Kerala High Court
Ashok Das P vs State Of Kerala on 19 January, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
MONDAY, THE 17TH DAY OF OCTOBER 2016/25TH ASWINA, 1938
W.P(C).No.35842 of 2007(P)
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PETITIONER(S):-
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1. ASHOK DAS P.,
PALLIKIZHAKKETHIL HOUSE, ANGADI,
PUTHUPPALLY P.O., KOTTAYAM DISTRICT.
2. N.C.LUCKOSE,
NEDIYAKALAYIL HOUSE, ANGADI, PUTHUPPALLY P.O.,
KOTTAYAM DISTRICT.
BY ADVS.SRI.C.MURALIKRISHNAN (PAYYANUR)
SRI.ABRAHAM GEORGE JACOB
RESPONDENT(S):-
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1. STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY TO THE GOVERNMENT OF KERALA,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
2. THE DISTRICT COLLECTOR, KOTTAYAM,
COLLECTORATE P.O., KOTTTAYAM - 686 002.
3. THE DISTRICT MEDICAL OFFICER,
COLLECTORATE P.O., KOTTAYAM - 686 002.
4. THE PUTHUPPALLY GRAMA PANCHAYATH,
PUTHUPPALLY P.O., KOTTAYAM - 686 011,
REPRESENTED BY ITS SECRETARY.
5. KERALA STATE POLLUTION CONTROL BOARD,
REPRESENTED BY ITS CHAIRMAN, THIRUVANANTHAPURAM.
6. THE STATION HOUSE OFFICER,
KOTTAYAM EAST POLICE STATION, KOTTAYAM - 686 002.
7. ST. GEORGE ORTHODOX CHRUCH, PUTHUPPALLY,
KOTTAYAM - 686 0011,
REPRESENTED BY ITS VICAR.
R1 TO R3 & R6 BY GOVERNMENT PLEADER SMT.VINEETHA HARIRAJ.
R4 BY ADV. SRI.KARJET KODUVATH
R4 BY ADV. SRI.C.S.MANILAL
R5 BY STANDING COUNSEL SRI.T.NAVEEN
R7 BY ADV. SRI.BIJU ABRAHAM
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
17-10-2016, ALONG WITH W.P.(C) NO.33782 OF 2007-V, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:--
WP(C).No.35842 of 2007-P
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APPENDIX
PETITIONER(S)' EXHIBITS:-
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EXT.P1 TRUE COPY OF THE APPLICATION FILED BY 7TH RESPONDENT
DATED 19.01.2005.
EXT.P2 TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT
DISTRICT COLLECTOR DATED 20.04.2005.
EXT.P3 TRUE COPY OF REPORT FILED BY THE PUTHUPPALLY PANCHAYATH
SECRETARY DATED 18.07.2005.
EXT.P4 TRUE COPY OF REPORT FILED BY THE ENVIRONMENTAL ENGINEER
DATED 25/07/2005 BEFORE THE DISTRICT COLLECTOR.
EXT.P5 TRUE COPY OF REPRESENTATION DATED 17.02.2007 FILED BY
THE PETITIONERS.
EXT.P6 TRUE COPY OF ORDER DATED 05.11.2007 PASSED BY THE
2ND RESPONDENT DISTRICT COLLECTOR.
EXT.P7 TRUE COPY OF ADVERTISEMENT CARRIED BY THE 7TH RESPONDENT
IN THE MALAYALA MANORAMA DAILY DATED 06.11.2007.
EXT.P8 TRUE COPY OF THE LETTER DATED 18.12.2007 ISSUED TO THE
1ST PETITIONER BY THE VILLAGE OFFICE, PUTHUPPALLY.
EXT.P9 TRUE COPY OF THE FIELD SURVEY MAP ISSUED BY THE VILLAGE
OFFICER, PUTHUPPALLY DATED 20.09.2006.
EXT.P10 REPLY LETTER DATED 16.01.2008 ISSUED BY THE PUBLIC
INFORMATION OFFICER, DEPUTY COLLECTOR GENERAL, COLLECTORATE,
KOTTAYAM.
RESPONDENT(S)' EXHIBITS:-
------------------------- NIL.
vku/- [ true copy ]
K. Vinod Chandran, J
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W.P.(C) Nos.35842 of 2007-P & 33782 of 2007-V
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Dated this the 17th day of October, 2016
JUDGMENT
The subject matter of both the writ petitions is the extension of an existing cemetery sought for by the Church; who is the petitioner in W.P.(C) No.33782 of 2007. The nearby residents, who object to the extension made, in blatant violation of the original order passed by the District Collector and the purported review made of the said order challenge that subsequent order in W.P.(C) No.35842 of 2007. In both the writ petitions, the challenge is to the very same order passed by the District Collector dated 05.11.2007. The facts and documents are referred to from W.P.(C) No.35842 of 2007 and the parties are also referred as per their status in the said writ petition.
2. Admittedly there was an existing cemetery in the 7th respondent-Church, which was sought to be extended by opening and maintaining a concrete vault in an extent of 0.2050 hectares of land comprised in Block No.22 of Survey No.448/13, 448/21 and WP(C).35842 of 2007 & - 2 -
33782 of 2007 448/27 of Puthuppally Village in Kottayam Taluk. An elaborate procedure is provided for granting of such licence for burial or burning grounds in the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998 [for brevity "Rules of 1998"], specifically Rule 6. Following the said procedure, the application was referred to the District Collector by the Grama Panchayat, based on a resolution passed on 02.02.2005. The District Medical Officer of Health, Kottayam had also submitted a report with No Objection Certificate for the construction of the cemetery on 15.02.2005. The District Collector enquired into the subject matter through the Tahsildar as also the Superintendent of Police. The consent accorded for the construction is seen from Exhibit P2, which is extracted herein below:
"1) The construction of the concrete vault should be made as per the approved plan.
2) The construction should be supervised by a qualified engineer.
3) A compound wall, not below the height of 1.9
meters, should be constructed around the
concrete vault and a gate, lock and key should be provided.
WP(C).35842 of 2007 & - 3 -
33782 of 2007
4) All relevant rules contained in Kerala Panchayat
(Burial & burning Grounds) Rules 1967 should be strictly adhered to.
5) The premises of the vault should be kept clean and tidy all times.
6) A fitness certificate should be obtained from the
District Medical Officer (H), Kottayam on
completion of the cemetery".
3. The petitioners, the nearby residents, complained that the construction carried on was not of a concrete vault and pits were dug with cells formed some in concrete and most lined with bricks. The report of the Kerala State Pollution Control Board, which conducted the inspection even prior to the consent at Exhibit P2, is produced at Exhibit P4. The recommendation of the PCB is also to the effect that the concrete retaining wall constructed by the Church to prevent leachate flow may not be sufficient insofar as the pits constructed with bricks. It was also found that the bottom portion of such cells were not concreted and there could be leachate flow especially since the proposed cemetery is situated at a higher level and burial cannot be permitted without the cells being concreted. It was also recommended that a vault type burial WP(C).35842 of 2007 & - 4 -
33782 of 2007 system, above ground level, is the more appropriate solution to the space constraints and the health of the general public residing nearby. The sanction granted in Exhibit P2 was also to that effect.
4. When the residents of the locality found the burial to be carried out in the pits dug with walls lined of bricks, they made a representation as is seen from Exhibit P5 dated 17.02.2007. The petitioners also approached this Court with a writ petition, W.P.(C) No.11438 of 2007, for consideration of the complaint raised before the District Collector, which was directed to be considered and in compliance of which direction, Exhibit P6 was issued by the District Collector. Exhibit P6 is challenged by the nearby residents- petitioners on the ground that it substantially alters the original order passed at Exhibit-P2; resulting in a review of the earlier order; which power is not available to the authority. The very same order is produced by the respondent church in their writ petition as Exhibit P5 and impugned therein.
5. The records produced in both the writ petitions, reveal that even before the consent was granted by the District Collector, the Church had commenced the construction of the WP(C).35842 of 2007 & - 5 -
33782 of 2007 burial pits. Exhibit-P2 reveals the Vicar of the Church applied for a licence to open and maintain a concrete vault in the existing cemetery, which obviously was to be situated in land in which burial was not earlier carried out. This would indicate the necessity for a license under the Rules of 1998, which deems an increase or expansion of the area of an existing cemetery to be the opening of a new cemetery. The report submitted by the PCB, produced at Exhibit P4 speaks of an inspection conducted on 15/01/2005; which is prior to the license issued at Exhibit P2 dated 20/04/2005. The Board reports a construction of cell type burial pits being carried on in the adjacent premises of the old cemetery. The extension hence was without proper licence from the District Collector as provided in the Rules of 1998. The burial pits so constructed was also found to be not sufficient to prevent the leachate flow. The concrete retaining wall built by the Church to avoid such leachate flow was also found to be insufficient in preventing such emissions percolating into the nearby lands at a lower level. The Board also recommended a vault type burial system above the ground level which was sanctioned by the WP(C).35842 of 2007 & - 6 -
33782 of 2007 District Collector as per Exhibit P2. The burial pits so dug where without sanction from the District Collector. Obviously there was an attempt to style the construction of burial pits as being done in the existing cemetery itself, which is the basis of the writ petition filed by the Church.
6. WP(C) No.33782 of 2007, filed by the Church, places reliance on Exhibit P3 order of the Tribunal. A reading of Exhibit P3 would indicate that the respondent Panchayath had initiated proceedings against the Church for dismantling the burial pits constructed adjacent to the cemetery. The Church had challenged the same before the Tribunal, which was later withdrawn for reason of the Secretary of the Panchayat having withdrawn the notice earlier issued to dismantle the burial pits. This was challenged by the nearby residents before the Tribunal in which Exhibit P3 decision was rendered finding no cause for interference to the impugned order, of the Secretary, which withdrew the earlier proceedings initiated against the Church. The Tribunal's order was based on the finding that "permission under the Kerala Municipality Building Rules is not required for the WP(C).35842 of 2007 & - 7 -
33782 of 2007 construction of single tombs in a cemetery for the reason that it is not coming within the purview of building and that the jurisdiction of a Grama Panchayat under the provisions of the Burial Ground Rules is only of recommendatory nature and the authority to take action in case of maintaining a burial or burning ground without licence is with the District Collector and if anything against the order of the District Collector was done it is up to the District Collector to proceed against the 2nd respondent (Church)"(sic).
7. The Tribunal has also considered the contention raised by the appellants before it, that the burial pits were constructed in land adjacent to the existing cemetery and merely observed that the appellants were not able to prove the same. For one, in considering the sustainability of the order of the Secretary of the Panchayat, there was no scope for the Tribunal to enter into any factual finding on the burial pits being constructed in the existing cemetery or adjacent land. In fact the Church itself had sought for opening and maintaining a vault type cemetery. On facts the report of the PCB, referred to earlier is also relevant to find that there was construction of burial pits in adjacent land of the existing WP(C).35842 of 2007 & - 8 -
33782 of 2007 cemetery. In that context the order of the Tribunal relied on by the Church is of no consequence.
8. The impugned order of the District Collector, in both the writ petitions was based on a complaint raised by the nearby residents-petitioners. The complaint was also that the burial pits constructed and used was in violation of the license granted as per Exhibit P2. In fact the Church does not even refer to the application made by itself and the license granted by the District Collector on specific conditions. The District Collector in considering the complaint of the nearby residents-petitioners, but had specifically referred to the permission granted by the earlier order dated 20/04/2005 (Exhibit P2). It is specifically noticed that though by the said order permission was granted to construct a concrete vault in the existing cemetery; the church authorities constructed 81 burial pits out of which 9 were concreted and the remaining merely lined with bricks. It was specifically found that the Church authorities deviated from the earlier order issued on 20.04.2005. The District Collector also found that the Rules of 1998 deem the expansion or increase in area of an existing WP(C).35842 of 2007 & - 9 -
33782 of 2007 cemetery to be the opening of a new cemetery. A subsequent report on pollution made by the Board was relied on and it was found that the entire lands comprised in Re-survey 448/13 was recorded as 'pallivaka smasanam' (Church cemetery) and hence strictly speaking there was no permission required. This goes against the specific application made by the Church and the sanction granted by Exhibit P2.
9. The District Collector issued the following directions in the operative portion of the impugned order:
"(a) The constructed by the church authorities in Re-Sy.448/13, (although a deviation from the permit condition for construction of vault), need not be demolished as requested by the petitioner, as necessary concreting has been undertaken with concrete protection wall etc. in order to prevent seepage of leachate. Moreover, the reports of the DMO, PCB etc have ruled out contamination of water in the nearby wells. As recommended by the EE, PCB, further safeguard measures are to be undertaken by the church authorities such as provision of roof covering to the entire area of the existing masonry burial pits so as to prevent entry of storm water seepage into the pits during rain.
(b) In the case of the 7 which are constructed fully and 9 constructed partially in Re- Sy.448/21, it is directed that burying of the dead WP(C).35842 of 2007 & - 10 -
33782 of 2007 be withheld in these pits till such a time that necessary orders issued on receipt of a clarification from the church, to the satisfaction of this authority.
(c) The request of the petitioner for exhuming the dead body buried in the disputed located in Re-Sy.448/21 is not considered, as that is a very sensitive issue which is likely to provoke law and order problems in the area.
(d) The practice of open burial is to be stopped in the existing open burial area and in future, adequate numbers of pucca concrete vaults are to be constructed, with the prior approval of this authority".
10. The consideration directed was the sustainability of the complaints raised by the nearby residents. There cannot be a re-consideration as such of the licence granted earlier, especially watering down the stipulation already made for construction of a vault type cemetery. Any deviation from the licence already issued had to be stopped. The District Collector so considering the complaint of deviation from the conditions of licence could not have regularised the deviations.
11. An almost similar situation was addressed in Perincheerikkara Alavi and Another v. State of Kerala and WP(C).35842 of 2007 & - 11 -
33782 of 2007 Others [2013 (4) KHC 518]. There, an application was made to construct a cemetery in 10.25 cents land. The Panchayat forwarded the same to the District Collector, who found residences within the prohibited 50 metres and directed reduction of the extent to 5 cents. The rectified application was made before the District Collector, which was found to be a procedural flaw going to the root of the matter. Relying on the decision in Pradeep v. Kandanassery Panchayat [1996 KHC 399 = 1996 (2) KLT 775], it was found that the requirement to file application before the Panchayat and necessary recommendation from the local authority cannot be reduced to an empty formality. In the instant case, the situation is still worse. The impugned decision to regularise the burial pits constructed without sanction was on a complaint of deviation from the sanction issued under the Rules of 1998. The deviation was clearly found. Nor could the earlier conditions be thrown to the wind, which effectively would be a review of the earlier order passed; which statutorily is not sanctioned.
12. The finding at (a) that no demolition of the concrete burial pits constructed by the Church authorities need not WP(C).35842 of 2007 & - 12 -
33782 of 2007 be undertaken despite it being a deviation from the permit condition for construction of vault is in effect a review of the earlier order passed by the District Collector, which power has not been conferred by the statute or the rules framed thereunder and cannot be exercised in view of the decisions in 1971 (3) SCC 844 [Patel Narshi Thakershi and Others v. Pradyumansinghji Arjunsinghji] and AIR 1966 SC 641 [Harbhajan Singh v. Karam Singh and Others]. The further direction in (b) to wait for clarification from the church authorities also cannot be sustained for reason of the construction having been carried out in violation of the license granted by the District Collector. The direction at (c) need not be interfered with since only one burial was conducted and exhuming the body at this stage would only lead to injuring religious sentiments and a disrespect to the departed. The direction at (d) is in consonance with the license granted at Exhibit P2. The Church cannot wriggle out of its responsibility to comply with the conditions of license granted by the District Collector, on an application made by the Church itself. The construction made of burial pits being in violation of the license granted cannot be WP(C).35842 of 2007 & - 13 -
33782 of 2007 countenanced and the challenge against the order of the District Collector dated 05/11/2007 is to be rejected but for sustaining the directions at clause (c) & (d). The pits so dug would have to be filled up, except the one in which there was a burial effected; which also shall not be used hereafter for any burial.
WP(C) No.35842 of 2007 is allowed, setting aside Exhibit P6 to the extent noticed above. WP(C) No.33782 of 2007 is dismissed, reserving the right of the Church to proceed in accordance with law as per the license granted by the District Collector dated 20/04/2005. It is also directed that no exhumation of the body already buried shall be made. No further burial shall be conducted in the 81 pits dug. Parties are left to suffer their respective costs.
Sd/-
K.Vinod Chandran Judge.
vku/-
[ true copy ]