Machpelah Association v Thrissur Municipal Corporation & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 20TH DAY OF MAY 2019 / 30TH VAISAKHA, 1941** ## **WP(C).No. 2376 of 2015** ## **PETITIONER:** **MACHPELAH ASSOCIATION, REG.NO.475/86 TCR, NELLIKKUNNU, THRISSUR DISTRICT, REPRESENTED BY ITS SECRETARY, SRI.C.J.VARGHESE** **BY ADVS. SRI.M.P.ASHOK KUMAR SMT.BINDU SREEDHAR SMT.R.S.MANJULA** ## **RESPONDENTS:** - **1 THE THRISSUR MUNICIPAL CORPORATION, REP. BY ITS SECRETARY, THRISSUR - 680 001** - **2 THE DISRICT COLLECTOR THRISSUR 680 001.** - **3 THE DISTRICT MEDICAL OFFICER THRISSUR DISTRICT - 680 001.** - **4 THE ASSISTANT COMMISSIONER OF POLICE THRISSUR 680 001** - **5 ADDL. R5. THE ENVIRONMENTAL ENGINEER, KERALA POLLUTION CONTROL BOARD, BUILDING NO.27/166/13, KOVILAKATHUMPADAM, CHEMBUKKAVU, THRISSUR DISTRICT.** **(ADDITIONAL R5 IS IMPLEADED AS PER ORDER DATED 05/02/2015 IN IA 1600/15)** - **6 ADDL. R6. FRANCIS P.P., AGED 49 YEARS S/O PAPPACHAN, PULIKKOTTIL HOUSE, JESUS LANE, NELLIKKUNNU, OLLUKKARA VILLAGE-680 005.** WP(C).No. 2376 of 2015 2 **7 ADDL. R7. JOSE A.L., AGED 51 YEARS** **S/O LAZER, AKKARAPPATTY HOUSE, NELLIKUNNU, NAZRETH ANGADI, OLLUKKARA VILLAGE-680 005.** **8 ADDL. R8. SIJIL PAUL AGED 28 YEARS S/O PAUL, KUNDUKULANGARA HOUSE, JESUS LANE, NELLIKKUNNU, OLLUKKARA VILLAGE-680 005.** **(ADDITIONAL R6 TO R8 ARE IMPLEADED AS PER ORDER DATED 11/04/2017 IN IA NO.10275/2016)** ## **BY ADVS.** **R1 - SRI. SANTHOSH P.PODUVAL, SC,** **THRISSUR CORPORATION R2 TO R4 - PRINCY XAVIER, GOVERNMENT PLEADER** **ADDL. R5 - SRI. T.NAVEEN , SC, KERALA STATE POLLUTION CONTROL BOARD** **ADDL. R6 TO R8 SRI.P.K.SAJEEV SRI. M.AJAY, SC, KERALA STATE POLLUTION CONTROL BOARD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No. 2376 of 2015 3 ## **JUDGMENT** This writ petition is filed by the petitioner association, seeking the following reliefs; _“ i. Issue a writ of certiorari or other appropriate writ or order quashing Exts.P2,P3 & P4 and Ext.P6 orders._ _ii. Declare that it is the duty of the Municipal Corporation to construct and provide a proper burial ground free of cost to bury the dead body of the members of the petitioner association in the property situated in Sy.No.891/1 of Ollookkara Village_ _iii. Direct the Municipal Corporation to render necessary assistance and protection to complete the construction of the burial ground in Sy.No.891/1 of Ollookkara Village_ _iv. Issue a writ of mandamus or other appropriate writ or order directing the respondents to allow the petitioner Association to conduct the burial ground_ _v. Grant such other reliefs, as this Hon'ble Court shall deem just and proper in the interest of justice, including costs. “_ 2. Basic material facts for the disposal of the writ petition are as follows: **==> picture [407 x 12] intentionally omitted <==** according to it, was formed to operate and facilitate a burial ground in Nellikkunnu in Sy.No.891/1 of Ollukkara Village, Thrissur District. WP(C).No. 2376 of 2015 **==> picture [8 x 8] intentionally omitted <==** According to the petitioner, the burial ground has been in existence for the last 110 years and forms part of a common burial ground which is used by six other communities/caste/religion like SNDP, SC community, Boyan community etc. 4. The respondents have issued Exts.P2 to P6 stop memos prohibiting the burial of the dead belonging to the petitioner association alone. The respondents have also not provided any alternate arrangement to dispose the dead bodies of the members of the petitioner association. It is the case of the petitioner that the non-application of mind of the respondents coupled with its discriminatory attitude towards the members of the petitioner association is in violation of the Municipality Act and the Rules. Learned Counsel has relied upon various documents produced along with the writ petition and the reply affidavit. 5. The second respondent has filed a detailed counter affidavit refuting the claims and demands raised by the petitioner association, and submits WP(C).No. 2376 of 2015 **==> picture [8 x 9] intentionally omitted <==** that the orders requested to be quashed by the petitioner are all orders passed legally and no manner of interference is warranted to the orders passed. 6. Respondents 6 to 8 have also filed a detailed counter affidavit denying the allegations raised against the 6[th] respondent and also supporting the orders passed by the statutory authority to the effect that, due to the burial conducted by the association serious environmental issues are being caused, and that the water in the nearby wells are being polluted. 7. I have heard learned counsel for the petitioner, learned Government Pleader, learned Standing Counsel for the 1[st] respondent as well as the learned counsel appearing for the 6[th] respondent, and also perused pleadings and the documents on record. 8. Ext.P1 is a possession certificate issued by the Tahsildar, Thrissur, confirming that the Secretary of the petitioner association has unauthorized possession of about 50 cents of WP(C).No. 2376 of 2015 **==> picture [8 x 9] intentionally omitted <==** property (Burial Ground) in Sy.No.891/1 part of Ollukkara Village, Thrissur Thaluk, Thrissur District. The certificate is seen issued for producing before the Thrissur Corporation. Ext.P2 is a communication issued by the Assistant Police Commissioner, Thrissur dated 20.08.2014, to the present Secretary of the petitioner association, under Section 149 of the Code of Criminal Procedure. In Ext.P2, The said police officer has directed the petitioner not to conduct burial of the deceased members of the association till the issue with the property in question is sorted out. 9. Ext.P3 is an order passed by District Collector dated 29.08.2014, wherein the claims raised by the petitioner with reference to the burial conducted in the property in question were considered and found to be genuine. However, it is stated that, it appears that due to the burial of bodies, inconveniences are caused to other people residing in the locality, and therefore direction was issued, to the petitioner to design a burial WP(C).No. 2376 of 2015 7 system which is pollution free, get the approval of District Medical Officer (Health) and Pollution Control Board, and ensure proper management of the burial ground. It was also directed, based on the report of Police and the Tasildar, issue of permission will be considered, however, till such time the directions are implemented, further burial in the property was prevented. Likewise in Ext.P4, the Additional Secretary of the Thrissur Municipal Corporation has issued a communication dated 24.09.2014 informing that due to the burial conducted, the nearby wells are being polluted, and accordingly directed the petitioner to construct a new burial ground after securing necessary permission from the District Medical Officer (Health) and the Pollution Control Board. 10. That apart, the District Collector issued communication dated 15.11.2014 addressed to the petitioner association that license will be issued after completing the work of the crematorium strictly complying with the stipulations in any WP(C).No. 2376 of 2015 **==> picture [8 x 9] intentionally omitted <==** consent issued by the Kerala State Pollution Control Board, evident from Ext.P5 dated 28.10.2014. Pollution Control Board has addressed the District Collector with respect of the construction of a vault type cemetery in the property in question, in accordance with the conditions and stipulations contained there under. That apart, it is the further case of the petitioner that consequent to Ext.P7 representation submitted by the petitioner the Thrissur Corporation has taken Ext.P10 decision dated 20.08.2015, wherein, as per Serial No.120, the Municipal Corporation has decided to provide permission to the petitioner to carry out construction of a cemetery subject to the orders to be passed by this Court, in this writ petition and any orders to be passed by the District Collector. 11. Now according to learned counsel for the petitioner, petitioner is entitled to carry out construction of a cemetery/repair, however, the 6[th] respondent is creating obstruction. On the other hand the learned counsel appearing for the 6[th] WP(C).No. 2376 of 2015 9 respondent submitted that petitioner has filed O.S. No.5801/2014 before the Additional Munsiff Court, Thrissur, in which the 6[th] respondent has raised a counter claim with reference to the construction of cemetery etc. The learned counsel appearing for the Thrissur Corporation submitted that if any application is submitted by the petitioner seeking any construction or reconstruction of the cemetery, the same will be taken into account by the Secretary of the Corporation in accordance with law. Learned counsel for the petitioner has a case that already applications are pending before the Secretary of the Corporation with reference to the issuance of permission and approval. 12. Taking into account the aforesaid aspects and the _pros and cons_ put forth by the respective parties, this writ petition is disposed of, directing the Secretary of the 1[st] respondent Thrissur Municipal Corporation to consider any application submitted by the petitioner to reconstruct/construct any cemetery in accordance WP(C).No. 2376 of 2015 **==> picture [15 x 9] intentionally omitted <==** with law, if proper applications are pending before the Secretary of the 1[st] respondent corporation. Petitioner will also be at liberty to file suitable application before the said authority in accordance with law. Anyhow, if any applications are pending before the Secretary, final decision shall be taken by the Secretary of the 1[st] respondent Corporation, at the earliest, and at any rate, within two months from the date of receipt of a copy of this judgment, after providing notice of hearing to the petitioner, 6[th] respondent and all other interested persons. On the other hand, if the petitioner is to file any fresh application, the decision shall be taken by the Secretary of the Corporation within a period of two months from the date of receipt of application from the petitioner. 13. Learned counsel for the petitioner submitted that the suit specified above, is withdrawn by the petitioner and has produced the judgment dated 05.12.2016, however, the 6[th] respondent has a case that counter claim is raised by the 6[th] respondent. WP(C).No. 2376 of 2015 **==> picture [15 x 8] intentionally omitted <==** I make it clear that, if any proceeding is pending before the civil court by and between the parties, it will be considered in accordance with law, also taking into account any developments in accordance with the directions contained above. The writ petition is disposed of accordingly. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** ded WP(C).No. 2376 of 2015 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE CERTIFICATE DATED 04-01-2003 EXHIBIT P2 PHOTOCOPY OF THE NOTICE DATED 20-08-2014 EXHIBIT P3 PHOTOCOPY OF THE ORDER DATED 29-08-2014 ISSUED BY THE DISTRICT COLLECTOR EXHIBIT P4 PHOTOCOPY OF THE NOTICE NO.PH4/23963/14 DATED 24-09-2014 ISSUED BY THE THRISSUR CORPORATION EXHIBIT P5 PHOTOCOPY OF THE LETTER DATED 15-11-2014 EXHIBIT P6 PHOTOCOPY OF THE LETTER DATED 18-11-2014 OF ASSISTANT ENGINEER** **EXHIBIT P7 PHOTOCOPY OF THE REPRESENTATION DATED 04-112014** **EXHIBIT P8 PHOTOCOPY OF THE REPLY SEND BY FULL GOSPEL CHURCH TO THE PETITIONER ASSOCIATION DATED 26/096/2015. EXHIBIT P9 PHOTOCOPY OF THE REPLY SEND BY SALOM CHRISTIAN SEMETERY, KARIPPAKKUNNU TO THE PETITIONER ASSOCIATION DATED 14/09/2015. EXHIBIT P10 PHOTOCOPY OF THE RELEVANT EXTRACT OF THE MINUTES OF THRISSUR MUNICIPAL CORPORATION COUNCIL MEETING DATED 20/08/2018.** ## **RESPONDENT'S EXHIBITS:** **EXHIBIT R2 A A TRUE COPY OF THE APPLICATION DATED 06/08/2014 SUBMITTED BY THE SECRETARY.** **EXHIBIT R2 B A TRUE COPY OF THE PETITION SIGNED BY THE RESIDENTS OF NELLIKKUNNU DATED 30/07/2014.** **EXHIBIT R2 C A TRUE COPY OF LETTER NO.1441/G.L./S.B./14-R, DATED 12/08/2014.** **EXHIBIT R2 D A TRUE COPY OF THE NOTE DATED 22/08/2014 PREPARED ON BEHALF OF THE 2ND RESPONDENT. EXHIBIT R2 E A TRUE COPY OF LETTER NO. C6-28962/2014 DATED 21/08/2014.** WP(C).No. 2376 of 2015 13 **EXHIBIT R2 F A TRUE COPY OF PROCEEDINGS NO.C8-47242/2014 DATED 29/08/2014.** - **EXHIBIT R2 G A TRUE COPY OF LETTER NO. PCB/TSR/COM/184/2010 DATED 21/08/2014.** - **EXHIBIT R2 H** **A TRUE COPY OF LETTER NO G3-33980/2014/RC DATED 26/09/2014.** - **EXHIBIT R2 I** **A TRUE COPY OF THE APPLICATION SUBMITTED BY THE SECRETARY ON 25/08/2014.** - **EXHIBIT R2 J** **A TRUE COPY OF LETTER NO. PCB/TSR/GEN/108/2014 DATED 28/10/2014.** - **EXHIBIT R2 K** **A TRUE COPY OF LETTER NO. G1(A)-35426/2014/RC DATED 20/12/2014.** - **EXHIBIT R2 L** - **A TRUE COPY OF LETTER NO.M.C.O.P. 325/2015 DATED 20/07/2015.** - **EXHIBIT R6 A** **TRUE COPY OF THE REPRESENTATION GIVEN BY THE RESIDENCE OF NELLIKKUNNU JESUS LANE-NASRETH ANGADI TO THE SUB INSPECTOR, MANUTHY POLICE STATION.** **EXHIBIT R6 B TRUE COPY OF THE RECEIPT DATED 07/08/2014 WITH PETITION NO.108052/2014 ISSUED FROM MANNUTHY POLICE STATION.** - **EXHIBIT R6 C** **TRUE COPY OF THE REPRESENTATION DATED 06/08/2014 GIVEN BY THE RESIDENCE OF NELLIKUNNU JESUS LANE AND NASRATH-ANGADI TO THE SECRETARY, THRISSUR CORPORATION.** - **EXHIBIT R6 D TRUE COPY OF THE REPRESENTATION DATED NIL GIVEN BY THE RESIDENCE OF NASRATH-ANGADI JESUS LANE OF NELLIKUNNU DESOM TO THE DISTRICT COLLECTOR, THRISSUR.** - **EXHIBIT R6 E TRUE COPY OF THE COMMUNICATION NO.OLK 3- 3771/14 DATED 12/08/2014 GIVEN BY THE ADDITIONAL SECRETARY TO THE ENVIRONMENTAL ENGINEER, THRISSUR ALONG WITH THE REPORT GIVEN BY DR. BABYLAKSHMY, DEPUTY EMO AND DSO.** **EXHIBIT R6 F TRUE COPY OF THE REPLY DATED 21/10/2014 GIVEN BY THE PUBLIC INFORMATION OFFICER AND ASSISTANT ENGINEER, OLLUKKARA ZONAL OFFICE TO THE 6TH RESPONDENT.** WP(C).No. 2376 of 2015 14 **EXHIBIT R6 G TRUE COPY OF THE ORDER NO.47242/2014 DATED 29/08/2014 PASSED BY THE 2ND RESPONDENT.** **EXHIBIT R6 H TRUE COPY OF THE LETTER NO.PCB/TSR/GEN/108/2014 DATED 28/10/2014 GIVEN BY THE ENVIRONMENTAL ENGINEER TO THE 2ND RESPONDENT.** - **EXHIBIT R6 I TRUE COPY OF THE REPRESENTATION DATED 06/11/2014 GIVEN BY THE 6TH RESPONDENT TO THE SECRETARY, THRISSUR CORPORATION.** - **EXHIBIT R6 J TRUE COPY OF THE LETTER NO.C8-47242/2014 DATED 15/11/14 GIVEN BY THE 2ND RESPONDENT TO THE PETITIONER ASSOCIATION.** - **EXHIBIT R6 K TRUE COPY OF THE NOTICE NO.OLK3/4835/14 DATED 18/11/14 ISSUED BY THE ASSISTANT ENGINEER, OLLUKARA ZONAL OFFICER TO THE PETITIONER.** - **EXHIBIT R6 L TRUE COPY OF THE NOTICE DATED NOVEMBER, 2014 GIVEN BY THE RESIDENCE OF NELLIKUNNU NAZRATH ANGADI JESUS LANE TO THE ENVIRONMENTAL ENGINEER.** - **EXHIBIT R6 M TRUE COPY OF THE PLAINT IN OS 5801/2014 ON THE FILES OF MUNSIFF COURT, THRISSUR.** - **EXHIBIT R6 N** **TRUE COPY OF THE WRITTEN STATEMENT WITH COUNTER CLAIM IN OS 5801/2014 ON THE FILES OF MUNSIFF COURT, THRISSUR.** - **EXHIBIT R6 O** **PHOTOGRAPHS SHOWING THE PRESENT SITUATION OF THE LAND IN QUESTION AS ON 29/07/2017** //TRUE COPY// P.A. TO JUDGE ded 22.05.2019