No Right to Cremate in Another Local Body's Ground, Rules Madurai Bench

A Division Bench at Madras HC's Madurai Bench holds that residents of one local body cannot demand cremation rights in a cremation ground vested in a different panchayat, absent a fundamental or customary right.

A Division Bench of the Madurai Bench of the Madras High Court, comprising Justice G.R. Swaminathan and Justice K.K. Ramakrishnan, on 29 June 2026 dismissed a writ petition in which residents of Bommaiahgoundanpatti — now part of Theni-Allinagaram Municipality — sought a direction compelling the authorities to take over the lock and key of the cremation ground at Sukkuvadanpatti, a hamlet under Oonchampatti Village Panchayat in Theni District. The bench held that those residing within the territorial limits of one local body cannot claim, as a matter of right, the use of a cremation or burial ground vested in a different local body. Such a right is enforceable only where it flows from Article 25 of the Constitution of India or from a proved customary right. Neither was established here.

The Dispute Before the Court

The three petitioners are residents of Bommaiahgoundanpatti Village, which is part of Theni-Allinagaram Municipality. They alleged that they had been cremating their dead in the cremation ground located in Sukkuvadanpatti, a hamlet that falls under Oonchampatti Village Panchayat. Respondents 6 to 10 are residents of Sukkuvadanpatti. According to the petitioners, these residents were preventing them from using that cremation ground and had taken control of its lock and key.

A peace committee meeting was convened in the wake of the controversy. The residents of Sukkuvadanpatti made clear at that meeting that they would not relax their position. The petitioners then approached the Madurai Bench under Article 226 of the Constitution seeking a writ of mandamus directing respondents 1 to 5 — the District Collector, Revenue Divisional Officer, Tahsildar, Village Administrative Officer, and the President of Oonchampatti Panchayat — to take over the lock and key based on a representation dated 14 September 2022. The petitioners' primary argument was one of convenience: Sukkuvadanpatti was in close proximity to Bommaiahgoundanpatti, making that cremation ground the more practical option.

The cremation ground in question had been acquired through the collective effort of Sukkuvadanpatti villagers, who purchased the land, built the crematorium, and handed it over to their local body, Oonchampatti Village Panchayat. It vested exclusively with that panchayat.

The Legal Questions

The bench framed the central question at the outset: whether a person has the right to be cremated in a burning ground vested in a local body of which he or she is not a resident. The question had constitutional, statutory, and common law dimensions.

The bench opened its analysis with Article 21. Citing Pt. Parmanand Katara v. Union of India (1995) 3 SCC 248, it affirmed that the right to dignity and fair treatment under Article 21 extends not only to a living person but also to the body after death. Referencing Mohammad Latief Magrey v. State (UT of J&K), 2022 SCC OnLine SC 1203, it noted that the family members of a deceased also have a right to perform last rites in accordance with religious traditions. And from Mohamed Gani v. The Superintendent of Police, Dindigul District (2005) 3 L.W. 289, the bench acknowledged that the rites of transporting a dead body to a cremation place are an essential and integral part of religion.

These rights, however, the bench held, did not automatically translate into an enforceable right to use a specific cremation ground belonging to a local body of which the deceased or his family was not a resident.

Statutory Framework and the Bench's Reasoning

The bench turned to the Tamil Nadu Panchayats Act, 1994. Section 110(f) of that Act casts a duty on a village panchayat to make reasonable provision for the requirements of the panchayat village for opening and maintaining burial and burning grounds. The bench read this as a duty directed squarely at the local body's own residents. Non-residents, the bench held, do not figure in the scheme contemplated by Section 110.

Section 134 of the same Act provides that porambokes such as burning and burial grounds shall vest in the Village Panchayat, which has power to regulate their use, subject to governmental control. The Government had also issued the Tamil Nadu Village Panchayats (Provision of Burial and Burning Grounds) Rules, 1999. Rule 7(2) of those Rules requires the person in control of a burial or burning place to notify every burial or cremation to an officer appointed by the Village Panchayat. This reporting requirement connects directly to the Registration of Births and Deaths Act, 1969 — death certificates are issued on the basis of entries maintained at these grounds. The bench observed that these statutory functions can be properly discharged only if burial and cremation rights at a designated place are confined to the inhabitants of the local body concerned.

The bench drew on a prior order by one of its members — Justice G.R. Swaminathan — in M. Vallinayagam v. The RDO, Madurai, WP(MD) No. 5558 of 2024, dated 10 April 2024, which noted that a burial or cremation ground will not accept any dead body brought to it without an informant who furnishes documents establishing relevant particulars, including the place of death.

The bench also engaged with Hohfeldian analysis. The duty on a local body to dispose of an unclaimed body or a body for which no arrangement has been made is confined to bodies within its territorial limits. In Hohfeldian terms, only inhabitants within those territorial limits hold the correlative right; non-residents do not.

For an analogy from English law, the bench relied on Hughes v. Lloyd (1888) 22 QBD 157, in which Lord Coleridge CJ held that inhabitants of a parish that has its own burial ground have no right of burial in any other parish but that in which they reside, and that they must purchase such a privilege if they desire it. Applying what the bench described — by invoking the Mimamsa principle of Atidesha — as the principle of analogy, it held that what applies to parishioners applies equally to residents of a local body.

On the constitutional plane, Article 243G and the Eleventh and Twelfth Schedules to the Constitution of India were cited. The Eleventh Schedule lists “maintenance of community assets” as Item 29, which covers burial and cremation grounds under panchayat control. The Twelfth Schedule lists burials, burial grounds, cremations, cremation grounds and electric crematoriums as Item 14 for municipalities and corporations. The bench read this scheme as confirming that local bodies have control over these facilities for their own residents, and that any non-resident wishing to assert a right against a local body must make a positive case for it.

The bench also addressed caste discrimination squarely. It clarified that a cremation ground meant for Hindus must be open to members of all castes — any discrimination on grounds of birth would violate Article 15 and Article 17 of the Constitution. It cited a recent judgment of this Court in K.S. Balakrishnan v. The District Collector, WP Nos. 36402 of 2025 etc., dated 11 February 2026, which held that preventing a person from a marginalised community from accessing a public burial or cremation ground is a criminal offence and a form of practising untouchability. But the bench drew a sharp line: denial of access on the ground of non-residency is a different matter entirely and does not violate the law.

The Caveat: Article 25 and Custom

The bench was careful to carve out two exceptions. First, where a cremation ground has acquired the character of a consecrated place open to Hindus irrespective of their residential status — as held by the Kerala High Court Division Bench in Krishna Das C. v. State of Kerala in respect of Ivor Madom on the banks of the Bharathapuzha, recognised as “Dakshina Kasi” — the matter enters the domain of Article 25 of the Constitution. The Kerala bench had held that the belief that performing last rites at the banks of the Bharathapuzha would yield salvation is protected under Article 25, and that Hindus from outside the Panchayat area also have the right to use that burning ghat. No such claim was made by the petitioners here.

Second, the bench acknowledged that a customary right can confer the right to cremate or bury in a particular place, citing Mohur v. Sudhir Chandra Dey, 1984 SCC OnLine Cal 344, from the Calcutta High Court. But custom must be ancient, invariable, uniform, reasonable, certain, consistent and not immoral. The petitioners had not established any such customary right before the bench.

The petitioners' sole argument rested on proximity and convenience. The bench held that balance of convenience is a consideration for interim injunction; an enforceable substantive right cannot be built on that foundation.

On the question of a right flowing from a Supreme Court split verdict, the bench noted Ramesh Baghel v. State of Chhattisgarh, 2025 SCC OnLine SC 173, in which Justice Satish Chandra Sharma held that the right to bury in accordance with individual custom does not encompass an unqualified right to choose the place of the ceremony.

Outcome

The Division Bench dismissed WP(MD) No. 27734 of 2022 with no order as to costs. The connected miscellaneous petition, W.M.P.(MD) No. 21833 of 2022, was closed. The bench restated the governing principle: those residing within the territorial limits of a local body cannot claim the right of burial or cremation in a ground vested with another local body, unless that right partakes the character of a fundamental right under Article 25 of the Constitution or is established as a customary right. Since the residents of Bommaiahgoundanpatti raised neither claim, their petition for a writ of mandamus directing the authorities to take over the lock and key of the Sukkuvadanpatti crematorium failed.