Vinayan P. v. Cherupuzha Grama Panchayath & Others (WP(C).No. 23410 of 2012 (A))

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 19TH DAY OF JULY 2013/28TH ASHADHA, 1935** ## **WP(C).No. 23410 of 2012 (A)** **----------------------------** ## **PETITIONER:** - **----------** **VINAYAN.P., AGED 34 YEARS S/O NARAYANAN NAIR, PONNARATTA HOUSE, CHUNDA P.O. CHERUPUZHA.** **BY ADV. SRI.SAIGI JACOB PALATTY** **RESPONDENTS:** - **-----------** **1. CHERUPUZHA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, CHERUPUZHA THALIPARAMBA TALUK, KANNUR DISTRICT-675 001.** **2. THE PRESIDENT,** - **CHERUPUZHA SREE AYYAPPA KSHETHRAM COMMITTEE CHERUPUZHA P.O., CHERUPUZHA** - **TALIPARAMBA TALUK, KANNUR DISTRICT.** **3. THE DISTRICT COLLECTOR,KANNUR-675 001.** **4. STATE OF KERLA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT (DB) DEPARTMENT THIRUVANANTHAPURAM-695 001.** - **R2 BY ADV. SRI.M.SASINDRAN R3 BY ADV. GOVERNMENT PLEADER SRI.RAMPRASAD UNNI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-07-2013, ALONG WITH WPC. 26650/2012, WPC. 27418/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 23410 of 2012 (A)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1: TRUE PHOTOCOPY OF THE OBJECTION FILED ON 13.2.2008.** **EXHIBIT P2: TRUE PHOTOCOPY OF THE PETITION FILED BY HIM BEFORE THE 1ST RESPONDENT PANCHAYATH.** **EXHIBIT P3: TRUE PHOTOCOPY OF THE LETTER DATED 15.3.2012.** **EXHIBIT P4: TRUE PHOTOCOPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P5: TRUE PHOTOCOPY OF THE APPEAL FILED BY THE PETITIONER.** **EXHIBIT P6: TRUE PHOTOCOPY OF THE DELAY PETITION.** **EXHIBIT P7: TRUE PHOTOCOPY OF THE ORDER DATED 12.9.2012.** **EXHIBIT P8: COMMISSION REPORT DATED 29.5.2012 BEFORE THE MUNSIFF COURT, PAYYANNOOR.** ## **RESPONDENTS' EXHIBITS:** **R2(A): A TRUE COPY OF THE REPORT DATED 29.1.2009 SUBMITTED BY THE TAHSILDAR TO THE DISTRICT COLLECTOR.** **R2(B): A TRUE COPY OF THE DETAILS OF DEAD PERSONS DIED WHO ARE MEMBERS OF THE TEMPLE.** **R2(C): A TRUE COPY OF THE DETAILS OF DEAD PERSONS DIED WHO ARE MEMBERS OF THE TEMPLE.** **R2(D): A TRUE COPY OF THE DETAILS OF DEAD PERSONS DIED WHO ARE MEMBERS OF THE TEMPLE** **R2(E): A TRUE COPY OF THE DETAILS OF DEAD PERSONS DIED WHO ARE MEMBERS OF THE TEMPLE** **R2(F): A TRUE COPY OF THE DETAILS OF DEAD PERSONS DIED WHO ARE MEMBERS OF THE TEMPLE** // **TRUE COPY//** **PA TO JUDGE** **Scl.** ## **A. M. SHAFFIQUE, J.** **-------------------------------------------------W.P.(C) Nos. 23410, 26650 & 27418 of 2012 -------------------------------------------------Dated this the 19[th] day of July, 2013** ## **J U D G M E N T** These writ petitions are filed challenging the licence issued by the District Collector for installing a crematorium in a property belonging to a temple by exercising power under Rule 6 of the Kerala Panchayat Raj (Burial and Burning Grounds), 1998 (hereinafter referred to as “the Rules”). Hence, decided by a common judgment. The documents relied upon are with reference to WP(C) No.23410/2012. The petitioners are persons residing in the neibourhood of the said licenced premises. According to them, though they had objected to the putting up of the crematorium in the said premises as early as in February 2008, the District Collector has passed the order without issuing notice to them or hearing them. Though an appeal was filed before the Government under Rule 6(10) of the Rules, since the W.P.(C) No. 23410/12 & conn. cases **==> picture [20 x 8] intentionally omitted <==** appeal was filed belatedly, the same came to be rejected. The petitioner has challenged the dismissal of the appeal as well. 2. The main contention raised by the petitioners is that none of the objections raised by them were considered and therefore, the licence is issued violating the provisions of the Rules. It is also contended that no application was submitted to the Panchayat for installing the said crematorium as evident from Ext.P3. If the crematorium is put up in the said locality, it will cause pollution to the neighbourhood and it will be a nuisance to the persons residing in the said locality. 3. Counter affidavit is filed by the 3[rd] respondent inter alia contending that the District Collector had considered the matter in detail after issuing a notification under Rule 6(7) of the Rules in Deshabhimani daily on 26.04.2009. A report was obtained from the Village Officer, Vayakkara and the same was published in the Village Office, Panchayath office and in the premises of W.P.(C) No. 23410/12 & conn. cases **==> picture [20 x 8] intentionally omitted <==** Koluvally Ksheerolpadaka Co-operative Ltd., which was near the burial ground on 29.04.2009 inviting objections/claims within 30 days' time limit as prescribed in the Rules. No objections were received within the stipulated time, and therefore, there was no reason to consider the objections of the petitioners. That apart, it is submitted that the District Collector had also considered the recommendation of the District Medical Officer under Rule 6(6) of the Rules and the licence is issued on conditions stipulated by the District Medical Officer as well. 4. The 2[nd] respondent has filed a counter affidavit inter alia relying upon Ext.R2(a) report dated 29.01.2009 of the Tahsildar, Thaliparamba to the District Collector stating that the property, where the crematorium is installed is near a burial ground of the mosque and therefore, the objection raised by certain persons in the locality is not reasonable. It is also contended by the 2[nd] respondent that the Deshabhimani daily is having wide W.P.(C) No. 23410/12 & conn. cases ..4.. circulation in the locality and in the absence of any objection submitted by any person, it cannot be stated that the District Collector had not complied with the provisions of the Rules. That apart, it is contended that the only objection that was previously raised by the persons representing the petitioners was regarding the inconvenience that may be caused to them. In so far as the Rules clearly indicate that no burial ground shall be installed within 50 meters from the residences, the locality of the present crematorium is beyond the said limit, and therefore, in the absence of any other specific reasons to deny the establishment of crematoriums in the said area, the petitioners are not justified in challenging the same. That apart, the Tahsildar had already considered their objections as well and necessary report had been given to the District Collector. 5. On these pleadings, the question that arises for consideration is the validity of Exts.P6 and P7. 6. Admittedly, the residences of the petitioners W.P.(C) No. 23410/12 & conn. cases **==> picture [20 x 8] intentionally omitted <==** are beyond 50 meters from the crematorium as specified under the Rules. Therefore, the area of the crematorium for which licence is issued, is a permissible locality in terms of the Rules. The next question is whether the petitioners were required to be heard in the matter. It is not in dispute that when a publication has been made as per Rules, none of the petitioners have objected to the crematorium coming to be put up in the said area. But, it is stated that they had raised an objection earlier in February 2008. A reference to Ext.R2(a) would show that the said objection was considered by the revenue authorities. There is specific reference to the said objection by the Tahsildar, who had reported that the said objection was not valid. Ext.P1 is the said objection and the only complaint raised is that the people in the locality are worried about the proposed crematorium to be put up in the said area and the inconvenience that may occur to the people in the locality. Apparently, on a perusal of Ext.P4 licence, the District Collector does not refer to any W.P.(C) No. 23410/12 & conn. cases **==> picture [20 x 8] intentionally omitted <==** objection having received in terms of Ext.P1, presumably, on account of the fact that there was no objection after the publication was made in terms of Rule 6(7), which reads as under: “(7) The District Collector, shall, on receipt of the application, publish the same in a daily newspaper in the regional language of the locality having wide circulation, in the notice board of the Panchayat, notice board of village and other public places specified by the Government, a notice inviting objections, complaints or suggestion, if any, with regard to the issue of licence, in writing within thirty days at the cost of the applicant.” If any objection is received in terms of Rule 6(7), the District Collector shall proceed with further enquiry and pass orders in terms of Rule 6(8), which reads as under: “(8) The District Collector after considering the objections, complaints or suggestions received if any in pursuance of the notice under sub-rule (7) and after conducting such enquiries, as may be deemed necessary, may,-- (a)grant licence in Form No.II; or (b)refuse to grant licence; or (c)postpone the grant of a licence until objections regarding the ground have been removed or any particulars called for by him have been furnished.” 7. Apparently, on a perusal of Ext.P4, it is seen that though the District Collector had not referred to any of the objections raised, that may be on account of the W.P.(C) No. 23410/12 & conn. cases **==> picture [20 x 8] intentionally omitted <==** fact that there was no objection after the publication was made. This action of the District Collector cannot be faulted in view of the specific provisions of the rules. Since no objection was received by the District Collector after publication, he was not bound to consider an objection received prior to the said publication. Counter affidavit of the 3[rd] respondent would show that wide publication had been made in the locality and therefore, the petitioners had the opportunity to submit their objections after the date of publication in time. A report is obtained from the Village Officer on 11.03.2009 and a notification under Section 6(7) dated 04.04.2009 was published in the Deshabhimani daily on 26.04.2009. Ext.P1 was submitted much earlier, i.e., on 13.02.2008 and the same is seen considered by the Tahsildar in terms of Ext.R2(a) report. The learned counsel for the petitioners, Sri.Saigi Jacob Palatty, relied upon the judgment of the learned Single Judge of this Court in **Pradeep v. Kandanassery Panchayat** (1996 KHC 399), W.P.(C) No. 23410/12 & conn. cases ..8.. ## in which paragraph 10 reads as under: “10. The procedure has been laid down in order to see that starting of new burial or burning ground is not against public interest. The distance rule mentioned in R.5 is one of the guidelines prescribed to prevent any adverse effect. Similarly, public order, morality and health are the essential aspects to be looked into. When objections are specific, they have to be enquired into. If the enquiry is done without informing the objectors, the enquiry loses all its significance. The rule itself gives a discretion to the Collector to make such enquiries as he deems fit. No statutory procedure is likely to cover every possibility of unfairness. Gaps may therefore be filled by resorting to the justice of the common law. One of the important restrictions is the distance rule. When specific objections are raised that residential building, well, school etc. come within the prohibited distance, it is necessary to consider the objections seriously. The Collector should not rest on the measurements made before the publication of the notification. The measurement should be taken again after giving notice to the objectors who have raised their objections specifically. Similarly, such objectors should be heard personally so as to see that no problem with regard to public order or morality arises.” 8. True that, the principle underlying the grant of licence in terms of Rules is after complying with the provisions of the Rules. The contention of the petitioners, relying upon the above judgment may not apply to the facts of this case, especially, when the petitioners have not chosen to file an objection after the publication made by the District collector in terms of Rule 6(7). The contention of the petitioner is that the objection raised W.P.(C) No. 23410/12 & conn. cases **==> picture [20 x 8] intentionally omitted <==** earlier to the publication in terms of Rule 6(7) should be considered. That, I do not think, is the very purport of the Rules. Rule 6(8) clearly indicates that the District Collector has to consider the objections, complaints or suggestions received in pursuance of the notice under Rule 6(7) and after conducting such enquiries, he may either grant licence or refuse to grant license. Therefore, whatever objections, complaints or suggestions are received after the notice under sub rule (7), alone is required to be considered as per the Rules. That, exactly, has been done by the District Collector. However, it is seen that the Tahsildar has considered the objection by the people in the locality and submitted a report to the District Collector. Therefore, the District Collector was also aware of the fact that previous objection has been considered and rejected by the Tahsildar in terms of Ext.R2(a). 9. The learned counsel for the 2[nd] respondent relies upon the judgment of the Hon'ble Supreme Court in W.P.(C) No. 23410/12 & conn. cases **==> picture [26 x 8] intentionally omitted <==** **Canara Bank v. V.K.Awasthy** (JT 2005 (4) SC 40) to contend that even if an opportunity is given to the petitioners, it will only amount to a “useless formality”, in view of the fact that the petitioners only pointed out their inconvenience in the matter relating to the crematorium coming up in the area and the said matter was considered in detail by the Tahsildar. In Ext.R2(a) report, it is shown that already there is a burial ground in the said area and hence, the crematorium will not affect the people in the area in any manner. 10. The learned Standing Counsel for the Panchayat would, however, submit that the applications submitted to the Panchayat were recommended and forwarded to the District Welfare Officer and it is incorrect to state that the procedure has not been complied with. 11. The learned counsel for the petitioners further submits that if an opportunity is given to the petitioners, they could have offered an alternate land for establishing W.P.(C) No. 23410/12 & conn. cases **==> picture [26 x 8] intentionally omitted <==** the crematorium very nearby to the burial ground of the Panchayat. But, on a perusal of Ext.P1, it is seen that no such suggestion is made and this is purely an afterthought of the petitioners. If the petitioners are willing to offer an alternate land, it is for the District Collector to consider whether any burial ground can be installed in the said premises. It is always open to the petitioners to offer any land to install a crematorium. However, that does not, by itself, mean that the impugned order can be to set aside. As far as the order in the appeal is concerned, the appeal has to be filed within thirty days from the date of passing the order. Admittedly, there is no provision for condoning the delay as the petitioners had filed the appeal after the period of limitation prescribed and therefore, the order of the Government also cannot be faulted with. 13. Having regard to the facts and circumstances, I do not think that the petitioners have made out a justifiable ground to interfere with the orders passed by W.P.(C) No. 23410/12 & conn. cases **==> picture [26 x 8] intentionally omitted <==** the District Collector or the Government as the case may be. However, it shall be open for the petitioners to submit a representation before the District Collector enlightening their grievances in the matter, and if so, the District Collector shall consider the same and pass appropriate orders in accordance with law. The writ petitions are dismissed and the interim stay is vacated. Sd/- **A. M. SHAFFIQUE, JUDGE** bka/-