Dileep R Pillai and Others vs. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** ## **TUESDAY, THE 12[TH] DAY OF JULY 2022 / 21ST ASHADHA, 1944** ## **WP(C) NO. 19192 OF 2013** ## **PETITIONERS:** 1 DILEEP R AGED 46 YEARS, S/O. M.S. RAJAN PILLAI, “DEEPTHI”, CHERIYAPALLY, KAITHARAM P.O., NORTH PARAVUR. 2 SHAJI C.C. AGED 49 YEARS, S/O. KITTAPPAN CHANDRAN, CHIRATTAKULAM, CHERIYAPALLY, KAITHARAM P.O., NORTH PARAVUR. 3 SANTHOSH KUMAR P.V. S/O. VELAPPAN P.A, PAZHUPARAMBATH HOUSE, CHERIYAPALLY, KAITHARAM P.O., NORTH PARAVUR. 4 THE SECRETARY N.S.S KARAYOGAM NO. 812, KAITHARAM P.O., NORTH PARAVUR. 5 THE SECRETARY S.N.D.P. BRANCH NO. 850, KAITHARAM P.O., NORTH PARAVUR. BY ADVS. SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH SMT.SMITHA GEORGE ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE SECRETARY TO LOCAL SELF GOVERNMENT, DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 3 THE DISTRICT COLLECTOR, ERNAKULAM, KAKKANAD, KOCHI - 682 030. 4 THE DISTRICT MEDICAL OFFICER ERNAKULAM, ERNAKULAM GENERAL HOSPITAL COMPOUND, KOCHI -682 011. WP(C) NO. 19192 OF 2013 2 5 ST. ANTONY'S CHURCH, KOTTUVALLY VILLAGE PARAVUR TALUK, ERNAKULAM DISTRICT - 683 513. 6 KOTTUVALLY GRAMA PANCHAYATH, KOTTUVALLY VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT - 683 513, REPRESENTED BY ITS SECRETARY. BY ADVS. SMT.DEEPA NARAYANAN, SENIOR GOVERNMENT PLEADER SRI.BABU KARUKAPADATH SRI.C.A.CHACKO - R5 SRI.JAGAN GEORGE SRI.T.KRISHNAN UNNI SR. SRI.KANDAMPULLY RAHUL SMT.P.LISSY JOSE. SRI.MITHUN BABY JOHN SRI.K.A.NOUSHAD SRI.J.RAMKUMAR SMT.M.A.VAHEEDA BABU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 19192 OF 2013 3 ## **P.V.KUNHIKRISHNAN, J** ## **-------------------------------** ## **W.P.(C)No. 19192 of 2013** **-------------------------------Dated this the 12[th] day of July, 2022** ## **JUDGMENT** The above writ petition is filed with the following prayers: _“(i) To call for the records leading upto Exhibit p9 and quash the same by the issuance of a Writ of Certiorari or any other appropriate writ, order or direction._ _(ii) To issue a Writ of Mandamus forbearing respondents 1 to 4 from issuing any licence to the 5[th] respondent for erection of Concrete Valut Cemetery in the Church premises within the Kottuvally Grama Panchayat._ _(iii) To declare that the establishment of Concrete Vault Cemetery by the 5[th] respondent within the close proximity of residential area is violative of Article 21 of the Constitution of India and therefore, liable to be declared so._ _(iv) To issue such other writs, orders or directions as this Hon'ble Court may deem fit and proper in the circumstances of the case.[SIC]_ 2. Petitioners are challenging Ext.P9 order passed by the Government by which Ext.P5 is set aside. The WP(C) NO. 19192 OF 2013 4 short facts are like this: Petitioners are residents of Kottuvally Village in Paravur Taluk, Ernakulam District. The 4[th] petitioner is the Secretary of N.S.S Karayogam, Kaitharam while the 5[th] petitioner is the Secretary of S.N.D.P branch Kaitharam. The 5[th] respondent had filed an application before the Kottuvally Grama Panchayat for construction of a Concrete Vault Cemetery. According to the petitioners, it is a predominantly residential area. The petitioners and several other persons submitted representations both before the Panchayat and before the District Collector objecting the same. The District Collector invited reports from different authorities and ultimately after assessing the situation rejected the same. Against the said order, the 5[th] respondent filed an appeal before the 2[nd] respondent. The Kerala State Pollution Control Board and the Tahsildar had also submitted reports to the 2[nd] respondent that the Cemetery can not be constructed in the area due to pollution. It is the case of the petitioners that, without WP(C) NO. 19192 OF 2013 5 considering any of these objections, the Government allowed the appeal and ordered Police protection to construct the concrete Vault cemetery. Aggrieved by the same, this writ petition is filed. 3. Heard counsel appearing for the petitioners and the learned Government Pleader. I also heard the counsel appearing for the 5[th] respondent. 4. The main challenge is against Ext.P9. The counsel for the petitioners takes me through Ext.P5 order especially the last paragraph in Ext.P5. Thereafter the counsel also takes me through Ext.P7 report of the Pollution Control Board. In the report of the Pollution Control Board, it is stated that the inspection was objected by the 5[th] respondent. Certain objections were raised in Ext.P7 by the Pollution Control Board also. Thereafter the counsel takes me through Ext.P8 report of the Tahsildar in which it is stated that, within 5 kilometers vicinity about five other Churches are situated. The grievance of the petitioners is that, these aspects were not considered by the Government while passing Ext.P9 order. WP(C) NO. 19192 OF 2013 6 5. On the other hand, the counsel appearing for the 5[th] respondent submitted that the Pollution Control Board is not an authority as per Rule 6 of the Kerala Panchayat Raj (burial and burning grounds) Rules 1998. The counsel submitted that the Government considered all the aspects and passed Ext.P9 order and there is nothing to interfere with the same. The counsel also disputed the report of the Pollution Control Board based on certain data. 6. The Government Pleader submitted that the main reason for rejecting the application by the District Collector is that there is law and order problem. The counsel for the 5[th] respondent submitted that, that is not a reason to reject an application, if the application is otherwise in order. The Government Pleader also submitted that the District Medical Officer is the authority to submit a report while considering the application like this as per Rule 6 of the Kerala Panchayat Raj (burial and burning grounds) Rules 1998. 7. This Court considered the contentions of the WP(C) NO. 19192 OF 2013 7 petitioners and the respondents. This Court perused Ext.P9 order. Ext.P9 is dated 16.07.2013. Now 10 years elapsed after Ext.P9 order. Ext.P9 order was stayed by this Court and the construction is at standstill because of the interim order passed by this Court. The main point raised by the District Collector is the law and order problem. This Court in _**Kurian Kurian v. District Collector [1998 KHC 345]**_ considered this point and observed like this: _“5. After hearing the arguments of the learned counsel appearing on either side and after going through the records, I am of the view that both the original authority and the appellate authority have not considered the question whether water in the thodu was used for washing and bathing purposes. True, there is an observation in both these orders that water is not used for drinking purposes; but that is not enough and if, as a matter of fact, water is used for washing and bathing, it is highly necessary that it should be found out whether there will be any pollution because of the construction of the cemetery. The mere fact that the thodu is situated beyond the distance prescribed under the Rules does not free the authorities from looking into the question whether there is any health hazard. In this context, it is relevant to look into R.6 of the Kerala Panchayats (Burial and Burning Ground) Rules, 1967._ WP(C) NO. 19192 OF 2013 8 _Sub-r. (7) or R.6 states as follows: -_ _(7) Collector shall consider the objections, if, any received, in pursuance of the notice under sub-r. (6) and after causing such enquiries, as may be necessary, to be conducted in the matter, may,_ _(a) grant the licence; or_ _(b) refuse to grant the licence on grounds of public order, morality or health; or_ _(c) postpone the grant of the licence until objection to the site have been removed or any particulars called for him have been furnished._ _Sub-rule (b) is relevant, that the Collector may refuse to grant the licence on grounds of public order, morality or health. Thus, even if there is no non compliance of the provisions of the rules on account of distance if the Collector is satisfied that licence cannot be granted on grounds of public order, morality or health, then the application has to be rejected. This aspect has been stressed in the decision of this Court reported in Narayanan Thampi v. District Collector, 1988 (2) KLT 48, by a Division Bench when it observed as follows: - The Collector is required to cause such enquiry as may be found necessary into the objections received and he is required to pass final orders on the application for licence with due regard to the objections received. The Collector is empowered to grant the licence or refuse the same on grounds of public order, morality or health. This decision was followed in Pradeep v. Kandanassery Panchayat, 1996 (2) KLT 775. Counsel for the 4[th] respondent submitted that the cemetery had already been constructed after the order was passed by the_ WP(C) NO. 19192 OF 2013 9 _Government But, in deference of the orders passed by this Court, no dead body is being buried.”_ 8. I don't want to make any further observation on that. The Pollution Control Board is not the statutory authority as per Rule 6 of the Kerala Panchayat Raj (burial and burning grounds) Rules 1998, but when that authority try to inspect the site, the 5[th] respondent objected the same. According to the counsel for the 5[th] respondent, it was done because the inspection was without notice to the 5[th] respondent. I think the Government can get a report from the Pollution Control Board also. Simply because that is not there in the Rule, nothing prevent the Government from getting a report from the Pollution Control Board also. The Government can obtain a fresh report from the District Medical Officer in the changed circumstances. In addition to that, the Government can get a report from all other statutory authorities also as per the Rules. Thereafter, the Government can decide the matter afresh after giving an opportunity of hearing to the petitioners and the 5[th] WP(C) NO. 19192 OF 2013 10 respondent. This can be done within a time frame to be fixed by this Court. Therefore, this writ petition is disposed of in the following manner: - _i. Ext.P9 is set aside._ - _ii. The 2[nd] respondent is directed to reconsider the matter after giving notice to the petitioners and the_ - _5[th] respondent, as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a copy of this judgment._ - _iii. Before passing final order, the 2[nd] respondent will_ - _get a report from the District Medical Officer concerned and also from the Pollution Control Board. The District Medical Officer and the Pollution Control Board will inspect the property only after giving notice to the petitioners and the 5[th] respondent._ Sd/- **P.V.KUNHIKRISHNAN JUDGE** DM WP(C) NO. 19192 OF 2013 11 ## **APPENDIX OF WP(C) 19192/2013** PETITIONER EXHIBITS EXHIBIT-P1-TRUE COPY OF THE APPLICATION FILED BY THE 5TH RESPONDENT BEFORE THE 6TH RESPONDENT. EXHIBIT-P2-TRUE COPY OF THE NOTICE ISSUED DATED 20/05/2008 INVITING OBJECTION IF ANY TO THE PROPOSAL. EXHIBIT-P3-TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS AND OTHERS BEFORE THE 3RD RESPONDENT. EXHIBIT-P4-TRUE COPY OF THE REPRESENTATION SUBMITTED BY ONE KAMALAKSHY AND HER SON BEFORE THE 3RD RESPONDENT. EXHIBIT-P5-TRUE COPY OF THE ORDER DATED 30/10/2008 PASSED BY THE 3RD RESPONDENT. EXHIBIT-P6-TRUE COPY OF THE APPEAL DATED 28/11/2008 SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 2ND RESPONDENT. EXHIBIT-P7-TRUE COPY OF THE REPORT DATED 15/04/2013 SUBMITTED BY THE KERALA STATE POLLUTION CONTROL BOARD BEFORE THE 2ND RESPONDENT. EXHIBIT-P8-TRUE COPY OF THE REPORT DATED 02/04/2013 OF THE TAHSLDAR, PARAVUR TALUK. EXHIBIT-P9-TRUE COPY OF THE ORDER DATED 16/07/2013 OF THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// PA TO JUDGE