal on 19.4.2008 and a post-mortem was
conducted on 20.04.2008. In the meanwhile, the respondent along with her
Advocate-Haribabu, the Secretary of the Centre for Protection of Civil
Liberties along with a few relatives went to Kodaikanal and they came to
Dharmapuri at about 8.00 A.M. on 21.04.2008. Finally the dead body
reached Dharmapuri around 8.00 A.M., where the POTA accused Padma,
Reetamari, Ramani, Anandhi, Balan, Sakthivel, Vinayagam, Durai
Palanisamy, Natham Raja, Sathishkumar were present and they received the
body. Thereafter, the PDYA members Elagiri Raman, Munusamy (barber),
Krishnan Sesampatti, K.C.Selvam, Kondampatti Palani and others took the
body to Mookkanoor in a procession. Finally the body reached Mookkanoor
at 10.00 A.M., raising slogans against the Government and carrying banners
praising the deceased maoist. Even the cadres did not allow any police
officer in the procession. Finally they buried the body in the land situated in
Survey No.217/1 belonging to one Thimman, from whom the respondent's
family purchased the one cent of land. The learned Special Government
Pleader appearing for the appellants submitted that when the respondent’s
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W.A.No.718 of 2013
son belongs to Communist Party of India (Maoist) that was a banned
organisation under the Unlawful Activities (Prevention) Act, 1967, the
President of Mookanur Panchayat has refused permission to raise any
memorial pillar, for the reason that no dead body can be buried in the midst
of the agricultural land which is against the provisions of the Tamil Nadu
Panchayats Act, 1994 as well as without the permission of the statutory
authorities. As the respondent was trying to install a statue/memorial pillar
for her deceased son without permission, the notice dated 8.9.2008 was
issued to stall her illegal act, because as per the provisions of the Tamil
Nadu Panchayat Act, burial or cremation has to be done at the specified
place and not at any place as the respondent or relatives of the deceased
wanted.
4. Continuing his arguments, the learned Special Government Pleader
appearing for the appellants stated that the conclusions reached by the
learned single Judge that the pillar in question is not proposed to be located
in a public place; that there would be a compound wall covering the place
and the public would have no access as a matter of right and in the absence
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W.A.No.718 of 2013
of any statutory prescription prohibiting the construction of memorial pillar
in a private land, it cannot be said that the Panchayat has got a right to stop
the construction, are all without any substance. Moreover, the approach
adopted by the learned single Judge holding that a statue can be erected in a
private place without the permission of the Government, is highly
unjustified, more particularly, when the deceased, son of the respondent,
died in an encounter, allowing them to raise a memorial pillar in
commemoration of the cause for which he died, is impermissible, for the
reason that the son of the respondent belonged to a banned organization.
Secondly, the body was buried in the midst of the agricultural land against
the provisions of the Tamil Nadu Panchayats Act. Therefore, no permission
can be granted to construct a memorial pillar for the deceased naxalite,
because permitting a monument/memorial pillar idealizing the naxalite
principles would have a negative influence on the adolescent minds. But
these crucial aspects have been completely overlooked by the learned single
Judge. Concluding his arguments, he has also requested this Court to peruse
the detailed report placed in a sealed cover by the Superintendent of Police,
‘Q’ Branch CID. Hence, by allowing the appeal, the order passed by the
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W.A.No.718 of 2013
learned single Judge is liable to be set aside, he pleaded.
5. Mr.R.Sankarasubbu, learned counsel appearing for the
respondent/writ petitioner submitted that the deceased Naveen alias Naveen
Prasad was fighting for the cause of rural poor against exploitation of
mankind. But he was encountered by the Kodaikanal police. In view thereof,
the respondent filed a petition under Section 482 Cr.P.C., to register a
murder case against the erring policemen in Crl.O.P.No.12394 of 2008
before this Court. Thereafter, the writ petitioner’s son’s body was buried in
her own place situated at her village. Subsequently, the family members
decided to erect a samadhi or a tomb in the said burial place for the
deceased. After arranging sufficient financial support, started constructing a
samadhi in her own land which is situated far off from the public road and
the entire villagers supported such motto and no one in the village has got
any ill-feeling against her son, because he was the son of the soil. Therefore,
it is her fundamental right to establish a memorial for her son Naveen. Only
to uphold and preserve his ideologies, the said memorial/samadhi is being
constructed in the one cent of land that was purchased by the respondent.
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Therefore, the Executive Officer, Mookanur Panchayat, the second appellant
ought not to have issued the notice dated 8.9.2008 restraining the
respondent from constructing the samadhi for her son. When the respondent
has got inherent right to construct the samadhi for her son, it cannot be
restrained by anybody and the contention made by the appellants before this
Court that for constructing the samadhi or tomb on a private land, the family
members should obtain permission from the competent authority is not
applicable to the present case. Therefore the impugned notice issued by the
second appellant is violative of Article 21 of the Constitution of India,
because the faith of the respondent cannot be restrained by the second
appellant. When the impugned order is arbitrary and illegal, the same was
set aside by the learned single Judge. Since no fresh case has been made out
by the appellants, the appeal is liable to be dismissed, he pleaded.
6. Heard both sides.
7. The son of the respondent, who was branded as a naxalite from the
banned CPI (Maoist) organisation, died in an encounter on 19.04.2008 at
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Kodaikanal Hills at the hands of the STF ‘Q’ Branch and Dindigul District
Police and in this regard, a case in Kodaikanal Police Station Crime No.111
of 2008 was also registered for the offence under Sections 147, 148, 307
IPC read with Sections 25(1) & 27 of the Indian Arms Act and Sections
3,4,5 of the Amendment Act, 1908 and Section 174 Cr.P.C. One of the
documents filed by the Inspector of Police, NSD Wing, Dharmapuri in the
writ appeal paper book would show that the son of the respondent, at the
age of 18, is said to have joined the above maoist organisation. Thereafter, in
the year 2002, when he involved himself in unlawful activities, a case in
Crime No.30 of 2002 was registered by the Mathikonpalayam Police Station
for the offence under Sections 307, 397 IPC and Section 25(1)(a) of the
Arms Act and thereafter, he came out on bail and was also absconding since
then. It is also seen that the son of the respondent was involved in the
Uthangarai Police Station Crime Nos.1004, 1005, 1006 of 2002 and Kallavi
Police Station Crime No.434 of 2002 for the offence under Sections 147,
148, 332, 307, 120-B IPC read with Section 25(1)(a) of the Indian Arms Act
and also for the offence under Sections 4 & 5 of the Explosive Substances
Act and again for the offence under Section 3(2)(b), 3(3), 3(5) and 4(b) of
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the Prevention of Terrorism Act. Besides, he was also involved in
Periyakulam Police Station Crime No.232 of 2007 for the offence under
Sections 147, 148, 120-B, 214, 124A of IPC read with Section 25(1)(b) of
the Indian Arms Act and Sections 4 & 5 of the Explosive Substances Act.
Thereafter, the body of the deceased Naveen alias Naveen Prasad was taken
to Government Hospital, Kodaikanal on 19.04.2008. After conducting post-
mortem, the body was handed over to the family members of the respondent.
Subsequently, they also buried the body in the land covered in Survey
No.217/1 belonging to one Thimman, which is said to have been purchased
by the respondent’s family.
8. It may not be out of context to mention herein that under Section
116 of the Tamil Nadu Panchayats Act, 1994, the village panchayat is duty
bound to provide burial and burning grounds subject to the Rules made
thereunder. Therefore, in exercise of the powers conferred by Section 116
and clause (xxxi) of sub-section (2) of Section 242 of the Tamil Nadu
Panchayats Act, 1994, the Government of Tamil Nadu in G.O.(Ms.)No.213,
Rural Development (C4) dated 05.10.1999 have framed the Tamil Nadu
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Village Panchayats (Provision of Burial and Burial Grounds) Rules, 1999.
Under Rule 5 of the Tamil Nadu Village Panchayats (Provision of Burial and
Burning Grounds) Rules, 1999, which reads as follows,
“5. Conditions for opening of burial and burning
ground.- (1) No new place for burying or burning
the dead, whether private or public, shall be opened,
formed, constructed or used, unless a licence has
been obtained from the Village Panchayat on
application.
(2) Such application for a licence shall be
accompanied by the plan of the place for which
licence is required showing the locality, boundary
and extent thereof, the name of the owner or person
or community interested therein, the system of
management and such further particulars as the
Village Panchayat may require.
(3) The Village Panchayat to which an application is
made may-
(a) grant or, if there is valid reason to be recorded in
writing, refuse to grant a licence, or
(b) postpone the grant of a licence until the
objection, if any to the site has been cleared or any
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particulars called for by it have been furnished.
(4) The Assistant Director (Panchayats) may cancel
or modify any order passed by a Panchayat under
sub-rule (3) :
Provided that no order either on application or suo
motu prejudicial to the appellant shall be passed
without giving reasonable opportunity of being
heard to the appellant under this sub-rule or sub-
rule (3).”
the respondent should have obtained a licence from the competent authority
even if the corpse of her son is sought to be buried in the land purchased by
her. Further, Rule 7 of the above Rules also states that no person shall bury
or burn or cause to be buried or burnt any corpse in any place within ninety
metres of a dwelling place or source of drinking water-supply other than a
place licenced as a burial and burning ground. However, in the case on
hand, no document has been produced by the respondent before us to show
that she had obtained such a licence from the competent authority, except
the copy of the sale deed for having purchased the land from one Thimman,
that too, on 07.05.2008. These aspects have been completely overlooked by
the learned single Judge.
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9. Moreover, a perusal of the report submitted in a sealed cover by the
Superintendent of Police, 'Q' Branch CID through the learned Special
Government Pleader shows that during the 11th death anniversary of Naveen
on 19.04.2019, the father of the deceased tied a banner paying tributes to all
the maoists. In our considered opinion, when the deceased Naveen belonged
to a banned organisation, no memorial pillar or tomb either in a private place
or government poramboke land can be permitted to be raised without prior
permission of the competent authority. If any memorial pillar/samadhi is
allowed to come up for a person belonging to a banned organisation under
the Unlawful Activities (Prevention) Act, 1967, as objected by the
appellants, not only the cadres of the banned organisation may take an
opportunity to organize meetings to propagate their ideologies impacting the
law and order situation, but also the possibility of collection of funds by the
cadres for the memorial coercing the landlords/businessmen for donation
etc., cannot also be ruled out. Besides, the Crl.O.P.No.12394 of 2008 filed
by the respondent seeking CBI investigation on the death of her son has also
been dismissed by this Court vide order dated 24.08.2015 as devoid of
merits.
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10. For the aforementioned reasons, the impugned order is set aside
and the writ appeal stands allowed. Consequently, M.P.No.1 of 2013 stands
closed. However, there is no order as to costs.
Speaking/Non speaking order (T.R.,J.) (S.S.K.,J.)
Index : yes/no 24.06.2022
ss
To
1. The Secretary to Government
Department of Rural Development
Fort St.George
Chennai 600 009
2. The Executive Officer
Mookanur Panchayat
Dharmapuri
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W.A.No.718 of 2013
T.RAJA, J.
and
SATHI KUMAR SUKUMARA KURUP, J.
ss
Judgment in
W.A.No.718 of 2013
24.06.2022
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