WP(C) Nos.13741/2019 & 22129/2019 (Dileep vs State of Kerala & Others; EZHUMASSERIL ANNAPORNESWARI TRUST YEKSHIYAMMA TEMPLE vs State of Kerala & Others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 21[ST] DAY OF MARCH 2023 / 30TH PHALGUNA, 1944** ## **WP(C) NO. 13741 OF 2019** ## **PETITIONER:** DILEEP AGED 42 YEARS S/O. SAHADEVAN, KOLLASSERIL KARIKKAD P.O., CHERTHALA. BY ADV B.PRAMOD ## **RESPONDENTS:** |1|STATE OF KERALA| |---|---| ||REPRESENTED BY THE SECRETARY DEPARTMENT OF LOCAL GOVERNMENT| ||INSTITUTIONS, SECRETARIAT, THIRUVANANTHAPURAM 695 001.| |2|THE JOINT SECRETARY,| ||DEPARTMENT OF LOCAL GOVERNMENT INSTITUTIONS, SECRETARIAT,| ||THIRUVANANTHAPURAM 695 001.| |3|THE DISTRICT COLLECTOR,| ||ALAPPUZHA 688 001.| |4|ADDITIONAL DIRECTOR GENERAL OF PLICE| ||INTELLIGENCE POLICE HEAD QUARTERS, THIRUVANANTHAPURAM 695| ||010.| |5|THE DISTRICT POLICE CHIEF,| ||ALAPPUZHA 689 121.| |6|THE STATION HOUSE OFFICER,| ||MUHAMMA POLICE STATION, ALAPPUZHA 688 525.| |7|THE DISTRICT MEDICAL OFFICER,| ||ALAPPUZHA 690 502.| |8|THANNEERMUKKOM GRAMA PANCHAYATH.| ||THANNEERMUKKOM P.O., CHERTHALA, ALAPPUZHA 688 527,| ||REPRESENTED BY ITS SECRETARY.| |9|ST. JOSEPHS CHURCH,| ||VARANAM, KARIKAKD P.O., THANNEERMUKUNNOM, ALAPPUZLA 688 527,| ||REPRESENTED BY ITS VICAR FR. PAUL KACHAPPALLY.| 10 EZHUMANASSERIL ANNAPORNESWARI TRUST YEKSHIYAMMA TEMPLE, KARIKKAD P.O., REPRESENTED BY ITS RESIDENT. BY ADVS. GOVERNMENT PLEADER SRI.DARSAN SOMANATH T.RAJASEKHARAN NAIR SRI.SAJITH KUMAR V. SHRI.VIVEK A.V. SHRI.GODWIN JOSEPH ## **OTHER PRESENT:** GP - SYAMANTHAK B.S. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.03.2023, ALONG WITH WP(C).22129/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 21[ST] DAY OF MARCH 2023 / 30TH PHALGUNA, 1944** **WP(C) NO. 22129 OF 2019** ## **PETITIONERS:** 1 EZHUMANASSERIL ANNAPORNESWARI TRUST YEKSHIYAMMA TEMPLE,KARIKKAD.P.O, THANNEERMUKKOM,ALAPPUZHA DISTRICT, REPRESENTED BY ITS PRESIDENT,SUNIL KUMAR.V, AGED 47 YEARS,S/O.V.G.DAMODARAN NAIR, THEKKEPERAVALLY HOUSE,VARANAM.P.O,688555. 2 SUNIL KUMAR V, AGED 47 YEARS S/O.V.G.DAMODARAN NAIR,THEKKEPERAVALLY HOUSE, VARANAM.P.O,688555. BY ADVS. SAJITH KUMAR V. GODWIN JOSEPH SHRI.VIVEK A.V. ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY,DEPARTMENT OF LOCAL GOVERNMENT INSTITUTIONS,SECRETARIAT, THIRUVANANTHAPURAM.P.O,THIRUVANANTHAPURAM-695001. 2 THE JOINT SECRETARY, DEPARTMENT OF LOCAL GOVERNMENT INSTITUTIONS,SECRETARIAT,THIRUVANANTHAPURAM.P.O,THIRUVANANTHA PURAM-695001. 3 THE DISTRICT COLLECTOR, BESIDE JILLA PANCHAYATH OFFICE,CIVIL STATION WARD, ALAPPUZHA.P.O,ALAPPUZHA-688001. 4 ST.JOSEPH S CHURCH VARANAM,KARIKKAD.P.O,THANNEERMUKKOM, ALAPPUZHA-688527,REP.BY ITS VICAR FR.PAUL KACHAPPALLY. 5 ADDITIONAL DIRECTOR GENERAL OIF POLICE(INTELLIGENCE) POLICE HEAD QUARTERS, VAZHUTHAKKADU.P.O,THIRUVANANTHAPURAM-695010. 6 THE DISTRICT POLICE CHIEF, CCSSB ROAD CIVIL STATION WARD,CHENGANNUR.P.O, ALAPPUZHA689121. 7 THE STATION HOUSE OFFICER, MUHAMMA POLICE STATION,MUHAMMA.P.O, ALAPPUZHA-688525. 8 THE DISTRICT MEDICAL OFFICER, KARTHIKAPPILLY KAYAMGULAM.P.O,ALAPPUZHA-690502. 9 THANNEERMUKKOM GRAMA PANCHAYATH, THANNEERMUKKOM.P.O,CHERTHALA,ALAPPUZHA-688527,REP.BY ITS SECRETARY. BY ADVS. T.RAJASEKHARAN NAIR GOVERNMENT PLEADER - SYAMANTHAK B.S. SRI.DARSAN SOMANATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.03.2023, ALONG WITH WP(C).13741/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **VIJU ABRAHAM,J** ## **-----------------------** ## **W.P.(C).Nos.13741 & 22129 of 2019** ## **----------------------------Dated this the 21[st] day of March, 2023** ## **JUDGMENT** ## **WP(C) No.13741 of 2019** The above writ petition is filed challenging Ext.P6 order passed by the 1st respondent Government whereby sanction was granted to the 9th respondent for erecting an RCC vault cemetery. The petitioner is a resident of Ward No.XIV of the 8th respondent Panchayat. The 9th respondent church is situated hardly 100 meters away from the residence of the petitioner. On the northern boundary of the property of the 9th respondent, the 10th respondent temple is situated. The petitioner is a devotee worshiper of the deities in the temple and he makes regular visits to the temple for offering prayers. The 9th respondent church was established in the year 2004 and there are only around 50 families in ## **W.P.(C).Nos.13741 & 22129 of 2019 6** the parish of the 9th respondent church. **T** he dead bodies of the parishioners of the 9th respondent church are being buried in Sacred Heart Church, Chalippally, which is only 2 km from the said church. Apart from that, there are 4 more churches with cemetery facilities within a radius of 3 kms of the 9th respondent church. While so, on 29.8.2014, the 9th respondent church submitted an application before the 8th respondent Panchayah for opening a cemetery (concrete vault type) in its property, but very near to the respondent temple. The said application was forwarded to the DMO, who in turn forwarded it to the District Collector for taking a decision thereon in terms of Rule 6(8) of the Kerala Panchayat Raj (Burial and Burning Grounds Rules),1998 (hereinafter referred to as the Rules). The District Collector during the enquiry conducted in the matter obtained a report from the police regarding the possibility of a breach of peace and public order in case of the cemetery ## **W.P.(C).Nos.13741 & 22129 of 2019 7** being opened at the site. In fact, the temple authorities or the local residents, who are devotees of the temple were not against the construction of the cemetery as such. But their only objection is with regard to the opening of the cemetery in the immediate neighbourhood of the 10th respondent temple. Even the request to relocate the site of the cemetery by leaving at least 78.5 metres from the boundary of the temple property was not heeded by the church authorities though the church has sufficient land in its possession. Therefore, it is contended that the erection of a vault cemetery in the said premises will affect the religious customs attached to the 10th respondent temple. Thereafter, the 3rd respondent District Collector rejected the application as per Ext.P1 order based on the report of the police authorities that the establishment of a vault cemetery will affect the communal harmony and the law and order of the locality. The District Collector before ## **W.P.(C).Nos.13741 & 22129 of 2019 8** disposing of the application has published a notice in a newspaper having only very less circulation and therefore, the same is in violation of Rule 6(7) of the Rules. The 9th respondent church aggrieved by Ext.P1 order preferred an appeal before the 1st respondent and the Government as per Ext.P2 order set aside Ext.P1 order issued by the District Collector with a direction to reconsider the issue on finding that the reasons cited for refusal of the licence are untenable. After the said remand, the 3rd respondent District Collector reconsidered the matter and by Ext.P3 order granted licence for the construction of a vault cemetery. Pursuant to Ext.P3, the 8th respondent Panchayat has issued Ext.P4 building permit for the construction of the vault cemetery. Exts.P2 and P3 were challenged before this Court in two writ petitions, viz., WP(C) No.4543/2018 and WP(C) No.2178 of 2018 which was disposed of as per Ext.P5 common judgment setting aside Exts.P2 and P3 with a consequential ## **W.P.(C).Nos.13741 & 22129 of 2019 9** direction to the 1st respondent Government to consider the matter afresh after hearing all parties concerned. It could be seen from Ext.P5 judgment that the interference by the Division Bench of this Court was on the ground of violation of principles of natural justice in as much as the affected parties were not heard. Thereafter, the 1st respondent Government reconsidered the matter and issued Ext.P6 order allowing the application of the 9th respondent church to open the proposed cemetery. It is contended that the Government while issuing Ext.P6 heard the objectors for the sake of complying with the direction, but none of the contentions raised were considered in a proper manner. It is aggrieved by Ext.P6, this writ petition is filed. One of the contentions raised in the writ petition is that Ext.P6 is a cryptic and non-speaking order without assigning any reason for grant of licence for erecting a vault cemetery. 2. It is contended that as per Rules, ## **W.P.(C).Nos.13741 & 22129 of 2019 10** permission for erecting a cemetery cannot be granted merely for the reason that the distance rules has been satisfied. On the other hand, the requirement/necessity for a cemetery having regard to the present arrangement is certainly a matter which would have been considered while issuing Ext.P6 order. The possibility of a breach of public order was not at all considered by the respondent Government while issuing Ext.P6 order. Petitioner relies on the judgment in _**Pradeep v. Kandanassery Panchayat(1996 (2) KLT 775)**_ in support of his contention. Another contention raised by the petitioner is that the application was not disposed of within a period of 6 months and therefore, after the period of 6 months, the District Collector become _functus officio_ and thereafter, he could not pass any order on the said application submitted by the 9th respondent. In support of his contention, he relies on the judgment of this Court in _**Surendran v. District Collector (1999 (3) KLT 22 (F.B.)**_ . The ## **W.P.(C).Nos.13741 & 22129 of 2019 11** publication of notice in a daily having limited circulation is in violation of Rule 6(7) of the Rules. ## **WP(C) No.22129 of 2019** 3. The above writ petition is filed challenging the same order passed by the Government which is challenged in WP(C)No. 13741/2019. The petitioners in the said writ petition are a temple trust and another, and the temple trust has filed Ext.P2 objection before the 3rd respondent District Collector. The petitioners also rely on Exts.P3 and P4 reports by the police authorities intimating that there is the likelihood of communal violence, in case, permission is granted for the construction of the cemetery. Petitioners submitted that the District Collector initially rejected the application taking into consideration the report of the police authorities that there is the likelihood of communal violence, in case, permission is granted for the construction of the cemetery. The ## **W.P.(C).Nos.13741 & 22129 of 2019 12** petitioner has preferred WP(C) No.4543 of 2018 challenging Ext.P6 order passed by the Government whereby permission was granted for the construction of a concrete vault cemetery, and a Division Bench of this Court set aside the order and remitted the matter back for consideration to the Government. Petitioners have a contention that Ext.P9 guidelines issued as GO(P) No.217/2005/4 dated 25.7.2005 was not looked into by the authorities. The further grievance of the petitioners is that even though an opportunity of hearing was afforded before passing Ext.P1 order, none of the contentions raised by the petitioners were considered by the Government while issuing the said order. Petitioners further submit that Ext.P1 order which is impugned in this writ petition has been passed in a mechanical manner without adverting to any of the contentions of the petitioner and without considering the impact on the peaceful atmosphere in the region. The establishment of a ## **W.P.(C).Nos.13741 & 22129 of 2019 13** vault cemetery by the 4th respondent church authority will seriously affect the religious beliefs and practices. Petitioners have also taken a contention that the report from the police authorities regarding law and order situations should also have been taken into consideration while issuing the impugned order. It is further contended that since the application was not considered within a period of 6 months from the date of application, the 3rd respondent District Collector has become _functus officio_ , and therefore, the consequential proceedings have been absolutely invalid. 4. A detailed counter affidavit was filed by the church authorities who is the 9th respondent in WP(C) No. 13741/2019 and 4th respondent in WP(C) No. 22129/2019. The counter affidavit filed by them, along with the Exhibits in W.P.(C) No. 22129/2019 will be referred to in this writ petition for convenience. The church authorities contended that ## **W.P.(C).Nos.13741 & 22129 of 2019 14** the church was initially a chapel under the Sacred Heart Church, Chalill and the said chapel was established more than 89 years ago and gradually the chapel became a full-fledged church. It is in the year 1972 the church building was constructed and the present building was reconstructed in the year 2003. There are more than 100 families under the Church and it has no cemetery of its own and the dead bodies of parish members are buried at the Sacred Heart Church, Chalill which is more than 3 kms away from the respondent church. On 29.8.2014, they preferred an application before the Grama Panchayat for the construction of a concrete vault to bury the dead bodies in the property owned by the church. The application was considered by the Panchayat committee and on the basis of Ext.R4(a)of the Panchayat committee they decided to forward the said application to the District Collector for approval and thereafter the District Medical Officer conducted enquiry and forwarded the recommendation to the District Collector. **W.P.(C).Nos.13741 & 22129 of 2019 15** Thereafter, District Collector published the notification as required under Rule 6(7) of the Rules. The Kerala Pollution Control Board have issued consent to establish and the Executive Engineer, Public Works Department had also given favourable recommendation to the District Collector. A very few residents of the locality at the instigation of some others who are not residents in that area raised objections against the construction of the concrete vault. According to them, there is a temple near the site and construction of the concrete vault cannot be permitted adjacent to the temple. It is a contention of the respondent church authority that there is no such temple as alleged by the objectors. Thereupon, as per the direction of the District Collector, the Sub Collector, Alappuzha convened the meeting of all the stakeholders and had given a report to the District Collector recommending that the application may be favourably considered. However, the police authorities ## **W.P.(C).Nos.13741 & 22129 of 2019 16** reported to the District Collector that there is a likelihood of communal disharmony in that area. In view of the adverse police report, the District Collector directed the respondent Panchayat to communicate its remarks on the issue. Accordingly, the respondent Panchayat in its meeting held on 27.5.2016 discussed the matter and informed that there are no communal disputes regarding the construction of the concrete vault by the church. Though the District Collector initially rejected the application on the ground of an adverse police report, on an appeal filed before the Government, the matter was directed to be reconsidered by the District Collector and pursuant to that the District Collector after hearing all the parties and after conducting a site inspection allowed the application submitted by the church authorities for construction of a concrete vault. Thereafter, the respondent Panchayat also issued permit for undertaking the construction activities. Pursuant to the directions issued by this Court in WP(C) ## **W.P.(C).Nos.13741 & 22129 of 2019 17** No.4543 of 2018, setting aside the order of the District Collector with a direction to the Government to consider the matter afresh, the Government heard all the parties and issued the order impugned whereby permission was granted for erecting a concrete vault. Even going by the averment in the writ petition filed by the petitioner in WP(C) No.13741/2019, he is residing beyond 100 metres and as per the Rules, the only prohibition is for having a burial or burning ground within a distance of 50 metres of the dwelling house and in the case of a concrete vault the distance restriction is only 25 metres. It is further averred that it is only in July/August 2016, a small structure was constructed in the property of the petitioner in WP(C) No.22129/2019 and there are no daily 'poojas' and no priest for the said temple and the same was constructed after the church authorities submitted the application for permission to erect a concrete vault and the ## **W.P.(C).Nos.13741 & 22129 of 2019 18** said construction in the temple premises was made without obtaining any permission from the respondent Panchayat. It is the further contention of the church authorities that for the construction of a temple, permission from the District Collector ought to have been obtained and no such permission is seen obtained for the construction of the said structure. On a complaint made by one Sunilkumar, the President of the temple trust, the respondent Panchayat appointed the subcommittee and they submitted Ext.R9(c) report wherein they reported that the construction activities are undertaken in the 'Kavu' and the same has been done without necessary permit from the Panchayat. Thereupon, Ext.R9(d) communication was issued to the temple trust authority to stop the unauthorised construction. It is further contended that the proposed concrete vault and the property of the temple authorities, ie, 10th respondent in WP(C) No.13741/2019 is more than 40 metres, and that none ## **W.P.(C).Nos.13741 & 22129 of 2019 19** of the residents of the area are against the proposed concrete vault. The site of the cemetery cannot be relocated leaving 78.5 metres over the boundary of the temple, as apart from the church building there is a parish hall and Sunday school building in the church compound and if the site of the proposed concrete vault is changed to another part of the property, 25 metres distance from the dwelling houses could not be maintained. It is also contended that threat if any regarding communal harmony in the locality could not be a reason for rejecting the application by the District Collector and this position has been settled by the Division Bench of this Court in WA No.1169/2014. The further contention that there was no publication of notice in a newspaper having wide circulation is without any basis. 'Deepika Daily' is a newspaper having wide circulation,and the contention of the contrary is not true or correct. It is also averred that even early as in 2016, the proposed construction of a cemetery was obstructed by the local residents as ## **W.P.(C).Nos.13741 & 22129 of 2019 20** well as the temple authorities and the petitioner in WP(C) No.13741/2019 is one of the signatories to the representation given to the District Collector in June, 2016 against the construction of the concrete vault. On the basis of the same, it was contended by the church authorities that all the local residents were given ample opportunity to voice their grievances. It is further submitted that the construction of the concrete vault has already commenced and on the basis of the interim order granted on 14.5.2019 by this Court, the construction was stopped. On the basis of the said contention, the church authorities sought for dismissal of the writ petition. 5. The respondent Panchayat has also filed a counter affidavit wherein it is contended that they received application from the church authorities for the construction of a concrete vault and they forwarded the same to the District Collector through the District Medical Officer as provided in Rule 6(5) of the Rules on 21.10.2014. It is also ## **W.P.(C).Nos.13741 & 22129 of 2019 21** contended that pursuant to a direction issued by the District Collector, they have issued R9(b) communication, the copy of the decision No.23 of the meeting of the Panchayat committee held on 27.5.2016 wherein it is intimated that there is no occasion for any communal disharmony if permission is granted for the construction of concrete vault. 6. The Government has also filed a detailed counter affidavit in W.P (C ) No. 13741/2019 contending that the Government has issued the impugned order after hearing all concerned parties in person and also the official respondents. The possibility of a breach of law and order situation is not a reason for denying the licence as per the existing Rules. The request of the temple authorities that the proposed site should be beyond 78 metres cannot be accepted in as much as such a provision is not there in the Rules. It is only after considering all aspects and after complying with the procedures, that the permission was granted for the construction of a vault cemetery. ## **W.P.(C).Nos.13741 & 22129 of 2019 22** The SHO of Muhamma Police Station, who is impleaded as the 7th respondent in WP(C) No.22129 of 2019 has filed a statement stating that construction of a cemetery adjacent to the temple can create disharmony in the society and submitted that four criminal cases have been registered in the area. 7. I have considered the rival contentions of the parties, the main objections against the impugned order can be summarized as follows: (i) Impugned order is passed without following the procedure prescribed as per Rule 6 of the Rules, 1998. (ii) The vault cemetery is being constructed very near to the temple property and their request for the establishment of the vault cemetery at least at a distance of 78.5 metres from the boundary of the temple, was not properly considered. (iii) The house of the petitioner in ## **W.P.(C).Nos.13741 & 22129 of 2019 23** WP(C)No.13741/2019 is very near to the proposed vault cemetery. - (iv) Even though the Government heard the petitioners in these writ petitions, none of their contentions were properly appreciated by the Government while issuing the order impugned. - (v) The report of the police authorities regarding possibility of communal disharmony and law and order situation was not considered by the Government while issuing the impugned order. - (vi) Since the application was not considered within a period of 6 months from the date of application, the District Collector will become functus officio and therefore, the order granting permission, which is beyond 6 months period stipulated as per the Rules, is _non est_ in law. 8. Kerala Panchayat Raj (Burial and Burning ## **W.P.(C).Nos.13741 & 22129 of 2019 24** Grounds) Rules, 1998 deals with the grant of sanction for burial and burning grounds. It is profitable to extract Rules 5 and 6 of the Rules 1998, which reads as follows: **==> picture [309 x 12] intentionally omitted <==** _be located within the limit of 50 metres of a dwelling house:-_ _(1) No new burial and burning ground_ _shall be provided within the limit of 50 metres of dwelling houses:_ _Provided that in the case of_ _concrete vaults and electric crematorium the distance shall be a minimum of 25 metres from dwelling houses._ _(2) Whether there is any burial and burning place or not within the specified limit from the dwelling house is to be determined by considering the circumstance on the date of application for licence.”_ _“6.Issue of licence to burial or_ _burning grounds:-_ _(1) No new burial or burning ground, whether public or private, shall be opened, constructed or used without a licence from the concerned District_ ## **W.P.(C).Nos.13741 & 22129 of 2019 25** _Collector._ _(2) In the case of increasing or expending the area of an existing cemetery ground the same shall be considered as opening of a new cemetery and those rules shall be applicable to such burial grounds._ _(3) Application for licence shall be submitted to the concerned Secretary in Form No.1._ _(4) Application for licence shall be accompanied by a plan of the ground to be registered showing the location, boundary, extent etc., the name of the owner or person or community interested therein, the system of management and such other particulars as the District Collector may require._ _(5) In the case of private cemetery the Panchayat shall consider the application within thirty days from the date of receipt of the application and forward the same with its recommendations to the concerned District Collector through the District Medical Officer._ _(6) The District Medical Officer shall conduct such enquiries as he may deem_ ## **W.P.(C).Nos.13741 & 22129 of 2019 26** _necessary on the application received from the Panchayats and shall forward the application with his specific recommendations to the District Collector within thirty days of its receipt. (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. (8) The District Collector after considering the objections, complaints or suggestions received if any in pursuance of the notice under sub-r.(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_ ## **W.P.(C).Nos.13741 & 22129 of 2019 27** _until objections regarding the ground have been removed or any particulars called for by him have been furnished._ _(9) The District Collector shall pass an order under sub-r(8) within six months from the date of receipt of the application and shall inform the same to the concerned Panchayat._ _(10)Any person aggrieved by the order of the District Collector under sub-r(8) may, within thirty days from the date of order may file an appeal before the Government._ _Explanation,- In computing the above said thirty (30) days the time required for obtaining copies of major records connected with the order appealed against shall be excluded._ _(11) The Government may pass such orders on the appeal as they think fit, after conducting such enquiries as they deem necessary”._ Let me first consider whether the application has been considered as provided in the Rules, 1998. The contentions of the petitioners are essentially that the site of the vault cemetery should be beyond ## **W.P.(C).Nos.13741 & 22129 of 2019 28** 78.5 metres, there was no publication in a daily having wide circulation and further that their objections have not been properly considered. The counter affidavit filed by the Panchayat would reveal that the application for licence to construct a concrete vault was submitted by the Vicar of St. Joseph’s Church, Varanam Karikkadu on 29.08.2014. On receipt of the application, the same was forwarded to the District Collector, through the District Medical Officer as provided in Rule 6(5). As per Rule 6 (7), the District Collector, Allapuzha intimated the respondent Panchayat to publish the notice in the notice board calling for objections, complaints and suggestions if any with regard to the issuance of licence and the respondent Panchayat has published Ext R8(a) notice produced in WPC No. 13741/2019. In the counter affidavit filed by the Government, it is stated that there were no dwelling houses and water bodies within 25 metres of the proposed concrete vault and further that the notice was published in Deepika ## **W.P.(C).Nos.13741 & 22129 of 2019 29** Daily which is one of the most circulated dailies in that area. The respondent church authorities in their counter affidavit reiterated the fact that an application was submitted before the Panchayat for the construction of a concrete vault and the Panchayat committee forwarded the same to the District Collector for approval. The District Medical Officer also after conducting enquiry forwarded his recommendations to the District Collector. The District Collector has also published a notification as mandated in Rule 6 (7). The Kerala State Pollution Control Board has issued consent to establish and the Executive Engineer Public Works Department has also given favourable recommendations to the District Collector. Even though the District Collector initially rejected the application apprehending likelihood of communal disharmony in the area based on an adverse Police report, consequent to the order passed by the Government in the appeal filed by the church authorities wherein a direction was ## **W.P.(C).Nos.13741 & 22129 of 2019 30** issued to the District Collector to reconsider the matter, the District Collector after conducting a site inspection allowed the application and consequent to the same the respondent panchayat has also issued a permit for the construction of vault cemetery. Pursuant to the same, the construction was started but later stopped due to the interim order passed by this court on 14.05.2019. On the basis of the above said pleadings and documents on record, I am of the opinion that the application has been allowed after complying with the procedures laid down in the Rules, 1998. 9. Another contention raised by the petitioners is that objection submitted by them has not been properly considered. In the writ petition, there is no averment that they were not heard before taking a decision in the matter, but their only contention is that their objection was not properly considered. Ext P2 in WPC No. 22129/2019 is the objection submitted by the temple trust authorities. The essential contentions raised are ## **W.P.(C).Nos.13741 & 22129 of 2019 31** that there are other churches in the nearby area where the burial of dead bodies could be done and that the establishment of the vault cemetery will affect the religious customs of the temple and requested that at least 78.5 metres from the boundary of the temple property should be left from the proposed concrete vault. It is also contended that the establishment of a concrete vault cemetery will result in law and order situations in the area. The question to be considered is whether these objections are valid for not granting permission for construction of a vault cemetery. The respondent church authorities have clearly stated that there are more than 100 families under the church and they have no cemetery of their own. Application has been allowed after complying with all the procedural formalities as per the Rules. The Government while issuing the impugned order has also considered the distance criteria as per the Rules and found that the temple is situated beyond 25 metres and the request for maintaining 78.5 ## **W.P.(C).Nos.13741 & 22129 of 2019 32** metres distance is not in accordance with the Rules and further that after having given permission by the Panchayat authorities, no changes could be effected by the church authorities. The Government also took into consideration the fact that in a State like Kerala where the density of the population is high, it cannot be insisted that the vault cemetery should be within a distance as stipulated by the temple authorities. The church authorities in the counter affidavit have specifically stated that the cemetery cannot be relocated leaving 78.5 meters from the boundary of the temple, in case the site of the proposed concrete vault is changed to another part of the church property, 25 meters distance from the dwelling houses cannot be maintained. It is pertinent to note that the application for permission for the establishment of a vault cemetery was submitted by the church authorities as early as on 29.08.2014 which is admitted in the counter affidavit filed by the respondent ## **W.P.(C).Nos.13741 & 22129 of 2019 33** Panchayat. The church authorities in their counter affidavit filed in WPC No. 13741/2019 have stated that the Panchayat has constituted a subcommittee to look into the complaint made by the temple authorities and the subcommittee visited the site and submitted Ext R9(c) report in which it is stated that construction activities were undertaken in the “kavu” and that was without obtaining the necessary consent from the Panchayat as well as other authorities concerned and on finding that the construction activities were unauthorised, Ext R9(d) stop memo was also issued directing to stop all construction activities. In view of the above facts and circumstances and since the application submitted by the church authorities was as early as on 29.08.2014 and that there is no violation of the distance rule or any procedural formalities envisaged in the Rules, I find no illegality in the order impugned in these writ petitions. 10. The next question to be considered is as to whether the possibility of a law and order ## **W.P.(C).Nos.13741 & 22129 of 2019 34** situation in the area if the vault cemetery is established is a valid reason for the rejection of the application. The Government in the counter affidavit filed has contended that the possibility of a law and order situation is not a reason for denying permission to construct concrete vault cemetery and permission was granted on entering a finding that the church possesses and satisfies all requisites for construction of a vault cemetery as envisaged in the Rules 1998 including distance Rule of having 25 meters distance from dwelling houses and water bodies. The respondent Panchayat in their counter affidavit has specifically stated that the District Collector as per communication dated 19.03.2016 has sought the opinion of the Panchayat regarding the issue of communal disharmony and breach of peace, if licence is granted for the construction of concrete vault cemetery. The Panchayat committee after due deliberation has taken Ext. R8(b) decision to intimate the District Collector that there is no occasion for any ## **W.P.(C).Nos.13741 & 22129 of 2019 35** communal disharmony at present in connection with the grant of licence of a concrete vault as requested by the respondent church. The learned counsel for the petitioners relies on the judgment in **Pradeep v. Kandanassery Panchayat, 1996 (2) KLT** **775** where there is an observation that the recommendation of the Panchayat is essential because the Panchayat knows about the local condition and whether any law and order problem or any problem regarding the public order is likely to arise and therefore non-consultation with the Panchayat is fatal and the impugned order therein was quashed. The said decision is not applicable in the facts and circumstances of this case. The said decision was rendered interpreting Rule 6 (7) of Panchayat (Burial and Burning Ground) Rules, 1967. Further, in the present case, the application was routed through the Panchayat with their recommendation and subsequently also as per the direction of the District Collector they have taken ## **W.P.(C).Nos.13741 & 22129 of 2019 36** Ext. R8(b) decision to intimate the District Collector that there is no occasion for any communal disharmony at present in connection with the grant of licence of concrete vault. The Division Bench of this court had occasion to consider a similar issue as to whether the possibility of a law and order situation and the chance for communal disharmony could be taken as a valid reason for denying the permission, in **W.A No. 1169/2014** , and held that once it is found to be suitable as per the Rules, the opposition by a group of persons on religious sentiments cannot be a reason to refuse licence. I am in agreement with the said decision and accordingly follow the judgment rendered by the Division Bench in **W.A. No. 1169/2014.** 11. Yet another argument raised in both these writ petitions is that as per Rules, an application for opening a cemetery shall be disposed of within a period of 6 months from the date of receipt of the application by the collector and he would become ## **W.P.(C).Nos.13741 & 22129 of 2019 37** _functus officio_ after the said period of 6 months and in the present case application was submitted by the church on 29.08.2014 and the application was disposed of only on 26.11.2016. Petitioners rely on the judgment in **Surendran v. District Collector,** **1999 (3) KLT 22 (F.B.)** in support of their contention. On the contrary, the learned counsel appearing for the church relies on the judgment in **Pentecost Mission v. State of Kerala, 2006 (4) KLT** **153** which held that the limitation of 6 months would start only when the application is received by the District Collector is complete in all regards. The Division Bench in **Pentecost Mission’s** case supra also took into consideration that **Surendran’s** case supra was decided in the context of the Rules of 1967 which have a material difference from the Rules of 1998. It is profitable to extract the relevant portion of the judgment in **Pentecost** **Mission’s** case supra. Paragraph 8 of the judgment reads as follows: ## **W.P.(C).Nos.13741 & 22129 of 2019 38** “8. In _Surendran v. District Collector_ (supra), the question under consideration was as to whether the time limit under subr(8) of R.6 of the Rules of 1967 was directory or mandatory. The matter came up for adjudication on the point noted above in view of the Division Bench seized of the matter was of the view that decision of the Division Bench of this Court in Narayanan Thampi v. District Collector (1998 (2) KLT 48), holding that the time limit under sub-r (8) of R.6 of the 1967 Rules as directory needed reconsideration. Put briefly, the facts of the said case were that the 5[th] respondent in the Original Petition, Christ King Church, Edamuttam had made an application for licence to open a cell model burial ground in Edathuruthy Panchayat area on 8.2.1990. The Panchayat vide resolution dated 15[th] February, 1990 held that it had no objection in constructing a burial ground. The District Medical Officer approved the site on 26.6.1991 and forwarded the application to the District Collector. On 31.7.1991 the ADM called for the report of the Tahsildar, Kodungallur. The Tahsildar sent a letter on 25.9.1991 stating that there was no objection from anyone. The ADM visited the site on 21.12.1992. Even though he found new construction, he did not report that there was any objection. Order was passed to invite objection in the Daily issue of the Express on 7.1.1993 and it was published on 18.1.1993, but no objections were received. The Collector passed the order on 11.11.1993. The application which was thus submitted on 8.2.1990 for a licence to open a cell model burial ground was allowed after more than 3 ½ years. The appellants in the case aforesaid, who were the petitioners in the Original Petition, had purchased the property near the site of the burial ground and constructed the building which was within 25 metres of the ## **W.P.(C).Nos.13741 & 22129 of 2019 39** cemetery. They filed an objection before the notification was made, but the same was not considered at all. In the Original Petition they complained of no hearing having been given to them and also that new burial ground could be opened only only under the Rules of 1967 and the date from submission of application the orders had to be passed within six months and as the order was passed after more than 3 ½ years, the Collector was _functus officio_ . The learned Full Bench considered the matter in the context of Rules of 1967 which have a material difference from the Rules of 1998. R.6 of Rules of 1967 reads as follows: “6. New burial and burning grounds to be opened with a licence from the Collector:- (1) No new place for the disposal of the dead, whether private or public, shall be opened, formed, constructed or used unless a licence has been obtained from the Collector in this behalf. Explanation:- For the purpose of these rules, addition to or extension of an existing burial or burning ground shall be deemed as opening a new burial or burning ground and the provisions of these rules shall be equally applicable to such case. (2) An application for a licence under rule shall be in Form I and shall be submitted to the Executive Officer of the Panchayat concerned. (3) An application under sub-r.(2) shall be accompanied by a plan of the place to be licensed and shall specify the locality, boundary and extent thereof, the name of the owner or person or community interested therein, the system of management, and such further particulars as the Collector may require. ## **W.P.(C).Nos.13741 & 22129 of 2019 40** (4) The Panchayat shall consider the application and forward the same with its recommendations to the Collector through the Health Officer within a period of one month from the date of its receipt in the Panchayat Office. (5) The Health Officer shall conduct such enquiries as he may deem necessary and forwarded the application with his specific remark to the Collector within a period of one month from the date of its receipt in his office. (6) The Collector shall on receipt of the application, cause the same to be published in a local daily newspaper having wide circulation in the area, at the cost of the applicant, together with notice inviting objections, if any, to the grant of the licence applied for. (7) The Collector shall consider the objections, if any, received in pursuance of the notice under sub-r (6) and after causing such enquiries, as may be necessary, to be conducted in the matter, may- (a) grant the licence; or (b) refuse to grant the licence on grounds of public order, morality or health; or (c) postpone the grant of licence until objections to the site have been removed or any particulars called for by him have been furnished. (8) The Collector shall in every case pass an order under sub-r.(7) within a period of six months from the date of submission of the application to the Panchayat and if no such order is passed by the Collector within ## **W.P.(C).Nos.13741 & 22129 of 2019 41** the said period, the licence applied for shall be deemed to have been granted and the applicant may proceed to use the site for the purpose of disposal of the dead but not so as to contravene any of the provisions of these rules or the byelaws made under the Act. (9) The person aggrieved by an order of the Collector under sub-r(7) may, within a period of thirty days from the date of the order, appeal to the Government. Explanation: the time required for obtaining copies of material papers in connection with the order appealed against shall be excluded in com- putting the said period of thirty days. (10) The Government may, after such enquiry as they consider necessary, pass such orders on the appeal as they think fit” A comparison of the rules of 1967 and 1998 would show that whereas, under sub-r.(8) of R.6 of 1967 Rules the Collector has, in every case, to pass an order under sub-r.(7) within a period of six months from the date of submission (emphasis supplied) of application to the Panchayat and if no such order is passed by the Collector within the said period, the licence applied for shall be deemed to have been granted; under sub-r, (9) of 1998 Rules, the District Collector shall pass an order within six months from the date of receipt of the application and shall inform the same to the concerned Panchayat. The _terminus a quo_ , so as to compute the period of six months, would start from the date of submission of application to the Panchayat under the 1967 Rules, but it would commence from the date of receipt of application by the District Collector under the 1998 Rules. We may ## **W.P.(C).Nos.13741 & 22129 of 2019 42** mention here that a part of sub-r(8) of R.6 of 1967 Rules saying that no order being passed within a period of six months, the licence applied shall be deemed to have been granted was held invalid in _Narayanan Thampi v. District Collector_ (supra), which has been noticed by the learned Full Bench as well. The distinction in rules as noted above was considered by the Division Bench of this Court in _Marykutty Mathew v. St.Thomas Orthodox Cathedral_ (supra), by observing as follows: “But, we find there are certain other differences between the provisions contained in sub-r.(8) of R.6 of the 1967 Rules and sub-r(9) of R.6 of the 1998 Rules. In 1967 Rules, the Collector has to pass an order within six months from the date of submission of the application to the Panchayat, whereas in 1998 Rules, the Collector has to pass the order within six months of his receiving the application”. It was also held that, “The provisions of 1998 Rules would make it clear that the period of six months would start running only from the date of receipt of the application by the District Collector from the District Medical Officer and not from the date of receipt of application by the Panchayat”. The learned Division Bench by following the dictum of the Full Bench laid down in _Surendran v. District Collector_ (supra) held sub-r(9) of R.6 of 1998 Rules to be mandatory and not directory, but still permitted the licence by holding that Collector has passed the order within six months of receipt of application by him. The question in the present case, however, is not as to whether the provisions with ## **W.P.(C).Nos.13741 & 22129 of 2019 43** regard to limitation contained in sub-r(9) of R.6 of 1998 Rules is mandatory or directory, but as to whether what would be considered to be the date of receipt of application by the District Collector or, in other words, when the _terminus a quo_ for limitation would start. In our considered view, the limitation of six months would start only when the application received by the District Collector is complete in all regards and he is entitled to apply his mind.” 11. The District Collector passed the original order on 26.11.2016 initially declining to grant permission. Later as per the order passed by the Government dated 14.09.2017, the District Collector granted order dated 01.06.2018 granting permission. The contention taken in WP(C) No.22129/2019 is that the District Collector failed to consider Ext.P5 order i.e, order dated 26.11.2016 within 6 months from the date of application. A perusal of the said order would reveal that the application was submitted by the church on 29.08.2014 and that various reports were called for and that the last report is that of the District Police Chief which was received on 23.08.2016. Since the last of the report was received on 23.08.2016, as is seen from ## **W.P.(C).Nos.13741 & 22129 of 2019 44** a perusal of the reference cited in Ext P5 order, and since the order was passed within 6 months thereafter, that is on 26.11.2016, the said contention of the petitioners that the order was not passed within a period of 6 months is only to be rejected. Like wise the subsequent order passed by the District Collector which is produced as Ext.P7 in WP(C) No.22129/2019 was passed on 1.6.2018 and a perusal of the said order would reveal that on 5.12.2017 a meeting was convened and site inspection was conducted on 1.2.2018 and 19.3.2018. Therefore, Ext.P7 order passed on 1.6.2018 is also within the 6 months period after the application was completed in all respects. In view of the above facts and circumstances, I find no merit in these writ petitions and they are accordingly dismissed. **==> picture [21 x 10] intentionally omitted <==** ## **VIJU ABRAHAM,JUDGE** pm ## **W.P.(C).Nos.13741 & 22129 of 2019 45** ## **APPENDIX OF WP(C) 22129/2019** PETITIONERS' EXHIBITS - EXHIBIT P1 A TRUE COPY OF THE G.O(GEN)NO.816/2019/LSGD DATED 06.04.2019 ISSUED BY THE 1ST RESPONDENT - EXHIBIT P2 A TRUE COPY OF THE RELEVANT PAGES OF THE OBJECTION DATED 29.12.2015 SUBMITTED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR,ALAPPUZHA. - EXHIBIT P3 A TRUE COPY OF THE LETTER NO.G1(2)74574/2015/SB DATED 01.01.2016 FROM THE ADDITIONAL DIRECTOR GENERAL(INTELLIGENCE)TO THE 3RD RESPONDENT DISTRICT COLLECTOR. - EXHIBIT P4 A TRUE COPY REPORT NO.283/PER-8/SB/16A DATED 1.02.2016 FROM THE DEPUTY SUPERINTENDENT OF SPECIAL BRANCH TO THE DISTRICT CHIEF OF POLICE - EXHIBIT P5 A TRUE COPY OF THE ORDER NO.N 7- 56639/2014 DATED 26.11.2016 ISSUED BY THE 3RD RESPONDENT DISTRICT COLLECTOR. - EXHIBIT P6 A TRUE COPY OF THE G.O(RT)NO.3044/2017/LSGD DATED 14.09.2017 ISSUED BY THE JOINT SECRETARY TO GOVERNMENT - EXHIBIT P7 A TRUE COPY OF THE ORDER NO.N7/56639/2014 DATED 01.06.2018 ISSUED BY THE 3RE RESPONDENT. - EXHIBIT P8 A TRUE COPY OF THE JUDGMENT IN W.P(C)NO.4543 OF 2018 DATED 03.01.2019 BY THE HON'BLE HIGH COURT OF KERALA - EXHIBIT P9 A TRUE COPY OF THE GUIDELINES ISSUED AS PER G.O(P)NO.217/05/HOME DATED 25.07.2005 ISSUED BY THE 1ST RESPONDENT. ## **W.P.(C).Nos.13741 & 22129 of 2019 46** - EXHIBIT P10 A TRUE COPY OF THE LOCATION SKETCH OF THE PROPERTY ALONG WITH THE LAYOUT OF BUILDINGS IN THE PREMISES OF THE PETITIONER AND THE 4TH RESPONDENT. - EXHIBIT P11 A TRUE COPY OF THE PHOTOGRAPHS OF THE PETITIONER TEMPLE PROPERTY AND THE CHURCH PROPERTY TAKEN ON 01.12.2020. - RESPONDENTS' EXHIBITS - EXHIBIT R4(a) TRUE COPY OF THE EXTRACT OF THE DECISION NO.IV(5) TAKEN BY THE 9TH RESPONDENT PANCHAYAT COMMITTEE IN ITS MEETING HELD ON 16.10.2014. - EXHIBIT R4(b) TRUE COPY OF THE SKETCH PREPARED BY TALUK SURVEYOR. - EXHIBIT R4(c) TRUE COPY OF THE REPORT DATED 15.12.2016 SUBMITTED BY THE SUB COMMITTEE APPOINTED BY THE 9TH RESPONDENT PANCHAYAT COMMITTEE. - EXHIBIT R4(d) TRUE COPY OF THE STOP MEMO DATED 24.01.2017 ISSUED BY THE 9TH RESPONDENT TO THE PETITIONER. - EXHIBIT R4(e) TRUE COPY OF THE JUDGMENT DATED 09.09.2015 OF THIS HON'BLE COURT IN WRIT APPEAL NO.1169/2014. - EXHIBIT R4(f) TRUE PHOTOGRAPH OF THE CONSTRUCTION OF THE CONCRETE VAULT IN THE PROPERTY OF THE 4TH RESPONDENT. EXHIBIT R4(g) TRUE COPY OF THE ROUGH SKETCH SHOWING THE CHURCH BUILDINGS, SITE OF THE CONCRETE VAULT AND THE PROPERTY OF THE 1ST PETITIONER **W.P.(C).Nos.13741 & 22129 of 2019 47** ## **APPENDIX OF WP(C) 13741/2019** PETITIONER'S EXHIBITS EXHIBIT P1 - A TRUE COPY OF THE ORDER DATED 26.11.2016 OF THE 3RD RESPONDENT. - EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 14.9.2017 OF THE 2ND RESPONDENT. - EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 1.6.2018 OF THE 3RD RESPONDENT. - EXHIBIT P4 TRUE COPY OF THE BUILDING PERMIT DATED 3.10.2018 ISSUED TO THE 9TH RESPONDENT. - EXHIBIT P5 TRUE COPY OF THE COMMON JUDGMENT DATED 3.1.2019 IN WPC NO. 4543/2018. - EXHIBIT P6 TRUE COPY OF THE ORDER DATED 6.4.2019 OF THE 2ND RESPONDENT. - EXHIBIT P7 TRUE COPY OF THE PHOTOGRAPHS OF THE SITE OF CEMETERY - EXHIBIT P8 TRUE COPY OF THE PHOTOGRAPHS OF THE 9TH RESPONDENT TEMPLE. - EXHIBIT P9 TRUE COPY OF THE NEWS ITEM PUBLISHED IN JANMABHOOMI DAILY DATED 9.5.2019. RESPONDENTS' EXHIBITS EXHIBIT R9 A TRUE COPY OF THE EXTRACT OF THE DECISION NO.VI (5) TAKEN BY THE 8TH RESPONDENT PANCHAYAT COMMITTEE IN ITS MEETING HELD ON 16/10/2014 EXHIBIT R-(b) TRUE COPY OF THE SKETCH PREPARED BY TALUK SURVEYOR. EXHIBIT R9(C) - TRUE COPY OF THE REPORT DATED 15/12/2016 SUBMITTED BY THE SUB COMMITTEE APPOINTED ## **W.P.(C).Nos.13741 & 22129 of 2019 48** BY THE 8TH RESPONDENT PANCHAYAT COMMITTEE. - EXHIBIT R9 D TRUE COPY OF THE STOP MEM DATED 24/1/2017 ISSUED BY THE 8TH RESPONDENT TO THE 10TH RESPONDENT - EXHIBIT R9 E TRUE COPY OF THE JUDGMENT DATED 9/9/2015 OF THIS HON'BLE COURT IN WRIT APPEAL NO.1169/2014 - EXHIBIT R9 F TRUE PHOTOGRAPH OF THE CONSTRUCTION OF THE CONCRETE VAULT IN THE PROPERTY OF THE 9TH RESPONDENT - EXHIBIT R8(A) THE TRUE COPY OF THE NOTICE VIDE NO N756639/14 DATED 29.11.2014 - EXHIBIT R8(B) TRUE COPY OF THE DECISION NO 23 OF THE MEETING OF PANCHAYATH COMMITTEE DATED 27.5.2016 - EXHIBIT R10(a) A TRUE COPY OF THE RELEVANT PAGES OF THE OBJECTION DATED 29.12.2015 SUBMITTED BY THE 10TH RESPONDENT BEFORE THE 3RD RESPONDENT DISTRICT COLLECTOR, ALAPPUZHA. - EXHIBIT R10(b) A TRUE COPY OF THE LETTER NO.G1(2)74574/2015/SB DATED 01.01.2016 FROM THE ADDITIONAL DIRECTOR GENERAL - (INTELLIGENCE) TO THE 3RD RESPONDENT DISTRICT COLLECTOR. - EXHIBIT R10(c) A TRUE COPY OF REPORT NO. 283/PER8/SB/16A DATED 01.02.2016 FROM THE DEPUTY SUPERINTENDENT OF SPECIAL BRANCH TO THE DISTRICT CHIEF OF POLICE. EXHIBIT R10(d) A TRUE COPY OF THE GUIDELINES ISSUED AS PER G.O(P) NO.217/05/HOME DATED 25.07.2005 ISSUED BY THE 1ST RESPONDENT.