Kerala High Court
Chirakkal Thiyya Samudaya Smashana ... vs State Of Kerala on 17 January, 2023
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
W.P.(C) Nos. 34570 of 2006, 2674 of 2007,
3867 of 2008, 25028 of 2011 & 33455 of 2022 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 17TH DAY OF JANUARY 2023 / 27TH POUSHA, 1944
WP(C) NO. 3867 OF 2008
PETITIONERS:
CHIRAKKAL THIYYA SAMUDAYA SMASANA
SAMRAKSHANA COMMITTEE THROUGH ITS SECRETARY,, P. VINODAN,
S/O. NARAYANAN, PALAKKAL HOUSE, VALAPATANAM (P.O), KANNUR
DISTRICT.
BY ADVS.
SRI.P.N.KRISHNANKUTTY ACHAN(SR.)
SRI.K.MOHANAKANNAN
SMT.A.R.PRAVITHA
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE (L)
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.
2 THE DISTRICT COLLECTOR
COLLECTORATE, KANNUR.
3 THE TAHSILDAR, KANNUR.
4 THE VILLAGE OFFICER
CHIRAKKAL, KANNUR.
5 CHIRAKKAL GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY, CHIRAKKAL.
6 N.P. SASIDHARAN S/O. SANKARAN
PARAYIL HOUSE, VALAPATTANAM (P.O), KANNUR.
ADDL.R7 & R8 IMPLEADED
ADDL.R7
THE DISTRICT MEDICAL OFFICER,
KANNUR
ADDL.R8
THE SENIOR ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD,
KANNUR
W.P.(C) Nos. 34570 of 2006, 2674 of 2007,
3867 of 2008, 25028 of 2011 & 33455 of 2022 2
(IMPLEADED SUOMOTU AS ADDL.R7 & R8 AS PER ORDER DTD
11.2.2008 IN WP© 3867 OF 2008)
BY ADVS.
SRI.I.V.PRAMOD
SRI.SUNIL V.MOHAMMED
G.P.SRI.K.M.FAISAL
SRI.T.NAVEEN,STANDING COUNSEL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
17.01.2023, ALONG WITH WP(C).25028/2011 & CONN.CASES, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos. 34570 of 2006, 2674 of 2007,
3867 of 2008, 25028 of 2011 & 33455 of 2022 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 17TH DAY OF JANUARY 2023 / 27TH POUSHA, 1944
WP(C) NO. 25028 OF 2011
PETITIONER:
CHIRAKKAL THIYYA SAMUDAYA SMASANA
SAMRAKSHANA COMMITTEE-THROUGH ITS SECRETARY,
P.VINODAN,S/O.NARAYANAN,AGED 52 YEARS,PALAKKAL,
HOUSE,VALAPATTANAM.P.O,KANNUR DISTRICT.
BY ADVS.
SRI.K.MOHANAKANNAN
SMT.A.R.PRAVITHA
SMT.RASHMI RAVINDRAN
RESPONDENTS:
1 CHIRAKKAL GRAMA PANCHAYATH,
REP BY ITS SECRETARY,CHIRAKKAL,KANNUR -670011.
2 THE SUB COLLECTOR, THALASSERY-679532.
3 THE VILLAGE OFFICER, CHIRAKKAL
KANNUR-670011.
4 N.P.SASIDHARAN, S/O.SANKARAN, PARAYIL
HOUSE, VALAPATTANAM.P.O, KANNUR-670010.
5 THE REVENUE DIVISIONAL OFFICER
KANNUR-670001.
BY ADVS.
SRI.I.V.PRAMOD
SRI.SUNIL V.MOHAMMED
G.P.SRI.K.M.FAISAL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
17.01.2023, ALONG WITH WP(C).3867/2008 & CONN.CASES, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos. 34570 of 2006, 2674 of 2007,
3867 of 2008, 25028 of 2011 & 33455 of 2022 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 17TH DAY OF JANUARY 2023 / 27TH POUSHA, 1944
WP(C) NO. 33455 OF 2022
PETITIONER:
CHIRAKKAL GRAMA PANCHAYATH
CHIRAKKAL P.O, KANNUR
REPRESENTED BY ITS SECRETARY,
SHIBU KARUN.T, AGED 50 YEARS, SON OF KARUNAKARAN.A,
RESIDING AT KARUNAKARA, MADAI P.O, KANNUR DISTRICT, PIN -
670011
BY ADV I.V.PRAMOD
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS REVENUE DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 SECRETARY, CHRIAKKAL THEEYASUMUDAYA SMASANA SAMRAKSHANA
COMMITTEE,CHIRAKKAL P.O, KANNUR DISTRICT, PIN - 670011
3 N.P. SASIDHARAN ( SOUGHT TO BE IMPLEADED ,
S/O.SANKARAN, AGED 67 YEARS,
PARAYIL HOUSE, VALAPATTANAM P.O.,
KANNUR DISTRICT-670 010
BY ADV SUNIL V.MOHAMMED
GP SRI.K.M.FAISAL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
17.01.2023 A/W. WP(C)NOS.25028 OF 2011 & CONN.CASES, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos. 34570 of 2006, 2674 of 2007,
3867 of 2008, 25028 of 2011 & 33455 of 2022 5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 17TH DAY OF JANUARY 2023 / 27TH POUSHA, 1944
WP(C) NO. 34570 OF 2006
PETITIONER:
N.P.SASIDHARAN,
S/O.SANKARAN,
AGED 56 YEARS, PARAYIL HOUSE, VALAPATTANAM P.O.,
KANNUR DISTRICT.
BY ADV SRI.SUNIL V.MOHAMMED
RESPONDENTS:
1 STATE OF KERALA
REP. BY THE CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM.
2 THE ADDITIONAL SECRETARY TO
REVENUE (L) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.
3 THE DISTRICT COLLECTOR, KANNUR.
4 THE SPECIAL GRADE SECRETARY,
CHIRAKKAL GRAMA PANCHAYAT, CHIRAKKAL, KANNUR.
5 THE ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD, SOUTH BAZAR ROAD,
PAYYANNUR, KANNUR DIST.-670 307.
6 CHIRAKKAL THIYYA SAMUDHAYA SMASHANA
SAMRAKSHANA COMMITTEE, REP. BY ITS SECRETARY, P. VINOD,
S/O. NARAYANAN, PALAKKAL HOUSE,, VALAPATTANAM P.O.,
KANNUR.
7 THE SUPERINTENDENT OF POLICE, KANNUR.
BY ADVS.
SRI.P.N.KRISHNANKUTTY ACHAN SR.
SRI.K.MOHANAKANNAN
SRI.I.V.PRAMOD
GP SRI.K.M.FAISAL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
17.01.2023, ALONG WITH WP(C).2674/2007, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) Nos. 34570 of 2006, 2674 of 2007,
3867 of 2008, 25028 of 2011 & 33455 of 2022 6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 17TH DAY OF JANUARY 2023 / 27TH POUSHA, 1944
WP(C) NO. 2674 OF 2007
PETITIONER:
CHIRAKKAL THIYYA SAMUDAYA SMASHANA
SAMRAKSHANA COMMITTEE THROUGH ITS SECRETARY, P.VINODAN,
S/O.NARAYANAN, PALAKKAL HOUSE, VALAPATTANAM (PO), KANNUR
(DISTRICT).
BY ADVS.
SRI.P.N.KRISHNANKUTTY ACHAN(SR.)
SRI.K.MOHANAKANNAN
RESPONDENTS:
1 STATE OF KERALA,
REP.BY THE SECRETARY TO GOVERNMENT, REVENUE (L)
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.
2 THE DISTRICT COLLECTOR
COLLECTORATE, KANNUR.
3 THE TAHSILDAR
KANNUR.
4 THE VILLAGE OFFICER
CHIRAKKAL, KANNUR.
5 CHIRAKKAL GRAMA PANCHAYAT
REPRESENTED BY ITS SECRETARY, CHIRAKKAL.
6 N.P.SASIDHARAN, S/O.SANKARAN
PARAYIL HOUSE, VALAPATANAM (PO), KANNUR.
BY ADVS.
SRI.I.V.PRAMOD
SRI.SUNIL V.MOHAMMED
SRI.K.M.FAISAL, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
17.01.2023, ALONG WITH WP(C).34570/2006, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) Nos. 34570 of 2006, 2674 of 2007,
3867 of 2008, 25028 of 2011 & 33455 of 2022 7
P.V.KUNHIKRISHNAN, J.
======================================================
W.P.(C) Nos. 34570 of 2006, 2674 of 2007,
3867 of 2008, 25028 of 2011 & 33455 of 2022
=============================================================
Dated this the 17th day of January, 2023
JUDGMENT
These writ petitions are connected therefore, I am disposing of these writ petitions by a common judgment.
2. W.P.(C)No.34570 of 2006 is filed by Mr.N.P.Sasidharan, challenging Ext.P1 Government Order dated 15.11.2006. The petitioner, Mr.N.P.Sasidharan and the residents in and around the land in Re.Sy.No.60/1 of Chirakkal Amsom Desom, Kannur District, are aggrieved by a burial ground managed by the 6th respondent, the Chirakkal Thiyya Samudhaya Samrakshana Committe. According to the petitioner, the 6 th respondent-Committee was formed only in the year 1994 and assumed the possession over 1 Acre 37 Cents of Government W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 8 property situated in Re.Sy.No.60/1 of Chirakkal Grama Panchayat in the year 1994 and started the burial of dead bodies from 1997 in violation of the statutory requirements causing environmental pollution, physical ailments and annoyance to the residents in the locality. The petitioner and others submitted a mass representation before the Kerala State Pollution Control Board as evident by Ext.P2. As per Ext.P3, the Pollution Control Board directed the 4th respondent, The Special Grade Secretary, Chirakkal Grama Panchayat, to take steps to shift the burial ground. The 4th respondent, as per Ext.P4, declared that the burial in the area is illegal and punishable. The 4 th respondent also requested the 3rd respondent, The District Collector, Kannur to take steps to repossess the Government property as per Ext.P5. Since Ext.P5 was not implemented the petitioner approached this Court by filing O.P. No.9855 of 2002 and the original petition was disposed of as per Ext.P6, directing the 3 rd respondent to resolve the issue by considering Exts.P4 & P5. W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 9 Consequent to Ext.P6, the 3rd respondent passed an order prohibiting the illegal burial by exercising the powers under the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998 (for short the, "Rules, 1998"). Ext.P7 is the order. Aggrieved by Ext.P7, the 6th respondent filed O.P. No.25525 of 2002 before this Court. Meanwhile, the 6 th respondent submitted an appeal invoking the powers under Rule 10(6) of the Rules, 1998 before the 1st respondent, The State of Kerala Represented by the Chief Secretary. Subsequently, O.P. Nos.28735 of 2002 and 25525 of 2002 were decided directing the District Collector to consider the revision petition filed by the 6 th respondent and to pass orders in accordance with the rules, after hearing all the parties. Ext.P8 is the judgment. Meanwhile, the petitioner, on knowing about the appeal preferred by the 6 th respondent before the Secretary, Local Self Government Department (for short, "LSGD"), filed O.P. No.13436 of 2003 before this Court challenging its maintainability and the status quo order of the Government. As W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 10 per Ext.P9 judgment this Court directed the Secretary, LSGD, Thiruvananthapuram to forward the same to the 3 rd respondent as he was seized with a review petition. Accordingly, as per Ext.P10 the Government withdrew the said order and directed the District Collector to take appropriate action.
3. Thereafter, the District Collector heard the matter and declared that the burial conducted in the land measuring to an extend of 1 Acre 37 Cents in Re.Sy No.60/1 of Chirakkal Grama Panchayat by the 6th respondent-committee as illegal and improper. The 3 rd respondent also directed the Tahsildar, Kannur to take custody of the said land and preserve it as Government land for all purposes, Ext.P11 is the order. It is stated that the Village Officer, Chirakkal as per Ext.P12 repossessed the land. Subsequently, the petitioner came to know that the 2nd respondent, The Additional Secretary to Revenue (L) Department, Secretariat, Thiruvananthapuram has stayed Ext.P11 order, Ext.P13 is the stay order. Hence the petitioner filed W.P.(C) No.4685 of 2004 before this Court and challenged the maintainability of the above appeal and also challenged the validity of W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 11 Ext.P13 stay order on the ground that Ext.P11 order is final in view of Rule 4(2) of the Rules, 1998.
4. The writ petition was disposed of as per Ext. P15 directing the Government to consider the maintainability of Ext.P14 and to pass appropriate orders. Even though the petitioner filed a writ appeal against Ext.P15 judgment the same was dismissed as per Ext.P16. Subsequently, the petitioner filed the argument notes before the 2 nd respondent as evident by Ext.P17. Thereafter, Ext.P18 order was passed by the 2nd respondent which declared that the property in question is a government land. Consequently, Ext.P19 was passed by the Tahasildar, Kannur, to protect the land as a government land. Challenging Ext.P18 the 6th respondent-committee preferred a W.P. (C) No.37265 of 2004 alleging that there was no proper appreciation of the contentions advanced and the documents placed by them and further alleging that Ext.P18 is a non-speaking order. This Court was pleased to set aside Ext.P19 for want of reasoned order with certain observations and directed the 2nd respondent to take final decision in the appeal within six months as per Ext.P20. Even though Ext.P20 W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 12 was challenged by filing a writ appeal, the same was dismissed as per Ext.P21. Subsequently, Ext.P22 was issued by the 3 rd Respondent to the 5th Respondent, The Environmental Engineer, The Kerala State Pollution Control Board, Kannur, to visit the site. Subsequently, based on Ext.P23 application, the petitioner obtained the report submitted to the Member Secretary by the 5 th Respondent. Thereafter, the petitioner filed W.P.(C) No.20884 of 2006 and initially, stay against Ext.P22 was granted. Subsequently, this Court disposed of the writ petition directing to keep in abeyance Ext.P22, till the 2 nd respondent takes a decision on Ext.P14 appeal as directed in Ext.P20. Ext.P24 is the judgment.
5. In the meanwhile, Ext.P1 order was passed by the Government in which it was declared that the property belongs to the Government but decided to grand to the 6 th respondent-committee 25 cents of land on accepting the market value of the land and on further condition that it will not be alienated. Challenging Ext.P1 order of the Government, this writ petition is filed.
6. The 6th respondent in W.P.(C)No.34570 of 2006 is the W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 13 petitioner in W.P.(C)No.2674 of 2007. W.P.(C)No.2674 of 2007 was also filed challenging the Government Order which is produced as Ext.P1 in W.P.(C)No.34570 of 2006. Ext.P3 is the Government order in W.P.(C)No.2674 of 2007. The petitioner in this writ petition contended that, it is a burial ground of Thiyya Samudayam and the land is being used as burial ground for the last 90 years. Therefore Ext.P3 decision of the Government allowing the petitioner in this writ petition to purchase the land on market rate is unsustainable. Hence, the said writ petition is filed. When the above writ petition came up for consideration this Court passed a status quo order on 23.01.2007, which is extracted hereunder;
G.P submits that there are 2 or 3 other connected matters including C.C.C. G.P. will supply the number of all those cases. The Registry will post this case along with the connected cases on 30.01.2007.
In the meanwhile, as regards the burning and burial grounds in Survey. No.60/1 of Chirakkal Village in Kannur District, which is subject matter of the writ petition, the status quo obtaining as on today be maintained.
7. W.P.(C)No.3867/2008 is also filed by the same petitioner as in W.P.(C)No.2674/2007. Exts.P5 and P6 in that case are the W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 14 interim orders passed in W.P.(C). No.2674/2007. The grievance of the petitioner in W.P.(C). No.3867/2008 is against Ext.P8 produced in that writ petition by which the status quo order of this court is interpreted to the effect that it is against the burial/burning of dead bodies. Hence W.P.(C). No.3867/2008 is filed with following prayers:
i. To issue a writ of certiorari or any other appropriate writ, order or direction, to call for the records leading to Exhibit-P8 and quash the same;
ii. To declare that the petitioner is entitled to bury the dead bodies in the 1.37 Acres of land in R.S. No.60/1 of Chirakkal Village and covered by Exts.P3 and P8 orders;
iii. To award the cost of these proceedings to the petitioner; iv. Grant such other and further reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
(SIC)
8. When this writ petition came up for consideration before this Court on 11.02.2008, this Court passed the following order:
"The District Medical Officer, Kannur and the Senior Enviornmental Engineer, Kerala State Pollution Control Board, Kannur are suo motu impleaded as additional respondent Nos.7 and 8 in the Writ Petition. The Govt. Pleader takes notice on behalf of the additional W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 15 7th respondent and Adv. Mr.M.K.Chandramohan Das, S.C. takes notice on behalf of the additional 8th respondent.
2. I have heard the submissions of Senior Advocate Mr.P.N.K.Achan on behalf of the petitioner, Mr.Sunil V. Mohammed, counsel for the 6th respondent and Mr.K.J. Mohammed Anzar, learned Government Pleader on behalf of respondents 1 to 4 in extenso on the prayer for interim relief. The materials available before me including Ext.P3 order of the Government will show that though unauthorisedly and without licence the dead bodies of persons owing allegiance to the petitioner-Committee were being burnt on the property in question. That is why the Government itself under Ext.P3 (see its penultimate paragraph) found that the cemetery has been in existence on the property having an extent of 1.37 Acres of Government puramboke land in R.S.No.60/1 and ordered assignment of 25 cents of land elsewhere in favour of the petitioner-Committee. In Ext.P8 order of the District Collector which is impugned in this Writ Petition it will be seen that the Collector's decision turns on what according to him was the status quo obtaining as on 23.1.2007. According to the District Collector, in Ext.P8 the status quo obtaining as on that date was that the dead bodies were not being buried or burned in the properties in question. I do not think that the District Collector is right in his view as to what was the status quo as on 23.1.2007. The Writ Petition will stand admitted. Respondents 1 and 2 are directed to file counter affidavits answering the grounds raised in the Writ Petition. The first respondent in its counter affidavit will state as to whether the 25 cents of land indicated in Ext.P3 has been identified for assignment to the petitioner-Committee. Post after two months W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 16 along with W.P.C.Nos.34570/06 & 2674/07. In the meanwhile the respondents are directed to permit the petitioner-Committee to maintain status quo regarding burning of dead bodies on condition that all precautionary measures will be taken by the petitioner- Committee to avoid any room for complaint from any quarter on grounds of pollution or otherwise. Before taking up burning of any dead body pursuant to this order, intimation will be given by the petitioner to additional respondents 7 and 8 and they will ensure that burning of dead bodies by the petitioner-Committee does not cause room for any compliant from any quarter in the context of pollution related problems."
9. W.P.(C)No.25028/2011 is also filed by the very same petitioner as in W.P.(C)Nos.2674/2007 and 3867/2008. This writ petition is filed challenging Exts.P8 and P10 orders passed by the 5 th Respondent, The Revenue Divisional Officer, Thalassery. As per Ext.P8 order, the 5th respondent was directed to remove the concrete pillars installed in the disputed land. Ext.P9 was submitted by the petitioner against the same. But, as per Ext.P10, the 2 nd respondent, The Sub- Collector, Thalassery in this writ petition directed the demolition of concrete pillars by stating that it was installed after the status quo order. According to the petitioner, the 4 th respondent, Mr. W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 17 N.P.Sasidharan, in this writ petition, who is the petitioner in W.P.(C). No.34570/2006, does not have any pathway through the burial ground. According to the petitioner, the concrete pillars were installed long back to protect the burial ground and prevent the unauthorized taking of vehicles to the burial ground. This Court was pleased to stay Ext.P10 order.
10. W.P.(C). No.33455/2022 is filed by the Chirakkal Grama Panchayat. As per the resolution dated 30.09.2022, the Panchayat resolved to authorize the Secretary to file the above writ petition. According to the Panchayat, the property is owned by the Government within the Panchayat area which was used by the people belonging to Thiyya caste as a burial ground. The petitioner Panchayath preferred a representation before the 1st Respondent, Government for giving the entire land to the Panchayat on such terms as the 1 st respondent may deem fit. According to the Panchayat, there was no public crematorium in the Panchayat area. The petitioner is a special grade Grama Panchayat. A Lion portion of the population of the Panchayat belongs to the Hindu religion, is the contention raised in this writ W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 18 petition. It is also stated that the nearby Panchayat namely Valapattanam is also thickly populated and is also in need of a public crematorium. Absence of crematorium is affecting the local people to a great extent is the contention raised by the Panchayat. It is submitted by the Panchayat that the population density of the Panchayat is greater than that of several Municipalities in the state of Kerala. It is also submitted by the Panchayat that there are very few people who has more than 10 cents of land and therefore, arranging a crematorium or burial ground within each house compound is an impossible task. Hence the Panchayat resolved to request the Government to transfer the possession and ownership of the property to the Panchayat. Ext.P1 is the resolution taken by the Panchayat on 30.03.2022. The resolution is sent to the 1 st respondent Government with a covering letter of the President of the Panchayat as evident by Ext.P2. The writ petition is filed for considering Exts.P1 and P2. Prayers in this writ petition are extracted hereunder:
i. issue of writ of mandamus or any other writ, order or direction, directing the 1st respondent to consider and pass appropriate orders in Ext. P1 and P2 after affording an opportunity to the petitioner for hearing;
W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 19 ii. To direct the 1st respondent to assign the property extending 1.37 Acres in Re. Sy. 60/1 of Chirakkal Village to the petitioner;
iii. To Dispense with filing of the translation of vernacular documents;
iv. To issue such other writ, order or direction as this Honourable Court may deem fit and proper in the circumstances of this case.
(SIC)
11. Heard the learned counsel for the petitioners in these writ petitions and the learned Government Pleader.
12. Except W.P.(C). No.33455/2022, all other writ petitions are filed challenging the G.O.(MS) No.327/2006/Revenue dated 15.11.2006, by which the Government decided to give 25 cents of land to the petitioner in W.P.(C). Nos.2674/2007, 3867/2008 and 25028/2011, after collecting the market value of the property with a condition that the same will not be alienated and will be used only as burial ground. The petitioner in W.P.(C).No.34570/2006 has challenged the very same Government Order, for restraining the construction of the burial ground in the disputed area as it is a thickly populated area. The petitioner in W.P.(C). Nos.2674/2007, 3867/2008 and 25028/2011 contended that the 'Thiyya' community has got W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 20 exclusive right in the property and they are using the above property as burial ground since the last 90 years. Hence the property need not be purchased by them as it is already in their possession. The Revenue Authorities already found that the property belongs to the Government. The same is also challenged by the petitioner in W.P. (C). Nos.2674/2007, 3867/2008 and 25028/2011.
13. On the other hand, the Chirakkal Grama Panchayat submitted a representation before the Government as evident by Exts.P1 and P2 of W.P.(C)No. 33455 of 2022 with a request for permission to start a crematorium with modern facilities. Admittedly, no orders are passed on Exts.P1 and P2. If that is the case, in my opinion, the Government can pass an order in Exts.P1 and P2 and if any decision is taken in those representations, I think the entire issue can be resolved. The petitioners in W.P.(C.) Nos. 2674/2007, 3867/2008 and 25028/2011 contends that this area has been used as the burial ground of the Thiyya community for the last 90 years and that W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 21 they should be allowed to bury dead bodies in that land without any obstructions from others. The petitioner in W.P.(C)No. 34570/2006 is challenging the same. According to the petitioner in W.P.(C)No. 34570/2006, the Government has no authority to pass an order like GO (MS) No. 327/2006/Revenue dated 15.11.2006 because the order passed by the District Collector as per the Rules,1998 is final. The maintainability of the appeal before the Government is also challenged by the petitioner in W.P.(C) No. 34570/2006. According to the petitioner in W.P.(C) No. 34570/2006, the Government has no authority to interfere with the findings concluded by the District Collector as per the Rules,1998. I am of the considered opinion that this Court need not consider these disputed questions now, because the local Panchayat has submitted Exts.P1 and P2 of W.P.(C)No 44455 of 2022 before the Government for giving the land to the Panchayat for the construction of a modern crematorium. If such a crematorium is started, the same can be used by all the citizens W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 22 in this area irrespective of their caste. The claim of the Panchayat in Exts.P1 and P2 is that the crematorium will be constructed with modern facilities and the crematorium will be functioning by using gas without causing any pollution. It is also stated that the directions of the Pollution Control Board will be strictly followed if the property is given to the Panchayat for the construction of the crematorium. If that is the case, in my opinion, the Government can consider Exts.P1 and P2 within a time frame, after giving an opportunity of hearing to all the petitioners in these writ petitions and other affected parties. To facilitate the Government to pass fresh orders, the impugned Government orders in W.P.(C)Nos. 2674/2007, 3867/2008 and 34570/2006 can be set aside. The status quo ordered by this Court on 11.02.2008 in W.P. (C)No.3867/2008 will continue till final orders are passed by the Government.
Therefore, these writ petitions are disposed of with the following directions :
W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 23
1) GO (MS) No. 327/06/Revenue dated 15.11.2006 issued by the Addl. Secretary, State of Kerala is quashed.
2) The 1st respondent in W.P.(C.) No. 33455/2022 is directed to consider and pass appropriate orders in Exts.P1 and P2 in that writ petition after giving an opportunity of hearing to the petitioners in these writ petitions and other affected parties, as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment.
3) Till final orders are passed as directed above, the status quo order dated 11.2.2008 passed in W.P.(C.) No. 3867/2008 shall continue.
Sd/-
P.V.KUNHIKRISHNAN JUDGE AMR DAS JV SKS W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 24 APPENDIX OF WP(C)NO.3867 OF 2008 PETITIONER'S EXTS:
EXT P1:COPY OF JUDGMENT DTD 20.3.2004 IN WP(C)NO.37265/04 OF THIS COURT EXT P2: COPY OF JUDGMENT DTD 4.7.2006 IN WA NO.802/2006 OF THIS COURT EXT P3:COPY OF GO(MS)NO.327/2006/REV.DTD 15.11.2006 ISSUED BY THE GOVERNMENT.
EXT P4:COPY OF ARGUMENT NOTE DTD 23.9.2006 SUBMITTED BY THE PETITIONER TO THE GOVERNMENT EXT P5:COPY OF INTERIM ORDER DTD 23.1.2007 IN WPC NO.2674 OF 2007 OF THIS COURT EXT P6:COPY OF ORDER DTD 8.1.2007 IN WPC NO.2674 OF 2007 OF THIS COURT EXT P7:COPY OF RELEVANT PAGE NOS.32 TO 39 OF THE REGISTER KEP IN THE PETITIONER'S OFFICE EXT P8:COPY OF ORDER NO.D2.9502/07 DTD 23.1.2008 PASSED BY R2 EXT P8(A):COPY OF POSTAL COVER RECEIVED BY THE PETITIONER CONTAINING EXT P8 EXT P9:COPY OF EXTRACT OF ADANGAL RESISTER OF R.S NO.60/1 OF CHIRAKKAL DESOM EXT P10:COPY OF LETTER DTD 19.2.2008 SENT BY THE DISTRICT COLLECTOR TO THE MEDICAL OFFICER AND KSPC BOARD ETC VIDE NO.D2- 9502/07 EXT P11:COPY OF PROCEEDINGS OF THE DISTRICT MEDICAL OFFICER DTD 23.2.2008 VIDE NO.C2-2644/08 EXT P12: COPY OF ORDER DTD 20.2.2008 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD VIDE NO.PCB/KNR/COMP/280/2001 EXT P13:COPY OF PROCEEDINGS OF R5 DTD 3.03.2008 W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 25 EXT P14:COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE VILLAGE OFFICER, CHIRAKKAL ON 18.3.2008 RESPONDENTS EXTS:
EXT R6(A):COPY OF MEMORANDUM AND ARTICLES OF ASSOCIATION OF THE PETITIONER COMMITTEE EXT R6(B):COPY OF RELEVANT PAGES OF PARTITION DEED OF CHIRAKKAL KOVILAKAM EXT R6©:COPY OF INTERIM ORDER DTD 1.1.2007 IN WPC 34570/2006 EXT R6(D):PHOTOGRAPHS TAKEN FROM THE RECORDED VIDEO AS TO THE FORCEFUL CREMATION DONE ON 20.3.2007 EXT R6(E):COPY OF REPORT DTD 11.4.2007 ISSUED UNDER RTI ACT 2005 EXT R6(F)COPY OF REPORT DTD 23.4.2007 ISSUED UNDER THE RTI ACT,2005 EXT R6(G):COPY OF REPORT DTD 8.5.2007 ISSUED UNDER THE RIGHT TO INFORMATION ACT, 2005 EXT R6(H):COPY OF REPORT DTD 1.6.2007 AND DOCUMENTS ISSUED UNDER THE RTI ACT, 2005 EXT R6(I):COPY OF REPORT DTD 1.8.2007 ISSUED UNDER THE RTI ACT, 2005 EXT R6(J):COPY OF REPORT DTD 24.8.2007 ISSUED UNDER THE RTI ACT, 2005 EXT R6(K):COPY OF REPORT DTD 2.11.2007 ISSUED UNDER THE RTI ACT, 2005 EXT R6(L):COPY OF REPRESENTATION DTD 24.5.2007 PREFERRED BEFORE THE CHIEF MINISTER EXT R6(M):COPY OF RECORDS LEADING TO EXT P8 ISSUED UNDER THE RTI ACT, 2005 EXT R6(N):COPY OF PROHIBITION NOTICE UNDER RULE 4(2) OF THE KERALA PANCHAYAT RAJ (BURIA AND BURNING GROUNDS RULES),1998 PLACED IN W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 26 THE LIGHT OF R1'S ORDER DTD 12.8.2002 EXT R6(O):COPY OF PATTAYAM OF PUZHATHI THIYYA SAMUDAYA SMASHANAM SITUATED IN THE SAME PANCHAYAT.
EXT R6(P):COPY OF RECEIPTS OF CREMATION ISSUED BY PUZHATHI THIYYA SAMUDAYA SMASHANAM EXT R6(Q):COPY OF ROUGH SKETCH OF KANNUR BLOCK PANCHAYAT SHOWING THE ACCESS TO PAYYAMBALAM BURNING AND BURIAL GROUND EXT R6®:COPY OF REPRESENTATION DTD 15.2.2008 PREFERRED BEFORE R2.
EXT R6(S):COPY OF COMPLAINT DTD 22.2.2008 PREFERRED BEFORE R2. EXT R6(T):COPY OF DOCUMENTS OBTAINED UNDER RTI ACT, 2005 EXT R6(U):PHOTOGRAPH OF R6 IMMEDIATELY AFTER THE ATTACK EXT R6(V):COPY OF FIR DTD 13.3.2008 EXT R6(W):COPY OF PAPER REPORTS APPEARED IN VARIOUS DAILIES.
TRUE COPY P.A.TO JUDGE W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 27 APPENDIX OF WP© NO.25028 OF 2011 PETITIONER'S EXTS:
EXT P1:COPY OF GO(MS)NO.327/2006/REVENUE DTD 15.11.2006 EXT P2:COPY OF INTERIM ORDER IN WPC NO.2674/2010 DTD 23.1.2007 EXT P3:COPY OF INTERIM ORDER PASSED ON 8.2.2007 IN WPC 2674/2007 EXT P4:COPY OF ORDER PASSED BY THE DISTRICT COLLECTOR ON 21.1.2008 EXT P5:COPY OF INTERIM ORDER PASSED BY THIS COURT ON 11.2.2008 IN WPC 3867/08 EXT P6:COPY OF DECREE IN OS 35/96 DTD 30.6.97 AND SKETCH EXT P7:COPY OF COMPLAINT FILED BY R4 FOR OTHERS DTD 4.3.2011 EXT P8:COPY OF ORDER PASSED BY R2 DTD 16.3.2011 EXT P9:COPY OF ARGUMENT NOTE SUBMITTED BEFORE THE REVENUE DIVISIONAL OFFICER DTD 16.3.2011 EXT P10:COPY OF ORDER PASSED ON 29.8.2011 BY THE REVENUE DIVISIONAL OFFICER RESPONDENTS EXTS:
EXT R4(A):COPY OF INTERIM ORDER DTD 1.1.2007 IN WPC NO.34570/2006 EXT R4(B):COPY OF LOCATION SKETCH PREPARED BY THE TALUK SURVEYOR, KANNUR ISSUED TO THE PETITIONER UNDER THE RTI ACT, 2005 EXT R4©:COPY OF THE INTIMATION DTD 13.6.2011 ISSUED FROM THE OFFICE OF THE MINISTER FOR REVENUE EXT R4(D):COPY OF THE PHOTOGRAPHS EXT R4(F):COPY OF JUDGMENT DTD 11.7.2014 IN RSA NO.1076/2005 EXT R4(G):COPY OF ORDER DTD 13.3.2015 IN SLP(C)NO.4077/2015 EXT R4(H):COPY OF NOTICE DTD 6.12.2013 ISSUED BY R2.
TRUE COPY P.A.TO JUDGE W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 28 APPENDIX OF WP(C) 33455/2022 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE RESOLUTION NO. 75/2022 DATED 30/3/2022 Exhibit2 A TRUE COPY OF THE COVERING LETTER ISSUED BY THE PRESIDENT OF THE PANCHAYATH DATED 25/8/2022 RESPONDENT EXHIBITS ExhibitR3(a) TRUE COPY OF THE INTERIM ORDER DATED 01.01.2007 IN WP(C) NO. 34570/2006 Exhibit R3(b) TRUE COPY OF THE GOVERNMENT ORDER DATED 10.12.2004 OF THE 2ND RESPONDENT Exhibit R3(c) TRUE COPY OF THE ORDER DATED 13.03.2015 OF THE HON'BLE APEX COURT IN SLP(C) NO. 4077/2015 Exhibit R3(d) TRUE COPY OF THE RELEVANT PAGES OF THE BOOK 'CHIRAKKALINTE CHARITHRATHILOODE (HISTROY)', PUBLISHED BY THE 1ST RESPONDENT PANCHAYAT TRUE COPY P.A.TO JUDGE W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 29 APPENDIX OF WPC NO.34570 OF 2006 PETITIONER'S EXTS:
EXT P1:COPY OF GO(MS)NO.327/06 REVENUE DTD 15.11.06 ISSUED BY R2 EXT P2:COPY OF MASS COMPLAINT DTD 23.10.2001 FILED BEFORE THE KERALA POLLUTION CONTROL BOARD.
EXT P3:COPY OF ORDER DTD 18.12.2001 OF THE KERALA STATE POLLUTION CONTROL BOARD.
EXT P4:COPY OF ORDER DTD 22.12.2001 OF R4 EXT P5:COPY OF INTIMATION DTD 22.12.2001 ISSUED BY R4 TO R3. EXT P6:COPY OF JUDGMENT DTD 16.7.2002 IN OP NO.9855/02 EXT P7:COPY OF ORDER DTD 12.8.2002 OF R3 EXT P8: COPY OF JUDGMENT DTD 6.3.03 IN OP NO.25525/02 AND OP NO.28735/02 EXT P9:COPY OF JUDGMENT DTD 7.10.03 IN OP NO.13436/03 EXT P10:COPY OF INTIMATION DTD 1.10.2003 ISSUED BY THE SECRETARY, LOCAL SELF GOVT. DEPARTMENT.
EXT P11:COPY OF ORDER DTD 30.12.2003 OF R3 EXT P12:COPY OF LETTER DTD 18.6.04 OF THE VILLAGE OFFICER, CHIRAKKAL.
EXT P13:COPY OF STAY ORDER DTD 29.1.2004 ISSUED BY R2. EXT P14: COPY OF APPEAL PETITION FILED BY R6 BEFORE R2. EXT P15:COPY OF JUDGMENT DTD 15.6.2004 IN WPC NO.4685/04 EXT P16:COPY OF JUDGMENT DTD 12.7.2004 IN WA NO.1247/04 EXT P17:COPY OF ARGUMENT NOTES DTD 12.10.04 SUBMITTED BY THE PETITIONER BEFORE R2.
EXT P18:COPY OF ORDER DTD 10.12.2004 OF R2. EXT P19:COPY OF LETTER DTD 16.12.2004 ISSUED BY R3. EXT P20:COPY OF JUDGMENT DTD 20.3.2006 IN WPC NO.37265/04 W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 30 EXT P21:COPY OF JUDGMENT DTD 4.7.2006 IN WA NO.802/06 EXT P122:COPY OF LETTER DTD 28.7.2006 ISSUED BY R3. EXT P23:COPY OF APPLICATION DTD 1.8.06 SUBMITTED BY THE PETITIONER AND THE REPORT OF R5 DTD 20.3.2006 EXT P24:COPY OF JUDGMENT DTD 28.8.2006 IN WPC NO.20884/06 EXT P25:COPY OF APPLICATION DTD 19.9.06 SUBMITTED BY THE PETITIONER A/W THE REPORT DTD 7.8.2006 OF R5 AND THE FORWARDING LETTER DTD 11.8.06 OF R3.
EXT P26:COPY OF ADDITIONAL ARGUMENTS NOTES DTD 26.8.06 FILED BY THE PETITIONER BEFORE R2.
EXT P27:COPY OF ADDITIONAL DOCUMENTS AND ARGUMENT NOTES DTD
16.9.2006 FILED BY THE PETITIONER BEFORE R2.
EXT P28:COPY OF COUNTER STATEMENT FILED BY THE PETITIONER BEFORE R2.
EXT P29:COPY OF LETTER DTD 18.12.06 ISSUED BY R3. EXT P30:COPY OF JUDGMENT DTD 11.7.2014 IN RSA NO.1076/2005 EXT P31:COPY OF ORDER DTD 13.3.2015 IN SLP(C)NO0.4077/2015 EXT P32:COPY OF ENTRY REGARDING MR.PEECHALI PREMAN IN THE REGISTER MAINTAINED BY R6 EXT P33:COPY OF REGISTRAR OF BIRTHS AND DEATHS, CHIRAKKAL GRAMA PANCHAYAT.
TRUE COPY P.A.TO JUDGE W.P.(C) Nos. 34570 of 2006, 2674 of 2007, 3867 of 2008, 25028 of 2011 & 33455 of 2022 31 APPENDIX OF WPC NO.2674 OF 2007 PETITIONER'S EXTS:
EXT P1:COPY OF JUDGMENT DTD 20.3.2004 IN WPC NO.37265/04 OF THIS COURT EXT P2:COPY OF JUDGMENT DTD 4.7.06 IN WA NO.802/2006 OF THIS COURT EXT P3:COPY OF GO(MS)NO.327/2006/REV. DTD 15.11.2006 ISSUED BY THE GOVT.
EXT P4:COPY OF ARGUMENT NOTE DTD 23.9.2006 SUBMITTED BY THE PETITIONER TO THE GOVERNMENT.
RESPONDENTS EXTS: NIL TRUE COPY P.A.TO JUDGE