The Kerala High Court has observed that a private tomb or cemetery cannot be constructed at the whims and fancies of any private individual, be it on his property or not, without securing an adequate licence from the District Collector.
Justice Shaji P. Chaly held so after analysing Section 2(m) of the Kerala Panchayat Building Rules, 2011 under which a tomb would qualify as a building, thereby making it clear that without a licence from the concerned District Collector, no burial ground shall be opened, whether it be public or private.
"it is explicit that a private tomb or a private cemetery cannot be constructed at the whims and fancies of any private individual, be in his property or not, without securing adequate license from the District Collector also, and in terms of the Rules 1998. As I have pointed out above, petitioner has a case that by virtue of Article 21 of the Constitution of India, he is entitled as of right to construct a tomb in his property for burial of the dead bodies of his family members without any clearance, however, the fundamental right guaranteed under Article 21 is not an absolute right, which can be enjoyed by the petitioner without adhering to the reasonable framework of law constituted by the State Government for the purpose."
The petitioner had approached the Court seeking to quash a notice issued by the Secretary of the Grama Panchayat, directing him to seek regularisation of the tombs constructed on his property to bury dead bodies without securing permission from the District Collector in contemplation of Rule 6 of the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998.
He was also directed to file a suitable application for regularisation of the construction, failing which the petitioner was required to remove the constriction and report the matter before the Panchayat.
Advocate N.L Bitto appearing for the petitioner argued that he had purchased 27 cents of property where he constructed a residential building. He argued that his last wish was that he and his family members should be buried in the said property, and therefore, he constructed three tanks, which can be used as tombs later.
However, the Panchayat issued the impugned notice without understanding the real implications in respect of the construction carried out by the petitioner. It was added that as a citizen of this country, by virtue of the fundamental rights guaranteed under Article 21 of the Constitution, the petitioner was entitled to construct tombs on his property to conduct the burial without securing any permission. It was also submitted that Panchayat or District Collector are not vested with powers to interfere with the construction of tombs made by him.
On the other hand, Senior Government Pleader K.K. Preetha and Standing Counsel P.R. Reena contended that the petitioner had not obtained sanction from the Panchayat for making such a construction, which is clearly violative of the provisions of Kerala Panchayat Raj Act, 1994 and the Kerala Panchayat Building Rules, 2011.
The Court pointed out that Rule 8 of Kerala Panchayat Raj (Burial and Burning Grounds) Rules deals with the prohibition of use of ground not registered, licenced or provided to dispose of the corpse, which clearly specifies that no person should bury, burn or otherwise dispose of any corpse other than in any ground, which has been registered or has been deemed to be registered or for which licence has been given or provided under the rules.
Similarly, Rule 9(1) further makes it clear that a register for recording the details regarding burial, burning or otherwise disposing of the corpse, shall be maintained by the Secretary or any authorised personnel in the case of public and private cemeteries.
Therefore, it was held that nobody can be permitted to be unruly in the guise of the right to life guaranteed under Article 21 which if permitted would be an inroad into the rule of law prevailing in the country. It is also to be borne in mind that the activities, freedom and life of citizens are regulated by law for the common good and advantages, and for the coexistence of all in the society enjoying peace, harmony, and tranquillity.
"legal framework regulating human life plays its dominant position in democracy, and therefore individual freedom has to concede to the freedom, rights and interests of the community at large, failing which there would be utter confusion and chaos in the administration of justice, thus ruining the fabric of peaceful coexistence in the society."
Accordingly, the petition was dismissed.
Case Title: Mathew v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 221