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Kumaravelu Chettiar Subramonian Chettiar Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberA.S. Nos. 106, 107 and 108 of 1955 (T)
Judge
Reported inAIR1957Ker22
ActsConstitution of India - Articles 32 and 226; Evidence Act, 1872 - Sections 115
AppellantKumaravelu Chettiar Subramonian Chettiar
RespondentThe State
Appellant Advocate M.N. Parameswaran Pillai, Adv.
Respondent Advocate R. Narayana Pillai, Govt. Pleader
DispositionAppeal dismissed
Cases ReferredIndian Tobacco Corporation v. State of Madras
Excerpt:
.....of natural justice - sought quashing of government order - court cannot assume existence of right claimed by petitioner and give order and direction for protection of right - appeal dismissed for want of convincing evidence . - - it was also pointed out by the learned judge that the right claimed by the petitioners, having been denied, the question whether such right exists can be decided only after an enquiry into all the relevant aspects and that such enquiry can be properly and effectively conducted is a regular suit instituted by the petitioners to get their rights established and that the situation does not warrant the exercise of the extraordinary jurisdiction conferred by article 226 of the constitution. thus the first order has been effectively superseded by the..........with the orders exts. a, b and c.it was also pointed out by the learned judge that the right claimed by the petitioners, having been denied, the question whether such right exists can be decided only after an enquiry into all the relevant aspects and that such enquiry can be properly and effectively conducted is a regular suit instituted by the petitioners to get their rights established and that the situation does not warrant the exercise of the extraordinary jurisdiction conferred by article 226 of the constitution. accordingly all the three petitions were dismissed.6. from the facts stated above, it is obvious that the impugned orders cannot be quashed by the issue of a writ of certiorari. the plots in question are admittedly poramboke lands at the disposal of the state......
Judgment:

Sankaran, J.

1. These three appeals are directed against a consolidated order passed by it Single Judge of the Travancore-Cochin High Court dismissing three original petitions, O. P. No. 62 of 1954, O. P. No. 63 of 1954 and O. P. No. 64 of 1954. Since the points in controversy in all these three petitions were practically the same, the petitions were heard and disposed of by one and the same order.

O. P. No. 62 of 1954 was filed by the President of the Vanika Chetty Samudayam residing at Karamanai in Trivandrum. O. P. No. G3 of 1954 was similarly filed by the President of the Viswa Bhrahma Samudayam and O. P. No. 64 of 1954 was filed by the President of the Telugu Chetty Samudayam residing in the same locality. The petitions were stated to have been filed for and on behalf of these respective communities.

The petitioners have impeached three successive orders passed by the Travancore-Cochin Government impleaded as the first respondent in all the petitions. These orders relate to three distinct plots of land comprised in S. Nos. 2185, 2186 and 2184 of the Aramada Pakuthy. The plot covered by S. No. 2185 has an extent of 48 cents while the plot covered by S. No. 2186 has an extent of 52 cents and the plot covered by S. No. 2184 has an extent of 70 cents.

According to the petitioners there was a grant by the Travancore Government in respect of each of these plots in favour of the members of the respective communities for cremating the dead bodies of the members of the respective communities. The origin of the grant is stated to have been some time prior to the General Revenue Settlement about the year 1970.

It is further alleged that the members of each of these communities were using the specified plot as their cremation ground from time immemorial without any let or hindrance from anybody and that from such open and peaceful enjoyment of the property from time immemorial as of right, a dedication or grant on the part of the Government in favour ofthe members of the particular Samudayam has tobe presumed.

An alternative position is also taken up that even in case no such grant or dedication can be inferred the long and exclusive use of the land from time immemorial by the members of these particular communities has resulted in creation of a customary right in the nature of an casement enforceable at law by the members of these communities. Such rights are put forward on behalf of the Vanika Chetty Samudayam in respect of the 48 cents comprised in S. No. 2185, by the members of the Viswa Brahma Samudayam in respect of 52 cents comprised in S. No. 2188 and by the members of the Telegu Chetty in respect of the 70 cents in S. No. 2184.

2. By the order D. Dis. 17493/52/E. H. L. dated 27-1-1954 the Travancore-Cochin Government directed the Board of Revenue and the Public Health Director to take necessary measures to prevent cremation of dead bodies in S. Nos. 2184, 2185 & 2186 of Araniada Pakuthy and to direct the members of the aforesaid communities to resort to either of the public cremation ground at Thycand and Puthencottah within the City of Trivandrum for the purpose of cremating the dead bodies of the members of these communities.

Copy of this order, has been produced as Ext. A in the present proceedings. On behalf of the said communities already referred to representations were made to Government complaining of the hardships caused to the members of these communities as a result of the order Ext. A. After hearing their objections, Government passed another order D. Dis. 8102/54/DD, dated 4-5-1954 by which the first order Ext. A was modified.

Copy of the second order has been produced and marked as Ext. B. The second order is to the effect that 25 cents from each of the three survey numbers already mentioned has been set apart for use as cremation ground by the members of each of the communities mentioned already. The Board of Revenue was directed to demarcate the plots accordingly. Complaint petitions were received by Government from other members of the locality protesting against the Government order Ext. D.

Such complaints necessitated further investigation into the matter and accordingly an interim order H. L. R. 10351/54/DD, dated 4-6-1954 was passed by Government staying the operation of the order Ext. B till the disposal of the objection petitions. It was also directed that the objection petitions will be disposed of after a local inspection and after hearing all the parties concerned.

Copy of this order has been produced and mark-ed as Ext. C. Intimation was also given to the representatives of the three communities in whose favour the order Ext. B had been passed. The three orders Exts. A, B and C have been attacked on several grounds, the more important of which are the following:

1. The impugned orders were passed by Government without any jurisdiction and they are illegal and void.

2. By these orders the fundamental rights guaranteed by Articles 19, 26 and 31 of the Constitution have been violated.

3. The orders were passed arbitrarily and in violation of the principles of natural justice, and

4. A discrimination has been shown against the concerned communities while the other sections of the Hindu denominations are permitted to have cremation grounds of their own.

For these reasons the petitioners prayed that the records may be called up and the orders Exts. A, B and C be quashed by the issue of a writ of certiorari.

It was also prayed that other appropriate orders may be passed and directions issued to the first Respondent -- State -- to safeguard the rights of the petitioners and the members of the respective communities in the matter of using the plots covered by S. Nos. 2185, 2186 and 2184 as cremation grounds exclusively set apart to the members of these communities.

3. The State opposed all the three petitions and denied the petitioner's case that there was a grant or dedication in favour of the members of the three communities and maintained that no such grant or dedication could be presumed merely on account of the fact that the dead bodies of the members of these communities were allowed to be cremated in these plots from time to time.

It was also contended that no customary right or rights in the nature of an easement have been acquired by the members of these communities as alleged by them. It was also stated that there is no basis for the allegation that there has been an infringement of any fundamental rights guaranteed under Articles 19, 26 and 31 of the Constitution.

4. The petitioners who had objected to, the Government order Ext. B also appeared in the present proceedings and they were impleaded as Respondents 2 and 3. They too opposed the petitions on several grounds. Besides denying the case of grant or dedication set up by the representatives of the three communities concerned, these Respondents have even denied the existence of a customary right is favour of these communities to have the dead bodies of the members of their communities cremated in the plots in question.

It was also pointed out that there is no need to set apart these pints for the exclusive use of these communities particularly in view of the fact that two public cremation grounds are available close by and within the City Municipal limits.

5. After considering the several grounds urged on behalf of the petitioners and also the objections raised by [he Respondents the learned Judge who heard the petitions came to the conclusion that no proper grounds existed to justify an interference with the orders Exts. A, B and C.

It was also pointed out by the learned Judge that the right claimed by the petitioners, having been denied, the question whether such right exists can be decided only after an enquiry into all the relevant aspects and that such enquiry can be properly and effectively conducted is a regular suit instituted by the petitioners to get their rights established and that the situation does not warrant the exercise of the extraordinary jurisdiction conferred by Article 226 of the Constitution. Accordingly all the three petitions were dismissed.

6. From the facts stated above, it is obvious that the impugned orders cannot be quashed by the issue of a writ of certiorari. The plots in question are admittedly Poramboke lands at the disposal of the State. The petitioners have no case that they have acquiredthe ownership of these lands. No doubt the Settlement Register relating to these lands has noted them as 'Chudukadu' or cremation ground; but there is nothing in that register to indicate that these lands are the cremation grounds reserved for the exclusive use of any particular community.

The right for such exclusive use as claimed by the petitioners has therefore to be established by adducing satisfactory and convincing evidence. So far as the impugned orders are concerned they have been passed by the State in the exercise of its ownership of the lands. On the complaint preferred by the petitioners themselves, the first order Ext. A was modified by the State by passing the second order Ext. B.

Thus the first order has been effectively superseded by the second order and hence the order Ext. A has ceased to exist. There is therefore no point in seeking the avoidance of that order by getting it quashed by a writ of certiorari. As for the order Ext. B, it is seen that the same was passed on the basis of a concession made by the petitioners through their Advocates who appeared before the authorities concerned.

The order expressly states that 'the Advocates Sri A. Narayana Pillai, Sri S. Govinda Pillai and Sri A. R. Subramonia Iyer, appeared for the petitioners and have agreed to this arrangement'. We see no reason to doubt the correctness of this statement. The petitioners having agreed to the arrangement embodied in the order Ext. B cannot now contend that the order is illegal or that it was passed in violation of the rules of natural justice, nor can they invoke the extraordinary jurisdiction of this court to quash that order by the issue of a writ of certiorari.

Then there is the third order Ext. C. It is only an interim order staying the operation of the order Ext. B. That order was passed on an application filed by certain persons complaining that the order Ext. B would work great hardship and inconvenience to the members of the locality concerned. The present petitioners have been sewed with the notice of interim order so that they may enter appearance and answer the objections raised by those who have complained against the order Ext. B.

It is expressly stated in the interim order Ext. C . that the petition on which such an order was passed will be disposed of after a local inspection and after hearing all the parties concerned. No such final order has been passed and as such there is no justification at this stage to invoke the extraordinary jurisdiction of this Court to interfere with the interim order Ext, C and to quash it by the issue of a writ of certiorari.

7. It has next to be considered whether the situation will justify the issue of a writ of mandamus or other appropriate orders to protect and safeguard the rights claimed by the petitioners in favour of the communities represented by them. According to them each of the three communities has acquired an unquestionable right to the exclusive use of the plots specified as the cremation ground for the members of that community.

The existence of such a right and even the basis on which such a right is claimed by the petitioners have been disputed by the Respondents who maintain that there has been no grant or dedication of the lands in favour of these communities and that they have not acquired any customary right or other rights isthe nature of an easement over the lands in question. Such being the nature of the disputes between the parties, it is obvious that the existence or otherwise of the rights claimed by the petitioners can be decided only after a full enquiry at which the necessary evidence may be forthcoming.

8. On behalf of the Respondents it is argued that the right claimed in favour of the members of the community cannot exist us a right of casement and that such a right cannot also be urged on the basis of a lost grant. The decisions in Nani Gopal v. Kshitish Chandra AIR 1952 Cal 108 (A) and in Lakshmidhar Misra v. Rangalal AIR 1950 PC 56 (B) have been cited in support of these contentions.

In the first of these cases it was held that in respect of the right of pasturage claimed by the residents of a particular village there is no dominant tenement to which the right can attach and that therefore the right cannot be claimed as a right of easement. It was also pointed out that a presumption in favour of lost grant can arise only in cases where the grantees form a well defined body of persons in whose favour a valid grant could have been made and that an indeterminate and fluctuating body of persons like the members of a village cannot claim the benefit of such a grant.

In Lakshmidhar Misra v. Rangalal (B) also it was held that a claim by the inhabitants of a village to the use of a certain area as cremation ground of the village can only be supported on the basis of custom and not on the basis of dedication or lost grant. In order that a court of law may uphold a customary right it must be shown that the customary right claimed is immemorial in its origin, that the right was being peacefully and openly enjoyed, that the right was being enjoyed continuously and that the right is certain and reasonable in its nature.

The question as to how far these principles should govern the right claimed by the present appellants on behalf of the communities which they purport to represent can be decided only on the basis of the evidence relating to all the relevant particulars of the origin and nature of the right in question. Necessarily the matter must go for evidence. But the present move of the appellants -- petitioners is that the court must assume the existence of the right as claimed by them and then issue the necessary orders and directions for the protection of such a right.

It is obvious that this cannot be done. Since the right, claimed by the petitioners is disputed by the Respondents the first thing that the petitioners have to do is to adduce convincing evidence in proof of the existence of the right claimed by them. This can be properly and effectively done in a regular suit rather than in writ petitions like the present ones.

It cannot be denied that the reliefs claimed by the petitioners can be obtained by them in a regular suit provided that they are able to adduce the necessary proof for establishing the right claimed by them. Under such circumstances there is no justification for this court to invoke its extraordinary jurisdiction under Article 226 of the Constitution for granting relief to the petitioners, particularly when the right claimed by the petitioners is itself in dispute.

Reference may be made in this connection to the decision in Indian Tobacco Corporation v. State of Madras AIR 1954 Mad 549 (C) where it was pointed out that an application under Article 226 of the Constitution is not an alternative remedy to the usualremedy by way of suit. In that case it was further pointed out that where an applicant under Article 226 has his remedy by way of suit in which he can obtain every relief to which he is entitled, including interim relief by way of injunction restraining the invasion of the right claimed by him, it will not be desirable to have recourse to Article 226 of the Constitution.

Considered in the light of these aspects also the dismissal of the writ applications presented by the appellants -- petitioners cannot be said to have been improper or unjustified. All that can be said in favour of these petitioners is that the final order cow templated by the interim order Ext. C has not yet been passed, by the State. It is hoped that this matter will not be delayed any further and that the State would pass the final orders as contemplated by Ext. C so that the aggrieved party may have recourse to a court of law for getting his right established as quickly as possible.

9. Subject to the observations made above therethree appeals are dismissed. In the nature and circumstances of these cases we direct the parties tobear their own costs.


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