IN WA 1037 OF 2023 - MADR HC -Tamil Nadu Village Panchayat (Provision of Burial and Burning Grounds) Rules 1999 -- Madras High Court holds that burialsat non-designated places are in contravention to the Rules and such bodies need to be exhumed and buried at designated places
Justice R. Mahadevan, Justice G. Jayachandran and Justice Mohammed Shaffiq[20.07.2023]

Read Order: Jagadheeswari v. B. BabuNaidu

Simran Singh

New Delhi, July 26, 2023: The Madras High Court stated that after the Tamil Nadu Village Panchayats (Provision of burial and burning grounds) Rules, 1999came into force, any burials in any place other than those already registered or licensed as Burial Grounds, contravenes Rule 7 (1) and any such bodies in contravention to the Rules 5 and 7 were to be exhumed and buried in the proper designated place.

The full Bench comprising of Justice R Mahadevan, Justice G Jayachandran, and Justice Mohammed Shaffiqanswered the reference made by the Bench of Chief Justice Sanjay V.Gangapurwalaand Justice P.D.Audikesavalu, in negative vis-a-vis the question whether, under the 1999 Rules, the burial could take place at a place other than the designated land, more particularly when a designated land existed in the village.

“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 accompli’.”

In the matter at hand, one manhad died and his body was cremated by his family (appellants) in a private land, classified as Dry Land as per revenue records, with the consent of the landowner. However, the neighbour (respondent) approached the High Court seeking action against the appellants for burying the body in a place not designated and accordingly to exhume the said body. The afore stated prayer was allowed by the Single Judge after considering the Tamil NaduPanchayats Act, 1994(Act of 1994) and Rule of 1999.

The appellant preferred an appeal whereby theBench referred to the case of P.Muthusamy v. B.Vennilawherein the DivisionBench of the High Court had ordered against exhumation. Consequent to which the matter was then referred to the full bench which had noted that in the above case, the Court was dealing with a situation where bodies were buried at a non-designated place as part of customs prevailing in the village and there was no express bar or prohibition under the Act of 1994.

It was the case of the appellants that as per the Rules of 1999, there was no prohibition to bury a body in the subject land with the consent of the land owner provided it was buried 90 meters away from the dwelling place or source of drinking water supply. Since both these conditions were complied with in the present case, there was no grievance resultant to which the petition was liable to be rejected.

On the other hand, the respondent relied uponRule 7 which stated that the conditions could not be read in isolation and had to be read along with Rule 4 and 5 which mandated registration of burial grounds and conditions for opening of burial grounds respectively. It was contended that even the DivisionBench had noted that though there was no prohibition, the same could not be used as a license to bury or dispose of the dead body anywhere and everywhere.

The Bench stated that the Division Bench in P.Muthusamy's case (Supra) had not declared that body could be buried anywhere other than registered or licensed place in a village Panchayat. The Division Bench had only recognised the custom prevailing in that particular village. The observation made in the Muthusamy's case, was restricted only to the facts of that case and it could not have application in rem.

The Court noted that none of the judgments cited by either of the parties gave an absolute right to bury a body in a place other than a designated place. Further, in all the cases, the Courts had denied exhumation of the body. Thus, it was noted that though the Courts had noted that there was no prohibition, the Courts had also observed that when burial was to be made in a non-designated place, it had to be in accordance with the rules.

“For specific reason stated in each those cases, Courts have denied exhumation of the body. Otherwise, in unequivocal term, Courts have held that Rules 4, 5 and 7 of the Tamil Nadu Village Panchayat (Provision of Burial and Burning Grounds) Rules 1999 though not expressly prohibit the burying of corpse in non-designated place, implicitly the restrictions and conditions prohibit such burial. Even, if anybody wish to bury a body in a non-designated place, it shall be only in compliance with Rule 5 and not otherwise.”

The Bench noted that the restrictions in Rule 7 could not be construed as a right to bury the body anywhere and the same could not be read in isolation.

“The outcome of the above analysis of the Rules and case laws leads to the conclusion, that the condition of 90 meters restriction found in Rule 7(1) cannot be construed as right to bury body anywhere and everywhere. Burial or burning body is subject to the other provisions in the Rules. The conditions of distance restriction from the water body, cannot be read in isolation unmindful of the purpose of the Rules and other provisions thereunder.”

The Bech stated that both Rules 5 and 7 start with a negative clause prohibiting new place for burying or burning the dead without license obtained from villagePanchayat. Rule 7 prohibited burning or burying any corpse, in any place, within 90 meters of the dwelling place or source of drinking water supply.“The licensed as burial and burning ground is exempted from the 90 meters restriction. Rule 5(1) does not indicate that the place where a body is buried or burnt, will not carry the character of burial ground or burning ground. If, single body is burnt or buried and the land owner has no intention to allow burial of body in future. Whoever prefers a new place whether private or public to be used for burying or burning the dead, license from the Panchayat is a pre-requisite. Thus, it is very clear that except the place which has already been registered under Rule 4 or a new place where license is obtained following the procedures contemplated under Rules 5(2) (3) and (4), no body can be buried or burnt in the place which is neither been registered or granted license.”

The Bench further noted that Rule 6 mandated the village Panchayat to maintain a register at its office showing places which were provided, registered or licensed under Rules 3 to 5. “The framers of the Rules were conscious of the fact that there may be violation of Rule 7 (1). Therefore, the Rule prescribes punishment for contravention of Rule 7(1) but, prosecution shall be instituted only on written sanction by the Executive Authority of the village Panchayat concerned. The outcome of the above analysis of the Rules and case laws leads to the conclusion, that the condition of 90 meters restriction found in Rule 7(1) cannot be construed as right to bury body anywhere and everywhere. Burial or burning body is subject to the other provisions in the Rules. The conditions of distance restriction from the water body, cannot be read in isolation unmindful of the purpose of the Rules and other provisions thereunder.”