Decided on April 05,1974



- (1.) This is an appeal under S.5 of the Kerala High Court Act, on the basis of a certificate issued by a learned Judge who disposed of S. A. No. 1049 of 1968. The appeal is by plaintiffs 2 and 6 to 9, whose suit for an injunction restraining the defendants from interfering with the burial or burning of dead bodies in the plaint schedule property was dismissed by the Trial Court. In appeal however, the learned District Judge found that the plaint schedule property was used as a burial or burning ground from time immemorial and that the property must be deemed to have been registered as a burial and burning ground existing from the commencement of the Kerala Panchayats (Burial and Burning Grounds) Rules, 1967. In further appeal to this Court Poti J., affirmed the finding that the plaintiffs acquired the right to use the property as a burning ground for the members of the tarwad. The learned Judge also found that nothing in the Kerala Panchayats Act, 1960, for short, the Act or the Kerala Panchayats (Burial and Burning Grounds) Rules, 1967 (hereinafter referred to as the Rules) took away or affected the rights found by the learned Judge. It was however further held by the learned Judge that R.4 of the Rules will not be applicable to the plaint burial or burning ground arid that it would be necessary for the user of the ground for burial or burning to apply for licence under R.6 of the Rules or get special permission under the second proviso to R.8. Consequently the injunction decree that had been granted by the District Court has been modified by the learned Judge by making it subject to the obtaining of a licence under R.6 or permission under the second proviso to R.8.
(2.) Counsel for the appellants contended before us that the basis of the decision of this Court is that the words "burial or burning grounds" occurring in R.4 of the Rules are applicable only to public burial or burning grounds and that this basis requires reconsideration. Counsel submitted that a reference to the provisions in the Act and the scheme of the Rules and the Rules in particular, will not justify such a limited meaning being given to the words "burial or burning grounds" occurring in R.4 of the Rules. Since the respondents were not represented by counsel, we requested Sri. S. Eswara Iyer to assist the Court amicus curiae and we are obliged to him . for having checked up the provisions and for assisting us in deciding the question.
(3.) If we go by the ordinary meaning that is attributable to the words "burial or burning grounds" there is nothing which necessitates burial or burning grounds being limited in its application only to public burial or burning grounds. The words normally must take within their ambit both public and private burial and burning grounds. S.129(2)(xxv) of the Act no doubt refers to burial and burning grounds and the licensing of private burial and burning grounds apart from other matters which are not material for our purpose. But we would emphasise the word "provision" occurring before "of burial and burning grounds" and "licensing of private" occurring before "burial and burning grounds" in order to understand why the word "private" is used before "burial and burning grounds" occurring a second time in clause (xxv) of sub-s.(2) of S.129 of the Act. The Rules, in consonance with what is envisaged by this clause of sub-s.(2) of S.129 have enacted that "provision" can be made by the Panchayat, to be exact, the Panchayat shall make provision when there is no sufficient provision in existence for burial or burning grounds. This is seen from R.3. For that purpose under sub-r.(2) of R.3 the Panchayat has to seek permission of the Collector. For making provision under that rule it appears to us that no licensing is necessary though we notice that R.6(1) states that "no new place for the disposal of the dead, whether private or public, shall be opened, formed, constructed or used unless a licence has been obtained from the Collector in this behalf". The new place for which a licence is required under R.6(1), we consider is different from the burial or burning grounds to be provided by the Panchayat under R.3(1). R.7 makes a clean distinction between burial and burning grounds "provided", registered or licensed. We have already referred to R.3 and 6 which provide respectively for provision and for licensing. The registration in certain cases is deemed under R.4 and is required by R.7. We shall read both these rules in extenso: "4. Existing burial and burning grounds to be deemed registered.-- (1) The burial or burning grounds existing at the commencement of these rules shall be deemed to have been registered under these rules. (2) If any dispute arises as to whether a burial or burning ground is in existence a the commencement of these rules, such dispute shall be referred to the Collector, whose decision thereon shall be final. (3) If it appears to the Panchayat that there in no owner or person having the control of any existing burial or burning ground the Panchayat shall assume such control and register such place, or with the permission of the Collector, close it". ... ... ... ... "7. Registration of burial and burning grounds.-- (1) A book shall be kept at the office of every Panchayat in which places provided, registered or licensed under R.3, 4 and 6 and all such places provided, registered or licensed before the commencement of these rules, shall be recorded. (2) A notice in English and in the principal regional language of the Panchayat area to the effect that a place has been registered under sub-r.(1) shall be affixed at some conspicuous place at or near the entrance of the burial or burning ground for which the place is used. (3) The book referred to in sub-r.(1) shall be periodically inspected by the Officer or Officers authorised to inspect and superintend end the affairs of the Panchayat under the Act.;

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