Cheriyakalavoor Sree Dharmasastha ... vs State Of Kerala on 30 May, 2014

[Cites 6, Cited by 0]

Kerala High Court

Cheriyakalavoor Sree Dharmasastha ... vs State Of Kerala on 30 May, 2014

1. These writ appeals and WP(C) No.11277/13 involve challenge against the validity of order passed by the District Collector in exercise of its power under Rule 6 of the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998 (hereinafter referred to as the 'Rules' for short) framed under Section 254(2)(1) of the Kerala Panchayat Raj Act and the order passed by the Government rejecting an appeal filed under Rule 6(10) of the said rules. The said orders were challenged before this Court in WP(C) Nos.8889/12 and 21698/12. By a common judgment rendered by a learned single Judge on 8/4/13, the writ petitions were dismissed and it is challenging that judgment, WA Nos.669/13 and 674/13 are filed. It was in the meanwhile that challenging the very same orders, yet another party filed WP(C) No.11277/13 and that writ petition was also tagged on to be heard along with the writ appeals.

WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 2 :

2. As far as WP(C) No.13768/12 is concerned, that is filed by the Vicar of St.Thomas Church, Kalavoor, respondent in the writ appeals and the writ petition mentioned above and his prayer is to issue a writ of mandamus directing the police authorities to afford police protection for carrying out the works in pursuance of the orders passed by the District Collector and confirmed by the Government.

3. Since the issues raised in these cases are common, these cases were heard together and are disposed of by this common judgment. For convenience, we shall deal with the facts pleaded and documents produced in WP(C) No.11277/13 unless otherwise mentioned in the course of this judgment.

4. WP(C) No.11277/13 is filed by Cheriya Kalavoor Sree Dharmasastha Temple Advisory Committee and another. In this writ petition, challenge is against Exts.P10 and P12, which are the orders passed by the District Collector and the Government. The background in which the aforesaid orders came to be passed are that the St.Thomas Church, Kalavoor was established in the year 1998. On 25/4/2005, the 6th respondent, the Vicar of the Church submitted an application under Rule 6 of the Rules to the Mannanchery Panchayat ('Panchayat' for short) for obtaining licence WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 3 :

for construction of a concrete vault for the burial of the dead in 26.72 Ares of their property comprised in Sy.No.267-2/1 of the Mannancherri Village.

5. On receipt of the application, Panchayat placed it in the committee meeting held on 4/5/2005 and passed Ext.P2 resolution resolving to forward the application to the District Medical Officer (DMO) recommending that on scrutiny of the application, if the same is acceptable, to forward it to the District Collector with his recommendations. According to the 6th respondent, the matter had reached the District Medical Officer, but there was no progress in the matter and therefore, in reply to an application made by them under the Right to Information Act, they were given Ext.R6(c) reply dated 3/11/2008 informing that the file is misplaced and would have been lost in the process of shifting the office. In Ext.R6(c), it was also stated that if a fresh application is received, proper action would be taken in the matter.

6. Thereupon, the 6th respondent made Ext.R6(d) requesting the Secretary of the Panchayat to provide a copy of Ext.P2 and copy of the letter forwarding Exts.P1 and P2 to the DMO. It is stated that WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 4 : accordingly, they received a copy of Ext.P2 and P14, the covering letter of Exts.P1 and P2 and that thereupon they submitted these documents along with Ext.P3 application dated 21/9/10 to the DMO under cover of Ext.P4 letter. A perusal of Ext.P3 shows that the property mentioned therein is also comprised in Sy.No.267-2/1 of Mannancherry Village, but the extent of the property is indicated as 52+20 Ares and the boundaries indicated in Ext.P3 also differ from the boundaries of the property specified in Ext.P1. On receipt of these documents, Ext.P5 report was made by the District Medical Officer on 22/10/10 to the District Collector. In that report, the DMO reported that there is no residence or well within 25 metres of the property in respect of which application was made and he made a recommendation in favour of the 6th respondent subject to the 6 conditions mentioned in Ext.P5.

7. The District Collector received Ext.P5 and as required in Rule 6(7) of the Rules, published notice of the application in Deepika newspaper and also published individual notices on 22/12/11. Ext.P6 is the objection submitted by the petitioners to the District Collector and after receipt of the objection, the Collector issued Ext.P7 notice calling the petitioners for personal hearing on 12/1/11. Here it is to WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 5 :

be mentioned that the property mentioned in Ext.P7 is the property described in Ext.P3 application mentioned above. Accordingly, parties were heard and on the request of the objectors including the petitioners before this Court, the District Collector issued a notice for inspecting the site on 21/2/11. Accordingly site inspection was conducted by the District Collector and thereafter called for a report from the Revenue Divisional Officer. Ext.P9 is the report submitted by the Tahsildar where also apart from the possibility of a communal tension in the event the vault is constructed, nothing adverse in the context of the rules mentioned above is reported.

8. The Revenue Divisional Officer submitted Ext.R6(k) report dated 8/6/11 where also there is nothing objectionable in so far as the concrete vault is concerned. Again at the instance of the objectors, yet another report was called from the District Medical Officer and Ext.P11 report was also submitted by the DMO on 15/07/11. It appears that the petitioners filed objections to the DMO's report and in the light of the objection so raised, District Collector called for yet another report from the DMO. Accordingly, another report was submitted by the DMO on 20/08/11. Considering the materials and in WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 6 : exercise of its powers under Rule 6(8) of the Rules, District Collector passed Ext.P10 order dated 24/9/11 according sanction for construction of the concrete vault in the property mentioned in Ext.P3, subject to the conditions specified therein. He has also specified that on production of the completion certificate, licence will be issued.

9. Appellants in WA Nos.674/13 and 669/13 and certain others filed appeal before the Government challenging Ext.P10. This appeal was considered and was rejected by Ext.P12 order dated 26/3/12. According to the petitioners, though they were parties before the District Collector, they were not issued copies of Ext.P10 or Ext.P12 and therefore, they were not aware of these orders. It is stated that only when works for the construction of the concrete vault commenced in 2013, they came to know of these developments and it was thereupon that they filed this writ petition with the prayers mentioned above.

10. We heard the learned counsel for the petitioners, who also appeared for the appellant in WA No.669/13, learned counsel appearing for the appellant in WA No.674/13, learned Government Pleader appearing for the official respondents, learned counsel WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 7 : appearing for the 6th respondent and also the learned counsel appearing for the Mannancherry Grama Panchayat.

11. The first contention that was urged before us was that under Rule 6(6), the DMO shall conduct such enquiries as he may deem necessary on the application received and shall forward the application with his specific recommendations to the District Collector within thirty days of its receipt. It is also pointed out that under Rule 6(9), the District Collector shall pass an order under sub rule 8 within six months from the date of receipt of the application and shall inform the same to the concerned Panchayat. Learned counsel for the petitioners pointed out that a Full Bench of this Court in Surendran v. District Collector (1999 (3) KLT 22), has already examined the scope of these rules and held in para 12 that the provisions of the rules read together will show that time factor has been introduced in order to see that it is complied with mandatorily and that otherwise, it may lead to very difficult situations especially with regard to persons who had purchased property or constructed buildings after six months' period is over because their objections will not be taken into consideration. Therefore, according to the learned counsel, even if Ext.P1 or Ext.P3 are taken to be applications WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 8 : that were made, there is breach of these rules not only by the District Medical Officer, but also by the District Collector. This, according to the learned counsel, rendered the whole proceedings illegal justifying interference.

12. Secondly, it was contended that if Ext.P3 is to be taken as the application, there is non compliance with the rules, in as much as, the same was not submitted to the Panchayat as required under Rule 6(3) of the Rules. Therefore, according to them, Ext.P10 order passed with reference to Ext.P3 is illegal. They also pointed out that if Ext.P1 is the application, the property specified in Ext.P10 order is different from what is mentioned in Ext.P1 and therefore also Ext.P10 is illegal. Learned counsel also contended that Ext.P2, the resolution of the Panchayat forwarding Ext.P1 application to the District Medical Officer did not satisfy the requirements of Rule 6(5) for the reason that it did not contain any specific recommendations by the Panchayat. Learned counsel also invited our attention to the amendments made to the Rule by SRO No.435/12 dated 14/6/12 and contended that in passing Ext.P10, there is non compliance of the amendments brought about to Rule 5.

WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 9 :

13. Learned counsel appearing for the appellant in WA No.674/13 raised a contention relying on Rule 6(3) of the Rules that to maintain a valid application under the rules, the applicant should be the owner of the property in respect of which the application is made. According to him, Ext.P4 in WP(C) No. 21698/12 from which WA No.674/13 arises shows that the property is owned by the Changanacherry Diocese and that therefore, the application made by the Vicar of St.Thomas Church, Kalavoor is incompetent. He also invited our attention to Exts.P10 and P12 and contended that these orders do not contain any reason substantiating the conclusions therein.

14. Yet another contention raised was that under Rule 5 of the Rules, the concrete vault in question should not be constructed or operated within 25 meters from the boundary of the property. Referring to the plan produced by the Advocate Commissioner, counsel contended that the vault in question is within the close proximity of the boundary of the church property and therefore is situated within the prohibited distance not only from the boundary but also from the A.S.Canal.

WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 10 :

15. We heard Sri.Mathew John appearing for the 6th respondent mentioned above, the Vicar of St.Thomas Church. Referring to the pleadings, including the reports submitted by the Advocate Commissioner and the statement of the Kerala Water Authority, learned counsel contended that there is no substance in any one of the contentions raised. Relying on the principles laid down by the Apex Court in Roshan Deen v. Preeti Lal {(2002) 1 SCC 100} and several other judgments, counsel contended that even if it is assumed that there is any technical breach of the rules, this is not a case where any injustice has been caused to the contesting parties justifying the issuance of a writ of certiorari. Learned counsel also placed reliance on the judgment of the Division Bench of this Court in Pentecost Mission v. State of Kerala (2006 (4) KLT 153) and contended that in a case of this nature, the principles laid down by the Full Bench in Surendran's case (supra) has no application. He in fact went to the extent of disputing the very maintainability of WP (C) No.11277/13.

16. The first contention that was urged by the learned counsel for the appellants and the petitioners was one of time limit within which the District Medical Officer has to make his recommendations and the WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 11 :

District Collector to pass orders. The provisions that are relevant in this context are Rule 6(6) which provide that the District Medical Officer, on receipt of the application from the Panchayat along with its recommendations, shall conduct such enquiries as he may deem necessary and shall forward the application with specific recommendations to the District Collector within thirty days of its receipt. Rule 6(9) provides that the Collector shall pass an order under sub rule (8) within six months from the date of receipt of the application and shall inform the same to the concerned Panchayat. These rules have been interpreted by a Full Bench of this Court in Surendran's case (supra), where considering the object and purpose of this rule, a Full Bench of this Court upheld the contention that these rules are meant to be mandatorily complied with.

17. However, the question still remains, when the period incorporated in the rule starts to run. This question has engaged the attention of a Division Bench of this Court in the case of Pentecost Mission (supra) where after examining the rules in extenso, a Division Bench of this Court had held thus:

"6. Issue of licence to burial or burning grounds.-

(1) No new burial or burning ground, whether public or WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 12 :

private, shall be opened, constructed or used without a licence from the concerned District 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 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 WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 13 :

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 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 WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 14 :

as they deem necessary."

6. Sub-r. (1) of R. 6 makes grant of a licence necessary for new burial or burning ground. The said licence is to be issued by the District Collector. For increasing or expanding the area of an existing cemetery ground the same shall be considered as opening of a new cemetery as per sub-r. (2). An application for licence in Form No.I is necessary to obtain the licence as would be made out from sub-r. (3). The application for licence has to be accompanied by a plan of the ground to be registered showing the location, boundary, extent, etc. and other things mentioned in sub-r. (4). In the case of private cemetery the Panchayat has to consider the application within thirty days of the receipt of the application and forward the same with its recommendations to the concerned District Collector through District Medical Officer as enjoined in sub-r.(5), whereas, as per sub-r.(6) the District Medical Officer has to conduct such enquiry as he may deem necessary on the application and forward the same with his recommendations to the District Collector within thirty days of its receipt. As per sub-r. (7) the District Collector on receipt of the application would publish the same in a daily newspaper and at various other places mentioned in it and call for objections if any with regard to the issue of licence within thirty days, whereas, as per sub-r. (8) the District Collector after considering the objections, complaints or suggestions and after WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 15 :

conducting such enquiries as he may deem necessary would grant the licence or refuse to grant licence or postpone grant of the licence till objections regarding ground of objections have been removed or any particulars called for him have been furnished. By virtue of the provisions contained in sub-r. (9) of R. 6 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. Whereas the limitation for various steps for rejection or for grant of licence has been mentioned in R. 6, all such steps have to be taken or orders passed within the stipulated time therein. The question that arises is as to when terminus a quo for limitation would start. The period of six months is to be reckoned from the date of receipt of the application. The District Collector can receive application only when the District Medical Officer has conducted such enquiries as he may deem necessary on the application received from the Panchayat and when the same has already been sent with specific recommendations to the District Collector. The District Collector when he may receive the application has to publish the same in a daily newspaper, in the notice board of the Panchayat, notice board of the village office and other places specified by the Government and invite objections, complaints or suggestions and then hear such objections that may be received. As per the provisions contained in sub-r. (8) of WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 16 :

R. 6 the District Collector while considering the objections has to conduct such further enquiries as may be deemed necessary. In a case where after the receipt of the application arid inviting objections, etc. the District Collector may deem it necessary to conduct further enquiries can it be said that the limitation would start running from the date of receipt of application? In a given case when enquiries to be conducted by the District Collector may itself take more than a period of six months, can it be said that the period of six months prescribed in sub-r.(9) would commence from the date of receipt of the application? We have given a thoughtful consideration to the question as posed above and are of the view that the limitation would start running only when the application is complete in all regards. There will be no question for the District Collector to grant or reject the licence when the application is incomplete or at a time when the enquiries to be conducted by him have not been completed. In the context of the various steps that have to be taken as per the various clauses contained in R.6, the date of receipt of the application can be termed to be only that date when application is complete in all regards as an incomplete application without formalities necessarily required to be gone into cannot be termed to be an application as such. The application means an application which has been received after all formalities as required have been complied with. In a given case, if WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 17 :

an application is received by the District Collector without the recommendations of the District Medical Officer as required under sub-r. (6), can it be said to have been received by the District Collector? Would it not be necessary for the District Collector to send back the application to the District Medical Officer for making his recommendations? If, an incomplete application is received by the District Collector and the limitation prescribed for passing the order may start from that date, it will result into an anomalous situation. The District Collector without receiving a complete application wherein all necessary steps had been taken and formalities observed would not be able to pass any order whatsoever. If in the process, therefore, six months may expire can it be said that the District Collector is functus officio. This Court is of the considered view that the receipt of application in the context of R.6 and various steps that have to be necessarily taken before the application has to be received by the District Collector would mean application complete in all regards when all necessary steps have been taken and orders passed. An inchoate or incomplete application is no application in the eye of law and receipt of such an application is of no meaning and consequence. The receipt of application necessarily means a complete application on which the District Collector is entitled under law to apply his mind. The limitation may thus be six months from the date of WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 18 :

receipt of the application, but we hold that the terminus a quo would be when the application is complete in all regards.

18. In so far as this case is concerned, facts narrated by us show that Ext.P1 application was made by the Church on 25/4/2005. Ext.P2 is the resolution passed by the Panchayat recommending and forwarding the application to the District Medical Officer. There was no progress on the part of the District Medical Officer. Thereafter, the Church obtained Ext.R6(c) answer to their application under the Right to Information Act, which revealed that the application was misplaced and that the same will be processed on receipt of a fresh application. The church obtained copies of Ext.P2 and the Panchayat's letter forwarding Ext.P14 and submitted Ext.P3 application dated 21/9/2010 under cover of Ext.P4 letter dated 23/9/10 to the District Medical Officer. On receipt of these documents, the District Medical Officer made Ext.P5 recommendation to the District Collector on 22/10/10. If the question whether the District Medical Officer has complied with the time limit of 30 days provided in Rule 6(6) is appreciated in the context of Ext.P5, in our view, the time limit can start to run only WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 19 : from the date of Ext.P4, viz., 23/9/10. If that be the yardstick, Ext.P5 report of the DMO dated 22/10/10 is well within the 30 days period specified in Rule 6(6).

19. The further question is whether Ext.P10 order dated 24/9/11 is within the six months period provided under Rule 6(9) of the Rules is concerned, there also, as we have already narrated the facts, following the receipt of Ext.P5 from the District Medical Officer, the District Collector published Ext.R6(g) notice dated 07/11/10 in the newspaper and also individual notice of 22/12/11 to the parties concerned. It was accordingly that Ext.P6 objection was filed and by Ext.P7, the petitioners were also called for a personal hearing scheduled on 12/1/11. Subsequently, the District Collector inspected the site on a request made by the petitioners and the appellants on 21/2/11 and a report from the Revenue Divisional Officer was called for. It was accordingly that Ext.P9 report was submitted by the Tahsildar and Ext.R6(k) report was submitted by the Revenue Divisional Officer on 8/6/11. The District Collector again obtained Ext.P11 report from the District Medical Officer which was submitted to him only on 15/07/11. To this report also, Ext.R6(c) objection was filed by the petitioners and thereupon the District Collector called for WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 20 : yet another report from the DMO, which was submitted by him as per report dated 20/8/11. It was thereafter that the District Collector passed Ext.P10 order dated 24/9/11. In the background of these facts and the principles laid down in the judgment in Pentecost Mission (supra), the answer to the question whether the District Collector has complied with the time limit fixed in Rule 6(9) of the Rules, can only be in the affirmative. Therefore, the contention of the learned counsel for the appellants and the writ petitioners that the DMO and the District Collector did not comply with the time frame provided in Rule 6(6) and 6(9) has to be rejected and we do so.

20. The other contention that was urged before us was that Ext.P10 order has been passed on Ext.P3 and that the property mentioned in Ext.P3 is different from the property mentioned in Ext.P1 application. Counsel contended that Ext.P3 application was not submitted to the Panchayat and that in the absence of recommendations made by the Panchayat, neither the DMO nor the District Collector could have passed Ext.P10 order thereon. It is true that there is difference in the description of the property mentioned in Exts.P1 and P3. Though this difference is self evident from the applications and is also mentioned WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 21 : in the writ petition, there is no specific pleading in the writ petition that the properties are distinct and different and in the absence of such a pleading, we are not obliged to entertain this plea particularly in the context of the principles laid down by the Apex Court in in Bharat Singh v. State of Haryana (AIR 1988 SC 2181). Be that as it may, we have already taken note of the facts which made the Church to submit Ext.P3 which have been explained in the counter affidavit filed by the Church and are not contradicted by way of any reply affidavit filed by any one of the petitioners. In such circumstances, we are not impressed by this contention now urged before us.

21. Yet another contention raised is one of non compliance of Rule 5 of the Rules. Rule 5 to the extent it is relevant for the purpose of this case provides that no new burial and burning ground shall be provided within the limit of 50 meters of dwelling houses. The proviso to this Rule carves out an exception and provide that in the case of concrete vaults and electric crematorium, the distance shall be a minimum of 25 metres from dwelling houses. Counsel for the appellants and the petitioners contended that going by the provisions of this Rule, the distance provided shall be from the WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 22 : boundary of the property where the concrete vault or the burial ground is constructed.

22. Learned counsel also pointed out that Rule was amended by SRO No.435/2012 dated 14.6.12 and that the water courses are also included in the rule. In other words, according to the learned counsel, if there is a water course or dwelling house within 50 metres of burial ground or 25 metres of a concrete vault reckoned from the boundary of the property where the burial ground or the concrete vault is to be constructed, there is a prohibition in the construction of the same. However, rule only provides that no burial ground or burning ground shall be provided within a distance of 50 metres of dwelling houses or water courses and this distance of 50 metres is only 25 metres when it comes to concrete vaults and electric crematorium. There is nothing in the rule which indicates that the distance should be reckoned from the boundary of the property where the electric crematorium, burial ground or concrete vault is constructed.

23. If this argument of the learned counsel for the petitioners is accepted, in a case where a burial ground is constructed in a property of 100 acres in extent, the prohibition in the Rule will have WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 23 : to be reckoned from the boundary of such large extent of property. Therefore, that cannot be the intention of the rule making authority. For that reason, we are inclined to think that the rule has to be understood in an ordinary sense and if so understood, the distance should be reckoned from the burial ground or concrete vault. If that be the case, the question is whether there is any dwelling houses or water course within that prohibited distance. Although such a case has been urged, the Advocate Commissioner, who was deputed from this Court has filed three reports along with the plan which indicates that the situs of the dwelling houses is beyond 65 metres from the concrete vault in question. Therefore, we are not prepared to accept that any dwelling house is situated within the prohibited distance prescribed in the rule.

24. Now even if it is accepted that the amendment of rule carried out in 2012 is also applicable, then the question that survives to be considered in this context is whether there is any water course within the prohibited distance. What is pointed out by the learned counsel for the petitioners is the presence of A.S. Canal which is stated to be 8 metres away from the concrete vault in question. It is the admitted case of the parties that the A.S.Canal is an irrigation WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 24 : canal and there is no indication whatsoever that any water is drawn from this canal for drinking purposes. Further, this report of the Advocate Commissioner also suggests that the water in the canal is highly polluted. We are not prepared to think that an irrigation canal can be accepted as a water course mentioned in Rule 5 for the reason that the purpose of the Rule is to prevent pollution on account of the presence of burial grounds or concrete vaults to drinking water sources. Since the water in the irrigation canal does not meet any such requirements, we do not think that the presence of the irrigation canal can be of any consequence in so far as the grant of licence for a concrete vault is concerned. True, there is an indication that the Kerala Water Authority is pumping out water from a bore well and the presence of a pump house was also indicated by the Advocate Commissioner. However, the bore well in question is situated beyond 25 metres distance prescribed in the rules and therefore the presence of the bore well, cannot be of any relevance. In such circumstances, we do not find that there is any violation of Rule 5 as well to impugn the order passed by the District Collector or the Government. The above discussion belies the contention of the WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 25 : petitioners that any violation of Rules 5 or 6 has occurred in this case.

25. The contention that Ext.P3 was not made to the Panchayat and that therefore Rule 6(3) was violated also does not deserve acceptance. We have already dealt with the circumstances which made the Church submit Ext.P3 to the DMO and in the factual background disclosed, we are unable to treat Ext.P3 as a fresh application, which alone has to be submitted to the Panchayat. The argument that Ext.P2 does not contain any specific recommendation of the Panchayat also is devoid of merit because even before this Court, the Panchayat did not have such a case.

26. Yet another contention that was raised by the learned counsel for the parties was that in terms of Rule 6(4), in the application, among others, the name of the owner or person or community interested therein and such other particulars as the District Collector may require should be stated. He also pointed out that as per Note to Form 1 appended to the Rule, if the applicant is an organisation, association or institution, its name and the name and designation of the person who signs the application on behalf of the organisation, association or institution have to be entered in Sl.No.1 of the WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 26 : application, which provides for specifying the name of the applicant. He also invited our attention to Ext.P3 on which Ext.P11 order has been passed. In Ext.P3, the name of the applicant has been shown as Rev.Father Teji Puthuveettil Kalam and the address is shown as St.Thomas Church, Kalavoor P.O, Alappuzha. The application is also signed by the aforesaid person who was the then Vicar of the Church. Counsel also invited our attention to Clause 7 of the application which makes reference to the title deed under which the property in question has been acquired.

27. The contention raised by the learned counsel was that going by the revenue records, the ownership of the property in question vests with the diocese and therefore if the applicant was making the application on behalf of the diocese, he should have so described himself in the application. In other words, what he contended was that on account of the wrong description of the applicant, Ext.P3 on which Ext.P10 order was passed is a defective one and should not have been entertained.

28. In our view, this is purely a technical argument and it does not merit acceptance. The admitted factual position is that the ownership of the property is vested in the Changanacherry diocese. WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 27 :

The diocese holds the property, as is well known, on behalf of the Church and its members. The Vicar of the Church is an agent of the diocese and his actions are on behalf of the diocese and also on behalf of the members of the Church. He has no independent capacity whatsoever and he has not asserted any such capacity either in the application or elsewhere in the proceedings. In such a situation, though the Vicar has made the application referring to the title deed in the name of the diocese, such application can only be taken as an application made on behalf of the diocese and nobody else. Therefore, this technical contention now raised before us and not before the District Collector or the Government does not merit acceptance.

29. We should also make reference to the report submitted by the Advocate Commissioner, which has been prepared with the assistance of experts. From the three reports submitted by him, first one is dated 10/6/13. In this report, the following findings and observations have been made by the Advocate Commissioner.

4. The site is on the eastern side of National Highway 47 at Kalavoor, between Cherthala and Alappuzha. The Kalavoor Sree Dharmasastha WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 28 :

Temple is on the western side of the said highway. On the eastern side of the highway, opposite the said temple, there were about a 100 people staging a protest under a pavilion against the proposed construction by the church. A tarred road, having a width of approximately 6 M, proceeds towards east from the highway. It bifurcates into two, one strip turning north and further east to reach the gage of the St.Thomas Church and the other proceeding straight east to reach a footpath (with a width of 1.3 M. approximately) which in turn leads to structures called the 'Manimandiram' and a 'Bhajanamandapam', which are separated by a distance of about 50 cm. The said footpath proceeds further and turns northeast to reach the gage of the St.Thomas Church.

5. On the northern side of the Manimandiram, there is a house belonging to one Vijayan. A water channel, having an approximate width of 3 M flows west to east, passes under a culvert and then along the southern side of the manimandiram and turns northeast through the property of the St.Thomas Church, but the width of the said channel is only about 1.80 M at this portion (inside the church's property). Two residential houses are located beyond the water channel near the Manimandiram. The channel WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 29 :

finally reaches the Aleppey-shertallai (AS) Canal which lies north-south further east of the church's property. The water level in the channel is generally low. It reduces further as it flows through th church's property. It is seen clogged with slime and numerous weeds and appeared unused.

6. The church's property has an approximate area of 1.26 acres and has compound walls on all four sides. The church is situated towards the eastern side of the property. Further east of the church is the vault under construction.

7. The vault is constructed of concrete, with sides measuring 6M and 6.1 M (almost a square) having a height of 3.8 M from ground level. It was under construction at the time of my inspection. It has forty eight horizontal chambers facing each other, twenty four on the southern wall and twenty four on the northern. They are separated by four pits, each having a depth of 2.26 M and a width of 1.97 M. At the time of my inspection, they were filled with water. At my direction, the water was removed so that the bottom of the pits could be inspected. I found all the sides of the pits were concreted. The inner walls separating the pits have a width of 10 Cm. and the outer walls surrounding the pits have a width of 22 Cm. The distance from the church to the vault is 5 M. WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 30 :

Distance from the vault to the compound wall of the church on the eastern side is 4.6 M.

8. Between the eastern compound wall of the church and the AS Canal, there is a mud bank (which can be used for walking) which has a width of 7.5 M. The AS Canal has an approximate width of 30 M and an approximate length of 200 M, which is the area where there is water with an average depth of 7 feet at the sides. The remaining portions on the north and the south of the canal are completely clogged with slime, weeds and vegetation. I found piles of weeds and filth accumulated on either side of the canal, which looked to me to be recently removed therefrom. The distance from the vault to the AS Canal is 11.5 M. From the colour and smell of the water in the AS Canal, I do not think that it is potable. But I found a few persons using the same for taking baths.

9. The soil in the area is sandy in nature (silica). According to the Church authorities, the water found in the vault is only because of the ongoing construction activities. This is disputed by the other side, which claims that it is the result of natural seepage from underground and that thus storage of bodies in the vault and their decomposition can cause pollution of the water in the area. The Church authorities maintain that the WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 31 :

vault being a concrete structure, there is no likelihood of any leakage from the same or seepage into it.

10. Further east of the AS Canal, there is a tarred road. There were two pump houses, one which was not working. The other one is maintained by the Kerala Water Authority. The operator of this pump told me that water is being pumped from a bore well which has an approximate depth of 150 M and that it is directly being supplied to the houses further east of the pump house. The distance from the pumping station and the proposed vault is approximately 50.8 M.

10. The St.Thomas Church belongs to the Changanassery Diocese under the Syro-Malabar Sabha. About 1.4 Km. from Kalavoor where the said church is situated, there is a cemetery attached to the Church belonging to the Latin faction coming under the Alleppey Diocese.

11. Considering the nature of the soil in the area and the presence of the canal nearby, the assistance of an expert will be required to ascertain whether there is any chance of water seepage or leakage to and from the vault. I was unable to arrange for one during my inspection on 29.5.13 due to paucity of time.

WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 32 :

12. On 3/6/13, when the above cases came up for consideration before the Hon'ble Court, I had submitted that the assistance of an expert will be required to ascertain whether there is any chance of water seepage or leakage to and from the vault and this Hon'ble Court was pleased to pass an order directing the appointment of an expert to assist me.

13. Pursuant to the order dated 3.6.13 of this Hon'ble Court, I inspected the property in question again after giving prior notice to the parties, on 6/6/13 at 8 A.M with a expert, Mr.Shree Ganesh V. Nair, Chief Consultant of GTCS (Ganesh Technical Consultancy Services) a reputed consultant for water supply systems, waste water management and treatment. Apart from the parties to the case, Dr.Muraleedharan Pilai C., District Medical Officer, Alleppey and Mr.Hussain, Tahsildar, Ambalapuzha Taluk were present at the time of my inspection.

The expert has submitted a report stating that the possibility of impurities from the well affecting the adjoining water bodies can be ascertained only if the well is subject to a leak test. The ways and means to conduct this leak test has been elucidated in detail in the report submitted by the expert, which I am appending along with my report. The expert has further opined that, being a mechanism to handle decomposed human bodies, WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 33 :

while in the vault, and/or while retrieving the same from the well in question, it is advisable to take a consent from the Kerala State Pollution Control Board, Alappuzha, to ensure that the construction of such a structure does not cause any pollution to land, water or air either directly or indirectly.

14. In the light of the opinion furnished by the expert, I am convinced that the only way to ascertain whether there is any chance of water seepage or leakage to and from the vault, is by subjecting the well to a leak test. This can be done only after getting the permission of this Hon'ble Court."

30. Thereafter, pursuant to further orders that were passed, the Advocate Commissioner again inspected the site in question and submitted his report dated 30/8/13, in which he has stated thus in paragraphs 6, 7, 8 and 9.

6. In the presence of the parties, the tarpaulin sheets which covered the entire structure were first, removed. Thereafter, the tin sheets which covered the top of the wells in the structure were also removed. Upon a close inspection of the wells, the presence of water up to a height of 3.5 CM from the bottom of the tanks could be found in three of the tanks. In one of the other tanks there was water up WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 34 :

to the level of 3 CM from the bottom of the said tank. The water could be seen in the centre of the well, and there was no water on sides of the well. The photographs showing the view from the inside of the wells is produced herewith and marked as Annexure-2.

7. On the basis of the said findings, the expert has furnished a report stating inter alia that there is a perceivable accumulation of water in the floor of the vault well to a depth of about 3.5 cm in each chamber and that it is beyond any reasonable doubt that there exits a leak in the floor of the well. The expert has further recommended as follows "The Contractor is required to provide the best quality water proofing and subject the well to a test again. The likely passage of water either way through the well walls and the floor needs to be completely arrested to ensure this. Once the well is deemed to be completely water tight, there is absolutely no chance of pollution of the water bodies adjoining it. In general engineering practise, to ensure that the sub surface structures like tanks, septic tanks, sewage treatment plants etc. are water tight, they are subjected to remedial measures like cement slurry pressure grouting using nozzles, brush applications or chemical treatment. Similarly, here also, it is advisable to water proof the entire well upto the lowest vault level."

WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 35 :

8. Among his other observations, the expert has stated thus "the observation of the adjoining water channel (kaithodu), shows a flow direction towards the canal, i.e. West to East. Hence any assumed contamination of the channel will not affect anyone who is living upstream of the point of such assumed contamination, i.e. to the west of the church land. Once the well of this vault is made fully water tight, there will be no influence on any water body, even if directly abutting the well. Hence influence on AS canal and adjoining wells due to this cannot be considered. However, being a mechanism to handle decomposed human bodies, while in the vault, and/or while retrieving the same from the well in question, it is advisable to take a consent from the Kerala State Pollution Control Board, Alappuzha, to ensure that the construction of such a structure does not cause any pollution to land, water or air either directly or indirectly."

9. The expert has also suggested remedial measures in his report. It is prayed that the report of the expert be read and treated as part and parcel of my report. A true copy of the report of the expert dated 26.8.13 is produced herewith and marked as Annexure 3.

31. His final report is dated 4/12/13 and in this report he has ruled out the possibility of any seepage thus;

WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 36 :

The well itself was found fully covered with sheet so as to prevent seepage of any rain water into the vault which will frustrate the purpose of the leak proof test. Once the well was opened, no traces of water could be observed inside the vault, as can be seen from the photographs along with the Expert's Report, that is being appended along with this report. There is no dampness seen on the walls or floors also. Further, no bubbles could be seen on the side walls as well.

It can thus be stated that the vault is now water tight, and that no impurities from the vault can cause any kind of pollution to the water bodies in contact with the outer walls of the vault. Once the well of this vault is made fully water tight, there will be no influence on any water body, even if directly abutting the well."

32. Our findings herein above show that there is no illegality in the conclusions of the District Collector and the Government. The reports of the Advocate Commissioner show that the apprehensions about the possibilities of any seepage or pollution from the concrete vault in question stands ruled.

33. It was contended by the learned counsel for the appellant in WA No.674/13 that under Rule 6(1), no new burial or burning ground WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 37 :

whether public or private, shall be opened, constructed or used without a licence from the concerned District Collector. Counsel pointed out that the construction therefore can only be on the strength of a licence and not under any other circumstances. Counsel then invited out attention to Ext.P10, an order passed by the District Collector where the District Collector has stated thus;

In these circumstances, sanction is hereby granted to Fr.Teji Puthuveetilkalam, Vicar, for constructing a concrete vault for St.Thomas Church, Kalavoor in an extent of 52.20 ares of land comprised in Block 4, Re-Sy.No.116/1 in Mannancherry Village, Ambalappuzha Taluk of Alappuzha District, as per the location sketch submitted along with the application, for burial of dead bodies subject to the following conditions.

(a) Construction of concrete vault should be as per the sanctioned plan.

(b) The bottom of each cell should be concreted.

(c) Construction of concrete vault should be made under the supervision of a recognized Engineer and a completion certificate should be obtained after the construction.

WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 38 :

(d) A Compound wall not less than 1.8 meters height should be constructed with iron gate under lock and key around the vault.

(e) Ample lighting should be provided inside the vault.

(f) There should be a pedestal passage to the vault to carry the dead bodies.

(g) The concrete vault and its premises should be kept neat and tidy.

(h) A fitness certificate should be obtained from the District Medical Officer (Health) on completion of construction before using the vault.

(i) Trees should be planted around the compound.

The licence will be issued in due course on production of completion certificate by the applicant, issued by the District Medical Officer (Health), Alappuzha.

34. According to the learned counsel, by this order, the District Collector has permitted construction of the concrete vault without issuing a licence, which is directly against the terms of Rule 6(1) of the Rules. Rule 6(1) provides that no construction of a concrete vault shall be undertaken except on the strength of a licence issued under the said rule. Strictly therefore, the order issued by the WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 39 : District Collector permitting construction and postponing the issue of licence to a stage subsequent to the construction, in compliance with the conditions imposed by it, does not satisfy the requirements of Rule 6(1). However, at the same time, the fact that the District collector has imposed conditions while permitting construction also shows his anxiety to ensure that any apprehension expressed from the people in the neighbourhood are also ruled out. In such circumstances, one has to strike a balance and the rule should be understood in a purposive manner.

35. We, therefore, direct that the District Collector shall, on receipt of a copy of this judgment, issue licence under Rule 6(1) to the 6th respondent in WP(C) No.11277/13, in whose favour Ext.P10 order has been issued, incorporating the conditions mentioned in Ext.P10 and permitting them to complete construction of the concrete vault on the strength of such licence. Once the construction is completed, the District Collector will inspect the concrete vault and if he is satisfied that all the conditions imposed in Ext.P10 are complied with, St.Thomas Church, Kalavoor will be permitted to open and use the concrete vault. We direct that such licence should be issued within ten days of receipt of a copy of this judgment. WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 40 :

36. Now what remains is WP(C) No.13768/12. This writ petition was filed by the Vicar of St.Thomas Church, Kalavoor seeking orders of police protection in order to enable him to complete the construction of the concrete vault on the strength of Exts.P10 and P11. We have by this judgment already directed that licence in terms of Rule 6(1) be issued in order to permit the Church to complete the construction. Therefore, the legal right of the Church having been upheld by this Court, if there is any resistance from any quarter, it shall be the responsibility of the District Superintendent of Police, Alappuzha, Circle Inspector of Police, Cherthala and the Sub Inspector of Police, Mannancherry to remove the same and also to ensure that law and order in the area is maintained for the said purpose.

37. WP(C No. 13768/12 will therefore stand disposed of directing the aforesaid police officials to ensure that adequate and effective police protection is given to the petitioner, the Vicar of St.Thomas Church, Kalavoor, in the event, the construction of the concrete vault, on the strength of the licence be issued to the petitioner, is obstructed by anybody.

WP(C) Nos.11277/13, 13768/12, WA Nos.674/13 & 669/13 : 41 :

With the aforesaid directions, the writ appeals and the writ petitions will stand disposed of.

Sd/-

ANTONY DOMINIC JUDGE Sd/-

DAMA SESHADRI NAIDU JUDGE Rp //True Copy// PA to Judge

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