Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 514 (GAU)

Worter Kharmalki v. State of Meghalaya

2009-07-31

TINLIANTHANG VAIPHEI

body2009
ORDER T. Vaiphei, J. 1. The inaction on the part of the State-respondents in not enforcing the fundamental rights of the petitioners and other villagers belonging to an indigenous religious group called "Seng Khasi", to maintain a separate cremation ground, at Mawlong village falling under Raid Mawpat in the East Khasi Hills District has prompted them to file this writ petition for appropriate relief. 2. Though the facts pleaded by the petitioners in their writ petition, are many, the facts really relevant for disposal of their dispute lie in a narrow compass. The petitioners and their religious community comprise of thirteen households numbering about eighty-six persons. It is their pleaded case that they have been in possession of their own burial and cremation grounds, which had been demarcated and allotted by the village elders since time immemorial. Similarly, villagers belonging to other faiths such as Presbyterian and Catholic were also allotted properly demarcated burial grounds. The boundary of the land allegedly allotted to the petitioners is as follows: North--Mawpat Village Forest and land of Mother of U Tar Kharkongor; South--Burial ground of Presbyterian Church, land of Driadsibon Lyngdoh and land U Dran Mawrie; East--Burial ground of Catholic Church and West--Land of Mother of U Tar Kharkongor, land of Ka Jasir Mawrie and football field. 3. It is alleged that in the early part of 1999, the respondents No. 7 and 8, who are the Headman and the Secretary of the village respectively, started to harass the petitioners and threatened to dispossess them of the aforesaid land. They then lodged a complaint before the Syeim of Mylliem and Dorbar on 7-5-1999 for taking action, but nothing came out of this and, as such, the oppression continued from other co-villagers under the leadership of respondents No. 7 and 8. The complaint lodged by them before the Executive Committee of the District Council, Shillong also did not prove fruitful. On the other hand, the matter took a turn for the worse when on 20-10-2004 respondents No. 7 and 8 along with other villagers trespassed into the land and felled a large number of standing pine trees planted by the petitioners and removed them therefrom. The FIR lodged by the petitioners in that connection on 21-10-2004 also evoked no response from the police authorities. The FIR lodged by the petitioners in that connection on 21-10-2004 also evoked no response from the police authorities. As a matter of fact, when the baby of the petitioner No. 3 died on 12-11-2004, respondents No. 7 and 8 prohibited him from performing the last rites and of cremating the dead baby on the said land. On earlier occasion also, the dead baby of one of the members of their faith was not allowed to be cremated there. Another complaint was filed by them to the District Council on 18-11-2004, but no action was taken. Apparently, emboldened by this, respondents No. 7 and 8 issued notices to the members of their denomination directing them to stop cultivation of the community lands known as "Law Dimmiew" situate at the village, which happens to be their only source of livelihood with the sole object of driving them out of the village. This ultimately drove them to approach the Deputy Commissioner, East Khasi Hills District (respondent No. 2) for taking action against respondents No. 7 and 8. The police went to their village on 4-3-2005 between 10 a.m. and 11 a.m., but they were prevented by respondents No. 7 and 8 for conducting any investigation or enquiry. After the police left the village, respondents No. 7 and 8 threatened and abused the petitioners and their community, and on the night of 5-3-2005 between 11 p.m. and 11.30 p.m., stones were pelted at the house of one Driatsibon and others belonging to their religious faith. Their complaint lodged to respondent No. 2 apparently met the same fate. Respondents No. 7 and 8 are now determined to expel the petitioners and their community from the village by depriving them of their livelihood and by dispossessing them of their community lands. This is how this writ petition came to be filed. 4. No affidavit-in-opposition has been filed by the State-respondents despite adequate opportunity given to them. Respondents No. 7 and 8 opposed the writ petition and filed their joint affidavit-in-opposition. It is stated by these respondents that the petitioner No. 1 was an original inhabitant of Sohryngkham village, and was evicted from that village due to instigation and unruly behaviour, whereafter he shifted to Ryngkshaw village near Dieng Pasoh and thence came to Mawlong village about 5 years back after his marriage with Smt. S. Lyngdoh. It is stated by these respondents that the petitioner No. 1 was an original inhabitant of Sohryngkham village, and was evicted from that village due to instigation and unruly behaviour, whereafter he shifted to Ryngkshaw village near Dieng Pasoh and thence came to Mawlong village about 5 years back after his marriage with Smt. S. Lyngdoh. It is further stated therein that he is a trouble-maker and creates problems wherever he goes. The petitioner No. 2 who also originally hailed from Nongkasiang village, and came to Mawlong village after he married Smt. P. Nongrum. It is pointed out by the answering respondents that a portion of the land measuring 10,000 square feet was allotted to the people practising indigenous religion for their cremation ground behind the hills known as "Ka Phud Um" or "Sikha Phud Lawshoong", and one Shron Nongkhlaw was cremated on a portion of that land. A meeting of the village Dorbar was held on 23-5-2001 and after a thorough discussion, it was decided without objection from any quarter that there would be no change with regard to the allotment of land to different communities to maintain peace and tranquility in the village and to preserve the land, forest, trees and plantation and in the interest of the community as a whole. The petitioners are making claim to the community land, which is meant and utilized for the benefit of the whole community irrespective of caste, creed and religion. No cremation is ever performed till date in the community land as it is meant only for community graveyard. This community land is under the control, management and possession of Mawlong village. So far, residents of the village who fail to adhere to the rules and regulations of the Church and have no place to be buried when they die are buried in the aforesaid community graveyard. In fact, one P. Chakraborty was also cremated there and, as such, persons belonging to Presbyterian Church, Catholic Church and Hindus were buried and found solace in the aforesaid community graveyard. The petitioners without any right or grievances made a hue and cry to different authorities though peace and tranquility are prevailing in the village. These are the sum and substance of the case of the respondents No. 7 and 8. 5. The petitioners without any right or grievances made a hue and cry to different authorities though peace and tranquility are prevailing in the village. These are the sum and substance of the case of the respondents No. 7 and 8. 5. The petitioners subsequently filed their reply affidavit wherein they aver that in compliance with the interim order dated 29-3-2005, respondents No. 1 to 5 conducted an enquiry on 15-4-2005 with regard to the status of the land and submitted the enquiry report. In the enquiry report, it is revealed that respondent No. 7 in his statement before the inquiring Magistrate stated that there was no dispute that the plot of land known as "Law Dymmiew" is being used for cultivation by the villagers. The rough sketch map prepared by the Enquiry Officer and annexed to the Enquiry Report clearly demarcating the burial place belonging to Presbyterian congregation at Plot 'A', Catholic congregation at plot 'B' and Khasi (Non-Christians i.e. the religious community of the petitioners at plot 'C' is not disputed by the parties. Plot 'C has been allotted to the Non-Christians for their use by the erstwhile village elders. The respondents are now attempting to dispossess the petitioners of plot 'C' The plot of land measuring 10,000 square feet allotted to the petitioners for cremation ground is too small, unsuitable and not of the same size as the burial ground used by them heretofore. Moreover, this plot is distantly located and far away from the village whereas the burial ground of the Christians is very close to the village and bigger in size. Naturally, the petitioners refused to accept the offer. It is maintained by the petitioners that respondents No. 7 and 8 have not disputed the Enquiry Report, which was prepared in their presence. The respondents are intending to deprive the petitioners of their basic rights to cremation and burial of their members as was the practice hitherto in their portion of land. In fact, to intimidate the petitioners, they were even forbidden to cultivate the community land known as "Law Dymmiew", but they were not cowed down by this and continue to do the cultivation thereon for their survival. It is pointed out by the petitioners that respondent No. 7 did not allow one dead body belonging to the indigenous faith, namely, Miss Trina Nongrum, aged 6 years, to be buried in the cremation ground. It is pointed out by the petitioners that respondent No. 7 did not allow one dead body belonging to the indigenous faith, namely, Miss Trina Nongrum, aged 6 years, to be buried in the cremation ground. The father of the deceased baby had to file the complaint dated 17-3-2006 before the Extra-Assistant Commissioner (the Enquiry Officer) against this but to no avail whereupon the child had to be buried in her own land. The respondent No. 7 in not allowing the members belonging to the indigenous faith to cremate their near and dear ones in their own cremation and burial ground is unleashing a religious persecution. The petitioners finally aver that in spite of all these, they would still be satisfied if they are allotted a different plot of the same size as the plot used by them previously for cremation of their near and dear ones as shown in the Sketch Map appended to the Enquiry Report dated 19-4-2005. 6. The questions which falls for consideration in this writ petition is whether the petitioners have their own cremation ground in the village and if so, whether they are entitled to a writ of mandamus for enforcement of their rights. It may at this, stage be noted that by the interim order dated 29-3-2005, the State-respondents were directed to conduct an enquiry as regards the status of the land, which formed the subject-matter of this writ petition and submit the report to this Court on the next returnable date. In compliance with this order, Smt. I. Majaw, MCS, Extra Assistant Commissioner, East Khasi Hills District conducted the enquiry on 15-4-2005 and submitted her report to this Court on 19-4-2005. No objection has been raised against the findings in this report. For better appreciation of the controversy, I reproduce below the observations of the Enquiry Officer. 1. The Village now has two groups--the Christians who are larger in number and the others (neither Catholics no Presbyterian) who consists of only about 14 households out of a total of 109 households. 2. A conflict and difference of opinion between the two sides was evident, and the cause is understood to be the burial and cremation ground. The issue on cultivation in "Law Dymmiew" erupted out of the above. A rough sketch of the land has been outlined and attached herewith at 'Annexure D'. 2. A conflict and difference of opinion between the two sides was evident, and the cause is understood to be the burial and cremation ground. The issue on cultivation in "Law Dymmiew" erupted out of the above. A rough sketch of the land has been outlined and attached herewith at 'Annexure D'. On the spot, a collection of graves were seen which shows a clear division of the graveyard for Presbyterian, Catholic and others (not belonging to either two). 3. The Headman Shri B. Lyngdoh stated that he wants to come to a compromise with the other side but they should submit or comply with the directives or decision of the Village Dorbar. He said that Shri Worster Kharmalki had unnecessarily dragged the village authorities to different Courts and being the resident of the village authorities to different Courts and being the resident of the village only since 1998, is trying to bring tension and turmoil in the village with an ulterior motive. The petitioner is also willing to compromise but he wants it to be done before the Hon'ble High Court. Thus, both sides showed willingness to come to a compromise. 4. The mood of the villagers as on 15-4-2005 appeared to be under control. Strict instructions were also given by me to both sides, to avoid creating trouble in the village and refrain from taking the law in their own hands that could lead to a breach of the peace in the village. 5. Therefore, the status of the land is that, the residents of the village, who are neither Presbyterian nor Catholics are given a plot 'C as per 'Annexure-D' to bury their dear and near ones. Some graves were cemented which could be identified and some covered with soil and vegetation, hence, identification was not possible, especially due to the absence of Identification Marks like 'crosses', etc. There was no sign of any deliberate damage to be done to any of the graves. On the 15-4-2005 in my presence both parties expressed willingness to come to a compromise on and showed no sign of any possibility of bringing about a situation that could threaten the peace in the Village. 7. Mr. There was no sign of any deliberate damage to be done to any of the graves. On the 15-4-2005 in my presence both parties expressed willingness to come to a compromise on and showed no sign of any possibility of bringing about a situation that could threaten the peace in the Village. 7. Mr. H. Kharmih, the learned Counsel for the respondents No. 7 and 8 has stated before this Court at the time of hearing that there is no question of compromise and it is the desire of these respondents that the case may be disposed of on merits. As per the report of the Enquiry Officer, which is not disputed by the answering respondents, it is obvious that the petitioners and members belonging to their denomination and other Non-Christians are given the plot marked 'C in the sketch map prepared by the Enquiry Officer. Unfortunately, the area of this plot marked 'C is not mentioned by the Enquiry Officer, but it can safely be said that this plot has the same area and size as, if not more than, plot 'A' and plot 'B' allotted to Presbyterian denomination and Catholic faith respectively. In the absence of any other evidence and also in the absence of objection to the enquiry report from the respondents No. 7 and 8, in my opinion, the area of plot 'C' in the said sketch map should be understood only in this manner. It is not disputed by the answering respondents that the petitioners are members of one of the Non-Christian faiths of this State under the name and style of "Seng Khasi". This faith can also be described as a denomination. The word "denomination" means a collection of individuals or class together under the name, a religious body having a common faith and organization and designated by a distinctive name. The right to freedom of religion and freedom to manage religious affair do form a part of the fundamental rights guaranteed under Articles 25 and 26of the Constitution, which are in the following terms: 25. Freedom of conscience and free profession, practice and propagation of religion--(1) Subject to public order, morality and health and to other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. Freedom of conscience and free profession, practice and propagation of religion--(1) Subject to public order, morality and health and to other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. (2) Notwithstanding in this article shall affect the operation of any existing law or prevent the State from making any law-- (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation 1.--The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II.--In Sub-clause (b) of Clause (2), the reference to Hindu shall be construed as including a reference to persons professing the Sikh, Jain Of Buddhist religion, and reference to Hindu religious institutions shall be construed accordingly. 26. Freedom to manage religious affairs.--Subject to public order, morality and health, every religious denomination or any section thereof shall have the right.-- (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law. 8. It is a settled proposition of law that the protection of Articles 25 and 26 of the Constitution is not limited to matters of doctrine. They extend also to acts done in furtherance of religion and, therefore, they contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of the religion. Religion undoubtedly has its basis in a system of beliefs which are regarded by those who profess religion to be conducive to the future well-being. It is not merely a doctrine. It has outward expression in acts as well (see Sir Adi Visheshwara of Kashi Vishwanath Temple v. State of A.P. (1997) 4 SCC 606 ). In Ratilal v. State of Bombay AIR 1954 SC 388 , B.K. Mukherjee, J. said: Religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines. In Ratilal v. State of Bombay AIR 1954 SC 388 , B.K. Mukherjee, J. said: Religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines. Thus if the tenets of the Jain or Parsi religion lay down that certain rites and ceremonies are to be performed at certain times and in a particular manner, it cannot be said that those are secular activities partaking of commercial or economic character simply because they involve expenditure of money or employment of priests or the use of marketable commodities. No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State or restrict or prohibit them in any manner they like under the guise of administering the trust estate. 9. In my opinion, the law has been succinctly explained by Narayana Pillai, J. of the Kerala High Court in Porinchukutty v. State of Kerala 1971 KLT 204 in the following manner: 22. Practices which are regarded by the community as part of its religion are also matters of religion. Among most of the Hindus disposal of the dead is effected by cremation but among Muslims, Jews and Christians, it is done by burial. Right to bury dead bodies in a particular manner with particular rites in consecrated places is part and parcel of certain religions. Among Christians while rites at the time of burial consists in services expressed in words ceremonies consist in gestures or acts preceding, accompanying or following those words, Catholics, it is admitted that members of the A party are Catholics, believe in the immortality of the soul and resurrection of the body. The practice of burying dead bodies with certain rites and ceremonies is an integral part of the Catholic faith. In burying dead bodies in consecrated places they only exercise their fundamental right regarding practice of religion. 10. In the case at hand, there is no dispute that some members, if not all, of Seng Khasi denomination residing at Mawlong village have the practice of cremating their dead bodies and at the place marked plot 'C' of the sketch map prepared by the Enquiry Officer. 10. In the case at hand, there is no dispute that some members, if not all, of Seng Khasi denomination residing at Mawlong village have the practice of cremating their dead bodies and at the place marked plot 'C' of the sketch map prepared by the Enquiry Officer. In my judgment, this practice of cremating the dead bodies of the members belonging to the Seng Khasi faith appears to be an integral part of their faith. Religion is a matter of faith. A religion may not only lay down a code of ethical rules for its followers to accept, but may also prescribe rituals and observations, ceremonies and modes of worship, which are regarded as an integral part of that religion. Therefore, the constitutional guarantee of freedom of religion enshrined in Article 25(1) extends even to rites and ceremonies associated with a religion. Consequently, the activities of respondents Nos. 7 and 8 in denying the petitioners and members belonging to their faith of the use of the cremation ground already given to them at plot 'C' amount to abridgement of their right to freedom of religion guaranteed under Articles 25 of the Constitution of India. The question to be determined then is whether this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution has the power to enforce the fundamental rights of the petitioners guaranteed under Articles 25 and26 of the Constitution of India in a case or this nature. It is true that Articles 25 and 26 of the Constitution do not create rights in any denomination or a section which it never had. They merely safeguard and guarantee the continuance of rights which such denomination or the section had. If the denomination have the existing right to cremate the dead bodies of their near and dear ones in plot 'C' of the said sketch map, as found by me from the enquiry report, this Court, as the protector of the fundamental rights of the citizens of this State, has the right, nay the duty, to enforce such rights of the petitioners. The direct and inevitable effect of denying the petitioners and members of their denomination of their ritual/practice of cremating the dead bodies of their loved ones at plot 'C' will necessarily be abridgment or, even abrogation, of their fundamental rights guaranteed under Articles25 and 26 of the Constitution. The direct and inevitable effect of denying the petitioners and members of their denomination of their ritual/practice of cremating the dead bodies of their loved ones at plot 'C' will necessarily be abridgment or, even abrogation, of their fundamental rights guaranteed under Articles25 and 26 of the Constitution. It is distressing to note that the successive complaints lodged by the petitioner to the State authorities for protection and enforcement of their right to cremate the dead bodies of members of Seng Khasi denomination at plot 'C' of the said sketch map were not attended to or acted upon in the desired manner. An impression has been unnecessarily created in the minds of the public that just because the respondents Nos. 7 and 8 and their followers constitute a large majority in the village, the interest of the petitioners representing the minority group has been, or can be sacrificed, rather than prevent a larger section, who are more vociferous and militant, from curtailing the right of the minority faith to cremate their near and dear ones at plot 'C' of the said sketch map. The basic principle of democracy in a society governed by the rule of law is not only to respect the will of the majority but also to prevent dictatorship of the majority. In the context of Article 32 of the Constitution, the Apex Court in Gulam Abbas v. State of U.P. para 7, observed thus: 8. It cannot be disputed that ordinarily adjudication of questions of title or rights and granting declaratory relief consequent upon such adjudication are not undertaken in a writ petition under Article 32 of the Constitution and such a petition is usually entertained by this Court for enforcement of existing or established title or rights or infringement or encroachment thereof complained by granting appropriate reliefs in that behalf. But as stated earlier, counsel for the petitioners contended before us and in our view rightly that all that the Shia community is seeking by this petition is enforcement of their customary rights to perform their religious rites, practices, observances and functions on the concerned nine plots and structures thereon which have already been adjudicated, determined and declared in their favour by decisions of competent civil Courts in the earlier litigations and that the declaration sought in the prayer is really incidental. It is true that title and ownership of the plots of land in question is distinct from title and ownership of structures standing thereon and both these are again distinct from the customary rights claimed by the members of the Shia community to perform their religious ceremonies and functions on the plots and structures thereon. However, it is clear that even if the petitioners and through them the Shia community are unable to prove their existing or established title either to the concerned plots or to the structures standing thereon but they are able to prove that they have existing or established customary rights to perform their religious ceremonies and functions on the plots and structures thereon simultaneously complaining of illegal deprivation and encroachment by executive officers at the behest of respondents 5 and 6 or the Sunni community the reliefs sought by them by way of enforcement of such customary rights will have to be entertained and considered on merits and whatever relief they may be found legally and properly entitled to may have to be granted to them. This is not to suggest that the petitioners or the Shia community have failed to prove that they have existing or established title and ownership over the plots and/or over the structures thereon and aspect which will have to be considered on merits though secondarily, the primary question being whether they have succeeded in proving their subsisting entitlement to the customary rights claimed by them. In this behalf, as noted earlier, they are basing their customary rights on two foundations, namely, decisions of competent civil Courts adjudicating their rights in their favour and registration of Shia Wakfs concerning the plots and structures for performance of these practices and function's under Sections5 and 38 of the U.P. Muslim Wakfs Act, 1936 and we proceed to examine critically these two foundational bases. 11. Though the observations of the Apex Court extracted in the foregoing are rendered in the context of Article 32 of the Constitution, in my opinion, there is no reason why this writ Court in exercise of its jurisdiction under Article 226 of the Constitution cannot also enforce the undisputed right of the petitioners and their religious community to cremate the dead bodies of their near and dear ones at plot 'C' of the rough sketch. I understand the reservations expressed by the private respondents that the act of cremation undertaken by the petitioners at a place near their village pollute the atmosphere of the village, but this is no reason to deny the petitioners of their right to cremation sanctioned by their religious practices. There is no dispute at the bar that there is a place called "Phud wah-Khie Beig" measuring about two acres located at a distance of about one kilometer away from the village, the dispute is, however, the right of the petitioners to use the place for cremation, I am not oblivious of the absence of jurisdiction of this Court to order the respondents Nos. 7 and 8 to allot this place to the petitioners for their cremation ground. Nevertheless, the most practical solution to the on-going dispute between the rival parties appears to direct the respondents Nos. 7 and 8 to allot this place to the petitioners if the use of plot 'C' for cremation ground is found by them to be not advisable or desirable. Whatever may be the case, adequate space for cremation ground, the petitioners must have, so that their right to freedom of religion guaranteed under Article25(1) of the Constitution is protected, and not rendered illusory. After all, the direct and inevitable effect of denying the petitioners of adequate cremation ground in their own village will be to prohibit them from disposing of their dead bodies in accordance with their particular religious rites and rituals thereby infringing their right to freedom of religion guaranteed under Article 25(1) of the Constitution. The right of freedom or religion guaranteed to the petitioners and their religious community must be protected and enforced by this Court by issuing suitable directions to the State-respondents. 12. The result of the foregoing discussion is that this writ petition succeeds. The respondents No. 7 and 8 are directed to allow the petitioners and their religious community to use their cremation ground described as plot 'C in the rough sketch map prepared by the Enquiry Officer attached to her enquiry report dated 19-4-2005 freely and without any interruption from any quarter. The Deputy Commissioner, East Khasi Hills District, shall depute Mrs. I, Majaw, MCS, who made the enquiry to identify and demarcate the plot 'C' described by her in their enquiry report dated 19-4-2004 in the presence of the petitioners and respondents Nos. 7 and 8. The Deputy Commissioner, East Khasi Hills District, shall depute Mrs. I, Majaw, MCS, who made the enquiry to identify and demarcate the plot 'C' described by her in their enquiry report dated 19-4-2004 in the presence of the petitioners and respondents Nos. 7 and 8. If the respondents Nos. 7 and 8 continue to have reservation about the use of plot 'C' as cremation ground for pollution related reasons, they may allot the place/land called "Phud wah-Khie Beig" measuring two acres along with the trees standing thereon to the petitioners for use as the cremation ground of members of their religious faith and other Non-Christian communities. Identification and demarcation of the place/land shall be made by the same official in the presence of the petitioners and the respondents Nos. 7 and 8. The entire exercise shall be completed by the Deputy Commissioner, East Khasi Hills District within one month from the date of receipt of this judgment. It is, however, made clear that the petitioners or any other person shall not utilize the allotted land for any purpose other than cremation ground and shall not also alienate/transfer the same to anyone. The Deputy Commissioner must also take effective measures to ensure that the petitioners are not, directly or indirectly, harassed by respondents Nos. 7 and 8 or their men consequent upon the identification and demarcation of plot 'C or the land/place called "Phud wah-Khie Beig", as the case may be, for the cremation ground as per the directions of this Court. The parties are, however, directed to bear their respective costs. 13. A copy of this order be furnished to Mr. N.D. Chullai, the learned senior Govt. Advocate for necessary action.