KUMARAVELU CHETTIAR SUBRAMONIAN CHETTIAR Vs. STATE

JUDGEMENT

(1.) These three appeals are directed against a consolidated order passed by a Single Judge of the Travancore - Cochin High Court dismissing three original petitions, OP 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. 63 of 1954 was similarly filed by the President of the Viswa Brahma 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 1070. 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 of the members of the particular Samudayam has to be 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 easement 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. 2186 and by the members of the Telugu 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 and 2186 of Aramada Pakuthy and to direct the members of the aforesaid communities to resort to either of the public cremation ground at Thycaud 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. B. 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 marked 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:

(3.) The State opposed all the three petitions and denied the petitioners 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 Art.19, 26 and 31 of the Constitution.