Paurasamithi Vadayampady represented by its Chairman M.S. Muraleedharan & John Joseph Ward Member v State of Kerala and Poothrikka Grama Panchayath & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 18TH DAY OF DECEMBER 2019/27TH AGRAHAYANA, 1941** ## **WA.No.980 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 11139/2016(N) OF HIGH COURT OF KERALA DATED 3/12/2018** ## **APPELLANTS/PETITIONERS:** **1 PAURASAMITHI VADAYAMPADY REPRESENTED BY ITS CHAIRMAN M.S.MURALEEDHARAN, S/O SANKARANKUTTY MENON, MUKOTTAL HOUSE, VADAYAMPADY P.O., ERNAKULAM DISTRICT.** - **2 JOHN JOSEPH WARD MEMBER, WARD NO.II, VADAYAMPADY, POOTHRIKKA GRAMA PANCHAYATH.** **BY ADVS. SRI.DINESH R.SHENOY SRI.EBIN MATHEW** WA No.980/2019 -:2:- ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 POOTHRIKKA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, OFFICE OF POOTHRIKKA GRAMA PANCHAYATH, POOTHRIKKA P.O., ERNAKULAM DISTRICT-682308.** - **3 DIRECTOR OF PANCHAYATH THIRUVANANTHAPURAM-695001.** - **4 DISTRICT COLLECTOR ERNAKULAM, CIVIL STATION, KAKKANAD-682030.** - **5 DISTRICT MEDICAL OFFICER OFFICE OF DISTRICT MEDICAL OFFICER, ERNAKULAM, KOCHI-682011.** - **6 BLOCK DEVELOPMENT OFFICER VADAVUCODE, KOLENCHERY-682311.** - **7 N.V.KRISHNANKUTTY S/O. VELAYUDHAN, NEDUMPARAMBIL VEEDU, KINGINIMATTOM P.O., KOLENCHERRY-682311.** - **8 SUBASH A AGED 40 YEARS** **S/O APPU A.K., ATHYATTUKUDIZHIYIL HOUSE, VADAYAMPADI P.O. PUTHENKURIZ (VIA), CHOONDI, ERNAKULAM DISTRICT-682308.** ## **9 M.K.SATHYAVRATHAN AGED 64 YEARS** **S/O. KUMARAN, MANAKKADAVIL HOUSE, AIKKARANADU SOUTH VILLAGE, VADAYAMPADY P.O., KUNNATHUNADU TALUK-682308.** ## **R1, R3-6 BY GOVERNMENT PLEADER SRI.ARAVIND KUMAR BABU** **R2 BY ADV. SRI.SAJEEV KUMAR K.GOPAL(BY ORDER) R7-8 BY ADV. SRI.K.S.ARUN KUMAR** **R7-8 BY ADV. SRI.JUSTINE JACOB** WA No.980/2019 -:3:- **R7-8 BY ADV. SMT.RESMI THOMAS R7-8 BY ADV. SMT.A.P.BEELAMMA R7-8 BY ADV. SMT.AMRUTHA K P R9 BY ADV. SRI.V.SUBHASH BHAT** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 4.12.2019, THE COURT ON 18.12.2019 DELIVERED THE FOLLOWING:** WA No.980/2019 -:4:- ## **J U D G M E N T** Dated this the 18[th] day of December 2019 ## _**Shaffique, J.**_ Writ appeal is filed by the petitioners in WP(C) No.11139/2016 challenging judgment dated 3/12/2018 by which the writ petition came to be dismissed. Writ petition was filed _inter alia_ seeking to quash Ext.P5 order passed by the Under Secretary to Local Self Government Department and for a writ of mandamus to pass appropriate orders in Ext.P6 review petition filed by the petitioners against Ext.P5 order and for certain other reliefs. 2. First petitioner is an unregistered body and the 2[nd] petitioner is a ward member of Poothrikka Grama Panchayat. The controversy involved is with reference to a decision taken by the Poothrikka Grama Panchayat for construction of a gas crematorium. Panchayat had decided to utilise 30 cents of land in Sy.No.331/2 of Ikkaranad Village. Necessary funds were allocated from the Member of Parliament Local Area Development Scheme. Administrative sanction was also granted. Permission was sought by the Panchayat before the District Collector for establishing the WA No.980/2019 ## -:5:- crematorium. The application was forwarded to the District Medical Officer and the construction of crematorium was recommended on certain conditions. After conducting necessary enquiry, and after obtaining reports from various authorities, permission was denied as per order dated 30/11/2013. The 7[th] respondent Sri.N.V.Krishnankutty challenged the said order before the Government. By Ext.P5 order, the Government directed the District Collector to grant permission for construction of the gas crematorium. Petitioners preferred a review before the Government and since no action was taken in the matter and when in the meantime, attempts were made to construct the crematorium, this writ petition is filed. 3. The Secretary in charge of the Grama Panchayat filed counter affidavit supporting the stand taken by them. It is stated that implementation of the above project was included n the 2018-19 annual project. The rough estimate for construction will come to `87 lakhs. Since the fund of the Panchayat was not sufficient, it was decided to seek assistance from Kochi Refineries Ltd (KRL). A sum of `50 lakhs was sought from Kochi Refineries Ltd and the Panchayat Committee in its meeting held on 22/9/2018 resolved to seek assistance from KRL from its CRS fund WA No.980/2019 -:6:- and the said request was approved by KRL. It is on that basis that further steps were taken to construct the crematorium. 4. The learned Single Judge by the impugned judgment observed that in so far as there is no illegality in establishing a burial ground, there is no reason for setting aside Ext.P5 and in the absence of any provision for review, no mandamus can be issued to the Government to consider Ext.P6 review petition. During the pendency of the writ appeal, petitioners had also attempted to place additional grounds by filing IA Nos.3 and 4/2019 and certain additional documents are also produced. 5. Though the learned counsel for the appellant placed reliance on judgment in _**Vanaraj v. Santhanpara Grama Panchayat**_ (2014 (2) KHC 674), to emphasise that a member of the Panchayat can approach the Government as provided u/s Section191(1) of the Kerala Panchayat Raj Act, 1994 and there was no opportunity for the 2[nd] petitioner/appellant to approach the Government, since the District Collector had rejected the application for setting up of the crematorium, it is not the decision of the District collector that matters. The Panchayat had already passed a resolution. If the 2[nd] appellant was aggrieved by the said decision, it was open for him to challenge the said WA No.980/2019 -:7:- decision of the Panchayat by approaching the Government invoking Section 191(1). Having not done so, he cannot approach any Court challenging the decision of the Panchayat. The genesis of the order passed by the District Collector or the Government is the decision of the Panchayat. The 2[nd] petitioner's attempt is to overcome the decision of the Panchayat by challenging the decision of the Government, which is not permissible. 6. Primarily, we are of the view that the writ petition itself was not maintainable at the instance of an unregistered body. The first appellant/petitioner is not a registered organization and the 2[nd] petitioner is none other than a ward member of the Panchayat. He is in fact challenging the order of the Government directing the District Collector to grant permission for setting up of a gas crematorium. Gas crematorium is proposed to be set up at the instance of the Panchayat. The decision of the Panchayat is a collective decision. However when a Panchayat takes a decision to set up a gas crematorium, a member who opposes the said decision cannot challenge the said decision of the Panchayat. The position of law is well settled by a Division Bench decision of this Court in _**Mohammed Haji v. Unni Moyi and others**_ (1976 KLT 106). That was a case in which petitioner who is a member of WA No.980/2019 -:8:- Kodiyathur Panchayat challenged an order by which Government directed bifurcation of the Panchayat into two. It was for the Panchayat to challenge the said direction, but the petitioner who is a member of the Panchayat though having a legitimate interest in its affairs, cannot maintain an action to set aside the impugned order. The Original Petition was therefore dismissed as not maintainable. 7. Even otherwise, when a Panchayat has taken a conscious decision to construct a crematorium which is necessary in any area where a nearby crematorium is not available, when the rules permit such a crematorium to be established in the said area, there is absolutely nothing wrong in the Government setting aside the order of the District Collector and directing that the application has to be allowed. 8. Learned counsel for the appellants tried to emphasise that there is a nearby crematorium at Brahmapuram which could be utilized by the members of the Panchayat. We do not think that any private party can insist that the Panchayat should not set up their own crematorium. When a conscious decision had been taken by the Panchayat to set up a crematorium in their own land, for which they have obtained funds from the WA No.980/2019 -:9:- appropriate authorities, it is not open for this Court to sit in judgment over the same on the premise that there is a nearby crematorium. Panchayat is expressing the wish of the public and being a local self government institution, the decision of the Panchayat has to be given due regard. In the absence of any illegality or irregularity in the order passed by the Government, we do not think that the learned Single Judge had committed any error in dismissing the writ petition. Even on merits, no grounds are made out for interference. Appeal is dismissed. ## **Sd/-** **S.MANIKUMAR CHIEF JUSTICE** **Sd/-** Rp **A.M.SHAFFIQUE JUDGE** WA No.980/2019 -:10:- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1 TRUE PHOTOCOPY OF THE ORDER DATED 02/08/2014 ISSUED BY 1ST RESPONDENT REJECTING THE APPEAL FILED BY THE 2ND RESPONDENT WITH TRANSLATION.** - **ANNEXURE A2 TRUE PHOTOCOPY OF REPRESENTATION DATED 01/07/2015 SUBMITTED BY THE PINOKKA SAMUDAYA AIKYAVEDI WITH TRANSLATION.** - **ANNEXURE A3 TRUE COPY OF THE REPRESENTATION DATED 15/07/2015 SUBMITTED BY VISHWA KARMA SERVICE SOCIETY WITH TRANSLATION.** - **ANNEXURE A4 TRUE COPY OF REPRESENTATION DATED 01/07/2015 SUBMITTED BY PATTIKAJATHI PATTIKAVARGA SAMYUKTHA SAMITI WITH TRANSLATION.** - **ANNEXURE A5 TRUE COPY OF RESOLUTION DATED 08/12/2003 PASSED BY THE 2ND RESPONDENT PANCHAYATH WITH TRANSLATION.** - **ANNEXURE A6 TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE 2019-2020 BUDGET OF POOTHRUKKA GRAMA PANCHAYATH WITH TRANSLATION.** - **ANNEXURE A7 TRUE PHOTOCOPY OF RELEVANT PAGES OF THE 13TH FIVE YEARS PROJECT FUND WISE REPORT 2019-2020 OF POOTHRUKKA GRAMA PANCHAYATH WITH TRANSLATION.** **ANNEXURE A8 TRUE PHOTO COPY OF THE NEWS REPORT DATED 21/06/2017 IN MALAYALA MANORAMA DAILY DATED 21/06/2017 WITH TRANSLATION.** - **ANNEXURE A9 TRUE PHOTOCOPY OF THE NEWS REPORT IN MATHRUBHUMI DATED 11/07/2017 WITH TRANSLATION.** - **ANNEXURE A10 ORIGINAL PHOTOGRAPHS (2 NOS.) OF THE BRAHMAPURAM BURIAL GROUND AND CREMATORIUM.** WA No.980/2019 -:11:- ## **ANNEXURE A11** **TRUE COPY OF THE PRESS NOTICE DATED 23/10/2009 ISSUED BY ME WITH ENGLISH TRANSLATION.** ## **ANNEXURE A12** **TRUE COPY OF THE DISSENT NOTE DATED 04/05/2018 SUBMITTED BY ME BEFORE THE PANCHAYATH COMMITTEE WITH ENGLISH TRANSLATION.** - **RESPONDENT'S EXHIBITS:** - **ANNEXURE R9(A)** - **TRUE PHOTOCOPY OF THE ORDER DATED 02/08/2014 ISSUED BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT (B) DEPARTMENT WITH TRANSLATION.** - **ANNEXURE R9(B) TRUE PHOTOCOPY OF CERTIFICATE DATED 14/03/2016 ISSUED BY THE 2ND RESPONDENT WITH TRANSLATION.** - **ANNEXURE R9(C)** **TRUE PHOTOCOPY OF THE CERTIFICATE DATED 14/03/2016 ISSUED BY THE 2ND RESPONDENT WITH TRANSLATION.** - **ANNEXURE R9(D)** - **TRUE PHOTOCOPY OF CERTIFICATE DATED 21/03/2016 ISSUED BY THE 2ND RESPONDENT WITH TRANSLATION.** True Copy PS to Judge Rp