Kerala High Court
M.R.Sasidharan vs State Of Kerala on 12 November, 2014
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 18TH DAY OF OCTOBER 2016/26TH ASWINA, 1938
WP(C).No. 2887 of 2016 (I)
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PETITIONER(S):
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1. M.R.SASIDHARAN, AGED 63,
S/O.M.O.RAMAN, MANJAPPALLIKKUNNEL,
AYARKUNNAM,PIN - 686 564
2. M.N.BALAKRISHNAN, AGED 50,
S/O.M.N.NARAYANAN, MANJAPPALLIKKUNNEL,
AYARKUNNAM, PIN - 686 564.
3. M.N.NARAYANAN, AGED 94,
S/O.NEELAKANDAN, MANJAPPALLIKKUNNEL,
AYARKUNNAM, PIN - 686 564.
BY ADVS.SRI.G.KRISHNAKUMAR
SRI.K.A.ANI JOSEPH
RESPONDENT(S):
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1. STATE OF KERALA,
REP. BY IT'S SECRETARY TO GOVERNMENT,
DEPARTMENT OF LOCAL SELF GOVERNMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM
PIN - 695 001.
2. UNDER SECRETARY TO GOVERNMENT,
DEPARTMENT OF LOCAL SELF GOVERNMENT
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM
PIN - 695 001.
3. DISTRICT COLLECTOR, COLLECTORATE,
KOTTAYAM - 686 002.
4. AYARKUNNAM GRAMA PANCHAYATH,
AYARKUNNAM P.O., KOTTAYAM - 686 564.
REP. BY ITS'S SECRETARY.
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WP(C).No. 2887 of 2016 (I)
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5. DISTRICT MEDICAL OFFICER,
DISTRICT MEDICAL OFFICE, KOTTAYAM 686 061.
6. C.J.JOSEPH, JOBU NIVAS, AYARKUNNAM,
KOTTAYAM - 686 564.
7. MATHULLA CHACKO,
KIZHAKKECHIRAYIL, AYARKUNNAM, KOTTAYAM - 686 564.
R1-R3 & R5 BY SENIOR GOVERNMENT PLEADER
SRI.SAIGY JACOB PALATTY
R4 BY ADV. SRI.RAJEEV V.KURUP
R6 & R7 BY ADVS. SRI.PHILIP J.VETTICKATTU
SRI.VINEETH KURIAKOSE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 18-10-2016, ALONG WITH WPC. 5983/2016, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
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WP(C).No. 2887 of 2016 (I)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P-1: TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS
BEFORE THE 2ND RESPONDENT
EXT.P-2: TRUE COPY OF THE REPORT DATED 12.11.2014 OF DMO,
KOTTAYAM
EXT.P-3: TRUE COPY OF THE APPLICATION DATED 24.11.2014 UNDER
RTI ACT
EXT.P-4: TRUE COPY OF THE REPLY DATED 4.12.2014 OF DMO
EXT.P-5: TRUE COPY OF RELEVANT PAGE OF THE PARTITION DEED OF
1120 ME
EXT.P-6: TRUE COPY OF THE REPORT DATED 1.11.2014 OF THE 3RD
RESPONDENT TO THE 2ND RESPONDENT
EXT.P-7: TRUE COPY OF THE APPLICATION DATED 25.10.2014 UNDER
THE RTI ACT
EXT.P-8: TRUE COPY OF THE REPLY DATED 29.10.2014 OF THE
IST RESPONDENT
EXT.P-9: TRUE COPY OF THE NEWS ITEM IN THE MALAYALA MANORAMA
DAILY DATED 9.2.2009
EXT.P-10: TRUE COPY OF THE NEWS REPORT IN THE OBITUARY COLUMN
OF THE MALAYALA MANORAMA DATED 28.7.2001
EXT.P-11: TRUE COPY OF THE NEWS ITEM PUBLISHED IN THE MALAYALA
MANORAMA DATED 27.11.2010
EXT.P-12: TRUE COPY OF THE NEWS ITEM PUBLISHED IN THE MALAYALA
MANORAMA DATED 30.12.1999
EXT.P-13: TRUE COPY OF THE ORDER DATED 7.4.2015 ISSUED BY THE
2ND RESPONDENT
EXT.P-14: TRUE COPY OF THE APPEAL DATED 2.5.2015 PREFERRED BY
THE PETITIONERS TO THE IST RESPONDENT
EXT.P-15: TRUE COPY OF THE JUDGMENT DATED 24.6.2015 IN WPC
NO.18970/2015 OF THIS HON'BLE HIGH COURT.
EXT.P-16: TRUE COPY OF THE REPORT DATED 15.10.2015 OF THE
VILLAGE OFFICER.
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WP(C).No. 2887 of 2016 (I)
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EXT.P-17: PHOTOGRAPHS SHOWING THE PETITIONERS FAMILY BURNING
GROUND
EXT.P-18: TRUE COPY OF THE ORDER DATED 28.12.2015 ISSUED BY THE
2ND RESPONDENT
EXT.P-19 PHOTOGRAPHS OF PADHA PALAKA.
EXT.P-20 TRUE COPY OF THE REPORT DTD.3.6.2016 OBTAINED UNDER
THE RTI ACT.
EXT.P-21 TRUE COPY OF THE PARTITION DEED OF 1120 ME (19944)
RESPONDENT(S)' EXHIBITS
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EXT.R6(a): TRUE COPY OF INFORMATION DTD.19.10.2015 RECEIVED UNDER
THE PROVISIONS OF RIGHT TO INFORMATION ACT.
EXT.R6(b): TRUE COPY OF PROPERTY TAX RECEIPT SHOWING REMITTANCE OF
PROPERTY TAX FOR THE YEAR 1982.
EXT.R6(c): TRUE COPY OF PROPERTY TAX RECEIPT SHOWING REMITTANCE
OF PROPERTY TAX FOR THE YEAR 1983.
EXT.R6(d): TRUE COPY OF THE COMPLAINT DTD.25.8.2014 SUBMITTED BY
THE 6TH RESPONDENT BEFORE THE DISTRICT COLLECTOR.
//TRUE COPY//
P.S.TO JUDGE
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ALEXANDER THOMAS, J.
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W.P.(C).Nos.2887/2016 & 5983/2016
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Dated this the 18th day of October, 2016
J U D G M E N T
Both these Writ Petitions are inter related. W.P.(C).No. 2887/2016 is filed by the persons, who are aggrieved by the issuance of the impugned order dated 7.4.2015 passed by the District Collector, Kottayam, by which a prohibitory order has been issued by the Collector against the use of petitioners' family property as burial ground and the said order has been passed on the basis of a complaint preferred by the 6th respondent in the Writ Petition. The 6th respondent in W.P.(C).No.2887/2016 has filed W.P.(C).No.5983/2016 wherein the main plea sought is for a writ of mandamus for enforcement and implementation of the said order dated 7.4.2015 passed by the District Collector, Kottayam, as affirmed by the appellate order passed by the State Government. W.P.(C).No.2887/2016 is taken as the leading case and the matters in relation to that will be dealt with initially. W.P.(C).No.2887/2016
2. The case projected in this Writ Petition is as follows:
That as per Ext.P-21/P-5 partition deed registered in Malayalam Era W.P.(C).2887/16& cc. - : 2 :-
1120 (viz., 1944 CE) executed by the sons of one Sri.Neelakandan Achari (who is the paternal grandfather of the 3rd petitioner and paternal great grandfather of petitioners 1 & 2), whereby 10 cents of their family property in Sy.No.158/6 to 11 of Ayarkunnam Village, Kottayam District, was set apart to be used for the cremation of the dead persons in that family. It is averred that now there are 16 families who are the descendants of the executants of the said partition deed, who claimed to be the beneficiaries in relation to the use of the said land set apart as per the partition deed for cremation use. According to the petitioners, the said property set apart in Ext.P-21 partition deed has been used exclusively as burial ground by the above said family (Manjapallikunnel family) since the year 1944 and that the ancestors of the petitioners were cremated there and that a shrine has been installed in the said property to honour the memory of those cremated ancestors and for paying obeisance to them, etc. Ext.P-19 is stated to be the photograph of the "I^F I\5" (padha palaka) and it is claimed to be the imprints of the foot of the deceased elders which are held in the shrine. The controversy arose when the contesting respondents 6 & 7 had preferred Ext.R-6(d) complaint dated 25.8.2014 before the 3rd W.P.(C).2887/16& cc. - : 3 :-
respondent District Collector, Kottayam, alleging that a dead body was cremated therein about 2 months earlier which had created nuisance and it has been accordingly prayed in the said complaint that the Collector should issue appropriate directions to prohibit the petitioners and their family from conducting any further cremation in the said land in question. It is the consistent case of the petitioners that they were never given a copy of Ext.R-6(d) complaint at any point of time before the issuance of Ext.P-13 order dated 7.4.2015 or Ext.P-18 appellate order dated 28.12.2015, etc., and that for the first time they received Ext.R-6(d) complaint only when the same was produced by the 6th respondent along with affidavit dated 9.9.2016 in I.A.No.14638/2016 in this Writ Petition. It is also to be noted at the outset that even the official respondents have admitted that a copy of Ext.R-6(d) complaint was never given to the petitioners at any time prior to the issuance of the impugned orders. When the petitioners received notice from the 3rd respondent District Collector, they had preferred Ext.P-1 objections contending that the said piece of land has been consistently used for cremation purposes of elders in their family since the year 1944 and that it is a private burning ground which was in existence long W.P.(C).2887/16& cc. - : 4 :-
prior to the enforcement of the Kerala Panchayath (Burial and Burning Grounds) Rules 1967, which came into force with effect from 12.9.1967 and that therefore it is the said private burning ground which is deemed to have been registered as per the provisions contained in Rule 4(c) of the Panchayath Rules and that it does not require any licence for its functioning and that therefore the Collector has no authority to prohibit the use of the said private burning ground, etc. Various other contentions and submissions have also been raised by the petitioners in Ext.P-1 objection.
3. It is also submitted that the respondents 6 and 7 have started residing in the locality only recently. The petitioner would also contend that as per Ext.P-8 communication dated 29.10.2014 issued by the 4th respondent Panchayath under RTI proceedings that 6th respondent started to reside in the area only since 1993-1994 and that the 7th respondent is not residing in the said locality, etc. The petitioners would also contend that the inspection of the DMO, which led to Ext.P-2 report dated 12.11.2014, was not conducted with due notice to the petitioners and that a copy of Ext.P-2 was served to the petitioners only at the time of hearing of Ext.R-6(d) proceedings. It is revealed from Ext.P-
W.P.(C).2887/16& cc. - : 5 :-
2 report that only five bodies have been cremated for the last 10 years in the above property and further that the burning ground is functioning without any licence from the Panchayath or without following the norms and is not in compliance with the 50 meters distance rule as stipulated in the Panchayath Rules. Ext.P-6 is the report dated 1.11.2014 submitted by the Panchayath before the 3rd respondent, wherein it has been clearly stated that on enquiry it has been found that the said burning ground has been functioning in the said property for the last 70 years and that it belongs to the Manjappallikunnel family and that there exists a shrine in that property. Further it is also stated therein that the burning ground has no registration with the Panchayath and that it has no licence, etc.
4. The Environmental Engineer of Kerala State Pollution Control Board has also submitted report dated 26.11.2014 [produced as Ext.P-4 in connected W.P.(C).No.5983/2016], wherein it has been stated that as no continuous cremation takes place in the said family property, it is not possible to assess the aspects regarding alleged pollution caused by the cremation and that in such cases, the complaints could be more in the nature of alleged W.P.(C).2887/16& cc. - : 6 :-
nuisance than pollution. Further it is stated that the said burning ground has been functioning without any registration or licence from the Panchayath and is not in compliance with the Panchayath Rules and that appropriate steps may be taken under the Panchayath Rules for its closure, as its functioning is likely to cause health related issues. The Tahsildar had also submitted a report dated 14.11.2014 [produced as Ext.P-3 in connected W.P.(C). No.5983/2016], wherein it has been stated that the burning ground has been functioning without registration or licence and that it could cause health hazards, etc.
5. After conclusion of the hearing in the matter, the 3rd respondent District Collector has issued the impugned Ext.P-13 order dated 7.4.2015 directing that the cremation in the petitioners' family property will stand prohibited in terms of Rule 8 of the Kerala Panchayath Raj (Burial and Burning Grounds) Rules, 1998. The petitioners allege that they were not given an effective opportunity by the 3rd respondent in putting forward their contentions and arguments at the time of hearing, etc. The main plank of the petitioners is that though the 3rd respondent has clearly taken cognizance of Ext.P-6 report dated 1.11.2014 of the Panchayath W.P.(C).2887/16& cc. - : 7 :-
that the enquiries have revealed that the said private burning ground has been in existence for the last about 70 years, since the year 1944, the District Collector has not considered the impact of the said fact finding made by the 4th respondent Panchayath and has not considered as to the entitlement of the petitioners for the benefit of deeming provisions contained in Rule 4(1) of the Panchayath Rules, etc. It is urged by the petitioners that the 3rd respondent has proceeded on the premise as if the said burning ground of the petitioners is a new burning ground which came into existence only after the coming into force of the Panchayath Rules on 12.9.1967 and therefore, has proceeded on the premise that it requires a licence to function and that therefore its functioning is illegal, etc., and that it is only on this premise that the Collector has issued the prohibitory order in terms of Ext.P-13. The petitioners have preferred a statutory appeal in terms of Rule 10 (6) of the above said rules before the 1st respondent State Government as per Ext.P-14 appeal memorandum dated 2.5.2015 to impugn the order of the 3rd respondent Collector at Ext.P-13. This Court as per Ext.P-15 judgment dated 24.6.2015 rendered in W.P.(C) No.18970/ 2015, preferred by the petitioners herein, had directed the State W.P.(C).2887/16& cc. - : 8 :-
Government to take a considered decision on the said appeal within two months and further ordered that until a decision is so taken by the Appellate Authority, the impugned proceedings at Ext.P-13 herein shall be kept in abeyance. Ext.P-16 report dated 15.10.2015 of the Village Officer concerned was made available to the Government during the Appellate consideration, in which it has been stated that the burning ground in question belongs to the Manjappillikunnel family and that on enquiry it is found that it has been used as a burning ground for the last several years and that he cannot ascertain the exact period from which its functioning has commenced, etc. The petitioners also rely on Ext.P-17 photographs of the property in respect of the burning grounds in order to show that it is 2.47 cents of land having compound walls on all sides with proper height and that the finding in Ext.P-13 order that the said burning ground is in an open space is totally incorrect and wrong, etc. In Ext.P-18, the Government has also invoked the provisions contained in Panchayath Rules 4(2), 5(1), 6(2), 10(1)(a) & (b) in order to prohibit the functioning of the burning ground in question. In Ext.P-13 the 3rd respondent District Collector has also ordered that the petitioners will be at liberty to use any of their other private W.P.(C).2887/16& cc. - : 9 :-
properties in order to cremate the dead persons as per the traditions, etc. Contesting respondents 6 and 7 have also conceded in Ext.R-6(d) complaint that the petitioners can use their other private properties for cremating the dead persons in their families, etc. However, the 1st respondent Government in Ext.P-18 order has even gone to the extent of holding that the petitioners could use their other private properties for cremation of the dead persons in the family, after getting necessary licence from the Panchayath in that regard, etc. It is, in the light of these aspects that the petitioners have filed this Writ Petition (Civil) with the following prayers:
" i. Issue a writ of certiorari or any other writ, order or direction quashing Exhibit P18 order issued by the 2nd respondent and Exhibit P13 Order issued by the 3rd respondent. ii. Issue such other appropriate writ, order or direction as this Hon'ble Court deems fit and proper in the facts and circumstances of the case."
6. The 5th respondent DMO has filed Counter Affidavit dated 18.8.2016 in the matter through the learned Government Pleader, wherein the matters in relation to Ext.P-2 report are reiterated and it is pointed out therein that the burning ground has been in use without registration or licence from the Panchayath authorities and that its functioning is liable to be prohibited, etc. W.P.(C).2887/16& cc. - : 10 :-
The learned Government Pleader has pointed out that as Exts.P-13 and P-18 proceedings are quasi-judicial orders, the 1st respondent State Government and 3rd respondent District Collector have not filed any counter affidavit so as to defend the said orders on the basis of the grounds made out in those impugned order. Though the 7th respondent has been served with notice in this Writ Petition, he has not entered appearance to defend this matter. The 6th respondent has entered appearance through counsel and has filed counter affidavit dated 28.9.2016 as well as an additional affidavit dated 8.9.2016 and another additional affidavit dated 9.9.2016. In the said counter affidavits filed by the 6th respondent it is asserted that he has been residing in the property concerned nearby to the burning ground in question since the year 1982 and that the immovable property in question was purchased by his father in the year 1957. Various details of the reports of the DMO, Panchayath, Kerala State Pollution Control Board, etc., are mentioned therein and it is pointed out that the Collector is fully justified in passing the prohibitory order as per Ext.P-13 proceedings. It is pointed out that no registration, licence or any permission has been obtained by the petitioners at any point of time W.P.(C).2887/16& cc. - : 11 :-
from the statutory authorities for use of the burning ground in question and that in view of the public health hazards, the District Collector and the State Government are fully justified to pass the impugned proceedings. It is also further submitted therein that originally the extent of the land covered by Exts.P5/P24 partition deed was about 27 cents of land and now only 1 are of land (2.47 cents) is remaining for the use as the burning ground, etc. The learned Standing Counsel appearing for the Kerala State Pollution Control Board would submit that the said authority is not a respondent in W.P.(C) No.2887/2016 and has been made as a respondent only in the connected W.P.(C) No.5983/2016 and that they would mainly rely on the report dated 26.11.2014 produced as Ext.P-4 in W.P.(C) No.5983/2016, etc. The 4th respondent Panchayath has also filed a counter affidavit in the light of Ext.P-6 report submitted by them and also pointing out that as the burning ground has been in use without any licence or permission or registration, the same may be prohibited and that the burning ground has been functioning in violation of the 50 meters distance rule prescribed in the Panchayath Rules. The petitioners have filed a reply affidavit rebutting the submissions and contentions raised in W.P.(C).2887/16& cc. - : 12 :-
the counter affidavits.
7. Heard Sri.G.Krishnakumar, learned counsel appearing for the Writ Petitioners, Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for official respondents 1 to 3 and 5, Sri.Rajeev Kurup, learned counsel appearing for the 4th respondent Ayarkunnam Grama Panchayath and Sri.Philip J. Vettickattu, learned counsel appearing for the 6th respondent. As already indicated above, none has entered appearance for the 7th respondent in spite of service of notice.
8. At the outset it may be relevant to note some of the relevant provisions of the Panchayath Raj Act and the Rules made thereunder on the above subject. Section 254(1) of the Kerala Panchayath Raj Act, 1994, stipulates that Government may, by notification in the Gazette, make rules either prospectively or retrospectively to carry out all or any purposes of the Act. Sec. 294 (2)(i) stipulates that in particular and without prejudice to generality of the forgoing power, the Government may make rules - "as to the provision of burial and burning grounds, the licensing of private burial and burning grounds, the regulation of the use of all grounds so provided or licensed; the closing of any such grounds and the prohibition of the disposal of corpses except in such grounds or W.P.(C).2887/16& cc. - : 13 :-
other permitted places."
9. Prior to the enactment of the Kerala Panchayath Raj Act, 1994, the enactment that governed the field was the Kerala Panchayats Act, 1961. The Kerala Panchayats (Burial and Burning Grounds) Rules, 1967 were framed by virtue of the enabling powers conferred under Section 129 of the Kerala Panchayats Act, 1961, and the said 1967 Rules had come into force with effect from 12.9.1967. It may also be relevant to note at this juncture that prior to the coming into force of the Kerala Panchayats Act, 1961, the law on the subject was covered by the Travancore-Cochin Panchayats Act, 1950, in areas comprised to be as specified in Travancore- Cochin. The land in question is situated in Ayarkunnam village of Kottayam Revenue district, which comes within the erstwhile Travancore area. It is common ground of the parties that no rules were framed under the provisions of the Travancore-Cochin Panchayats Act, 1950, and this aspect has also been so found in paragraph No.17 of the Division Bench ruling of this Court in Sri Venkateswara Seva Sangam Vs. Antony reported in 2015 (1) KLT 629, p.644.
10. The provisions contained in the 1967 rules and the 1998 W.P.(C).2887/16& cc. - : 14 :-
rules are broadly identical even in respect of the numbering of the various provisions in the rules. An enabling provision is made for the Panchayath to provide land to be used as burial or burning grounds or cemeteries by meeting expenditure from the Panchayath fund, with the previous sanction of the District Collector, if no sufficient provisions in that regard exist in the Panchayath area concerned. Rule 4(1) of the 1967 Rules stipulate that burial or burning grounds existing at the commencement of those rules shall be deemed to have been registered under these rules. Rule 4(2) thereto further stipulates that if any dispute arises as to whether any burial or burning ground is in existence at the commencement of those Rules, such dispute shall be referred to the Collector, whose decision thereon shall be final. Rule 4(1) of the 1998 Rules stipulates that cemeteries existing at the commencement of these rules and registered or deemed to have been registered under the Kerala Panchayat (Burial and Burning Grounds) Rules, 1967, shall be deemed to have been registered under these Rules. Rule 4(2) of the 1998 Rules is identical to that in Rule 4(2) of the 1967 Rules. Rule 5 stipulates about the distance rule and wherein it is stipulated in sub-rule (1) thereof that no new burial and burning ground shall be W.P.(C).2887/16& cc. - : 15 :-
provided within the limits of 50 meters of dwelling houses and that in the case of concrete vaults and electric crematorium, the distance shall be a minimum of 25 meters from dwelling houses, etc. Rule 6 deals with the issue of licence to new burial or burning grounds. Rule 7 deals with registration of cemeteries. Rule 8 envisages prohibition of use of grounds not registered, licenced or provided to dispose of the corpse. Rule 10 deals with prohibition of cemeteries dangerous to health or overcrowded with graves. The procedure to be followed for enforcing the prohibition as per Rule 10 is laid down in sub-rules (1), (2) and (3) etc., of Rule 10. Rule 11 envisages prohibition in respect of corpses, etc.
11. It is also relevant in this context to note some of the case laws on the subject. This Court in the ruling in Vareed Porinchukutty v. State of Kerala and Ors. reported in 1971 KLT 204 has held that practices which are regarded by the community as part of its religion are also matters of religion and that among most of the Hindus disposal of the dead is effected by cremation, but among Muslims, Jews and Christians, it is done by burial and right to bury dead bodies in a particular manner with particular rites and ceremonies in consecrated places is part and parcel of the practice W.P.(C).2887/16& cc. - : 16 :-
of certain religions. That among Christians, while rites at the time of burial consists in services expressed in words, ceremonies consist in gestures or acts preceding, accompanying or following those words and that Catholics believe in the immortality of the soul and resurrection of the body and the practice of burying dead bodies with certain rites and ceremonies is an integral part of the faith and in burying dead bodies in consecrated places, they only exercise their fundamental right under Article 25 of the Constitution of India regarding practice of religion. It may be pertinent to refer to Paragraph 22 of the said ruling reported in 1971 KLT 204, which reads as follows:
"22. Practices which are regarded by the community as part of its religion are also matters of religion. Among most of the Hindus disposal of the dead is effected by cremation but among Muslims, Jews and Christians it is done by burial. Right to bury dead bodies in a particular manner with particular rites and ceremonies in consecrated places is part and parcel of the practice of certain religions. Among Christians while rites at the time of burial consist in services expressed in words ceremonies consist in gestures or acts preceding, accompanying or following those words. Catholics, it is admitted that members of the A Party are Catholics, believe in the immortality of the soul and resurrection of the body. The practice of burying dead bodies with certain rites and ceremonies is an integral part of the Catholic faith. In burying dead bodies in consecrated places they only exercise their fundamental right regarding practice of religion."
12. The Division Bench of this Court, after referring to the case laws on the subject regarding the fundamental right under W.P.(C).2887/16& cc. - : 17 :-
Article 25 of the Constitution of India has held in the ruling in Krishnadas C. & Another v. State of Kerala & Ors. reported in 2015 KHC 5265=2015 (4) KLT SN 109 that rituals which are performed after death of a person are part of one of the Samskars as propounded and accepted by Hindu religion and its faith and belief and that by performance of last rites of a dead professing Hindu religion at the banks of river Bharatapuzha, that salvation is achieved or it is a holy burning ground, etc., are practices which can be held to be part of religion and is entitled for protection under Article 25 of the Constitution of India and that even members of the Hindu community who are residing outside the territorial limits of the Panchayath area in question have also the right to use the burning ghat for performance of the last rites of the dead, subject to any regulations that may be enforced for achievement of public health, pollution control, etc. It was held in paragraph No.26 of the said ruling that the right to bury dead bodies in accordance with one's religious rites and customs is a part of Article 25 of the Constitution of India and hence is the fundamental right and prohibiting use of the burning ghats to members of the Hindu community who are residing outside the Panchayath area in W.P.(C).2887/16& cc. - : 18 :-
question, is violative of Article 25, etc.
13. In the ruling in Kelu Nambiar v. Narayani Amma reported in 1974 KLT 483=ILR 1974 (2) Ker. 69=1974 KHC 102, a Division Bench of this Court dealt with a case where the impugned judgment in the second appeal had affirmed the findings that the plaintiff therein had acquired the right to use the property in question as a burning ground for the members of the Tarvad and that the plaint schedule property was being used as a burning ground from time immemorial. Earlier the District Court had found that the plaint schedule property was being used as a burning ground from time immemorial and that the property must be deemed to have been registered as a burial and burning ground existing from the commencement of the Kerala Panchayats (Burial and Burning Grounds) Rules, 1967. However, in the second appeal this Court found that Rule 4 of the above said Panchayath Rules, 1967, will not be applicable to the plaint burial or burning ground and that it would be necessary for the user of the ground for burial or burning to apply for licence under Rule 6 of the Rules or get special permission under the second proviso to Rule 8 as is then in existence. The basis of the said decision was that the words "burial W.P.(C).2887/16& cc. - : 19 :-
or burning grounds" occurring in Rule (4)(i) of 1967 Rules are applicable only to public burial or burning grounds and that it will not be applicable to private burial or burning grounds. The said decision of a learned Single Judge of this Court in the second appeal was impugned in appeal under Sec. 5 of the Kerala High Court Act on the basis of the certificate issued by the learned Single Judge who disposed of the second appeal. The ruling in Kelu Nambiar v. Narayani Amma reported in 1974 KLT 483 is the one rendered by the Division Bench in the said appeal under Sec. 5 of the Kerala High Court Act. Rule 4 of the 1967 Rules provided as follows:
"Rule 4. Existing burial and burning grounds to be deemed registered: commencement ofburial rules shall be deemed to have been registered (1) The or burning grounds existing at the these under these rules.
(2) If any disputes arises as to whether a burial or burning ground is in existence at the commencement of these rules, such dispute shall be referred to the Collector, whose decision thereon shall be final.
(3) If it appears to the Panchayat that there is no owner or person having the control of any existing burial or burning ground the Panchayat shall assume such control and register such place, or with the permission of the Collector, close it."
The Division Bench in Kelu Nambiar's case (supra) observed that if "burial or burning grounds" as found in the expression covered by Rule 4(1) can take within its ambit, not only public burial or burning grounds but also private burial or burning grounds, then the burial or burning grounds scheduled to the plaint schedule property must W.P.(C).2887/16& cc. - : 20 :-
by virtue of Rule 4(1) be deemed to have been registered under the Rules. In order to examine this aspect, the Division Bench found that sub-rule (3) of Rule 4 gives an indication that burial or burning grounds referred to in sub-rule (1) thereof need not necessarily be public burial or burning grounds alone for it refers to an owner, or a person having any control of any existing burial or burning grounds. Further when the Rules contemplate licencing of private burial and burning grounds by the Collector as they do of permission being granted by the Collector to the Panchayats for establishing burial or burning grounds. Therefore, it was held that it is difficult to limit the ambit of Rule 4 as applicable only to one class of burial and burning grounds so as to exclude private burial and burning grounds and the Division Bench opined that whatever for denying the benefit of the deeming provision in Rule 4 to private burial and burning grounds, that had been in existence at the commencement of the Rules. Their Lordships also referred to Rule 10 of the 1967 Rules which dealt with "closure of burial or burning grounds" which uses the expression that "any burial ground except private burial ground", and it was held that this clearly gives an indication that burial ground covered by the Rules will take in not only public burial W.P.(C).2887/16& cc. - : 21 :-
ground but also private burial ground as well. It was held that the nature of the use and the purposes of both public burial/burning grounds and private burial/burning grounds are essentially the same and there ought to be no classification merely on the basis of ownership or limited use to which the ground is put in the case of private burial or burning grounds. Accordingly, the Division Bench overruled the view taken by the learned Single Judge and held that the benefit of deeming provisions envisaged in Rule 4(1), of the 1967 Rules will apply not only to public burial/burning grounds but also to private burial/burning grounds.
14. In the ruling of the Division Bench in the case Madhu Vs. Kuttan reported in 1993(2) KLT 1067=1993(2) KLJ 1011= AIR 1994 Ker.320=1993 KHC 475, this Court dealt with the scope and ambit of the words "burial ground" as found in Rule 6(2) of the Abkari Shops (Disposal in Auction) Rules, 1974. Rule 6(2)(b) of the Abkari Shops (Disposal in Auction) Rules, 1974 (framed under the enabling provisions of the Abkari Act) stipulated that no foreign liquor (I) shops shall be located in or removed to, a place within 200 meters from an educational institution, temple, church, mosque or burial ground. It was contended that the prohibition as per the said Rule W.P.(C).2887/16& cc. - : 22 :-
is only prohibition against location which is relatable only as to an educational institution, temple, church, mosque or burial ground and that the said prohibition is inapplicable in the case of a burning ground. Their Lordships of the Division Bench in Madhu's case (supra) held that the above said Rule 6(2) uses the words "burial ground" in a broad manner and is used with common parlance and including not merely burial grounds used by Christians and Muslims, but also place where Hindus cremate the dead bodies of the members of their communities. That though it is true that the Christian buries the dead bodies adjacent to the Churches, Muslims adjacent to the mosques, and in a strict sense "burial ground" will be a ground where dead bodies are buried. But it is true that so far as Hindus are concerned, generally, the dead are consigned to the flames and may be customs in certain local areas require the dead bodies are to be intered, etc. But that in the context of Rule 6(2), the words "burial grounds", in view of the Division Bench, have been used by the rule making authority in a larger sense so as to cover not only cases of burial of dead bodies of Christians and Muslims, but also of the Hindus, though in the case of Hindus, a majority, especially elders are cremated and only children are buried. Thus, it W.P.(C).2887/16& cc. - : 23 :-
was held that the rule making authority did not intend to restrict the word "burial ground" in Rule 6(2) of the above said Rules in the case of dead from among Christian and Muslim communities alone and the words "burial grounds" were intended to cover cases of cremation as well as burials of dead bodies from Hindu community as well.
15. This Court in the case Komalavally Amma Vs. President, Kerala Brahmana Sabha reported in 1987 (2) KLT SN 50 (Case No.72), after considering the provisions relating to the duty of the local authority to maintain a register regarding burning grounds held that looking at the statutory scheme as a whole, the legislative object is that at any given point of time, the Municipal authorities can find out, with reference to its records, the details of the places used within its limits, for disposal of dead bodies, so that appropriate instructions can be given or steps taken for putting an end to nuisance, if there be, and for preserving the health and welfare of people living nearby. More crucially it was held therein that the requirement of registration is not so much to prohibit or prevent the disposal of dead bodies in its absence, as to regulate the control of the place used for the purpose and the circumstance that the local authority had failed in the performance of its duties under the W.P.(C).2887/16& cc. - : 24 :-
statutory provision is maintaining a register or that it has not been strictly enforcing the said provisions, will not be a reason enough for this Court to interfere under Article 226 of the Constitution of India and declare that until the local authority/Municipality performs such functions, the community represented by the respondent party therein shall not have any place for disposal of the dead bodies within the Municipality and that the provisions of the statutes are designed to serve some purpose and not to create impossible situations for a section of the people living within its limits. In the ruling of Worter Kharmalki & Ors. v. State of Meghalaya & Ors. reported in 2010 KHC 6515, the Gauhati High Court has held that the religious freedom enshrined in Articles 25 and 26 of the Constitution of India would extend even to rites and ceremonies associated with religions and members of certain denomination, which had existing right to cremate dead bodies of their near and dead ones on the plot alloted to them, can challenge it as ultravires the constitutional right as denial of such right and dispossessing them from the cremation ground amounts to abridgment of fundamental right of freedom and that the freedom of religion guaranteed to them and the religious community must be protected and enforced by writ Court W.P.(C).2887/16& cc. - : 25 :-
by issuing suitable directions to the State authorities concerned etc.
16. In PT.Parmandand Katara, Advocate v. Union of India & Anr. reported in (1995) 3 SCC 248, the Apex Court dealt with a contention, wherein it was urged that the method of execution of death sentence by hanging under Punjab Jail Manual is inhuman and violative of Art.21 of the Constitution and further that the requirement in the Manual that the body of the hanged convict, after it falls from the scaffolds is required to be suspended for a period of half an hour, is also violative of Art.21 inasmuch as even a dead person has a right to dignity and fair treatment in respect of his dead body, etc. The Apex Court therein upheld the said contention of the petitioner therein and held that the right to dignity and fair treatment under Art.21 of the Constitution is not only available to a living man but also to his body after his death and ordered that the jail authorities shall not keep the body of any condemned prisoner after the medical officer has declared the person to be dead, etc.
17. The Madras High in the case S.Sethu Raja v. Chief Secretary, Govt. of Tamil Nadu & Ors. reported in (2007) 5 MLJ 404, has held in para 18 that by our tradition and culture, the same W.P.(C).2887/16& cc. - : 26 :-
human dignity (if not more) with which a living human being is expected to be treated, should also be extended to a person, who is dead and the right to accord a decent burial or cremation to the dead body of a person, should be taken to be a part of the right to such human dignity.
18. The Madras High Court in the judgment dated 7.8.2002 in Criminal Appeal Nos.618/1995 and 620/1995, in the case Marimuthu v. State has held, after placing reliance on the aforequoted PT.Parmandand Katara's case, that right to dignity and fair treatment, which is guaranteed under Art.21 of the Constitution is, not only available to a living person but also to his body after his death and that every human being is entitled for decent disposal of his body after his death in accordance with the culture and tradition and that inordinate delay in sending the dead body for autopsy, when required, would be in violation of the right to dignity guaranteed under Art.21 of the Constitution of India.
19. It would now be appropriate to deal with the various contentions urged in this matter. The sheet anchor of the petitioners' case is that, as evident by Ext.P-21/Ext.P-5 Settlement Deed/Partition Deed executed in the year 1944 and Ext.P-6 report W.P.(C).2887/16& cc. - : 27 :-
dated 1.11.2014 of the Panchayath, it has come out that the burning ground covered by Ext.P-21/Ext.P-5 has been in existence for the last more than 70 years and therefore it was very much in existence as on 12.9.1967 (date of coming into force of the 1967 Panchayath Rules) and so the said burning ground shall be deemed to have been registered both under the 1967 Rules as well as under
the 1998 Rules. On this basis, it is further contended that since that is the uncontroverted factual aspect of the matter, the distance rule prescribed in Rule 5(1) which is applicable only to new burial or burning grounds or the licence requirement as per Rule 6 which is meant only for new burial or burning ground, etc., will not be applicable or invokable as against the said burning ground of the petitioners' family and therefore, the prohibition envisaged either in the operative portion of Rule 8 or Rule 10 cannot be invoked in such a case. That though the 3rd respondent District Collector and 1st respondent State Government have taken cognizance of Ext.P-6 Panchayath report, both the said authorities have not, in any manner, disbelieved or demolished the said fact finding report and even in spite of this, both the said authorities have ignored this crucial and relevant aspect of the matter and has proceeded as if the W.P.(C).2887/16& cc. - : 28 :-
burning ground in question requires registration and licence and it is on this legally untenable premise that the impugned prohibition order has been passed by the 3rd respondent District Collector and 1st respondent State Government, etc. This contention of the petitioners will be dealt with at a subsequent stage, as the 6th respondent has a specific case that the land in question covered by Ext.P-21/Ext.P-5 is one that is covered only by the proviso to Rule 8 of the 1998 Rules and 1967 Rules, and that therefore the question as to whether the said land is entitled to the benefit of the deeming provision as envisaged in Rule 4(1) is irrelevant. In this regard, it is further contended that if such a land, which is covered by the proviso to Rule 8, has been used for burning purposes even before the coming into force of the 1967 Rules, the beneficiaries of the said land cannot claim any special benefit flowing out of the fact as to whether or not that they were in existence prior to the coming into force of the 1967 Rules, etc. It is further contended by the 6th respondent that what is contemplated in Rule 4 or Rule 10 are in relation to public/private burial/burning ground whereas the scenario covered by the proviso to Rule 8 is in respect of a land where corpses are buried, burned or otherwise disposed under W.P.(C).2887/16& cc. - : 29 :-
customary rite in a private ground, so long as it is without being injurious to public health. In this regard, it is further contended by the learned counsel for the 6th respondent that though such a scenario covered by the proviso to Rule 8 may not come within the ambit of Rule 10, so long as, if it can be established that the use of the said land results in injury to public health, the sole statutory who is to interfere with in such a situation, so as to abate such injury to public health will be the very same authorities who are envisaged in Rule 10 and that even in such a situation it is covered by the proviso to Rule 8, so long as the use of the land for burial/burning/disposal of dead bodies under customary rite results in injury to public health, the authorities envisaged in Rule 10 like the District Collector and the State Government (who is the appellate authority), will have necessary powers and that in such a scenario the procedure contemplated for the invocation of the power under Rule 10 in respect of burial grounds/burning grounds would mutatis-mutandis apply in the case of a scenario covered by the proviso to Rule 8, wherein it results in injury to public health etc. In view of this contention, the learned counsel for the 6th respondent endeavours to establish before this Court that the fact as to whether W.P.(C).2887/16& cc. - : 30 :-
petitioners' land in question covered by Ext.P-21 has been used as a burning ground even long prior to coming into force of 1967 Rules is totally immaterial as the said land covered by Ext.P-21/Ext.P-5 is a private land wherein even as per the case put forward by the petitioners, has been used for burning of dead bodies as per the customary rites of the petitioners' community and such a scenario would be fully covered by the proviso to Rule 8. In this regard, it is further contended by the 6th respondent that this aspect has also been acknowledged by the District Collector in so far as he has clearly recited in Ext.P-13 that the order of prohibition has been passed by virtue of the enabling provisions covered under Rule 8. Therefore, in the fitness of things, this Court finds it appropriate that the said contention advanced by the 6th respondent should be decided as the first point.
20. As regards the above referred point, it may be relevant to note the provisions contained in Rule 8 of the 1967 Rules and 1998 Rules. Rule 8 of the 1967 Rules along with two provisos reads as follows:
"Rule:8 Prohibition of burial or burning in unauthorised places:- No person shall bury, burn or otherwise dispose of any corpse except in a place which has been registered, under rule 7:
Provided that this rule shall not apply to the customary burial W.P.(C).2887/16& cc. - : 31 :-
of dead bodies of priests and other religious heads in the premises of religious institutions, prevalent among the different religions.
Provided further that it shall be lawful for the executive authority to permit any burial or burning in private grounds in individual cases in which he is satisfied that such burial or burning is not detrimental to human health or sanitation."
[The 1st proviso to Rule 8 of the 1967 Rules (which came ino force on 12.9.1967) has been incorporated by virtue of an amendment made effective from 14.4.1970]. Rule 8 of the 1998 Rules reads as follows:
"Rule:8 Prohibition of use of ground not registered, licenced or provided to dispose of the corpse:- No person shall bury, burn or otherwise dispose of any corpse other than in any ground, which has been registered or has been deemed to be registered or for which licence has been given or provided under these rules:
burnedProvided that in each particular case, any corpse can be buried, or otherwise disposed or under customary rite in private ground without being injurious to public health."
21. A perusal of the provisions in the above Rules would clearly indicate that the first proviso to Rule 8 of the 1967 Rules is on a very narrow band width compared to the provisions contained in the proviso to 1998 Rules. The first proviso to Rule 8 of the 1967 Rules make an exception only in the case of customary burial of the dead bodies of priests and other religious heads in the premises of religious institutions, provided among the said religions. True that the second proviso thereto confers a discretion on the executive authority concerned to permit any burial/burning in private grounds W.P.(C).2887/16& cc. - : 32 :-
in individual cases, in which he is satisfied the said burial/burning is not hazardous to human health or sanitation, etc. This case is now only concerned with the proviso to Rule 8 of the 1998 Rules. Having regard to the slightly wider phraseology employed in the proviso to Rule 8, this Court had called for the original of the gazette publication in that regard and it is seen that the aforequoted provisions in the 1998 Rules as published in a private publication is actually only the translation in English of the said 1998 Rules initially promulgated by the State Government. The original text of the 1998 Rules had been, as promulgated by the State Government has been in Malayalam language as published in Kerala Gazette Extra ordinary, Vol. No.XLIII, No.1054, in Gazette dated 30.06.1998. The original text of the Rules in Malayalam language has been published in the gazette on 30.06.1998. The learned Senior Government Pleader has made available a copy of the said gazette publication dated 30.06.1998 for the perusal of this Court and the said original Rules stipulated as per Rule 1(2) thereof that it shall come into force thus, on 30-06-1998 and it is only its English translated version that was published belatedly in the Gazette dated 18-12-2001. Rule 8 as contained in the original Malayalam text of the W.P.(C).2887/16& cc. - : 33 :-
1998 Rules reads as follows:
"x<_XmxV f:OqgD^, h\XXXm HW5_OgD^ /VfM?aJ_OgD^ %\o^J XmE\BZ VU" h5fO^]_AaKD_Hm )IgO^7_AaKDm H_gx^G_AW:_ ( :GBZ dI5^x" x<_XmxV f:OqgD^ x<_XmxV f:OqDD^O_ 5xaDfM?aKgD^, h\XXXm HW5_OgD^, /VfM?aJ_OgD^ &O XmE\J_\\o^fD O^fD^x^{a" O^fD^xa VUUa" NyUa f:Ona5gO^ FY_M_Aa5gO^ NxaU_GJ_W h5fO^]_Aa5gO^ f:On^X I^?_\o^JD^5aKa. .K^W 3gx^gx^ dIgDc5 X"7D_5{a" Xb5^xcXmE\Jm fI^Da<H^gx^7cJ_Hm Y^H_5xN^5^J U_G", /fDC_\a" VU" &:^xdI5^x" NyUaf:Ona5gO^ FY_M_Aa5gO^ NxaU_GJ_W h5fO^]_Aa5gO^ f:On^UaKD^Cm"
Therefore, it is clear from the perusal of the original text of the Rules as published in Malayalam language that the phraseology employed in the English version in respect of the proviso to Rule 8 does not reflect the correct Rule as framed by the rule making authority. In the English version of the proviso to Rule 8, it is stated that "provided that in each particular case, any corpse can be buried, burned or otherwise disposed or under customary rite in private ground without being injurious to public health." This gives an impression as if what has been brought within the scope and ambit of the proviso is not only burial/burning/disposal of dead bodies under customary rite but that the proviso take within its ambit any burial or burning or disposal of corpses in private grounds so long as it is without being injurious to public health, etc. Whereas the original text of the proviso to the Rules as published in W.P.(C).2887/16& cc. - : 34 :-
Malayalam Language clearly and unambigously provides as follows:
"Provided that in each particular case, any corpse can be buried, burned or otherwise disposed under customary rites in private grounds without being injurious to public health", and so the word "or " appearing between the words "disposed" and "under customary rite" has been wrongly added in the English translation of the original Rules. Therefore, what is covered in the proviso to Rule 8 of the 1998 Rules is that in each particular case, any corpse can be buried, burned or otherwise disposed under customary rites in private grounds without being injurious to public health.
22. The operative portion of Rule 8 mandates that no person shall bury, burn or otherwise dispose of any corpse other than in any ground, which has been registered or has been deemed to be registered or for which licence has been given or provided under the above rules. But as indicated above, the proviso thereto stipulates that in each particular case, any corpse can be buried, burned or otherwise disposed under customary rites in private ground without being injurious to public health. Therefore, the burial or burning or disposal of corpses under customary rites in each case in private ground so long as it is without being injurious public health, has W.P.(C).2887/16& cc. - : 35 :-
been totally taken out of the ambit of the prohibition imposed by the operative portion of Rule 8. But for the engraftment of the proviso, one could have entertained the notion that even the burial or burning or disposal of corpses under customary rites in private ground, is also prohibited by the scope and ambit of the operative portion of Rule 8. Earlier as per the 1967 Rules, the first proviso to Rule 8 only made an exception in the case of customary burial of dead bodies of priests and other religious heads in the premises of religious institutions, prevalent among the different religions. (The second proviso thereto, which confers the discretion to the Executive Authority in general cases, is not very pertinent in the present context). The said first proviso to Rule 8 of 1967 Rules has been widened with the engraftment of the proviso to Rule 8 of the 1998 Rules. Even if one were to contend that even burial or burning or disposal of corpses under customary rites in private ground would come within the broad ambit and sweep of the prohibition envisaged in Rule 8, the enactment of the proviso will throw light beyond any shadow of doubt that burial or burning or disposal of any corpse under customary rite in each particular case in private ground so long as it is without being injurious to public health, is W.P.(C).2887/16& cc. - : 36 :-
totally outside the sweep and ambit of the prohibition imposed by the operative portion of Rule 8 of the 1998 Rules and so it is outside the purview of the prohibition envisaged in Rule 8. The matter can be examined from another angle also. The provisions of the Rules, more particularly, Rule 4 thereof, deal with public/private burial/ burning ground. A burial/burning ground can only be a piece of land, which is predominantly or exclusively used for the purpose burning/ burying of corpses. As already held by a Division Bench of this Court in the ruling in Kelu Nambiar v. Narayani Amma reported in 1974 KLT 483, Rule 4 of the abovesaid Panchayat Rules, would apply, not only to public burial/burning grounds but also to private burial/burning ground. A piece of land covered by a private property, which is also used for burning of corpses at the time of death of a member of a Hindu family, which is following the customary and religious rites of burning and cremation of dead bodies, cannot be said to be a private burial/burning ground, as the said piece of land cannot be said to be used exclusively or predominantly for the purpose of burning or burial of corpses on the mere fact that the said property is also used for performing the customary and religious rites of a Hindu for cremation of his dead W.P.(C).2887/16& cc. - : 37 :-
body as per the traditions of the community to which the deceased belongs.
23. As already noted herein above, the Division Bench of this Court in the case Madhu v. Kuttan reported in 1993 (2) KLT 1067, has taken cognizance of the prevalent customary and religious rites among the Christians, Muslims and Hindus, by noting that ordinarily Christians bury their dead adjacent to the church and Muslims, adjacent to the mosque and that insofar as the Hindus are concerned, generally, the dead are consigned to the flames, though customs in certain local areas may require that the dead bodies of certain sub communities of Hindu are to be intered or buried and in the case of Hindu children of tender age, they are also buried. The Division Bench of this Court in the earlier referred ruling in Krishna Das.C. & Anr. v. State of Kerala & Ors. reported in 2015 KHC 5265, while dealing with the aspects relating to rituals, which are performed after the death of a person, has also held in para 26 thereof that a community can claim right regarding performance of last rites of dead in accordance with the faith and belief. It is a well established prevalent practice among most of the members of the Hindu community that they follow the customary and religious rites W.P.(C).2887/16& cc. - : 38 :-
of cremation of the dead body and many such cremations in villages take place within the private property of the family of the deceased. Merely because a portion of the said property is at times used for the purpose of cremation of a dead person of the family at the time of death of the person concerned, will not make that piece of land a private burial or burning ground, as the predominant and exclusive use of the said property is not for cremating or burning of the dead, but it is only for the purpose enjoying the private proprietory rights attached to the said property. Without going into the correctness and tenability of the submission of the 6th respondent that the land covered by Ext.P-21 is not a private burning ground as envisaged in Rule 4(1), but it is only a land as envisaged in the proviso to Rule 8, it is to be examined as to whether the statutory authorities envisaged in Rule 10 of the Rules will have any jurisdiction to prohibit the use of such a land covered by the proviso to Rule 8. Though the plenary powers conferred under Sec.254 of the Kerala Panchayat Raj Act, 1994, is on quite wide terms, the said provisions in the plenary law, do not contain any specific provisions as in the Rules and the matters are fully covered by the provisions of the 1998 Rules. The Rules are very specific and precise and in a case of W.P.(C).2887/16& cc. - : 39 :-
dispute arising under Rule 4(2), jurisdiction is conferred on the District Collector to decide whether the burning/burial ground has been in existence prior to the cut-off date in question and in which case such decision of the District Collector has been statutorily envisaged as final, etc. So also, powers are conferred on the District Collector as the original authority and on the State Government as the appellate authority in the situations covered by Rule 10 of the abovesaid Rules. Both Rule 4 as well as Rule 10 cover the situations of public/private burial/burning grounds. Though the phraseology employed in the operative portion of Rule 8 is quite wide, the subordinate legislation making authority has consciously and deliberately engrafted a proviso thereto, whereby the scenario covered by the proviso to Rule 8 has been fully taken out of the purview of Rule 8. Therefore, the statutory authorities like the District Collector will get jurisdiction only in the case of the dispute under Rule 4(2) or in relation to scenario covered by Rule 10 and the scenario in respect of the areas in the Municipalities and Municipal Corporations is not the subject matter of this case. The powers conferred on the various authorities, like Panchayat, D.M.O., District Collector , etc. as per Rule 10 are invocable only in respect of burial W.P.(C).2887/16& cc. - : 40 :-
or burning grounds, be it private or public. As the situation covered by the proviso to Rule 8 is not in respect of a burial or burning ground as envisaged in Rule 4 or Rule 10 etc., the District Collector will not have any jurisdiction to interfere in the matter even if there are complaints relating to nuisance or injury to public health, etc. It could be that the District Magistrate may have some limited jurisdiction to interfere in the matter in such a scenario, by virtue of the enabling powers conferred under Sec.144 of the Code of Criminal Procedure, but that is a different aspect altogether and this case is not concerned with the invocation of that power, even though the District Collector may be the notified District Magistrate of the area concerned. Therefore, in such a scenario, the only remedy in such a situation, where one has a complaint that there is injury to public health arising out of the use of a private land for burning of corpses as per the customary and religious rites of the members of the deceased' family, will be only the competent civil courts and not the statutory authorities as per the rules, like the District Collector, etc. Therefore, this Court has no hesitation to hold that even if the 6th respondent's case that the land covered by Ext.P-21 is only to be construed as a land as envisaged in the W.P.(C).2887/16& cc. - : 41 :-
proviso to Rule 8 is accepted, still it is only to be held that the District Collector will not have any jurisdiction in such a scenario and it is for the aggrieved person to work out his remedies either before the civil court or by taking recourse to other appropriate proceedings as the one envisaged in Sec.144 of the Code of Criminal Procedure. Therefore, in view of the specific contention of the 6th respondent that the situation is one covered by proviso to Rule 8, it is only to be held by this Court that the District Collector did not have any jurisdiction to interfere in the matter by issuing the impugned Ext.P-13 proceedings and on this ground alone, the impugned proceedings are liable to be interfered with. Correspondingly, it is only to be held that the impugned appellate order as per Ext.P-18 would also suffer from the same vice. That apart, it is to be noted that the specific contention urged by the 6th respondent is also that even in respect of a scenario covered by proviso to Rule 8, the power and procedure invocable by the statutory authorities concerned is the one that flows from Rule 10. In view of the reasons to be given hereinafter, this Court has no hesitation to hold that the procedure prescribed in Rule 10 has been fully and blatantly violated by the District Collector in the issuance W.P.(C).2887/16& cc. - : 42 :-
of the impugned Ext.P-13 proceedings. Rule 10 envisages that the primary authority in the matter, which is vested with the power to take action in the matter as per Rule 10(1), is the Panchayat of the area concerned, who should be fully satisfied with the jurisdictional facts stipulated in either Clauses (a) or (b) of Rule 10(1). It is thereafter that the decision of the Panchayat as referred to in Rule 10(1) should be forwarded to the DMO of the area concerned as per Rule 10(2), who has to conduct the inquiry in the matter and submit the decision of the Panchayat to the District Collector with his specific recommendations. It is only thereafter that the role of the District Collector arises as per Rule 10(3), who is obliged with the responsibility to consider the decision of the Panchayat and the recommendations of the DMO and, if he is fully satisfied about the jurisdictional facts stipulated therein and then to issue necessary orders in the matter. In the instant case, the 6th respondent has directly filed complaint as per Ext.R-6(d) before the 3rd respondent District Collector, who has ignited and initiated the entire proceedings as if he is the primary authority in the matter and the primary authority concerned (Panchayat) has only been called in to give a fact finding report. The clear and unambiguous finding in W.P.(C).2887/16& cc. - : 43 :-
Ext.P-6 report of the Panchayat that the land in question has been consistently used as a burning ground for the last 70 years by the petitioner's Manjappallikunnel family for cremation of their dead persons as per the customary rites, etc. has been totally overlooked by the District Collector in the process. Suffice to say that even going by the contention of the 6th respondent, it is only to be held that the impugned decision of the District Collector as per Ext.P-13 is vitiated by illegality and impropriety as it is in blatant violation of the procedure prescribed in Rule 10 of the Rules.
24. The second point to be decided in this case is as to the contention of the petitioners that the land covered by Ext.P-21/P-5 has been used as a burning ground for the purpose of the petitioner's Manjappallikunnel family for the last more than 70 years as per Ext.P-6 report. In this regard, it is to be noted that Panchayat has clearly and unambiguously stated in Ext.P-6 report dated 1.11.2014 that the inquiries have revealed that the land in question has been consistently used as a burning ground by the members of the Manjappallikunnel family since the last 70 years, in accordance with their customary religious rites, etc. Though the said Ext.P-6 report of the Panchayat has been specifically taken W.P.(C).2887/16& cc. - : 44 :-
cognizance of by the 3rd respondent District Collector in para No.6 of Ext.P-13 proceedings, the District Collector has not proceeded to consider the impact of the said report given by the Panchayat vis-a- vis Rule 4(2) of the 1998 Rules. The District Collector has not chosen to disbelieve or demolish the said aspect found by the Panchayat in any manner and no materials were also even otherwise available before the District Collector for impeaching the said findings of the Panchayat regarding the existence of the burning ground for the last 70 years, etc. At the same time, the 3rd respondent has proceeded as if the land in question requires licence and permission for being used as a burial ground and that the distance rule would apply even in respect of the said land, etc. It is on this premise that the 3rd respondent has chosen to issue the impugned prohibitory order as per Ext.P-13.
25. There is yet another very interesting aspect of the matter. The 6th respondent has no case either in Ext.R-6(d) complaint or in any subsequent versions given by him before the District Collector and before the State Government that the land covered by Ext.P-21/Ext.P-5 has never been used as a burning ground at any point of time prior to the coming into force of the W.P.(C).2887/16& cc. - : 45 :-
1967 Rules. Even in the counter affidavit filed by the 6th respondent in this case as well as in the additional affidavits, the 6th respondent does not assert anywhere that Ext.P-21 land has never been used as a burning ground at any point of time before the coming into force of the 1967 Rules. There has been only a vague averment in one of the additional affidavits that Ext.R-6(a) would reveal that the main source of information with the Panchayat regarding the existence of the burning ground prior to 1967 is the one conveyed by the Viswakarma Sabha of the locality concerned, etc. Even in the said affidavit the petitioners have not asserted or raised any specific plea that the land in question has never been used as a burning ground by the Manjappallikunnel family at any point of time before the coming into force of the 1967 Rules. Equally it is to be noted that neither the 3rd respondent District Collector nor the 1st respondent State Government have a case in Exts.P-13 and P-18 that the land in question has never been used by the petitioners' Manjappallikunnel family at any point of time prior to the coming into force of the 1967 Rules. When this is the uncontroverted factual position in the matter, all that the 3rd respondent District Collector could have done was to act upon the said report of the W.P.(C).2887/16& cc. - : 46 :-
Panchayat as per Ext.P-6 regarding the existence of the burning ground prior to 1967 Rules. When that is the position, then the mandate of Rule 4 of the 1967 Rules, as reiterated in Rule 4 of 1998 Rules, would give the benefit of the deeming provision engrafted therein, whereby it has been mandated therein that burning or burial grounds which have been in existence prior to coming into force of the 1967 Rules shall be deemed to have been registered under the 1967 Rules as well as the 1998 Rules. It would be pertinent to refer to the provisions contained in Rule 4 of 1967 Rules and the 1998 Rules. Rule 4 of the 1967 Rules reads as follows:
"Rule 4. Existing burial and burning grounds to be deemed registered:- (1) commencement ofThe burial or burning grounds existing at the these rules shall be deemed to have been registered under these rules.
ground[2] in existence at the commencement of these rules, such If any dispute arises as to whether a burial or burning is dispute shall be referred to the Collector, whose decision thereon shall be final.
[3] If it appears to the Panchayat that there is no owner or person having the control of any existing burial or burning ground the Panchayat shall assume such control and register such place, or with the permission of the Collector, close it." Rule 4 as it appears in the English translation of the 1998 Rules, reads as follows:
"Rule 4: Certain cemeteries to be deemed registered and to undertake and register or close ownerless cemeteries.- (1) The W.P.(C).2887/16& cc. - : 47 :-
cemeteries existing at the Commencement of these rules and registered or deemed to have been registered under the Kerala Panchayat (Burial and Burning grounds) Rules, 1967 shall be deemed to have been registered under these rules.
(2) If any dispute arises as to whether a cemetery is in existence at the commencement of these rules and deemed to have been registered under the Kerala Panchayat (Burial and Burning grounds) Rules, 1967, the same shall be subject to the decision of the concerned District Collector and the decision thereon shall be final.
(3) Where it appears to the Panchayat that there is no owner or person having control of any existing place used for burial, burning or otherwise disposing of the dead, the Panchayat shall assume such control and register such place, or may, with the sanction of the District Collector, close down it."
Herein there appears to be some problem with the English translated version of Rule 4 of the 1998 Rules. Though Rule 4 of the 1967 Rules employ the words, "existing burial and burning grounds", the corresponding terminology used in the English translation of Rule 4 of the 1998 Rules is "cemeteries" and not "burning and burial grounds". This would lead to a possible argument that the benefit of the deeming provision envisaged in the 1998 Rules is only in respect of cemeteries and not in respect of burning grounds, even though the benefit of the deeming provision envisaged in 1967 Rules would be in relation to both burning as well as burial grounds. In order to ensure an accurate assessment of the matter, the learned Government Pleader has made available the full text of the original version of the Rule as it was promulgated in Malayalam language as W.P.(C).2887/16& cc. - : 48 :-
referred to hereinabove. Rule 4 as it appears in the original Malayalam text of the Rules, as published in the gazette dated 30.6.1998, reads as follows;
"4. :_\ VmNV^HBZ x<_XmxV f:OnfMGD^O_ 5xaDCfNKa", )?NXmEH_\o^J VmNV^HBZ /fx?aJm x<_XmxV f:Ona5gO^ %?:na 5 {Oa5gO^ f:On\a" (1) ( :GB{af? dI^x"MJ_W H_\U_\aUDa"
1967_f\ g5x{ IF^OJm (VU" NyUa f:On^Ha" FY_M_A^HaNaU XmE\BZ) :GBZ dI^5^x" x<_XmxV f:ODgD^ x<_XmxV f:OnfMGD^O_ 5xaDaKgD^ &ODaN^O VmNV^HBZ ( :GBZ dI5^x" x<_XmxV f:OqD^O_ 5xagDID^Cm.
(2) /fDC_\a" 2xa VmNV^H" ( :GB{af? dI^x"MJ_W H_\U_\aI^O_xaKDa" 1967_f\ g5x{ IF^OJm (VU" NyUa f:On^Ha"
FY_M_A^HaNaU XmE\BZ) :GBZ dI5^x" x<_XmxV f:OnfMGD^O_ 5xaDaKDa" &gC^ %\ogO^ .KD_fHAay_:nm DVABZ )I^5aKIf" &ODm LtfMG <_\o^ 5{5m?yaf? D`VM_Hm U_gGON^O_x_AaKDa" %Dm %L_NN^O_x_AaKDaN^Cm.
(3) VU" NyUa f:Ona5gO^, FY_M_Aa5gO^ NxaU_GJ_W h5fO^]_Oa5gO^ f:OnaKD_Hm H_\U_\aU /fDC_\a" XmE\J_Hm )?NXmEgH^ H_OdLC^G_5^xNaU &g{^ 'f\oKm IF^OJ_Hm gD^KaK_?Jm %BfHOaU XmE\J_fa H_OdLC" %Dm /fx?aAa5Oa" XmE\" x<_XmxV f:Ona5gO^, %f\oC_W <_\o^ 5 {5m?yaf? %HaU^FgJ^?a5b?_ %Dm %?:na5{Oa5gO^ f:On^UaKD^Cm."
In Rule 4 of the Malayalam version, the subordinate legislation framing authority has consciously used the word, "VmNV^HBZ" . The Malayalam words, "VmNV^H"" and "VmNV^HU^X_" have been conveyed the following meanings in Sabdatharavali (Malayalam Nigandhu) (Sabdhatharavali, Malayalam dictionary) published, 40th Edition, January 2015, (published by SPCS-Shahithya Pravarthaka Saharakara Sangam, National Book stall, page 1665 as follows:
W.P.(C).2887/16& cc. - : 49 :-
"VmNV^H"_ (VmN_V^H) (VN_VOH) :a?\A^?m (VUBZ 'D_W VO_AaKD_H^W) VmNV^HAa]_=VUAa]_.
VmNV^HhUx^7c"_D^WA^\_5O^OaI^5aK hUx^7c";
fC_5N^O <m>^H".
VmNV^HU^X__1. V_UX. 2. MbD". 3. g5x{`OX (7a)"
The words, ":a?\ - :a?a5^?m,, VmNV^H", :a?\A{", :a?\MyOm, etc. have been assigned the following meanings in the Malayalam- English Dictionary published by the DC Books in May, 2016 Edition in page 426 as follows:
":a?\, H^. :a?a5^?m, VmNV^H"; n. burial ground, cremation ground, cemetery, funeral pyre.
:a?\A{",H^ IG?, VU" FY_M_AaK XmE\"; n. burial place, cremation ground, grave yard.
:a?\MyOm, H^. VU" FY_M_AaK XmE\", VmNV^HMbN_ ;n. burial ground, cremation ground, grave yard."
Therefore, it can be seen that the Malayalam word "VmNV^H"" would take within its broad sweep, not only as cemetery or burial ground, but also a burning ground. Therefore, the English translated version of Rule 4 appears to be slightly erroneous and what is brought within the ambit of Rule 4 of the 1998 Rules, are public and private burial or burning grounds as the case may be, as earlier envisaged in Rule 4 of the 1967 Rules. If any dispute was raised as to whether the burning ground was in existence at the commencement of the 1967 Rules and whether it is entitled to the benefit of deeming provision, then sub rule (3) of Rule 4 had conferred sufficient power to the District Collector to resolve this dispute. But, on the other W.P.(C).2887/16& cc. - : 50 :-
hand, nobody had chosen to disbelieve or dispute the fact finding report given by the Panchayat as per Ext.P-6 regarding the existence of the burning ground prior to the 1967 Rules and when that is the position, the only irresistible conclusion that is possible in the situation is that the benefit of sub rule (1) of Rule 4 would accrue in such case, whereby it is mandated that private or public burial/burning grounds, which are in existence at the commencement of the 1967 Rules, shall be deemed to have been registered under the Panchayat Rules. The provisions contained in Rules 5 and 6 regarding distance rule and licensing requirement, which are applicable only in respect of new burial or burning ground will not be invokable in the case of such burial or burning grounds covered by the provisions of Rule 4(1).
26. A Division Bench of this Court in the ruling in Sree Venketeswara Seva Sangham v. Antony, reported in 2015(1) KLT 629 = 2015 KHC 63, has considered the impact of the provisions contained in Rule 4(1) of the 1967 Rules and the 1998 Rules. In para 12 of the said ruling (see KLT Report), it has been held by the Division Bench that Rule 4(1) of the 1967 Rules has specifically provided that the existing burial and burning grounds shall be W.P.(C).2887/16& cc. - : 51 :-
deemed to have been registered under those rules and the 1967 Rules were published in the Kerala Gazette on 12.9.1967 and that a plain reading of the said Rule indicates that the legal fiction is created by the Legislature as "deemed registration", for burning and burial grounds existing at the commencement of the 1967 Rules. Further, it has been held in para 16 thereof by the Division Bench that even in the event that no entries have been maintained by the relevant registers maintained by the Panchayat in respect of such a burial or burning ground, which was in existence prior to 1967, the same cannot not be taken as a ground so as to prejudice the beneficiaries of those who are using such prior existing burning or burial ground. It has been so held by the Division Bench that Rule 7 (1) clearly indicates that entries to be made in the book kept at the office with regard to burial and burning grounds and entries shall be made in the book of the places provided, registered or licensed before commencement of the rules and the rule thus fully contemplates that the burial or burning grounds, which were in existence prior to the 1967 Rules, shall be deemed to be registered and entered in the register maintained by the Panchayat. Further that the requirement of entry in the register in respect of such prior W.P.(C).2887/16& cc. - : 52 :-
existing burial or burning grounds, is with the local authorities concerned, over which the members of the general public have no control and even in the event of such entries not being maintained in the relevant register of the local authority concerned, the same cannot be taken as a ground so as to prejudice the beneficiaries of the prior existing burial or burning grounds. Therefore, their Lordships of the Division Bench, while dealing with the aforestated Sree Venketeswara Seva Sangham's case supra have also relied on a judgment of the learned Single Judge of this Court (M.P.Menon, J.) in Komalavally Amma v. President, Kerala Brahmana Sabha reported in 1987 (2) KLT SN 50 (C.N.72), wherein it has been held by this Court that the provisions of the abovesaid statute are designed to serve some purpose and not to create impossible situations for a section of the people living within its limits, etc. In the light of these aspects, it is only to be held that the impugned Ext.P-13 proceedings, which have overlooked the uncontroverted Ext.P-6 report relating to the prior existence of the burning ground, would amount to an ultra vires and illegal action, as it has not taken into account such crucial and relevant uncontroverted materials. In this view of the matter also, it is only to be held that the impugned W.P.(C).2887/16& cc. - : 53 :-
Ext.P-13 proceedings as well as the impugned Ext.P-18 appellate proceedings are illegal and ultra vires.
27. The third point to be decided is as to whether the procedure prescribed under Rule 10 has been strictly adhered to in the issuance of the impugned proceedings. In this context, it is to be noted that though the 3rd respondent has recited in Ext.P-13 that the said order has been issued by virtue of the enabling powers under Rule 8, the 1st respondent has stated in the impugned Ext.P-18 appellate order that the impugned prohibition has been enforced by taking recourse to Rules 4(2), 5(1), 6(2), 10(1)(a), (b), etc. As already held herein above, neither the 3rd respondent nor the 1st respondent has in any manner controverted or demolished Ext.P-6 report of the Panchayat and there has not been any consideration of the matter under Rule 4(2) and therefore the reliance placed on Rule 4(2) in Ext.P-14 is of no relevance in the facts of this case. Rule 5(1) and Rule 6(2) are in relation to distance rule and licensing requirements in respect of new burial or burning grounds and in view of the uncontroverted aspects relating to Ext.P-6 report, those rules also do not have any application in the instant case, as discussed herein above. Therefore, what remains to W.P.(C).2887/16& cc. - : 54 :-
be considered is as to whether the procedure prescribed under Rule 10 of the Rules has been strictly complied with in the instant case.
As regards this aspect, it is to be noted that Rule 10 provides as follows:
"Rule 10. Prohibition of cemeteries dangerous to health or overcrowded with graves.-(1) If the Panchayat is satisfied,-
(a) that any ground for the burial or burning which is registered or for which licence has been issued is in such a state or condition as to endanger or likely to endanger the health of persons living in the neighbourhood thereof; or
(b) that any burial ground is overcrowded with graves, and in the case of a public place for burial or burning or otherwise disposing of the corpse and other place as aforesaid, or there exists or is provided another convenient place duly authorised for the disposal of the corpse for the persons who ordinarily use such place, the Panchayat may decide requiring to prohibit burial, burning or otherwise disposing of any corpse in such place.
(2) The decision under sub-rule (1) shall be forwarded to the District Medical Officer and the District Medical Officer shall after conducting necessary enquiries in the matter submit the decision of the recommendations.to Panchayat the District Collector with his specific (3) If the Collector, on considering the decision of the Panchayat and the recommendations of the District Medical Officer is satisfied that such place shall not be used for the disposal of the corpse, may give a notice that it shall not be lawful after the period to be specified in such notice to bury, burn or otherwise dispose of any corpse in such place :
Provided that before giving notice, the person having control over such place shall be given a reasonable opportunity to file objections, if any, against such action.
(4) Every notice under sub-rule (3) shall be affixed on the notice board of the Panchayat Office, in a conspicuous place in the constituency in which the cemetery is located and at the entrance of the cemetery.
(5) After the expiry of the period specified in such notice, no W.P.(C).2887/16& cc. - : 55 :-
person shall bury, burn or otherwise dispose of the corpse at such place.
(6) Any person having complaint on the notice under sub-rule (3) may, within thirty days from the date of the notice, file an appeal to the Government."
The primary authority in the case to take action as per Rule 10(1) is the Panchayat concerned, who should be fully satisfied about the jurisdictional facts envisaged either in clause (a) or (b) of Rule 10(1). Thereafter, the Panchayat should take the decision as envisaged in Rule 10(1) and it is further mandated as per sub rule (2) of Rule 10 that the said decision taken by the Panchayat under Rule 10(1) shall be forwarded to the DMO and the DMO shall, after conducting necessary enquiries in the matter, submit the decision of the Panchayat to the District Collector with its specific recommendations. It is only after the completion of the DMO's inquiry and his recommendations and after forwardal of the said decision of the Panchayat as well as the DMO, to the District Collector, that the District Collector can assume jurisdiction in the matter of as per Rule 10(3). In the instant case, as already indicated herein above, Ext.R-6(d) complaint was submitted by the 6th and 7th respondents directing the 3rd respondent respondent, who has initiated the proceedings as if he is the primary authority in the W.P.(C).2887/16& cc. - : 56 :-
matter. True that the ultimate authority to take the decision as per Rule 10 is conferred with the District Collector as per Rule 10(3) thereof. But the primary statutory functionary in the matter is the Panchayat as per Rule 10(1), who should be fully satisfied about the jurisdictional facts contained either in sub clause (a) or (b). It is thereafter that the Panchayat should forward the said decision under Rule 10(1) to the DMO as per Rule 10(2), who has to conduct the inquiry and forward the report with his specific recommendations. In the instant case, the entire procedure as envisaged has been given a go by and the District Collector has assumed jurisdiction as if he is the primary authority and the other functionaries like the Panchayat and the DMO have been treated only as officials, who were called upon to give their fact finding reports to the District Collector. It has already been noted herein above that fundamental right is conferred on the persons concerned to adhere to their customary or religious rites in the matter of cremation or burial of dead persons as per the respective traditions of the communities concerned. True that the said constitutional right conferred under Art.25 could be restricted through a statutory procedure on the grounds of public order, morality and health. But when the statute W.P.(C).2887/16& cc. - : 57 :-
has prescribed a particular procedure for restricting the said rights, the procedure as envisaged therein, should be strictly and scrupulously followed. In the light of these aspects, this Court is constrained to hold that the impugned Ext.P-13 proceedings are ultra vires the procedural mandate of Rule 10. Equally the appellate proceedings as per Ext.P-18 are also suffer from the same vice. It is fairly admitted by the respondents concerned that the petitioners were never supplied a copy of Ext.R-6(d) petition at any time prior to the issuance of the impugned order and that they were furnished a copy of the same only when it was produced along with the additional affidavit filed in this writ proceedings. For this reason alone, the impugned proceedings are liable to be interdicted. Further as already held hereinabove, the official respondents have proceeded on the premise as if the land is a new burial ground, which requires licensing and registration by overlooking the unconverted Ext.P-6 report of the Panchayat about the existence of the burning ground for more than 70 years. As referred to earlier, the Environmental Engineer of the Kerala State Pollution Control Board, in his report dated 26.11.2014, has clearly stated therein that as no continuous cremation takes place in the property in W.P.(C).2887/16& cc. - : 58 :-
question, it is not possible to assess the aspects regarding alleged pollution caused by the cremation and that in such cases, complaints could be more in the nature of alleged nuisance than pollution, etc. All the reports referred to in the impugned Ext.P-13 and Ext.P-18 proceedings proceed as if the property, is a post-1967 burning ground and therefore, it requires licensing, registration and compliance of distance rule, etc. and that therefore its functioning is illegal, etc. This aspect alone has been mainly taken into account in the impugned proceedings, by overlooking the undisputed and unconverted Ext.P-6 report of the Panchayat.
28. It is also to be noted that Sri.G.Krishna Kumar, learned counsel for the writ petitioner has submitted on the basis of the instructions from the petitioners that only the families of the descendants of the executants of Ext.P-21 partition deed are the beneficiaries, who can use the said land for the purpose of burning and cremation of dead ones in the said family. It is also submitted by the petitioners that the observation in Ext.P-13 that the said land covered by Ext.P-21 is lying as an open space of land is also not correct and that, as revealed by Ext.P-17 photograph, the entire property consisting of about 2.47 cents has been enclosed with W.P.(C).2887/16& cc. - : 59 :-
boundary wall on all four sides with sufficient height along with a locked gate and that the petitioners would immediately provide the details of all the family members who are the beneficiaries of Ext.P-21, before the Secretary of the 4th respondent Panchayat. The said submission has been made by the petitioners in order to allay the apprehension raised by the 6th respondent that the said land may be used, not only by the immediate members of the Manjappallikunnel family, but even by other persons on the pretext that they are members of the Viswakarma community, etc. Sri.G.Krishna Kumar, learned counsel for the writ petitioners would also submit on the basis of the instructions from the petitioners that in order to allay any possible apprehension of the 6th respondent or any other persons concerned about any heath issues, the petitioners would undertake that, as far as possible, they would only resort to cremation by using mobile gas unit as referred to in Ext.P-22. In this regard, the petitioners have also stated in the affidavit dated 11.10.2016 filed along with I.A.No.15884/2016 in this W.P.(C)., that the mobile gas crematorium unit as envisaged in Ext.P-22 is a very ecologically friendly manner of cremation of the dead persons and that they have got the details in that regard from the proprietor of W.P.(C).2887/16& cc. - : 60 :-
the mobile gas crematorium unit, who has sworn to Ext.P-23 affidavit regarding the details of the use of the mobile gas crematorium, etc., wherein it has been also averred that the said system has been useful even in thickly populated cities as well, etc. It is further submitted that it is only in an extremely remote possibility when it is not immediately possible to secure the assistance of the mobile gas crematorium unit, will the petitioners contemplate about cremation in the conventional manner as and when the occasion arises and that as far as possible they would undertake that they would employ only the mobile gas crematorium system for cremation of the dead ones in the family in the land in question, etc. The said submissions of the petitioners are recorded.
29. It is also pertinent to note that in Ext.P-2 report dt.12.11.2014, the DMO has stated that about 5 cremations had taken place in the property, since the last 10 years. This aspect is seen corroborated by Exts.P-9 to P-12 obituary reports. The case put forward by the 6th respondent in his counter affidavit dt.28.9.2016 is that his father had purchased their property in the year 1957 and that R-6 has been residing therein since 1982. In spite of this, the 6th respondent has no case that he has ever raised W.P.(C).2887/16& cc. - : 61 :-
any complaints against the cremation previously conducted in the petitioners' land at any time prior to the submission of Ext.R-6(d) dt.25.8.2014. Even the complaint at Ext.R-6(d) has been made only 2 months after the last cremation held there. In spite of his assertion that R-6's father had acquired their property in 1957, the 6th respondent does not even remotely whisper that the petitioners' land was never used as a burning ground prior to 1967.
30. In the light of these aspects, it is to be held that the impugned Exts.P-13 and P-18 proceedings are ultra vires and illegal and are liable to be interdicted. Accordingly, the said impugned proceedings are quashed. But it is to be noted that the specific contention of the 6th respondent is that the matter is covered by the proviso to Rule 8 and on this aspect, this Court has found that the 3rd respondent District Collector has no jurisdiction to interfere in such a scenario covered by the proviso to Rule 8 and that the disputes in that regard can be entertained only by the civil court or under Sec.144 of the Code of Criminal Procedure. In the light of the said specific contention of the 6th respondent and in the light of the finding made by this Court on the said point, there is no point in remitting the matter to the 3rd respondent District Collector for W.P.(C).2887/16& cc. - : 62 :-
reconsideration of the matter. It is further made clear that this Court has only proceeded on the premise as if the land in question is covered by the proviso to Rule 8 as contended by R-6, and if so, whether the District Collector has got jurisdiction in such a situation. If the 6th respondent proceeds to institute any civil suit in the matter, then it is for that court to also determine the factual issue as to whether the land is covered by the proviso to Rule 8, etc. It is further made clear that nothing in this judgment will preclude any aggrieved person from approaching any competent forum for redressal of their legally justiciable grievances in relation to the use of the said land covered by Ext.P-21 as a burning ground on any tenable grounds.
With these observations and directions, the aforecaptioned Writ Petition (Civil) stands finally disposed of. W.P.(C).No. 5983/2016:
31. The 6th respondent in W.P.(C).No.2887/2016 is the petitioner in this W.P.(C). The prayers in this W.P.(C). are for writ of mandamus to the authorities concerned for enforcement and implementation of Ext.P-5 order dated 7.4.2015 issued by the District Collector and Ext.P-6 appellate order dated 18.12.2015 W.P.(C).2887/16& cc. - : 63 :-
issued by the respondent State Government. Exts.P-5 and P-6 in this Writ Petition are Exts.P-13 and P-18 respectively in W.P.(C).No. 2887/2016. As the said impugned proceedings have already been quashed in the judgment in W.P.(C).No. 2887/2016, it is only to be held that the prayers in this W.P.(C). cannot be entertained and accordingly, this Writ Petition will stand dismissed. However, there will be no order as to costs.
32. Before parting with the case, it is to be observed that the English translation of 1998 Rules has given rise to some significant errors especially in the phraseology employed in Rule 4 as well as the proviso to Rule 8. The office of the Advocate General will forward a copy of this judgment to the Chief Secretary to the Government of Kerala, who should take necessary action to examine the correctness of the English translated version of the 1998 Rules and shall refer the matter to the officers concerned so as to consider the issuance of necessary effective erratum or corrigendum in the matter.
Bkn/- Sd/-
sdk+ ALEXANDER THOMAS, JUDGE
SKK
///True Copy///
P.S. to Judge
W.P.(C).2887/16& cc. - : 64 :-