Kerala High Court
Antony vs Kochi Corporation on 10 December, 2008
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31463 of 2007(U)
1. ANTONY, AGED 32 YEARS,
... Petitioner
2. C.W.SUNIL, AGED 35 YEARS,
3. A.R.SEBASTIAN, AGED 70 YEARS,
4. E.J.PETER, AGED 58 YEARS,
5. K.P.JOY, AGED 54 YEARS,
6. BABY SIMON, 48 YEARS, S/O.SIMON,
7. SHINY AUGUSTINE, AGED 38 YEARS,
8. DENNY.P.D., AGED 34 YEARS,
Vs
1. KOCHI CORPORATION, REPRESENTED BY ITS
... Respondent
2. THE POLLUTION CONTROL BOARD,
3. DIVISIONAL OFFICER, FIRE AND RESCUE
4. DISTRICT MEDICAL OFFICER,
5. DISTRICT COLLECTOR, ERNAKULAM,
6. SREE VENKETESWARA SEVA SANGHAM,
7. THE COCHIN THIRUMALA DEVASWOM COMMITTEE,
8. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.K.K.CHANDRAN PILLAI
For Respondent :SRI.K.ANAND, SC, COCHIN CORPN.
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :10/12/2008
O R D E R
ANTONY DOMINIC, J.
==============
W.P.(C) NO. 31463 OF 2007 (U)
====================
Dated this the 10th day of December, 2008
J U D G M E N T
The prayers in this writ petition are mainly to quash Exts. P4, P5 and P5(a). Ext. P4 is a building permit issued by the Corporation of Kochi, permitting the 6th respondent to erect a cremation chimminy in the property in Sy. No. 219/2 of Poonithura Village in Kanayannur Taluk. Ext. P5 is the consent issued by the Pollution Control Board and Ext. P5(a) is the no objection certificate granted by the Assistant Divisional Officer, Fire and Rescue Services, Ernakulam certifying that the site in the survey number referred to above is suitable for the construction of the crematorium.
2. Petitioners are the neighbouring residents of a plot of land in which the chimney referred to above is permitted to be erected. According to the petitioners, the land mentioned above, owned by the 7th respondent, is having an extent of less than 40 cents and is situated in very close proximity to several residential houses, and a LPG godown. According to them, some time in 2003, an attempt was made to cremate a dead body in the land, whereupon a complaint was made to the 1st respondent, Pollution Control Board, WPC 31463/07 :2 : Fire Department and Ombudsman for Local Self Government Institutions. Acting upon the complaint so made, Ext. P1, a notice was issued to the 6th respondent stating that the cremation was in violation of Sections 483 and 484 of the Municipalities Act and they were prohibited from cremating any dead body without obtaining licence as required under the Municipalities Act and the Rules.
3. Challenging Ext. P1, the 6th respondent filed a writ petition before this Court as W.P.(C) No. 29269/03. That writ petition was disposed of by Ext. P3 judgment permitting them to file an appeal before the Corporation and directions were also issued for the expeditious disposal of the appeal with notice to all concerned. Petitioners submit that they did not hear anything further in the matter, but however, during the first week of October, 2007, they noticed construction work in the land in question and therefore enquiry was made by them, when it was revealed that respondents 6 and 7 were given permission for the establishment of a burial ground in the land referred to above. It is stated that thereupon they went to the office of the Corporation and obtained a copy of Ext. P4 building permit dated 17.2.2007 granted on the WPC 31463/07 :3 : basis of an application dated 13.1.2004.
4. Petitioners also state that the Assistant Executive Engineer of the 1st respondent informed them that they had issued Ext. P4 building permit after the 2nd respondent had issued Ext. P5 consent to establish a chimney having 30 meter height and Ext.P5(a) no objection issued by the 3rd respondent. It is stated that against Exts. P5 and P5(a) petitioners submitted Exts. P6 and P7 representations and as construction work was progressing, they filed this writ petition for restraining respondents 6 and 7 from proceeding with the construction and for other consequential reliefs. In this writ petition, an Advocate Commissioner was appointed by order dated 3.10.2007 in I.A. No. 14149/07 and by order dated 26.10.2007 this Court had directed that status quo as reported by the Advocate Commissioner in his report dated 26.10.2007 be maintained by respondents 6 and 7.
5. Counter affidavits have been filed by respondents 6 and 7. In the counter affidavit filed by the 6th respondent, it is contended that the cremation ground was in existence from time immemorial. They are referring to Ext.R6(a) dated 4/8/70, by which they were WPC 31463/07 :4 : permitted to construct a compound wall for the cremation ground which they say was in existence then. In order to contradict the case of the petitioners that the land in question was not used for cremation of dead bodies, they are referring to Ext.R5(c) and R5(d), news reports dated 12/5/03 and 16/4/74. They submit that Ext.P4 permit sanctioning the construction of a chimney was granted recognising the existence of a cremation ground. They are also stating that all legal formalities have been complied with by obtaining Ext.P5 consent from the Pollution Control Board and Ext.P5(a) no objection certificate from the fire force. Respondents contend that the writ petition filed is highly belated. That apart, according to them, if at all the petitioners are aggrieved by Exts. P4, P5 and P5(a), statutory remedy of appeal should have been pursued.
6. The allegation of the petitioners that they were not heard before Ext.P4 permit was issued is also disputed. They are also referring to Ext.R5(b) notice in this connection. As regards compliance with the statutory requirement of registration, they are relying on the judgment of this court in Komalavally Amma v. WPC 31463/07 :5 : President, Kerala Bhrahmana Sabha (1987(2) KLT S.N.Case NO.72), and contends that the absence of registration does not mean that they are not entitled to use the place as a cremation ground if the cremation ground was factually in existence. In order to draw support to their contention regarding the existence of cremation ground in question, they are also referring to the statement filed by the 1st respondent, which also suggests the existence of a cremation ground.
7. The 7th respondent, the owner of the land, has filed a counter affidavit, contending that the cremation ground in question was in existence for more than 100 years. They have produced as Ext.R7(a), the Settlement register of Poonithura Village of the year 1081(Malayalam Era) where the land in Sy.No.219/2 is indicated as "Chudukkadu Parambu". They have produced as Ext.R7(d) a letter dated 12.6.69, from the 6th respondent to the 7th respondent requesting to measure the land in question and prepare a sketch describing the same to be a cremation ground. It is stated that in pursuance to the said letter, Ext.R7(c) communication was issued requesting to clear the land. The 7th respondent accepts that they WPC 31463/07 :6 : have not obtained any licence or registration either from the erstwhile Vyttila Panchayat or the Corporation.
8. According to the 7th respondent, in 2003, Ext.P1 stop memo was issued by the Corporation requiring them not to cremate any dead body in the land and that thereupon the 6th respondent filed WP(C) No.29269/03, which was disposed of by Ext.P3 judgment and that an appeal was filed before the 1st respondent. It is stated that accordingly by Ext.R6(b) notice of hearing was issued, the parties including the petitioners were heard and that further proceedings in pursuance to Ext.P1 stop memo were dropped by the Corporation. They would contend that in order to avoid further complaints, they submitted application dated 13/1/2004 for a building permit for the construction of a chimney and that eventually Ext.P4 permit was granted subject to conditions regarding height and obtaining consent of the Pollution Control Board. It is stated that it was therefore that they had obtained Ext.P5 consent from the Pollution Control Board. It is stated that similar cremation grounds are in existence at places like Pulleppady and Pachalam, which are more thickly populated.
WPC 31463/07 :7 :
9. The Corporation on its part has filed a statement. They are also accepting that the plot in question has not been registered with them as a cremation ground as is required under the Kerala Municipality Act, 1994. They accept that on the basis of the application received from the 7th respondent, they have issued Ext.P4 building permit subject to the conditions mentioned therein.
10. From the pleadings, it would thus appear that a plot of land in Sy.No.219/02 of Poonithura Village of Kanayannur Taluk is sought to be used as a cremation ground and for that purpose, respondents 6 and 7 wants to construct a chimney for which they have obtained Ext.P4 building permit. The land in question was situated within Vyttila Panchayat and this was the position till 1.11.1967, when Corporation of Cochin was constituted by including the areas which were within the Vyttila Panchayat also. The cremation ground in question admittedly do not have registration with the 1st respondent or with the erstwhile Vyttila Panchayat and that failure on behalf of respondents 6 and 7 is attempted to be justified contending that the cremation ground in question has been in existence for more than 100 years and WPC 31463/07 :8 : therefore, it was entitled to deemed registration under the Kerala Panchayat Act 1960 and the Rules framed thereunder. According to them, the absence of registration, as required under the Panchayat and Municipality Laws, is no reason for this Court to interfere under Article 226 of the Constitution of India and declare that until the registration is obtained, the respondents 6 and 7 shall not use the land as a cremation ground. On the other hand, petitioners contended that unless the cremation ground satisfy the provisions contained in the Kerala Municipality Act 1994, Ext.P4 building permit or consent could not have been granted.
11. From the above factual controversy, what arises for consideration is whether the respondents 6 and 7 were statutorily obliged to have obtained licence/ registration and if it is so, what is the effect of its non-compliance. This necessarily calls for an examination of the relevant statutory provisions in the Panchayat Act 1960, Burning and Burial Ground Rules, 1967, Kerala Municipal Corporation's Act, 1961 and the Kerala Municipality Act, 1994.
12. Section 129 of the Panchayat Act 1960 conferred power on the Government to make rules and sub section (xxv) provided for WPC 31463/07 :9 : provisions regarding burning and burial grounds. It was in exercise of this power that the Burial and Burning Ground Rules, 1967 were framed, in supercession of the Madras Government Order No.520/LA dated 24/3/51. Rule 4 provided that burial or burning grounds existing at the commencement of the rules are deemed to have been registered under the rules. Rule 5 also provided that no new burial or burning ground shall be located within 50 metres of dwelling place and in so far as concrete vaults are concerned, the distance fixed was 25 metres from any human habitation. Rule 6 provided that new burial and burning grounds shall be opened only with licence from the Collector. Rule 8 imposed prohibition of burial or burning at unauthorised places and Rule 9 provided for maintenance of register for recording burials. Section 130 of the Act made violation of the rules a penal offence.
13. As already noticed, the area in question was within the jurisdiction of Vyttila Panchayat until the Corporation of Cochin was constituted w.e.f 1.11.1967. Therefore, since 1.11.1967, what was applicable to the area was the Kerala Municipal Corporation Act 1961. In the Kerala Municipal Corporation's Act 1961, Sections 338 WPC 31463/07 :10 : to 346 are the provisions dealing with the disposal of the dead. In this context it should be noticed that under Section 340, the Municipal Corporation is bound to keep a book at its office, where all places registered or licenced before the commencement of the Act as a burial and burning ground shall be recorded and that, plans of such place shall be filed in such office.
14. The Municipal Corporations Act 1961 was replaced by the Kerala Municipality Act, 1994 and the relevant provisions are Sections 483 to 492. Section 483 mandates that every owner or person having control of any place used at the commencement of the Act as a place of burial, burning or otherwise disposing of the dead, shall, where such place is not already registered, apply to the Municipality to have such place registered. Section 484 provides that no new place for the disposal of the dead, shall be opened, formed, constructed or used except on a licence from the Municipality. Detailed provisions are made regarding the application for licence and its grant. Section 485A provides that no Municipality shall grant a licence for using any place as crematoria for burial or burning of dead bodies within a distance of fifty metres WPC 31463/07 :11 : from residential buildings or utilise for such purposes under Section
485. In terms of the proviso, in the case of a concrete vault the minimum distance is twenty five metres from residential buildings. Section 492 contains general provisions regarding licences and permissions. Provisions in Chapter XXIV of the Act providing for penalties, makes violation of the aforesaid provisions penal in character.
15. Now that I have surveyed the relevant provisions of the Statutes, the question that arises for consideration is whether in the absence of any licence or registration obtained from the local authority, be it the Panchayat or the 1st respondent, whether respondents 6 and 7 can claim that they are entitled to use the place as a cremation ground. The further question that also arise for consideration is, whether in the absence of such a registration, unless the statutory requirements are complied with, it is permissible for the 1st respondent to grant building permit for construction of a cremation chimney.
16. As I have already noticed, it is the contention of respondents 6 and 7 that the cremation ground was in existence WPC 31463/07 :12 : from time immemorial and therefore even in the absence of obtaining a registration under any of the Statutes, they are entitled to use the place as a cremation ground. It is in support of this proposition that they were relying on the judgment of this Court in Komalavally Amma v. President, Kerala Bhrahmana Sabha {1987 (2) KLT S.N. Case No. 72}. On the other hand, the contention of the learned counsel for the petitioners is that unless legal existence of the cremation ground is proved, respondents 6 and 7 are not entitled to such deemed registration under the Kerala Panchayat Act 1960 and the 1967 Rules and on account of their failure to obtain registration under Section 483 of the 1994 Act, 1st respondent could not have issued the building permit. According to petitioner's building permit can be issued only if the cremation ground in question satisfies the requirements provided in the Kerala Municipality Act, 1994.
17. Even if it is accepted that the cremation ground in question was in existence when the Kerala Panchayat Act, 1960 came into force, I am not prepared to accept the plea of the respondents that respondents 6 and 7 were entitled to deemed WPC 31463/07 :13 : registration under the 1967 Rules since they have no case that, at that time the cremation ground was functioning in compliance with the statutory requirements then in force. Only if it was functioning in compliance with the provisions of Kerala Panchayat Act, 1960, could the cremation ground have found a place in the register maintained by the Corporation under Section340 of the Municipal corporation Act, 1961. Only such of those cremation grounds which were functioning as per the provisions of the 1961 Act could find a place in the register maintained under Section 486 of the Kerala Municipality Act, 1994. In this case, respondents 6 and 7 have no case that they have registration under any of these enactments.
18. The counsel contended that once the existence of the cremation ground is proved, they are entitled to use the place as a cremation ground irrespective of the provisions contained under the Panchayat Act, 1960, Municipal Corporations Act 1961 and Municipalities Act, 1994. In my view, only such of those cremation grounds which were functioning in compliance with the statutory requirements are entitled to be used as cremation grounds. This is all the more so having regard to the fact that the use of the plot is WPC 31463/07 :14 : not the ordinary or normal use of the premises and it was in order to regulate such use that statutory provisions have been made for registration and licensing of the cremation grounds. Even if their lapse in compliance with the requirements of the Kerala Panchayat Act, 1960 and the 1967 Rules is condoned, respondents ought to have got the cremation ground registered under the Municipal Corporation Act, 1961 or under Section 483 of Kerala Municipality Act. If this Court is to accept that irrespective of their failure in obtaining registrations under the aforesaid statutory provisions, the cremation ground can function despite the fact that it did not satisfy the requirements of law, this Court will be recognizing the violation of the statutory rule and will be blessing its continued violation, defeating the very statutory provisions and the object of enacting such law. Law must have some purpose and that purpose can be achieved only if the law is respected and implemented. Therefore, I am not prepared to accept the plea canvassed by the learned counsel for the respondents that once the factual existence of the cremation ground is proved they are entitled to use the cremation ground irrespective of the statutory prescriptions. WPC 31463/07 :15 :
19. True, a learned Judge of this Court in Komalavally Amma v. President, Kerala Bhrahmana Sabha {1987 (2) KLT S.N. Case No. 72}. held in the context of the Municipality Act, 1961 that the circumstance that the Municipality had failed in the performance of its duties under Section 323, in maintaining a register or that it has not been strictly enforcing Section 320(1) will not be a reason for the High Court to interfere and declare that until the Municipality performs such functions the community shall not have any place for disposal of the dead bodies within the Municipality. It was also held that the provisions of the statute are designed to serve some purpose and not to create impossible situations to a section of the people. But then counsel for the petitioners has brought to my notice a Division Bench judgment of this Court in W.A. Nos. 15 and 137 of 1974, rendered in the context of the Kerala Panchayat Act, 1960 where it has been held as follows:
"From these Rules, it will be clear that the use of a pre- existing burial ground which was in existence before the date of the promulgation of the Kerala Rules would be regarded as use of a burial ground registered under the Kerala Rules. But we do not think it was either contemplated or countenanced by the Act or the Rules that a burial ground which waswithout used or enjoyed being under the previous law satisfying its WPC 31463/07 :16 : requirements as to licence or registration should also receive the benefit of the deeming provision under the Kerala Rules. To so hold, would be frustrating the very object and purpose of the provision. We are therefore unable to agree with the argument of counsel for the appellant that the mere factual existence of a burial ground before the promulgation of the Kerala Rules would suffice to receive the protection under Rule (1) of the Kerala Rules.
Since the judgment of the learned Single Judge referred to above was rendered without taking note of the binding precedent noticed above, I would respectfully follow the Division Bench judgment and agree with the counsel for the petitioners that the provision of deemed registration is available only if legal existence of the cremation ground is proved. Further in the judgment in Komalavally Amma's case, it is not clear whether the cremation ground was one satisfying the statutory prescriptions.
20. Further in Anil Kumar vs. State of Kerala (2003 (2) KLT
286) it has been held as follows:
"In view of S.483 of the Act, even if the above burial ground was in existence even prior to the coming into force of the Act, it requires registration. So far as the new place for disposal of dead bodies are concerned, S.484 mandate that a licence should be obtained from the municipality. The object of the above provisions are to regulate and control the disposal of dead bodies in such a manner that it should not cause nuisance to the nearby WPC 31463/07 :17 : inhabitants. In view of S.483 of the present Act, respondents 6 to 7 should obtain registration from the municipality for the use of the above area for the disposal of the dead bodies".
21. Once it is held that the cremation ground was not functioning in compliance with statutory requirements, the application for permit made by the 6th respondent could be considered only as if it is an application in respect of a new cremation ground. Necessarily, in such a case, it is the obligation of the Corporation to ensure that the proposed cremation ground in question satisfies all requirements of the Kerala Municipalities Act, 1994 and permit could be granted only in such a situation. In this case, the Corporation has not endeavoured to make any such enquiry. I do not want to pronounce on the suitability of the site in question for granting a licence as provided under the Kerala Municipality Act, 1994 as it is entirely for the Corporation to consider the application and to take a decision. Therefore, having regard to the fact that the Corporation has not considered the application in the proper perspective, I set aside Ext. P4 building permit and direct that the Corporation shall reconsider the application dated 13.1.2004 made by the 6th respondent in the light of the statutory WPC 31463/07 :18 : prescriptions. In the nature of the controversy, I do not think it necessary to pronounce on the validity of Exts.P5 or P5(a) separately.
22. Accordingly, there will be a direction that the Corporation shall reconsider the application made by the 6th respondent on 13.1.2004, as if it is an application made in respect of a new cremation ground, assess the suitability of the land in the light of the provisions contained in the Kerala Municipality Act, 1994 and pass fresh orders.
23. It is true that the learned counsel for respondents 6 and 7 had contended that the petitioners have an alternate remedy available under the Municipalities Act. Having regard to the fact that the writ petition was entertained, pleadings have been made by all parties, and arguments were heard on merits, I do not think, it will be proper for this Court to relegate the parties to pursue alternate statutory remedy at this distance of time. This is all the more so for the reason that, no disputed factual questions arise for decision and this judgment has been rendered only on a question of law.
Writ petition is disposed of as above.
ANTONY DOMINIC, JUDGE Rp