K.P. Rajan alias Swamy Ayyappadas v. District Collector, Thodupuzha; Thodupuzha Municipality; The State of Kerala; The Vicar, Thodupuzha Vijanamath Church; Environmental Engineer Pollution Control Board; District Officer, Ground Water Department

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 18TH DAY OF OCTOBER 2016/26TH ASWINA, 1938** **WP(C).No. 32763 of 2014 (U)** **----------------------------** **PETITIONER(S): -------------** **K.P. RAJAN ALIAS SWAMY AYYAPPADAS, S/O.PARAMESWARAN NAIR,KUMBALAPALLY HOUSE, (THATWAMASI), MUTHALAKODAM P.O., THODUPUZHA, IDUKKI DISTRICT - 685 506.** **BY ADVS.SRI.K.SHRIHARI RAO SMT.N.SHOBHA SRI.A.S.SREEKANTH** ## **RESPONDENT(S):** **--------------** **1. THE DISTRICT COLLECTOR, CIVIL STATION, PINAVU P.O., PAINAVU, IDUKKI DISTRICT-685 603.** **2. THODUPUZHA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, THODUPUZHA,IDUKKI DISTRICT-685 584.** **3. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM-695 001.** **4. THE VICAR,** **THODUPUZHA VIJANAMATHA CHURCH,THODUPUZHA EAST, THOUDPUZHA EAST,THOUDPUZHA,IDUKKI DISTRICT-685 585.** *** ADDITIONAL R5 IMPLEADED** **5. THE ENVIRONMENTAL ENGINEER POLLUTION CONTROL BOARD, THODUPUZHA, IDUKKI DISTRICT - 685 585.** - **IMPLEADED AS PER ORDER DTD.16.12.2014 IN IA.17266/14.** **Msv/** **-2-** **-2-** ## **WP(C).No. 32763 of 2014 (U)** ## **----------------------------** ## *** ADDITIONAL R6 IMPLEADED** **6. THE DISTRICT OFFICER, GROUND WATER DEPARTMENT, THODUPUZHA, IDUKKI DISTRICT - 685 585.** *** ADDL. R6 IMPLEADED AS PER ORDER DTD.5.3.2015 IN IA.2999/15.** **R1, R3 & R6 BY GOVERNMENT PLEADER SRI.RENIL ANTO R2 BY ADVS. SRI.UNNIKRISHNAN V. ALAPATT, SC SRI.P.K.SOYUZ, SC R4 BY ADVS. SRI.S.EASWARAN SRI.P.MURALEEDHARAN (IRIMPANAM) SRI.M.A.AUGUSTINE R5 BY ADV. SRI.M.AJAY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-10-2016, ALONG WITH WPC. 15051/2015 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 32763 of 2014 (U)** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** ## **EXHIBIT P1 COPY OF THE ORDER DATED 5-11-2014 OF THE 1ST RESPONDENT** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** - **EXT.R4(A): TRUE COPY OF THE SAID BUILDING PERMIT DTD.24.11.2014 ISSUED TO THE 4TH RESPONDENT AND ENGLISH TRANSLATION.** - **EXT.R2(b): TRUE COPY OF THE APPLICATION DTD.5.7.2013 ALONG WITH THE SKETCH SUBMITTED ON BEHALF OF THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **EXT.R2(c): COPY OF RESOLUTION NO.BA.234/13-14 DTD.30.9.2013 OF THE 2ND RESPONDENT.** - **EXT.R2(d): COPY OF COMMUNICATION BA.NO.234/13-14 DTD.3.10.2013 OF THE 3RD RESPONDENT FORWARDING THE APPLICATION WITH THREE COPIES OF THE SKETCH TO THE DISTRICT TOWN PLANNER.** - **EXT.R2(e): COPY OF ORDER NO.C2-9927/13/D.DIS. DTD.21.11.2013 ISSUED BY THE CHIEF TOWN PLANNER.** - **EXT.R2(f): COPY OF COMMUNICATION DTD.4.10.2013 ISSUED BY THE 3RD RESPONDENT.** - **EXT.R2(g): COPY OF PROCEEDINGS NO.C3(K.DIS)-8782/13 DTD.30.11.2013 ISSUED BY THE DISTRICT MEDICAL OFFICER OF HEALTH INDUKKI.** - **EXT.R2(h): COPY OF NOTICE NO.E1-29503/13 DTD. NIL 8/14 ISSUED BY THE 1ST RESPONDENT.** - **EXT.R2(i): COPY OF NOTICE DTD. NIL 8/2014 ALONG WITH THE ENDORSEMENT OF THE 2ND RESPONDENT.** - **EXT.R2(j): COPY OF NOTICE DTD. NIL 8/2014 ALONG WITH THE ENDORSEMENT OF THE TAHSILDAR, THODUPUZHA.** - **EXT.R2(k): COPY OF NOTICE DTD. NIL 9/2014 ALONG WITH THE ENDORSEMENT OF THE VILLAGE OFFICER, KARIKODE.** **EXT.R2(l): COPY OF NOTICE DTD. NIL 9/2014 ALONG WITH THE ENDORSEMENT OF THE VILLAGE OFFICER, KARIKODE. Msv/** **-2-** **-2-** **WP(C).No. 32763 of 2014 (U) ---------------------------** **EXT.R2(m): COPY OF THE PROCEEDINGS DTD.5.11.2014 ISSUED BY THE 1ST RESPONDENT.** **EXT.RS(n): COPY OF REPORTS DTD.6.2.2014 SUBMITTED TO THE 1ST RESPONDENT BY THE DISTRICT MEDICAL OFFICER OF HEALTH, IDUKKI.** **EXT.R4(o): COPY OF REPORT DTD.2.12.2013 SUBMITTED BY THE TAHSILDAR, THODUPUZHA TO THE DISTRICT COLLECTOR, IDUKKI.** **EXT.R4(p): COPY OF REPORT NO.D1-28139/2013-ID DTD.28.2.2014 SUBMITTED BY THE SUPERINTENDENT OF POLICE TO THE 1ST RESPONDENT.** **EXT.R4(q): COPY OF CONSENT NO.PCB/IDK/CTE/57/2014 DTD.25.7.2014 ISSUED BY THE POLLUTION CONTROL BOARD.** - **EXT.R4(r): COPY OF BUILDING PERMIT DTD.24.11.2014 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** **EXT.R4(s): COPY OF COMPLETION CERTIFICATE DTD.16.3.2015 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **EXT.R4(t): COPY OF ORDER DTD.5TH MARCH, 2015 OF THIS HONOURABLE COURT IN WPC.NO.32763/2014.** - **EXT.R4(u): COPY OF THE ORDER DTD.10.4.2015 OF THIS HONOURABLE COURT IN IA.NO.5473/2015 IN WPC.NO.32763/2014.** **EXT.R4(v): COPY OF REPRESENTATION DTD.16.4.2015 SUBMITTED ON BEHALF OF THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **EXT.R4(w): COPY OF OCCUPANCY CERTIFICATE DTD.2.6.2015 ISSUED BY THE 2ND RESPONDENT.** - **EXT.R4(x): COPY OF THE ORDER/NOTICE DTD.11.5.2015 ISSUED BY THE SECRETARY 2ND RESPONDENT.** **EXT.R2(a): TRUE COPY OF THE NOTICE DTD.1.12.2015. EXT.R2(b): TRUE COPY OF THE LETTER DTD.7.7.2016. EXT.R2(c): TRUE COPY OF THE NOTICE DTD.12.7.2016.** **//TRUE COPY//** **Msv/** **P.S.TO JUDGE** ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) Nos.32763 of 2014, 15051 of 2015, 36529 of 2015 &31071 of 2016 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of October, 2016 ## J U D G M E N T All the writ petitions are concerned with the construction of a concrete vault cemetery; which by reason of a mis-understanding was licensed by the Collector, which authority is not available under the Kerala Municipality Act, 1994 (for brevity, 'the Municipality Act”). The persons who object to the construction and operation of the vault cemetery has filed WP(C) No:'s 32763/2014 and 31071/2016. The Church which has already constructed the concrete vault, on the basis of the sanction issued by the District Collector and the building permit issued by the Municipality, has filed WP(C) WPC.No.32763/2014 & Con. Cases : 2 : No.15051/2015 and 36529/2015. The facts and documents are referred to from each of the writ petitions concerned. 2. W.P(C) No.32763/2014 challenged the order of the District Collector dated 05.11.2014 produced as Ext.P1. Obviously the application was made by the Church, who is the 4[th] respondent therein, before the Municipality for construction of a concrete vault in 3 cents of property comprised in Survey No. 2052/2C of Thodupuzha village. In accordance with Section 484 of the Municipality Act, the Municipality forwarded the application to the District Collector. The District Collector however, assumed jurisdiction as is available under the Kerala Panchayat (Burial and Burning Ground) Rules, 1998. The Collector also issued a notice produced as Ext.P7 dated 08.08.2014 with copies to the Vicar, the Secretary of the Municipality and Tahsildar, Thodupuzha and the Village Officer. The Vicar was directed to publish the same in two newspapers and produce copies. WPC.No.32763/2014 & Con. Cases : 3 : The Secretary and Tahsildar were directed to publish the notice in their notice board. A reading of the notice issued at Ext.P7 would indicate that the proceedings were taken under the Panchayat Rules, 1998 when actually the jurisdiction of the District Collector as conferred under Section 484 of the Municipality Act was to opine on the application and not to grant license as such. 3. The notice published in the newspapers was responded to by the petitioner in WP(C) No.31071/2016. All the parties were heard by the District Collector. The District Collector passed Ext.P1 order wherein certain directions were issued presumably in mitigation of the grievance expressed by the objectors. The objector's residence was found to be beyond the prohibited distance as stipulated in the proviso to Section 45 A of the Municipality Act. The order passed at Ext.P1 is challenged as Ext.P5 in W.P(C) 32763/2014 on the ground that the same was without jurisdiction. The said WPC.No.32763/2014 & Con. Cases : 4 : contention has to be accepted going by Section 484 of the Municipality Act. However, such a contention was not raised by any of the parties before the District Collector who issued notice inviting objections against the applications of the Church for construction of a concrete vault. The petitioner in W.P(C) No.32763/2014 though did not file a valid objection before the District Collector filed the above writ petition challenging Ext.P1 on the question of jurisdiction. 4. Despite the jurisdictional defect pointed out all the parties proceeded on the basis that the District Collector's sanction permits the church to build a concrete vault. This Court, however, by an interim order dated 05.03.2015 specifically found that it was for the respondent Municipality to issue a licence under Section 484 of the Act. This Court also by the said interim order found that the action of the District Collector and the Thodupuzha Municipality falls foul of Section 484 of the Municipality Act. However, the petitioner WPC.No.32763/2014 & Con. Cases : 5 : was issued with a building permit by the Municipality as is evident from Ext.R4(r) produced in the counter affidavit filed in W.P.(C) No.32763 of 2014. The construction hence is said to have been carried out on the basis of the said permit issued by the Municipality. This Court was not apprised of the fact that the building permit had been issued; before the order was passed on 05.03.2015. Subsequently, on 10.04.2015 in I.A No.5473 of 2015 filed by the Church, the respondent, it was directed that the respondent Municipality would be at liberty to take all further steps concerning the issue 'strictly in statutory terms' (sic). 5. After completion of the construction on the strength of the permit issued, the Church again moved this Court with an application for issuance of license and occupancy certificate with W.P.(C) No.15051 of 2015. On admission, an interim order was passed on 22.05.2016, directing provisional issuance of occupancy certificate. The WPC.No.32763/2014 & Con. Cases : 6 : respondent Municipality was also directed to consider and pass orders on Ext.P18, within a period of one month by a subsequent interim order dated 03.12.2015. When proceedings under Section 484 were initiated by issuance of a notice calling for objections, the Church approached this Court and moved the three pending writ petitions and obtained an order on 22.01.2016, staying the further proceedings. On the basis of the interim order issued, the Church is said to have proceeded on the basis of the provisional occupancy certificate and carried out burial of bodies in the concrete vault, which was challenged by the original objector by W.P(C) No.31071 of 2016. 6. The question now to be decided is as to whether the Church could continue the operation of the cemetery without a license from the Municipality since the procedure delineated in S 484 was substantially complied with by the District Collector and the Municipality too had sanctioned the WPC.No.32763/2014 & Con. Cases : 7 : building to be constructed, a concrete vault, under the Hazardous Occupancy category; which can only be used for the purpose of burial of dead bodies. It is also submitted that the Church had expended considerable amounts of money; more than a crore, to build the vault on sanctions issued by the public authorities and cannot be now asked to demolish the same at a mere whim, on some objections filed subsequently. There are said to be 25 objections now filed none of whom were before the District Collector. The sole objectors grounds against the establishment of the cemetery was found to be not sustainable by the District Collector. Even if the Municipality examines the said grounds then made, there could be no other finding, argues learned Counsel for the Church. 7. Undisputedly, the provision applicable in the case of the applications submitted by the Church before the Municipality, is Section 484 of the Municipality Act. Section 484 of the Municipality Act confers the power of issuance of WPC.No.32763/2014 & Con. Cases : 8 : license on the Secretary and it also requires the Secretary to obtain the opinion of either the Municipal Health Officer or the District Medical Officer and the concerned District Collector. A public notice inviting objections and suggestions is also prescribed in Section 484 of the Municipality Act. On receipt of the opinion of the Officers above referred and also the objections, the Municipality has a power to grant or refuse to grant a licence or postpone the grant of licence for removal of any objections. 8. An almost similar situation was addressed in Perincheerikkara Alavi and Another v. State of Kerala and Others [2013 (4) KHC 518] but under the Burial Rules applicable to Panchayaths. There, an application was made to construct a cemetery in 10.25 cents land. The Panchayat forwarded the same to the District Collector, who found residences within the prohibited 50 metres and directed reduction of the extent to 5 cents. The rectified application was WPC.No.32763/2014 & Con. Cases : 9 : made before the District Collector, which was found to be a procedural flaw going to the root of the matter. Relying on the decision in Pradeep v. Kandanassery Panchayat [1996 KHC 399 = 1996 (2) KLT 775], it was found that the requirement to file application before the Panchayat and necessary recommendation from the local authority cannot be reduced to an empty formality. In the instant case, the situation is still worse. The entire proceedings carried out by the District Collector was totally without jurisdiction. This Court cannot on a subjective satisfaction find the District Collectors opinion to be valid and direct the order passed by that officer to be deemed to be that of the Municipality. 9. In such circumstance, it is for the Municipality to consider the issuance of the license and the District Collector is found to have exceeded his jurisdiction; which as per the relevant provision is confined to expressing his opinion on the aspect of establishment of a burial ground. The jurisdiction WPC.No.32763/2014 & Con. Cases : 10 : available with the Municipality has not been exercised by them and they have proceeded with the issuance of a building permit, as was referred to above. Subsequently provisional occupancy certificate was issued on the basis of the interim order issued from this Court, which definitely is subject to the result of the writ petition. 10. The learned Counsel appearing for the Church has a contention that there is no specific form prescribed for application under Section 484 of the Municipality Act nor is there a form prescribed for issuance of a license. It is also contended that the occupancy certificate would be deemed to be the license issued, since it permits the user of the construction for the disposal of the dead by burial, which has to be deemed to be a license issued under Section 484 of the Municipality Act. Even if the said contention is accepted, it is to be noticed that the occupancy certificate issued is provisional, on the basis of the interim order issued by this WPC.No.32763/2014 & Con. Cases : 11 : Court in W.P.(C) No.15051 of 2015 and is subject to the final result of the writ petition. It is also to be noticed that the deeming provision as applicable in sub-section (2) of Section 392 or as available in sub-section (6) of Section 447 of the Act is not available in S 484. All the more the issuance of provisional license is without the procedure prescribed under Section 484. 11. Having found the permission issued by the District Collector dated 05.11.2014 to be one, issued without jurisdiction conferred on the said officer, the same can be deemed to be only an expression of opinion, as is provided under Section 484 of the Municipality Act. The building permit obtained by the petitioner produced as Ext.R4(r) is issued by the Assistant Engineer, which going by the Kerala Municipality Building Rules, 1999, is not a valid one. The Church submits for reason of a delegation having been permitted by the Government by way of a Circular, the WPC.No.32763/2014 & Con. Cases : 12 : Assistant Engineer will also be competent to issue permit. However when the statutory rule provides for issuance of a Building Permit by the Secretary, there can be no delegation made by way of a Circular. Be that as it may, it is also to be immediately noticed that the permit produced even if found to be in-valid, then it has to be found that the Municipality did not act upon the building permit application of the Church. Hence, the Church, all the same, is entitled to the deeming provision available under sub-rule (3) of Rule 22 of the Building Rules. The construction of the concrete wall was proceeded with on the basis of the building permit and even if the same is found to be not validly issued, the Church would be entitled to the deeming provision as noticed above. But that cannot detract from the necessity to obtain a licence under Section 484 of the Municipality Act. 12. It is also submitted that subsequent to the construction, before the occupancy certificate was issued WPC.No.32763/2014 & Con. Cases : 13 : provisionally, inspection was carried out by the Secretary. Having found deviation from the plan submitted, additional tax was also levied on the Church, which has been remitted by the Church, argues Counsel. This contention however remains unsubstantiated and was raised at the argument stage, which definitely the Municipality will have to examine. 13. Looking at the entire facts and the law as discussed above, it cannot be said that the Church would be entitled to carry on the activity for the purpose of which the occupancy has been granted without a license being issued under Section 484 of the Municipality Act by the Municipality. As of now, based on the interim order issued in one of the writ petitions, the Municipality is said to have made publications in 8 news papers, which have been responded to with 25 objections. The further proceedings were not taken only, since, there was an interim stay issued by this Court in the pending writ petitions. The Church is also said to have WPC.No.32763/2014 & Con. Cases : 14 : proceeded with the burial on the basis of the occupancy certificate, which this Court is of the opinion was not proper, especially since no specific permission to that end was granted by this Court in the pending writ petitions. The large amount expended by the Church for construction of the vault does not at all impress this Court since money cannot set-off the valuable rights available to the resident public of the locality from raising valid objections against a hazardous activity being carried on in the locality. The Church ought to have been more carefull when proceeding on the basis of a sanction issued by an authority without jurisdiction, both in the case of the licence and the Building Permit. 14. As of now, the opinion of the District Collector and the D.M.O is before the Municipality, the former in the form of a sanction as issued by the District Collector on 05.11.2014. What remains is the consideration of the objections and the issuance of the license, if the objections are found to WPC.No.32763/2014 & Con. Cases : 15 : be not sustainable. Considering the fact that the Church had constructed the concrete vault, it is only proper that the Municipality be directed to consider the entire issue, within a period of two months from the date of receipt of a certified copy of this judgment. The persons, who have objected to the same on the basis of the notification issued by the Municipality shall be issued with notice and so shall the Church and the petitioners in W.P.(C) Nos.31071 of 2016 and 32763 of 2014. The issue of grant of license or refusal shall be considered in accordance with law. It is also made clear that in considering the application for license, due weight shall be given to the opinions expressed by the D.M.O, the District Collector and the consent to establish issued by the Pollution Control Board. The writ petitions would stand disposed of with the above directions, making it clear that the Church shall not carry on any further burial in the concrete vault and the Municipality also shall not demolish the vault; unless orders WPC.No.32763/2014 & Con. Cases : 16 : are issued by the Municipality in the application for license. All the writ petitions are disposed off with the above directions leaving the parties to suffer their respective costs. Sd/(K. VINOD CHANDRAN, JUDGE) jma/SB/19/10/2016 // true copy / P.A to Judge