Kerala High Court
Pentecost Mission vs State Of Kerala on 30 August, 2006
Equivalent citations: 2006(4)KLT153
Author: M. Ramachandran
Bench: M. Ramachandran
JUDGMENT V.K. Bali, C.J.
1. Sub-rule (9) of Rule 6 of Kerala Panchayat Raj (Burial & Burning Grounds) Rules, 1998, (hereinafter referred to as the 'Rules of 1998') reads as follows:
The District Collector shall pass an order under Sub-rule (8) within six months from the date of receipt of the application and shall inform the same to the concerned Panchayat.
The short but significant question that arise in the present appeal is as to when the terminus a quo to compute the prescribed limitation of six months would commence.
2. Before however, we may take into consideration the rival contentions raised by the learned Counsel appearing for the parties on the crucial issue as stated above, it will be useful to extract a resume of the facts culminating into filing of the present appeal.
3. The Pentecost Mission, petitioner in the original lis and the appellant in this Writ Appeal, in its Ezhamkulam Branch of church claims to have around 500 believers. They have no cemetery for burying corpse. An extent of 2.05 Acres of land in Resurvey No. 412/19 and 412/20 in Block No. 20 of Ezhamkulam Village of Adoor Taluk was purchased by the petitioner in 1999. It was purchased with the sole object of establishing a cemetery therein. The property lies as one compact block. On the immediate eastern side of the property is the old cemetery belonging to the Catholic Church and the same was in existence for the past more than 60 years and is being used as a cemetery even now. In fact the existence of the said cemetery was the impetus for purchasing the aforesaid property. Petitioner submitted an application seeking permission for establishment of a burial ground in the said property under the provisions of the Rules of 1998. The District Collector, Pathanamthitta directed the petitioner to produce certain records. The petitioner was required to submit a plan of the proposed cemetery by an approved engineer. The plan was accordingly prepared and submitted along with the other documents. It is the case of the petitioner that the plan Ext.P2 would certainly show that there was no residential building or well situate within the limit of 50 metres from the plot proposed for construction of cemetery. The plan would also show that on the immediate eastern side of the existing cemetery is the cemetery owned by Malankara Syrian Catholic Church. As required under the provisions of the Rules of 1998 the second respondent gave public notice dated 7.9.2002 regarding the application submitted by the petitioner seeking permission for establishment of the cemetery in the plot in question. It was also advertised in the notice boards of Ezhamkulam Grama Panchayat, Ezhamkulam Village Office and Adoor Taluk Office. The notice was published calling for objections, if any, from any person aggrieved regarding the establishment of the cemetery within 30 days. The Ezhamkulam Grama Panchayat Committee as per resolution No. II dated 23.8.2001 recommended establishment of the cemetery in the plot in question. Ext.P4 resolution was passed after considering the objections of respondents 4 and 5 as is evident from the resolution itself. The sub committee conducted an enquiry into the application, visited the site and found that there were no residential houses within a distance of 50 metres from the plot in question. The District Medical Officer also certified that the plot in question was suitable for establishing a burial ground. By Ext.P5 the Tahsildar reported that the plot in question belongs to the petitioner and there were no houses or wells situated within a distance of 50 metres from the said plot and further that there was no objection for any cemetery being established therein. It is the case of the petitioner that Exts.P4 to P6 would manifest that there were no residential houses within the prohibited area. The proposal was submitted in due compliance with the provisions of the Rules of 1998. On the basis of the materials referred to above and also considering the fact that there was no objection raised from any person within the time prescribed, the second respondent as per order dated 16.10.2002 permitted the petitioner to establish cemetery in the plot in question (Ext.P7). In the said order the petitioner was however required to produce a certificate from the District Medical Officer regarding the suitability of the cemetery being used for burying. The District Medical Officer, Pathanamthitta on being satisfied, issued a certificate dated 8.11.2002 (Ext.P8) certifying that the plot in question is suitable for the required purpose. The District Medical Officer also issued a certificate dated 23.11.2002 to the effect that the burial ground type cemetery constructed in the plot in question had been inspected and found suitable for the use (Ext.P9). On the basis of materials as referred to above, the second respondent as per order dated 25.11.2002 granted permission to the petitioner for burying corpse in the cemetery (Ext.P10). Petitioner has also been issued a licence in Form No. II in due compliance with Sub-rule (8) of the Rules of 1998 (Ext.P11). While so, respondents 4 and 5 challenged the order Ext.P10 by filing O.P. No. 39919 of 2002. It is further the case of the petitioner that the wife of the 5th respondent along with others filed a suit O.S. No. 162 of 1992 in the Munsiff's Court, Adoor against the vendors of the petitioner and others for a prohibitory injunction not to start any burial ground in the plaint schedule property, a portion of which has been purchased by the petitioner. The suit was instituted in a representative capacity seeking to represent the inhabitants of the locality under Order VIII, Rule (1) of the Code of Civil Procedure. The suit was dismissed vide judgment, Ext.P13, dated 14.12.1995 holding that the plaintiffs "therein had failed to establish that a burial ground in the said property was a nuisance to the living of the plaintiffs in their properties. It is the case of the petitioner that respondents 4 and 5 were barred by the principles of res judicata from raking up the issue again. O.P. No. 39919 of 2002 was disposed of by this Court vide judgment dated 27.1.2003 directing the first respondent to consider and dispose of Ext.P12 appeal. Meanwhile the petitioner was also prohibited from burying dead bodies till the appeal was disposed of. In the meanwhile the Panchayat Committee passed a resolution deciding to request the District Collector to cancel the orders issued by him on the ground that there are five families within the prohibited distance of 50 metres and that majority of the people of the locality opposed sanctioning of the cemetery. The case of the petitioner however is that Exts.P2, P4, P5 and P6 would clearly show that there were no dwelling houses or well within 50 metres of the cemetery and therefore there was no basis for the statement of the Panchayat that there are five families within 50 metres of the cemetery in question. The appeal was allowed vide order, Ext.P15, dated 16.7.2003 and the order of the District Collector, Ext.P7, dated 16.10.2002 was set aside. The petitioner challenged the appellate order before the learned Single Judge on various grounds like, that the appellate authority wrongly assumed that there were five dwelling houses within 50 metres of the proposed burial ground and that there was no basis for the statement made by the Panchayat that there are five families within 50 metres. Even if there are five houses within the prohibited distance, while arriving at the decision the position as on the date when the application was made for permission to start a burial ground ought to have been taken and not at the time when the order was made.
4. The learned Single Judge before whom the matter came up for hearing chose to decide the matter on the objection raised by the respondents to the effect that receipt of application in this case by the District Collector was on 26.11.2001, whereas, the order was passed by him on 16.10.2002, beyond a period of six months from the date of receipt of application. The objection with regard to limitation was raised by the respondents in the appeal filed by them before the appellate authority challenging the order passed by the District Collector, but the appellate authority repelled the same. The learned Single Judge, as mentioned above, upheld the said contention and on that ground alone the Writ Petition was dismissed vide order dated 31.10.2005. Concededly, the points noted by the petitioner in challenging Ext.P15 were not gone into by the learned Single Judge.
5. Learned Counsel appearing for the appellant vehemently contends that assuming that the order Ext.P15 impugned in the Writ Petition could be defended by the respondents on a ground that was rejected by the appellate authority in a writ filed by the petitioner, the finding of the learned Single Judge that the period of six months having elapsed, the District Collector had no choice but to dismiss the application is against the mandate of Sub-rule (9) of Rule 6 of the Rules of 1998. Rule 6 of the Rules of 1998 deals with issuance of licence to burial or burning grounds. With a view to appreciate the controversy with regard to six months limitation provided in the sub-rule it will be useful to reproduce the Rule with its various clauses. The same reads as follows:
6. Issue of licence to burial or burning grounds.-
(1) No new burial or burning ground, whether public or private, shall be opened, constructed or used without a licence from the concerned District Collector.
(2) In the case of increasing or expending the area of an existing cemetery ground the same shall be considered as opening of a new cemetery and those rules shall be applicable to such burial grounds.
(3) Application for licence shall be submitted to the concerned Secretary in Form No. 1.
(4) Application for licence shall be accompanied by a plan of the ground to be registered showing the location, boundary, extent etc., the name of the owner or person or community interested therein, the system of management and such other particulars as the District Collector may require.
(5) In the case of private cemetery the Panchayat shall consider the application within thirty days from the date of receipt of the application and forward the same with its recommendations to the concerned District Collector through the District Medical Officer.
(6) The District Medical Officer shall conduct such enquiries as he may deem necessary on the application received from the Panchayats and shall forward the application with his specific recommendations to the District Collector within thirty days of its receipt.
(7) The District Collector, shall, on receipt of the application, publish the same in a daily newspaper in the regional language of the locality having wide circulation, in the notice board of the Panchayat, notice board of village and other public places specified by the Government, a notice inviting objections, complaints or suggestion, if any, with regard to the issue of licence, in writing within thirty days at the cost of the applicant.
(8) The District Collector after considering the objections, complaints or suggestions received if any in pursuance of the notice under Sub-rule (7) and after conducting such enquiries, as may be deemed necessary, may,-
a) grant licence in Form No. II; or
b) refuse to grant licence; or
c) postpone the grant of a licence until objections regarding the ground have been removed or any particulars called for by him have been furnished.
(9) The District Collector shall pass an order under Sub-rule (8) within six months from the date of receipt of the application and shall inform the same to the concerned Panchayat.
(10) Any person aggrieved by the order of the District Collector under Sub-rule (8) may, within thirty days from the date of order may file an appeal before the Government.
Explanation.- In computing the above said thirty (30) days the time required for obtaining copies of major records connected with the order appealed against shall be excluded.
(11) The Government may pass such orders on the appeal as they think fit, after conducting such enquiries as they deem necessary.
6. Sub-rule (1) of Rule 6 makes grant of a licence necessary for new burial or burning ground. The said licence is to be issued by the District Collector. For increasing or expanding the area of an existing cemetery ground the same shall be considered as opening of a new cemetery as per Sub-rule (2). An application for licence in Form No. I is necessary to obtain the licence as would be made out from Sub-rule (3). The application for licence has to be accompanied by a plan of the ground to be registered showing the location, boundary, extent, etc. and other things mentioned in Sub-rule (4). In the case of private cemetery the Panchayat has to consider the application within thirty days of the receipt of the application and forward the same with its recommendations to the concerned District Collector through District Medical Officer as enjoined in Sub-rule (5), whereas, as per Sub-rule (6) the District Medical Officer has to conduct such enquiry as he may deem necessary on the application and forward the same with his recommendations to the District Collector within thirty days of its receipt. As per Sub-rule (7) the District Collector on receipt of the application would publish the same in a daily newspaper and at various other places mentioned in it and call for objections if any with regard to the issue of licence within thirty days, whereas, as per Sub-rule (8) the District Collector after considering the objections, complaints or suggestions and after conducting such enquiries as he may deem necessary would grant the licence or refuse to grant licence or postpone grant of the licence till objections regarding ground of objections have been removed or any particulars called for him have been furnished. By virtue of the provisions contained in Sub-rule (9) of Rule 6 the District Collector shall pass an order under Sub-rule (8) within six months from the date of receipt of the application and shall inform the same to the concerned Panchayat. Whereas the limitation for various steps for rejection or for grant of licence has been mentioned in Rule 6, all such steps have to be taken or orders passed within the stipulated time therein. The question that arises is as to when terminus a quo for limitation would start. The period of six months is to be reckoned from the date of receipt of the application. The District Collector can receive application only when the District Medical Officer has conducted such enquiries as he may deem necessary on the application received from the Panchayat and when the same has already been sent with specific recommendations to the District Collector. The District Collector when he may receive the application has to publish the same in a daily newspaper, in the notice board of the Panchayat, notice board of the village office and other places specified by the Government and invite objections, complaints or suggestions and then hear such objections that may be received. As per the provisions contained in Sub-rule (8) of Rule 6 the District Collector while considering the objections has to conduct such further enquiries as may be deemed necessary. In a case where after the receipt of the application arid inviting objections, etc. the District Collector may deem it necessary to conduct further enquiries can it be said that the limitation would start running from the date of receipt of application? In a given case when enquiries to be conducted by the District Collector may itself take more than a period of six months, can it be said that the period of six months prescribed in Sub-rule (9) would commence from the date of receipt of the application? We have given a thoughtful consideration to the question as posed above and are of the view that the limitation would start running only when the application is complete in all regards. There will be no question for the District Collector to grant or reject the licence when the application is incomplete or at a time when the enquiries to be conducted by him have not been completed. In the context of the various steps that have to be taken as per the various clauses contained in Rule 6, the date of receipt of the application can be termed to be only that date when application is complete in all regards as an incomplete application without formalities necessarily required to be gone into cannot be termed to be an application as such. The application means an application which has been received after all formalities as required have been complied with. In a given case, if an application is received by the District Collector without the recommendations of the District Medical Officer as required under Sub-rule (6), can it be said to have been received by the District Collector? Would it not be necessary for the District Collector to send back the application to the District Medical Officer for making his recommendations? If, an incomplete application is received by the District Collector and the limitation prescribed for passing the order may start from that date, it will result into an anomalous situation. The District Collector without receiving a complete application wherein all necessary steps had been taken and formalities observed would not be able to pass any order whatsoever. If in the process, therefore, six months may expire can it be said that the District Collector is functus officio. This Court is of the considered view that the receipt of application in the context of Rule 6 and various steps that have to be necessarily taken before the application has to be received by the District Collector would mean application complete in all regards when all necessary steps have been taken and orders passed. An inchoate or incomplete application is no application in the eye of law and receipt of such an application is of no meaning and consequence. The receipt of application necessarily means a complete application on which the District Collector is entitled under law to apply his mind. The limitation may thus be six months from the date of receipt of the application, but we hold that the terminus a quo would be when the application is complete in all regards.
7. In the present case, the District Collector may have received the application on 26.11.2001, but he called for a report of the Tahsildar who had mistakenly calculated the distance from the existing cemetery from the Malankara Syrian-Catholic Church and also reported that dwelling houses were situated at a distance of 50 metres from the proposed cemetery. In view of the prohibition under Rule 5 of the Rules of 1998 the District Collector would not pass orders on the application submitted by the petitioner. When the petitioner came to know about it he requested for a fresh report. A report was called for and the Tahsildar reported on 7.8.2002 that a mistake had crept in while calculating the distance. He clarified that there were no dwelling houses within the distance of 50 metres. The District Medical Officer had issued a certificate stating that the property was suitable for burying dead bodies (vide Ext.P8) on 8.11.2002 and the District Collector granted the licence vide order, Ext.P10, on 25.11.2002. From the receipt of the certificate from the District Medical Officer the order was passed within a matter of days. The receipt of application by the District Collector can be only when all reports as required were put up before the District Collector. Prior to that, even though the application might have been received, the same was incomplete and no proper application at all. The learned Single Judge, however, while placing reliance upon a Full Bench decision of this Court in Surendran v. District Collector 1999 (3) KLT 22, and a Division Bench decision of this Court in Marykutty Mathew v. St. Thomas Orthodox Cathedral 2000 (3) KLT 21 held that as the order had been passed by the District Collector after a period of six months from the date of receipt of the application, the said order was illegal.
8. In Surendran v. District Collector (supra), the question under consideration was as to whether the time limit under Sub-rule (8) of Rule 6 of the Rules of 1967 was directory or mandatory. The matter came up for adjudication on the point noted above in view of the Division Bench seized of the matter was of the view that decision of the Division Bench of this Court in Narayanan Thampi v. District Collector 1998 (2) KLT 48, holding that the time limit under Sub-rule (8) of Rule 6 of the 1967 Rules as directory needed reconsideration. Put briefly, the facts of the said case were that the 5th respondent in the Original Petition, Christ King Church, Edamuttam had made an application for licence to open a cell model burial ground in Edathuruthy Panchayat area on 8.2.1990. The Panchayat vide resolution dated 15th February, 1990 held that it had no objection in constructing a burial ground. The District Medical Officer approved the site on 26.6.1991 and forwarded the application to the District Collector. On 31.7.1991 the ADM called for the report of the Tahsildar, Kodungallur. The Tahsildar sent a letter on 25.9.1991 stating that there was no objection from anyone. The ADM visited the site on 21.12.1992. Even though he found new construction, he did not report that there was any objection. Order was passed to invite objection in the Daily issue of the Express on 7.1.1993 and it was published on 18.1.1993, but no objections were received. The Collector passed the order on 11.11.1993. The application which was thus submitted on 8.2.1990 for a licence to open a cell model burial ground was allowed after more than 3 1/2 years. The appellants in the case aforesaid, who were the petitioners in the Original Petition, had purchased the property near the site of the burial ground and constructed the building which was within 25 metres of the cemetery. They filed an objection before the notification was made, but the same was not considered at all. In the Original Petition they complained of no hearing having been given to them and also that new burial ground could be opened only under the Rules of 1967 and the date from submission of application the orders had to be passed within six months and as the order was passed after more than 3 1/2 years, the Collector WAS functus officio. The learned Full Bench considered the matter in the context of Rules of 1967 which have a material difference from the Rules of 1998. Rule 6 of Rules of 1967 reads as follows:
6. New burial and burning grounds to be opened with a licence from the Collector. --
(1) No new place for the disposal of the dead, whether private or public, shall be opened, formed, constructed or used unless a licence has been obtained from the Collector in this behalf.
Explanation:- For the purpose of these rules, addition to or extension of an existing burial or burning ground shall be deemed as opening a new burial or burning ground and the provisions of these rules shall be equally applicable to such case.
(2) An application for a licence under rule shall be in Form I and shall be submitted to the Executive Officer of the Panchayat concerned.
(3) An application under Sub-rule (2) shall be accompanied by a plan of the place to be licensed and shall specify the locality, boundary and extent thereof, the name of the owner or person or community interested therein, the system of management, and such further particulars as the Collector may require.
(4) The Panchayat shall consider the application and forward the same with its recommendations to the Collector through the Health Officer within a period of one month from the date of its receipt in the Panchayat Office.
(5) The Health Officer shall conduct such enquiries as he may deem necessary and forward the application with his specific remark to the Collector within a period of one month from the date of its receipt in his office.
(6) The Collector shall on receipt of the application, cause the same to be published in a local daily newspaper having wide circulation in the area, at the cost of the applicant, together with notice inviting objections, if any, to the grant of the licence applied for.
(7) The Collector shall consider the objections, if any, received in pursuance of the notice under Sub-rule (6) and after causing such enquiries, as may be necessary, to be conducted in the matter, may -
(a) grant the licence; or
(b) refuse to grant the licence on grounds of public order, morality or health; or
(c) postpone the grant of licence until objections to the site have been removed or any particulars called for by him have been furnished.
(8) The Collector shall in every case pass an order under Sub-rule (7) within a period of six months from the date of submission of the application to the Panchayat and if no such order is passed by the Collector within the said period, the licence applied for shall be deemed to have been granted and the applicant may proceed to use the site for the purpose of disposal of the dead but not so as to contravene any of the provisions of these rules or the byelaws made under the Act.
(9) The person aggrieved by an order of the Collector under Sub-rule (7) may, within a period of thirty days from the date of the order, appeal to the Government.
Explanation: The time required for obtaining copies of material papers in connection with the order appealed against shall be excluded in computing the said period of thirty days.
(10) The Government may, after such enquiry as they consider necessary, pass such orders on the appeal as they think fit.
A comparison of the Rules of 1967 and 1998 would show that whereas, under Sub-rule (8) of Rule 6 of 1967 Rules the Collector has, in every case, to pass an order under Sub-rule (7) within a period of six months from the date of submission (emphasis supplied) of application to the Panchayat and if no such order is passed by the Collector within the said period, the licence applied for shall be deemed to have been granted; under Sub-rule (9) of 1998 Rules, the District Collector shall pass an order within six months from the date of receipt of the application and shall inform the same to the concerned Panchayat. The terminus a quo, so as to compute the period of six months, would start from the date of submission of application to the Panchayat under the 1967 Rules, but it would commence from the date of receipt of application by the District Collector under the 1998 Rules. We may mention here that a part of Sub-rule (8) of Rule 6 of 1967 Rules saying that no order being passed within a period of six months, the licence applied shall be deemed to have been granted was held invalid in Narayanan Thampi v. District Collector (supra), which has been noticed by the learned Full Bench as well. The distinction in rules as noted above was considered by the Division Bench of this Court in Marykutty Mathew v. St. Thomas Orthodox Cathedral (supra), by observing as follows:
But, we find there are certain other differences between the provisions contained in Sub-rule (8) of Rule 6 of the 1967 Rules and Sub-rule (9) of Rule 6 of the 1998 Rules. In 1967 Rules, the Collector has to pass an order within six months from the date of submission of the application to the Panchayat, whereas in 1998 Rules, the Collector has to pass the order within six months of his receiving the application.
It was also held that, The provisions of 1998 Rules would make it clear that the period of six months would start running only from the date of receipt of the application by the District Collector from the District Medical Officer and not from the date of receipt of application by the Panchayat.
The learned Division Bench by following the dictum of the Full Bench laid down in Surendran v. District Collector (supra) held Sub-rule (9) of Rule 6 of 1998 Rules to be mandatory and not directory, but still permitted the licence by holding that Collector has passed the order within six months of receipt of application by him. The question in the present case, however, is not as to whether the provisions with regard to limitation contained in Sub-rule (9) of Rule 6 of 1998 Rules is mandatory or directory, but as to whether what would be considered to be the date of receipt of application by the District Collector or, in other words, when the terminus a quo for limitation would start. In our considered view, the limitation of six months would start only when the application received by the District Collector is complete in all regards and he is entitled to apply his mind.
9. On merits of controversy, it is undisputed that after the petitioner submitted an application, the District Collector called for a report from the Tahsildar, who in turn reported that there were dwelling houses within a distance of 50 metres. Subsequently, us per Ext.P5, the Tahsildar reported that the earlier distance happened to be calculated from the existing cemetery belonging to Malankara Catholic Church and that there was no dwelling house or wells within a distance of 50 metres from the proposed site.
The Secretary, Local Self Government (L) Department, exercising the powers of the Government while passing the order at Ext.P15 placed reliance only on Ext.P14 resolution passed by the Grama Panchayat. It is an admitted position that no enquiry was conducted by the Government before passing Ext.P15 The Government chose to rely upon the resolution, Ext.P14, of the Panchayat and totally ignored the evidence on the basis of which the Collector had granted the licence. The Grama Panchayat through a sub-committee had conducted a site inspection and submitted a report on 23.8.2001 that there are people residing only beyond 150 metres from the proposed burial ground and that the same is bounded by a boundary wall and that the same is situated near the existing burial ground belonging to Malankara Catholic Church. The authenticity of the inspection report submitted by the sub-committee was not even disputed before the Appellate Authority. The Tahsildar in his letter addressed to the District Collector dated 7.8.2002 (Ext.P5) clearly reported that there were no residences or wells within a distance of 50 metres from the 5 cents of land where the burial ground was proposed to be constructed and the house of the nearest resident, Therittayil Georgekutty is situated at a distance of 55 metres from the proposed burial ground and his well is situated at a distance of 58.5 metres. It may be true that in Ext.P14 resolution passed by the Grama Panchayat, it has been mentioned that there were five families residing within a distance of 50 metres from the burial ground but this resolution is dated 4.3.2003 and assuming that five families were residing within a distance of 50 metres, it would be quite clear that if at all, such families were there, they might have started residing after submission of the application by the petitioner for grant of licence. Reference at this stage may be made to Rule 5 of Rules of 1998 according to which no new burial and burning ground should be located within a distance of 50 metres from a dwelling house and that whether there is a burial or burning place or not within the specified limit should be determined by considering the circumstances as on the date of application for licence. Rule 5 of Rules of 1998 reads thus:
5. No burial and burning ground to be located within the limit of 50 metres of a dwelling house.-
(1) No new burial and burning ground shall be provided within the limit of 50 metres of dwelling houses:
Provided that In the case of concrete vaults and electric crematorium the distance shall be a minimum of 25 metres from dwelling houses.
(2) Whether there is any burial and burning place or not within the specified limit from the dwelling house is to be determined by considering the circumstance on the date of application for licence.
10. It is not the case of the Grama Panchayat nor any mention thereof has been made in the resolution dated 4.3.2003, Ext.P14, that there were actually dwelling houses within a distance of 50 metres from the proposed burial ground and therefore earlier resolution was incorrect. In the present case, however, there was yet another important piece of evidence which was totally ignored by the Government while passing order, Ext.P15. The wife of the 5th respondent along with her son had filed O.S. No. 162 of 1992 before the Munsiff's Court, Adoor against the vendors of the petitioner and others for a prohibitory injunction not to open a burial ground in the plaint schedule property. The suit was instituted in a representative capacity under Order VIII, Rule 1 C.P.C. seeking injunction. The civil court dismissed the suit on 14.12.1995 vide Exi.P13 judgment. Issue No. 2 framed by the Court on the basis of the pleading made in the suit was whether the burial ground, if established would be a menace to the living of the plaintiffs in the adjacent property. The case set up was that plaint A schedule property belongs to Mathai George whereas plaint B schedule property was recently sold out by Mathai George-the first defendant to defendants 3 to 7 for opening a cemetery for the Saron Church, the second defendant arrayed in the suit. Two Acres and four cents of dry land lying at the immediate north of the plaint A and B schedule properties belong to Daniel, the husband of the first plaintiff and father of the second plaintiff. The pathway of the plaintiffs' property passes through the western side of the plaint schedule properties. The residence of the plaintiffs was 100 feet north-west of plaint schedule property and the front of the property was more or less facing the plaint schedule property. The well of the plaintiff was situated 100 feet away from the plaint schedule property. That apart, the pond that was used daily by the plaintiffs was just 15 feet north of the plaint schedule property. It is interesting to note that at an earlier point of time Daniel, the husband of the first plaintiff and the father of the second plaintiff had filed a suit, O.S. No. 206 of 1998 which was dismissed. However, in the present suit referred to above, the learned Munsiff has recorded a finding that the plaintiffs did not dare to step into the box to give evidence and that no evidence was thus adduced in this case from the plaintiffs' side and in the circumstances, it had to be held that plaintiffs failed to establish that establishment of the burial ground in the plaint schedule properties is a menace to the living of the plaintiffs in their adjacent property. It is too well settled that findings of a civil court would have precedence over the orders passed by other authorities. Once therefore, the issue had been settled by a civil court, the judgment rendered by it had to be given preference. As mentioned above, this aspect of the case was not even considered by the appellate authority.
11. In view of the discussion made above, this Writ Appeal deserves to be allowed. Consequently, we set aside the orders passed by the Government at Ext.P15 as also the judgment passed by the learned Single Judge dated 31st October, 2005. We restore the order, Ext.P7, passed by the District Collector dated 16.10.2002.
The Writ Appeal is allowed. In view of the fluctuating fate of the parties at every level, the costs are made easy.