V.A. Baby and Aliyamma v. Piravom Municipality and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 15[TH] DAY OF JULY 2022 / 24TH ASHADHA, 1944** **W.P.(C) NO.14898 OF 2021** ## **PETITIONERS:** **1 V.A. BABY, AGED 67 YEARS, S/O. ABRAHAM, PRESENTLY RESIDING AT VATHAKKATTEL HOUSE, VATTUKKUNNU, CHOTTANIKKARA, ERNAKULAM DISTRICT. 2 ALIYAMMA, AGED 74 YEARS, W/O. THOMAS, PRESENTLY RESIDING AT POOKKULAYIL HOUSE, PADIVATTOM, PALARIVATTOM, ERNAKULAM DISTRICT.** **BY ADVS. GEORGE SEBASTIAN ARUN LUCKOSE ABRAHAM** ## **RESPONDENTS:** |**1**|**THE PIRAVOM MUNICIPALITY**| |---|---| ||**REPRESENTED BY ITS SECRETARY,**| ||**OFFICE OF THE PIRAVOM MUNICIPALITY,**| ||**PIRAVOM, PIN-686 664.**| |**2**|**THE SECRETARY,**| ||**PIRAVOM MUNICIPALITY,**| ||**OFFICE OF THE PIRAVOM MUNICIPALITY,**| ||**PIRAVOM, PIN-686 664.**| |**3**|**THE MUNICIPAL COUNCIL OF PIRAVOM MUNICIPALITY,**| ||**OFFICE OF THE PIRAVOM MUNICIPALITY,**| ||**PIRAVOM, PIN-686 664**| ||**REPRESENTED BY ITS CHAIRPERSON.**| |**4**|**THE ENVIRONMENTAL ENGINEER,**| ||**THE KERALA STATE POLLUTION CONTROL BOARD,**| ||**PERUMBAVOOR, 1ST FLOOR, MANNA RESIDENCY,**| ||**M.C.ROAD, PERUMBAVOOR, ERNAKULAM-683 542.**| |**5**|**THE DISTRICT COLLECTOR,**| ||**COLLECTORATE, KAKKANADU,**| ||**ERNAKULAM, PIN-682 030.**| -2- ## **W.P.(C) NO.14898 OF 2021** - **6 THE DISTRICT MEDICAL OFFICER, DISTRICT MEDICAL OFFICE (H), PARK AVENUE, MARINE DRIVE, ERNAKULAM-682 011.** - **7 THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA, GROUND FLOOR, PATTIMATTOM-MUVATTUPUZHA ROAD, MUVATTUPUZHA, PIN-686 673.** - **8 THE DISTRICT FIRE OFFICER, MUTHUKAYIL CHAMBERS, NEAR FIRE STATION, 38/2352F, GANDHI NAGAR, ELAMKULAM, KOCHI-682 020.** - **9 THE TAHSILDAR, MUVATTUPUZHA, TALUK OFFICE, MUVATTUPUZHA, PIN-686 673.** - **10 THE VILLAGE OFFICER, PIRAVOM, KADAVU ROAD, PALLIKAVALA, PIRAVOM, PIN-686 664.** - **11 THE ST.PETERS' AND ST.PAUL'S ORTHODOX CHURCH, PAREL, NAMAKUZHI, MULAKULAM NORTH, REPRESENTED BY ITS PRESENT TRUSTEE-JOY VARGHESE, AGED 74 YEARS, S/O.VARKEY, KOTTUMALIL HOUSE, PERUMBADAVAOM P.O., ELANJI, MUVATTUPUZHA TALUK, PIN-686 665.** - **R1-R3 ADV. K.S. ARUN KUMAR, SC, PIRAVOM MUNICIPALITY** - **R4 ADV.T.NAVEEN,SC,KERALA STATE POLLUTION CONTROL BOARD** - **R5-R10 ADV. DEEPA NARAYANAN, SENIOR GOVERNMENT PLEADER** - **R11 ADV. JIBU P. THOMAS** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- **W.P.(C) NO.14898 OF 2021** **P.V. KUNHIKRISHNAN, J. ----------------------------------------W.P. (C) No.14898 of 2021 ----------------------------------------Dated this the 15[th] day of July, 2022** ## **JUDGMENT** The above writ petition is filed with the following prayers:- i. To declare that the 11[th] respondent is not entitled to construct the cemetery proposed in ExtP10 without getting a license from the 3[rd] respondent under Section 484 of the Kerala Municipality Act, 1994 and without getting consent/permission from the 4[th] respondent. ii. To issue a writ of mandamus order or direction to respondents 1 and 2 to ensure that no cemetery is put up by the 11[th] respondent or their men without getting a license from the 3[rd] respondent under Section 484 of the Kerala Municipality Act 1994. iii. To issue a writ of mandamus order or direction to 4" respondent to ensure that no cemetery is put up by the 11[th] respondent or their men getting a consent/permission from the 4[th] respondent. iv. To declare that the 11[th] respondent is not entitled -4- ## **W.P.(C) NO.14898 OF 2021** to construct any cemetery on the basis of Ext-P10 building permit. v. To direct the 2[nd] respondent to ensure that the 11[th] respondent does not construct any cemetery on the basis of Ext-P10 building permit. vi. To issue a writ of certiorari, calling for the records leading to Ext-P9 and quash the same. vii. To grant such other reliefs as this Honourable Court may deem fit and proper.” 2. The main prayer in this writ petition is to declare that the 11[th] respondent is not entitled to construct the cemetery proposed in Ext.P10 without getting a licence from the 3[rd] respondent under Section 484 of the Kerala Municipality Act, 1994 and without getting consent/permission from the 4[th] respondent. 3. Heard the counsel for the petitioners, the counsel appearing for the Municipality, the counsel appearing for the 11[th] respondent and also the counsel appearing for the 4[th] respondent. 4. The main contention of the petitioners as observed -5- ## **W.P.(C) NO.14898 OF 2021** earlier is that a licence under Section 484 is necessary for constructing a cemetery proposed in Ext.P10. When this point was raised, this Court directed the Standing Counsel for respondents 2 and 3 to find out whether any licence is necessary. The Standing Counsel, after getting instructions from the Municipality, submitted that a licence under Section 484 of the Kerala Municipality Act is necessary for the construction of cemetery. Moreover, in Exts.P13 and P14, the questions and answer received under the Right to Information Act also shows that a licence under Section 484 of the Kerala Municipality Act is necessary. In such circumstances, according to me, the 11[th] respondent can continue the construction only after getting licence under Section 484 of the Kerala Municipality Act. The 11[th] respondent is free to submit necessary application before the 2[nd] and 3[rd] respondents to that effect and the 2[nd] and 3[rd] respondents will consider the same in accordance with law. Therefore, this writ petition is disposed of with the following directions:- i) It is declared that the 11[th] respondent is not -6- ## **W.P.(C) NO.14898 OF 2021** entitled to construct the cemetery proposed in Ext.P10 without getting licence from the 3[rd] respondent under Section 484 of the Kerala Municipality Act. ii) The 11[th] respondent is free to submit an application for licence under Section 484 of the Kerala Municipality Act before the 2[nd] and 3[rd] respondents within two weeks from the date of receipt of a copy of this judgment. iii) Once such a representation is received, the 2[nd] and 3[rd] respondents will follow the procedure under Section 484 of the Kerala Municipality Act and take appropriate steps, as expeditiously as possible, at any rate, within a period of three months on receipt of such representation. iv) Before passing final orders, an opportunity of hearing is also be given to the petitioners. v) If any request is made by respondents 2 and 3, the District Collector will do the needful, as expeditiously as possible. Sd/- **P.V. KUNHIKRISHNAN JUDGE** bpr -7- ## **W.P.(C) NO.14898 OF 2021** ## **APPENDIX** ## **PETITIONERS' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE BASIC TAX RECEIPT DATED 11.03.2019 ISSUED FROM THE VILLAGE OFFICE PIRAVOM IN RESPECT OF THE PROPERTY OF THE 1ST PETITIONER.** - **EXHIBIT P2 A TRUE COPY OF THE REPRESENTATION DATED 11.04.2019 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 16.04.2019 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 5TH RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE CAVEAT NOTICE DATED 16.04.2019.** - **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 22.04.2019 SUBMITTED BY THE 1ST PETITIONER BEFORE THE METROPOLITAN.** **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 12.04.2019 SUBMITTED BEFORE THE VICAR OF THE 11TH RESPONDENT CHURCH.** - **EXHIBIT P7 TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT DATED 25.06.2016 SUBMITTED BY THE 11TH RESPONDENT BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE LETTER DATED 04.10.2016 ISSUED BY THE 2ND RESPONDENT TO THE 5TH RESPONDENT.** **EXHIBIT P9 TRUE COPY OF THE COMMUNICATION DATED 23.04.2018 ISSUED BY THE 5TH RESPONDENT TO THE 2ND RESPONDENT.** **EXHIBIT P10 TRUE COPY OF THE BUILDING PERMIT DATED 27.12.2018 ISSUED BY THE 2ND RESPONDENT.** -8- **W.P.(C) NO.14898 OF 2021** - **EXHIBIT P11** **TRUE COPY OF THE REPRESENTATION DATED 24.03.2021 SUBMITTED BY THE 1ST PETITIONER BEFORE THE METROPOLITAN.** **EXHIBIT P12** **TRUE COPY OF THE CAVEAT PETITION RECEIVED FROM THE MUNSIFF COURT, MUVATTUPUZHA BY THE 1ST PETITIONER.** - **EXHIBIT P13 A TRUE COPY OF THE APPLICATION UNDER THE RIGHT TO INFORMATION ACT DATED 05.08.2021 FILED BEFORE THE 1ST RESPONDENT.** **EXHIBIT P14** - **A TRUE COPY OF THE REPLY DATED 03.09.2021 ISSUED UNDER THE RIGHT TO INFORMATION ACT FROM THE OFFICE OF THE 1ST RESPONDENT.** - **RESPONDENTS' EXHIBITS** - **EXHIBIT R11(A) PHOTOGRAPH SHOWING THE CEMETERY AREA AND THE TOMB OF LATE REV. FR. JOSEPH VELIYAMMARIL.** **EXHIBIT R11(B) TRUE COPY OF THE BUILDING PERMIT NO. BA 298540/2018 DATED 27/12/2018 ISSUED BY PIRAVOM MUNICIPALITY.**