Residents of a local body cannot claim burial or cremation rights in another local body: HC

The Madurai Bench of the Madras High Court has held that those residing within the territorial limits of a local body cannot claim right of burial/cremation in the burial/cremation ground vested with another local body.

However, such a right is enforceable if it partakes the character of a fundamental right under Article 25 of the Constitution or a customary right, said a Division Bench of Justices G.R. Swaminathan and K.K. Ramakrishnan.

The court was hearing the petition filed by the residents of Bommaiahgoundanpatti which is a part of Theni-Allinagaram Municipality.

According to the petitioners, they have been cremating their dead in the cremation ground located in Sukkuvadanpatti, a hamlet of Oonchampatti panchayat.

The petitioners alleged that the residents of Sukkuvadanpatti are preventing them from exercising their right to cremate in the Shmashana that is vested in Oonchampatti village panchayat. The petitioners’ counsel submitted that it would be more convenient for its residents to use Sukkuvadanpatti cremation ground.

A peace committee meeting was held. Since the residents of Sukkuvadanpatti made it clear that they would not relax their stand, the petition was filed.

The court said Section 110(f) of the Tamil Nadu Panchayats Act, 1994, states that a village panchayat has the duty to make reasonable provision for carrying out the requirements of the panchayat village for the opening and the maintenance of burial and burning grounds.

The local body makes provisions to meet the requirements of its residents. The non-residents do not figure in the scheme of things in respect of the statutory functions envisaged under Section 110 of the Act, the court said.

Rule 7(2) of The Tamil Nadu Village Panchayats (Provision of burial and burning grounds) Rules, 1999, states that the person having the control of a place for burying or burning the dead shall give information of every burial or burning of a corpse at such a place to any officer appointed by the village panchayat for this purpose, the court said.

As per the provisions of the Registration of Births and Deaths Act, 1969, any death will have to be notified and registered. The burial and cremation grounds will have to maintain registers and entries will have to be duly made therein. Death certificates are issued on the basis of such entries, the court said.

There has to be regular coordination between the persons in charge of the burial and cremation grounds and the local authorities. The statutory functions can be properly discharged only if the right of burial or cremation in the designated place is confined to the inhabitants of the local body concerned, the court said.

The judges said, though we hold that one cannot demand as a matter of right that he or she shall be cremated or buried in a cremation or burial ground that is vested in a panchayat of which he or she is not resident, we have to add an important caveat. If custom recognises that a particular place is a consecrated ground open to Hindus irrespective of their residential status, that would take the issue to the realm of fundamental rights.

The petitioners herein have not anchored their case on Article 25 of the Constitution. Convenience is the reason canvassed by them. An enforceable right cannot be built on this foundation, the court said.

The residents of Bommaiahgoundanpatti have not made a claim under Article 25 of the Constitution nor have they proved the existence of any customary right. Hence, we hold that they are not entitled to claim the right of cremation in the crematorium/cremation ground of Sukkuvadanpatti, the judges said and dismissed the petition.