Madras High Court Orders Exhumation Of Bodies From Church Cemetery, Says Burial Can Only Be Done In Designated Grounds

Justice N Mala began the judgment with a quote by Khushwant Singh that said “When the struggle for space over shadows even the breath of life, death too presses its silent claim upon the earth”.

The court noted that the authorities had acted with undue haste and had granted the license without proper application of mind, resulting in arbitrary exercise of power.

“In my view, the decision to grant the license in such circumstances is arbitrary, since the authority failed to adhere to the statutory provisions governing the grant of licenses under the Tamil Nadu Urban Local Bodies Act, 1998…These factors collectively indicate that the first respondent acted in undue haste and without proper application of mind, resulting in an arbitrary exercise of power,” the court said.

The court thus directed the trust to exhume the bodies on its own, failing which the court directed the Greater Chennai Corporation Commissioner, along with the Deputy Director [Public Health], GCC to exhume the body. The court made it clear that if the body was to be exhumed by the authorities, the trust had to bear the cost.

“The 5th respondent shall exhume the bodies, failing which the respondents 1 and 2 with aid of the 4th respondent shall conduct the exhumation and bury the bodies in designated burial grounds, however, if the official respondents conduct the exhumation and burial, the 5th respondent shall bear the costs. The entire exercise shall be completed within a period of twelve weeks from the date of receipt of a copy of this order,” the court directed.

The court was hearing a petition filed by Stellar Developer, a developer of land situated in Alandur, Kanchipuram District. The developer wanted to use the land in question for constructing dwelling apartments and had obtained planning permission by the Chennai Metropolitan Development Authority (CMDA) in 2021. The petitioner had alleged that after commencing the construction, it was noticed that the 5^th respondent, S Albert Kings Bell, CSI, who owned the adjacent property was conducting burials without obtaining any permission from the authorities. It was submitted that though objections were raised before the authorities, they granted a formal license, against which the present plea was filed.

The developer argued that the land in question was classified as a primary residential zone in the Master Plan and only one non-residential activity, including burning, burial ground, cemetery etc was permitted in a subdivision. It was argued that a burial ground already existed in the subdivision, and thus the present application should have been rejected. It was also argued that the provisions of Section 388 of the Urban Local Bodies Act, were grossly violated since no fee was determined or paid for grant of the license.

The respondent trust challenged the maintainability of the plea and argued that the petitioner was not the owner of the property. It was argued that the agreement to sell did not convey the title nor create any enforceable propriety and interest in the land. Thus, it was argued that the petitioner was not authorised to initiate litigation in his own name. It was also submitted that there was no violation of the provisions of the Urban Local Bodies Act.

The court rejected the objection with respect to the maintainability of the plea. The court noted that as per the submission of the petitioner, the existence of burial ground adjacent to the property was detrimental to his business since prospective buyers were unwilling to invest in the project. Thus, the court opined that when the petitioner's project was allegedly being impacted, it could not be said that he was not aggrieved or that he did not have locus to file the petition.

The court also agreed with the petitioner and noted that as per Annexure XVIII of the Tamil Nadu Combined Development and Building Rules (TNCDBR), 2019, the permissible non-residential activity in a residential zone was limited to one in a sub division. Though the respondents argued that the existing burial ground was in a separate sub division and that the license was valid, the court opined that the subdivision, as mentioned in the Act would have to be interpreted as “any one and not each”.

“The object of TNCDBR, 2019, is to ensure regulated and planned development consistent with the designated land use pattern. Any interpretation that allows multiple permission in the same sub division, merely on revenue fragmentation, would defeat the very purpose of such regulation and lead to arbitrary and unplanned utilisation of the land. Therefore, the submission of the learned Senior counsel, premised solely on revenue sub-division numbers, for grant of license, in the view of this Court, is legally untenable and contrary to the scheme of TNCDBR, 2019,” the court observed.

The court also noted that the provisions of Tamil Nadu Urban Local Bodies Act, 1998, every application for grant of license for operating a crematorium must be accompanied by payment of prescribed fee and proof in the form of a challan. The court observed that the statutory requirement was not followed in the present case.

Thus, the court concluded that the authorities had granted a license in the present case without applying their mind and in an arbitrary manner. The court was thus inclined to set aside the license granted to the trust and ordered accordingly. The court also gave liberty to the trust to file fresh application which shall be considered by the authorities in accordance with statutory provisions.

Counsel for Petitioner: Mrs. G. Revathy for M/s. Mothilal and Goda

Counsel for Respondents: Mr. Ramanlal, AAG assisted by Mrs. S. Vanitha Joice Rani Standing counsel, Mrs. K. Mageswari Standing counsel, Mr. J. Subbiah, Government Advocate [Crl.Side], Mr. P. Wilson, Senior counsel for Mr. Dineshkumar

Case Title: M/s. Stellar Developer v. The Commissioner, Greater Chennai Corporation and Others

Citation: 2025 LiveLaw (Mad) 401

Case No: WP.No.35426 of 2024