WP/18404/2000 of S.N. Mutually Aided Cooperative Housing society ltd. Vs The Municipal corporation of Hyderabad. on 31 December 2007

O R D E R

Petitioner purchased Ac.30-00 gts. of land in Sy.No.327Paiki at Shaikpet Revenue Village, Golconda Revenue Village. Tothe east of the land of the petitioner society and to the north of thevillage there is a burial ground adjoining Errakunta Tank ofShaikpet village. The case of the petitioner society is that assome persons are proclaiming that they would convert its land intoa burial ground, it submitted a representation to the firstrespondent Corporation on 04-12-1991 bringing to its notice about the attempts of others toconvert its land into a burial ground, and as no action was takenon that representation by the first respondent some dead-bodieswere again buried in its land in May 1994 it again sent anotherrepresentation dated 11.05.1994 to the first respondent bringing toits notice about the said fact, and so, the first respondentCorporation addressed a letter to the Mandal Revenue Officer(third respondent) and requested him to verify the boundaries ofthe burial ground as per the town survey records to enable it totake further action, but did not pursue the matter thereafter. Againwhen a dead-body was brought for burring in its land in February,1995, its members prevented the burial and sent another representation dated 16-02-1995 seeking permission to enclose itsland by a compound wall to prevent others burying the dead-bodies in its land, but no action was taken on that representation. When some persons from Shaikpet village tried to constructsamadhis in its land on 15-09-2000, as its members preventedthem from making such constructions, they withdrew from thatplace abusing them in a foul language and threatening them withdire consequences. On 16.09.2000 they re-assembled and wantedto proceed with the construction of samadhis, when they gave aPolice report complaining about the high-handed action thosepersons withdrew from that place. Hence, this petition seeking adirection to the first respondent to accord permission to it toconstruct a compound wall enclosing its land.

2. In his counter-affidavit filed on behalf of the first respondentthe Assistant City Planner pleaded ignorance of the attempts madeby the third parties to encroach into the land of the petitioner andtook a plea that petitioner has to take steps to protect the land ofits members and that it is not the duty of the respondents 1 and 2to protect the land of the petitioner or its members. When theproposal for construction of a compound wall, submitted by thepetitioner society, was examined it came to light that theboundaries and the area shown in the plan was not tallying with theboundaries shown in the tentative layout dated 12.10.1990, and so,that fact was intimated to the petitioner through the letter dated26.08.2002 informing the petitioner that when the existinggraveyard land is in a triangular shape, the plan submitted by it forthe proposed construction of compound wall, that land was shownin a zigzag shape, asking it to submit a revised plan in conformitywith the boundaries and area earmarked for the burial ground in the tentative layout. Hence, relief as claimed by the petitioneragainst respondents 1 and 2 cannot be granted.

3. No counter-affidavit is filed on behalf of the third respondent.

4. The contention of Sri P.V.Vidyasagar, learned counsel forthe petitioner is that inasmuch as Sections 566 to 572 of the Actdeal with the disposal of the dead and since no new place fordisposal of dead can be opened without permission of theCommissioner, it is the duty of the first respondent to see that noplace other than the place earmarked as a burial ground, is beingused for disposal of the dead, and so, a direction may be given torespondents 1 and 2 to see that no dead bodies are buried in theland belonging to the petitioner or its members. It is his contentionthat if the petitioner is granted permission to construct acompound wall enclosing its and its members lands, it wouldconstruct a compound wall and thereby prevent others fromencroaching into its and its members lands for burying the deadbodies and that the petitioner has no objection to leave that portionof the land in which the dead bodies, if any, are already buried,and so, respondents 1 and 2 may be directed to consider theapplication for construction of a compound wall by the petitioneraround its and its members land.

5. The contention of the Standing Counsel for respondents 1and 2 is that as and when the petitioner society were to submit anapplication, it would be considered and disposed as per theprovisions of the Act.

6. In view of the submissions made and as no provision in theAct casting a duty on the Municipal Corporation to see that dead- bodies are not buried in places, which are not earmarked as aburial ground, and as the Act only contemplates imposition of fineon persons making use of places other than those earmarked asburial ground for burial of the dead, no direction can be given tothe first respondent to see that no dead bodies are buried in theland belonging to the petitioner. If and when dead bodies are buriedin its land, the petitioner can make a representation to the firstrespondent, whereupon it shall take appropriate action as the Actagainst the erring person.

7. The petitioner owing land adjacent to the burial ground isimpliedly admitted in the counter-affidavit filed on behalf of the firstrespondent. In order to protect its land, the petitioner has a rightto construct a compound wall around its site. So, in the event ofthe petitioner submitting a fresh application for construction of acompound wall around its land, respondents 1 and 2 shall considerthat application as per the provisions of law and permit theconstruction of the compound wall, so that, the land of thepetitioner is not used for burial of the dead.

With the above direction, the writ petition is disposed of. Noorder as to costs.

31[st] DECEMBER, 2007PGS

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JUSTICE C.Y.SOMAYAJULU

THE HONOURABLE SRI JUSTICEC.Y.SOMAYAJULU

W.P.NO.18404 OF 2000

31[st] DECEMBER8, 2007