Madras High Court
T.Robinson vs The District Collector on 5 February, 2025
W.P.(MD)No.6796 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.02.2025
CORAM
THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN
W.P.(MD)No.6796 of 2022
T.Robinson ... Petitioner
vs.
1.The District Collector,
Kanyakumari District at Nagercoil.
2.The Revenue Divisional Officer,
Padmanabhapuram, Thuckkalai.
3.The Superintendent of Police,
Kanyakumari District at Nagercoil.
4.The Inspector of Police,
Pudukkadai Police Station, Kanyakumari District.
5.T.Sunny ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Mandamus, to direct the respondents to
exhume the petitioner’s brother’s (Samraj) corpus from frontside of the
petitioner’s house bearing Door No.8/165A of Painkulam Village
Panchayat situated in Re.Survey No.25/9 of Painkulam Village, Killiyur
Taluk, Kanyakumari District and to burry in the family graveyard
1/14
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.6796 of 2022
admeasuring 1.6 cents comprised in Re.Survey No.25/5 of Painkulam
Village, Killiyur Taluk, Kanyakumari District within a stipulated period
that may be fixed by this Court.
For Petitioner :Mr.S.Sivakumar
For R1 and R2 :Mr.S.Shajibino
Special Government Pleader
For R3 and R4 :Mr.K.Gnanasekaran
For R5 :Mr.Ananth C.Rajesh
*****
ORDER
It is an unfortunate case relating to death of a mentally challenged
individual.
2.This Writ Petition seeks for a Mandamus to exhume the body of
one Samraj, who has been buried in a house property at Door No.8/165A
at Painkulam Village Panchayat in Re.Survey No.25/9 of Painkulam
Village, Killiyur Taluk, Kanyakumari District and to bury the body at the
family burial ground in R.S.No.25/5 of the very same village.
3.A couple by name, Thankappan and Muthabaranam, were
residing in Painkulam Village. From their wedlock, they had four
children. They are
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(1)Cicil Raj
(2)Samraj
(3)Robinson
(4)T.Sunny
4.Thankappan was the owner of the property situated in Door No.
8/165A at Painkulam Village Panchayat, Killiyur Taluk, Kanyakumari
District. He had executed a “WILL” in favour of his wife,
Muthabaranam. The WILL is a registered document in Doc.No.32/1998.
He passed away on 05.06.1998.
5.On his death, Muthabaranam became the absolute owner of the
property. She continued to reside therein. She executed a WILL
bequeathing an extent of 19.526 cents in R.S.No.25/9 of Painkulam
Village in favour of his son Sunny. Subsequently, she registered a sale
deed for the very same property in his favour.
6.By way of another “WILL”, she bequeathed her remaining
holdings in favour of her remaining three sons, namely, Cicil Raj, Samraj
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and Robinson. She imposed a condition that Robinson would have to
take care of Cicil Raj and Samraj. This was on account of the fact that
the aforesaid persons were not in a position to take care of themselves, as
they were mentally challenged. Subsequently, Muthabaranam passed
away on 19.09.2010. In quick succession, Cicil Raj too passed away on
25.02.2012. Samraj passed away on 21.02.2022. This is the death,
which has given the cause of action for the present Writ Petition.
7.Samraj admittedly passed away on the aforesaid date in the
evening hours at about 04.45 pm. The Writ Petitioner was away at
Tiruvananthapuram, where he settled to pursue his professional duty of
Lawyer. On coming to know about the death of his brother, he rushed to
Painkulam. He painfully came to know that his other brother, the fifth
respondent, had buried Samraj in the premises bearing Door No.8/165A
at Painkulam Village Panchayat. Immediately, he lodged a complaint
with the Inspector of Police, Pudukkadai Police Station, Kanyakumari
District. The Police did not take any action. Hence, he filed the present
Writ Petition.
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8.His pleadings is that Samraj's body has been buried in the family
house, after demolishing a staircase in the residential house. It has to be
exhumed and buried in the family graveyard set apart by his father at
R.S.No.25/9 at Painkulam Village Panchayat, Killiyur Taluk,
Kanyakumari District.
9.This Court has issued notice to the respondents. The fifth
respondent has entered appearance and has filed a counter affidavit. In
his counter affidavit, he has accepted the fact that Cicil Raj and Samraj
were mentally challenged and were not capable of taking care of
themselves. He also admitted that Samraj died on 21.02.2022 and he had
also admitted the WILL executed by Muthabaranam on 01.02.2008 and
the conditions imposed thereunder. He pleaded that though the Writ
Petitioner had to maintain his brothers, he did not do so. He points out
that the Writ Petitioner shifted his residence to Kerala. He admitted that
Samraj was buried within the premises of the residential property
covered by the WILL, dated 01.02.2008.
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10.The justification given for the said burial is that it was the last
wish of Samraj and that the villagers wanted the burial to take place in
the said property. He accepted that a complaint had been lodged by the
Writ Petitioner to the fourth respondent. He accepted that he appeared
for an enquiry before the fourth respondent and gave his explanation and
that the complaint was closed. He added that there is no law available to
exhume the dead body from a private land and bury in other private land
and therefore, sought for dismissal of the Writ Petition.
11.I heard Mr.S.Sivakumar, learned Counsel for the petitioner,
Mr.S.Shaji Bino, learned Special Government Pleader appearing for R1
and R2, Mr.G.Gnanasekaran, learned Government Advocate appearing
for R3 and R4 and Mr.Ananth C.Rajesh, learned Counsel for the fifth
respondent.
12.It was the polished wish of the mother Muthabaranam that her
two sons, who are mentally challenged, were to be taken care of by the
Writ Petitioner. While the Writ Petitioner pleads that he had taken care
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of them, the fifth respondent argues that the mentally insane challenged
were not taken care of by him and Samraj died due to poverty and ill-
health. Whether the allegations and counter allegations are true or not,
the point remains that even post Samraj's death, there has been no peace.
13.The law relating to burial or burning of a dead in Panchayat
limits is governed by the Tamil Nadu Village Panchayat (Provision of
Burial and Burning Grounds) Rules, 1999 (hereinafter referred to as “the
Burial Ground Rules).
14.As per Rule 5 of the Burial Ground Rules, no “new” place can
be constructed or used for the purpose of burying or burning the dead
without obtaining a licence for the said area. This Rule presupposes that
prior application has to be made to the Village Panchayat and appropriate
permission has to be obtained from that Authority. Neither the Writ
Petitioner nor any of the respondents dispute that the property situated in
Door No.8/165A at Painkulam Village Panchayat, Killiyur Taluk,
Kanyakumari District, is a residential property. It is not clear from the
affidavit and counter affidavit that whether the property situated in
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R.S.No.25/9 of the same village has the benefit of such a permission
from the Village Panchayat.
15.Rule 7 of the Burial Ground Rules also declares that no person
shall be buried within 90 meters of a dwelling house. When the distance
of 90 meters is fixed from a dwelling house, obviously it implies that no
body can be buried in a dwelling house.
16.These Rules were the subject matter of interpretation by a
Hon’ble Full Bench of this Court in Jagadheeswari and others vs
B.Babu Naidu and others reported in 2023-2 Writ L.R.159. The Hon’ble
Full Bench of this Court laid down the law, as follows:
“34.Moreover, after Rules, 1999 came into force,
any burial in the place other than the place already
registered or licensed as burial ground, goes in
contravention to Rule 7(1). Any body buried in
contravention to the Rules 5 and 7, is to be exhumed and
buried in the designated place. If such violation is brought
to the notice within the reasonable time and despite notice
to exhume the body for to be buried in the designated
place not adhered by the person concerned, the body is to
be exhumed by the authority and collect the costs from the
person who is cause for that illegal burial. The exhumed
body must be buried in the designated place, taking into
consideration the public health. Person who defies the law
and refuses to exhume the body, cannot take umbrage in
the delay of enforcing the law and make the Court 'fait
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accompli'. Accordingly, the order of reference is answered
in negative.”
17.The plea of Mr.Ananth C.Rajesh is that Samraj was buried in
the residential property, as it was the wish of the deceased Samraj as well
as the wish of the villagers. When it is not in dispute that the deceased
Samraj is a mentally challenged person, I find this plea raised by
Mr.Ananth C.Rajesh, as the plea in desperation. A mentally challenged
person is treated in law as one incapable of taking any decision from
himself. Hence, the act of a desire expressed by such a person, even
assuming that such a desire was expressed, cannot be countenanced in a
Court of law.
18.The plea that the villagers desire to bury Samraj in the
residential property also does not hold water. If such plea were to be
accepted, then it will be free for all and the entire village would be
converted into a burial ground.
19.Apart from these general observations, I should point out that
the power and authority to permit burial is not available with any
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individual or group of individual. It is available only with the Village
Panchayat. There cannot be any burial within a residential property, when
Rule 7 of Burial Ground Rules declares that such a burial is contrary to
law.
20.When these aspects were pointed out to Mr.Ananth C.Rajesh,
he stated that he has no objection for the body being removed from the
residential property, where it has been interred and bury in an appropriate
place.
21.The petitioner did not stand by and acquiesce to the burial of
his brother's property in a residential area. He protested immediately on
22.01.2022 raising suspicions over the death of his brother and also
pointed out to the Police that the deceased had been buried in a house.
The Police have no doubt conducted an enquiry and found that the first
allegation is false. However, they owe a duty due to the Society at large
to comply with the requirements of law. They should have acted with all
promptness and should have taken steps to exhume the body buried in a
residential house and shift it to the designated area. Unfortunately, they
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did not do so. This Writ Petition was filed immediately before this Court
in April 2022. This shows that the Writ Petitioner has acted with alacrity
with the situation required. Hence, I cannot hold that there had been a
delay in making the request.
22.The extract of the Full Bench judgment in the previous
paragraph shows that a person who defies the law and refuses to exhume
the body and bury in an appropriate place cannot plead the aspect of
delay. The respondents ought to have acted immediately when an
infraction of the Burial Ground Rules had been brought to their notice.
Unfortunately, they failed to do so. Hence, I am constrained to interfere.
23.Though the petitioner seeks that Samraj should be buried at
R.S.No.25/9 of Painkulam Village, no records have been produced before
this Court to show that the Village Panchayat had accepted the said area
to be a burial ground for the family. Therefore, this leaves no option but
to bury the said Samraj in an area notified by the Panchayat for the said
purpose.
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24.In the light of the above discussion, the Writ Petition is
necessarily to be ordered. There shall be a direction to the second
respondent/Revenue Divisional Officer, Padmanabhapuram, Thuckkalai,
to exhume the body of the deceased, Samraj, who had passed away on
21.02.2022 from the house property in Door No.8/165A at Painkulam
Village Panchayat, Killiyur Taluk, Kanyakumari District and bury the
same after adhering to all Christian religious rites at the notified burial
ground set apart for Christians.
25.The abovesaid exercise shall be carried out within a period of
two weeks from the date of receipt of a copy of this order. The Revenue
Divisional Officer shall act on the web copy of this order and he/she will
not wait for a certified copy of the order to be given to him/her. All the
parties are at liberty to produce the web copy of this order before the
second respondent and request him/her for compliance with the order. I
hope at least now, the soul of the deceased will rest in peace.
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26.In result, the Writ Petition is allowed. No costs.
27.Post the matter for reporting reporting compliance on
26.02.2025.
Index :Yes / No 05.02.2025
Internet :Yes / No
NCC :Yes / No
Note to Registry: Upload the order copy by 06.02.2025.
cmr
To
1.The District Collector,
Kanyakumari District at Nagercoil.
2.The Revenue Divisional Officer,
Padmanabhapuram, Tuchukkalai.
3.The Superintendent of Police,
Kanyakumari District at Nagercoil.
4.The Inspector of Police,
Pudukkadai Police Station, Kanyakumari District.
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V. LAKSHMINARAYANAN, J.
cmr
05.02.2025
https://www.mhc.tn.gov.in/judis
