License Issued Precipitously: Madras High Court Directs Exhumation Of Bodies Buried In Church Cemetery

The Petitioner approached the High Court seeking a direction to the Official Respondents to prevent any person from burying any dead bodies on the land situated in Madananthapuram Village. A direction was also sought to exhume the bodies which were buried on the said land.

The Single Bench of Justice N.Mala held, “When the committe constituted by the Council already framed the necessary rules and submitted them for approval of the Government, prudence required the first respondent to await the Government's approval before taking further step. Instead, the license was issued precipitously, without ensuring the procedural compliance by the applicant. Such conduct not only contravenes the express language of Section 388(4) but also undermines the rule of law, which demands that statutory authorities act within the four corners of law and in a manner that is transparent, fair and consistent.”

Advocate G.Revathy represented the Petitioner, while AAG Ramanlal represented the Respondent.

Factual Background

The petitioner, a promoter/developer of land, developed a scheme for constructing dwelling apartments. The petitioner applied and was granted planning permission. The construction commenced in 2021. The petitioner stated that in the course of the construction of the Apartment-Complex, the owner of the adjacent land (respondent) conducted burials in his Patta lands without obtaining any permission from the authorities. The petitioner, along with the residents/owners of the adjacent locality protested against such burials. It was the Petitioner’s case that the subject land was vacant and unused, and no burial activities were conducted either during negotiations for development in 2020, or at the time of approval and commencing construction. As per the petitioner, despite objections and complaints, the official respondents failed to prevent the illegal burials or to take timely action against the respondent owner.

The private respondent filed a counter stating that the Church of South India Trust Association purchased the subject land in 2018, specifically for establishing a burial ground, since space was not available in any other burial ground of the Church. It was the respondent’s case that the Commissioner, exercising powers under Section 319 of the Chennai City Municipal Corporation Act, 1919 and Section 388 of the Tamil Nadu Local Bodies Act,1998, granted a license for a cemetery, in the privately owned lands of the private respondent, with the approval of the Council. It was the Petitioner’s case that, instead of taking action, the Commissioner, Greater Chennai Corporation, granted a formal license to the private respondent. Aggrieved thereby, the Petitioner approached the High Court.

Reasoning

Dealing with the issue of locus standi, the Bench stated that the existence of the burial ground adjacent to the petitioner's project would impact his business, in which he had invested huge money. Hence, it could not be said that the petitioner was neither aggrieved nor had the locus standi to file the writ petition. “...it is clear that the petitioner is not only an aggrieved person, but also that he has locus standi to challenge the license issued in violation of the provisions of Section 388 of the Tamil Nadu Local Bodies Act, 1998”, it added.

The Bench explained that burial grounds, burning, crematories etc., are permissible non-residential activities; however, the same is limited to one in a subdivision. As per the Bench, when there already existed a burial ground in S.No.216/2C1C, a further burial ground could not be permitted within the same subdivision. Noting that the object of TNCDBR, 2019, is to ensure regulated and planned development consistent with the designated land use pattern, the Bench asserted that any interpretation that allows multiple permissions in the same subdivision, merely on revenue fragmentation, would defeat the very purpose of such regulation and lead to arbitrary and unplanned utilisation of the land.

The Bench further noticed that Section 388 of the Tamil Nadu Urban Local Bodies Act, 1998 provides for registration of existing burial ground, burning ground and crematory and applications for new licenses. The Bench was of the view that the Commissioner ought to have awaited the approval of the Government before granting a license, and the haste and the urgency with which the license was issued cast a serious doubt on the bona fides of the respondent in issuing the same.

It was further noticed that the Council granted approval for the license, treating the application of the private respondent as a special case on the grounds that the application was pending since 2019. This finding, according to the Bench, suffered from a serious factual error. The records revealed that it was not the application that was pending since 2019, but merely a representation. The application forming the basis of the license was only submitted in the year 2024, and the same was evident from the typed set of papers filed by the respondents.

Highlighting the malafide and arbitrary exercise of power and setting aside the impugned order, the Bench directed, “The 5 th respondent shall exhume the bodies, failing which the respondents 1 and 2 with aid of the 4 th respondent shall conduct the exhumation and bury the bodies in designated burial grounds, however, if the official respondents conduct the exhumation and burial, the 5 th respondent shall bear the costs. The entire exercise shall be completed within a period of twelve weeks from the date of receipt of a copy of this order.”

Cause Title: M/s.Stellar Developer v. The Commissioner (Case No.: WP.No.35426 of 2024)

Appearance

Petitioner: Advocate G.Revathy, M/s.Mothilal and Goda

Respondent: AAG Ramanlal, Standing Counsel S.Vanitha Joice Rani, Standing Counsel K.Mageswari, Government Advocate (Crl.Side) J. Subbiah, Senior Counsel P.Wilson, Advocate Dineshkumar

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