Burial At Non-Designated Places Contravenes Rules, Take Steps To Exhume Such Bodies And Bury In Designated Places: Madras High Court Full Bench

The bench of Justice R Mahadevan, Justice G Jayachandran, and Justice Mohammed Shaffiq was answering a reference made by the bench of Chief Justice SV Gangapurwala and Justice PD Audikesavalu, 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. This reference was answered in the negative by the full bench.

“Moreover, after Rules, 1999 came into force, any burial in the place other than the place already registered or licensed as burial ground, goes in contravention to Rule 7(1). Any body buried in contravention to the Rules 5 and 7, is to be exhumed and buried in the designated place,” the court ruled.

The court also noted that when such violation is brought to notice and the person concerned does not take steps to exhume the body within reasonable time, the authority can exhume the body and collect the costs from the person concerned. 

“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',” the court noted.

In the present case, one Narashimmulu Naidu died and his body was cremated by his Family (the appellants) in a private land, classified as Dry Land as per revenue records, with the consent of the landowner. However, one Babu Naidu, who owned the neighboring land, approached the High Court seeking action against the family for burying the body in a place not designated and to exhume the body. This prayer was allowed by the Single Judge after considering the Tamil Nadu Panchayats Act, 1994 and the Tamil Nadu Village Panchayats (Provision of Burial and Burning Grounds) Rule, 1999.

The family then preferred an appeal and the first bench noted that in another instance, a division bench of the High Court had ordered against exhumation. The matter was then referred to the full bench.

The full bench 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 since there was no express bar or prohibition under the Panchayat Act, the division bench had allowed the appeal.

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

On the other hand, the respondent argued that Rule 7, which provides for the conditions cannot be read in isolation and hadsto be read along with Rule 4 and 5 which mandates registration of burial grounds and conditions for opening of burial grounds respectively. It was also argued that even the division bench had noted that though there was no prohibition, it could not be used as a license to bury or dispose of the dead body anywhere and everywhere.

The full bench noted that none of the judgments cited by either side 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 based on the particular facts of the case, it added.

Thus, the Full bench noted that though the courts have noted that there was no prohibition, the courts have also observed that when burial is to be made in a non-designated place, it has to be in accordance with the rules.

The full court 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 court observed.

Case Title: Jagadheeswari and Others v B Babu Naidu

Citation: 2023 LiveLaw (Mad) 203

Counsel for the Appellants: Mr.N.G.R.Prasad for Mr.L.Dhamodharan

Counsel for the Respondents: Mr.T.Mohan, Senior Advocate for Mr.P.Krishnan, for R1 Mr.P.Muthu Kumar, State Govt. Pleader Assisted by Mr.Karthik Jagannath, Government Advocate for R2 to R5 & R7 Mr.K.Elango, for R6