RSA No.887 of 2010

1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

RSA No.887 of 2010

Date of decision: 24.2.2010

Balbir Singh and others

......Appellant(s)

Versus

Municipal Council Yamunanagar and others

......Respondent(s)

CORAM:-

HON'BLE MR.JUSTICE RAKESH KUMAR GARG

* * *

Present:

Dr. Pawan Kumar Aryan, Advocate for the appellants.

Rakesh Kumar Garg, J.

This is plaintiffs' second appeal challenging the judgment and

decrees of the Courts below whereby their suit for permanent injunction

restraining the defendant-respondent from using the land for cremation and

constructing the shed in the suit land and further restraining it, not to allow

the peoples to burn the dead bodies which creates pollution, in any

manner, was dismissed.

As per the pleadings, the plaintiff-appellants are residents of

Professor Colony, Yamuna Nagar. They are having their residential

houses adjacent to the suit land which is shown as Marghat (cremation

ground) in the revenue record. According to the appellants, the suit land

has not been used for cremation of dead bodies for the last more than 25

years. They have built their houses near the land in dispute after getting

the site plan sanctioned from the defendant-respondent. There is another

cremation ground in HUDA, Jagadhri which the residents usually use for

cremation of dead persons. It was further averred that the defendant with

an ulterior motive and design wanted to construct the cremation shed in the

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suit land illegally and harass the appellants and to create pollution. The

defendant was requested not to act illegally and a memorandum was also

given to the Deputy Commissioner, Yamuna Nagar but despite that the

defendant remained adamant. So they were constrained to file the present

suit. It was also prayed that the defendant be restrained from using the

land for cremation and constructing the shed and further not to allow the

people to burn the dead bodies of deceased persons and creating any kind

of nuisance and pollution in the suit land in any manner whatsoever.

Upon notice, the defendant appeared and filed written

statement raising various preliminary objections. On merits, it was

submitted that the land in dispute is graveyard/Shamshan Bhumi and the

same is being used by the residents as funeral site. It was further pleaded

that the site in dispute was reserved as Shamshan Bhumi since the time of

consolidation with the consent of proprietors of village Govindpuri and the

plaintiffs and others raised construction of their houses knowing fully well

that the site in question is reserved as Shamshan Bhumi. It was further

submitted that there was also a cremation ground near Sector-17, HUDA

but the site in question was reserved as cremation ground for village

Govindpuri and cremation ground situated in Sector 17, HUDA was at a

long distance. It was further pleaded that on the representation of

residents of village Govindpuri, Member of Parliament had sanctioned a

sum of Rs.50,000/- out of Local Area Development Scheme for

construction of sheds in the land in dispute and the process was going on

for raising construction of that shed. It was further submitted that the

plaintiffs had no right to raise any obstruction in the construction of shed on

this cremation ground which is reserved for the purpose of cremation

since the time of consolidation.

On appreciation of evidence, the Courts below have recorded

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a finding of fact that the land in dispute was reserved for cremation ground.

Earlier the aforesaid land was owned by the Panchayat Deh of village

Govindpuri and it came to be owned by the respondent-Municipal Council,

Yamuna Nagar as per mutation Ex.D2 but the nature of the property

remained the same i.e. cremation ground. The Courts below also found

that initially the houses were raised by the plaintiffs and other persons

illegally and they d