Kerala High Court
Roy Yohannan vs District Collector on 5 April, 2018
Author: Shaji P. Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 2ND DAY OF AUGUST 2018 / 11TH SRAVANA, 1940
WP(C).No. 15179 of 2018
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PETITIONER:
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ROY YOHANNAN, AGED 55,
S/O.LATE P.P. YOHANNAN,
PAINADATHU HOUSE, NAYATHODE,
ANGAMALY, ERNAKULAM-683572.
BY ADV.SRI.PRAVEEN K. JOY
RESPONDENT(S):
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1. DISTRICT COLLECTOR,
ERNAKULAM-682030.
2. NEDUMBASSERRY GRAMA PANCHAYATH,
NEDUMBASSERRY, ERNAKULAM-683111.
REPRESENTED BY ITS SECRETARY.
3. THE SECRETARY,
NEDUMBASSERRY GRAMA PANCHAYATH,
NEDUMBASSERRY, ERNAKULAM DISTRICT-683111.
4. THE TRUSTEE,
JACOBITE SYRIAN CATHREDEL,
VALIYAPALLI, AKAPPARAMBU,
VAPPALASSERY P.O., ERNAKULAM-683572.
5. PAUL VARGHESE MARAGADAN,
PUTHUSSERY HOUSE, POYKKATTUSSERRY,
CHEGAMANAD P.O., ANAGAMALY,
ERNAKULAM DISTRICT-683572.
6. JIPPU VARKEY, PAINADATHU HOUSE,
MEYKKAVU KARA, VAPPALASSERRY,
ANGAMALY, ERNAKULAM-683572.
R1 BY GOVERNMENT PLEADER SRI.PAUL ABRAHAM VAKKANAL
R2 BY SRI.GEORGE SEBASTIAN, SC
R3 BY ADV. SRI.MANOJ B.MENON
R6 BY ADV. JIPPU VARKEY (PARTY IN PERSON)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 02-08-2018, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
mbr/
WP(C).No. 15179 of 2018 (V)
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APPENDIX
PETITIONERS' EXHIBITS:
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EXHIBIT P1: THE TRUE COPY OF THE ORDER DATED 05.04.2018 IN
APPEAL NO.28/2015 AND 127/2016 OF THE KERALA STATE
CONSUMER DISPUTE REDRESSEL COMMITTEE.
EXHIBIT P2: THE TRUE COPY OF THE PHOTOGRAPH OF THE TOMB OF
PETITIONER'S FAMILY.
EXHIBIT P3: THE TRUE COPY OF THE REPRESENTATION BEFORE THE
1ST RESPONDENT.
RESPONDENTS' EXHIBITS: NIL
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/TRUE COPY/
P.S.TO JUDGE
mbr/
04.08.2018.
SHAJI P. CHALY, J.
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W.P.(C) No.15179 of 2018
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Dated this the 2nd day of August, 2018
JUDGMENT
This writ petition is filed by the petitioner seeking direction to the 1st respondent District Collector to take up Ext.P3 representation submitted by the petitioner, hear all parties mentioned thereto, and after making joint inspection, to pass an order not to disturb the tomb of the petitioner's family or other tomb of the cemetery of Mar Sabor Mar Aphroth-Jacobite Syrian Cathedral, Akapparambu, in the interest of justice, and for other related reliefs. Material facts for the disposal of the writ petition are as follows:
2. Petitioner's father and grandmother are buried in the cemetery of the afore-specified Cathedral. According to the petitioner, now a dispute is raised by the party respondents regarding re-construction of tomb in the cemetery, disturbing other tombs in the cemetery, which is an issue coming within the purview of the 1 st respondent in accordance with the powers granted under the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998 (for W.P.(C) No.15179 of 2018 2 short, 'the Rules, 1998'). The party respondent has approached the Consumer Disputes Redressal Forum, Ernakulam, without making the petitioner a party and based on an order, he is attempting to disturb other tombs in the cemetery, which is illegal and against law. It is also submitted that, the Consumer Forum is not having any jurisdiction to decide such issues.
3. The 6th respondent filed a petition for re-
constructing his family tomb in the cemetery of the Cathedral managed by the 4th respondent. On 30.04.2018, the party respondents came with the order and declared that they will re-construct the tomb by disturbing the nearby tomb. It is also the case of the petitioner that, Ext.P1 judgment is obtained by the 6th respondent in the appeal by collusion etc. etc. It is also submitted that, Ext.P1 judgment is illegal and against law. The 1st respondent is the authority to consider such issues in accordance with the Rules, 1998, and it was thereupon that, petitioner has submitted Ext.P3 before the said respondent, however, 1st respondent is hesitant to consider the issues raised by the petitioner, which necessitated the filing of this writ petition.
W.P.(C) No.15179 of 2018 3
4. The 6th respondent has filed a detailed counter affidavit, refuting the allegations and claims and demands raised by the petitioner. According to the 6 th respondent, the 6th respondent has no manner of intention to interfere with the tomb constructed by the petitioner. That apart, it is stated that, on 31.12.1984, 6th respondent remitted the required fee to the Church authorities for constructing a tomb in his family name and on 06.01.1985, the Administrative Committee of the Church had given sanction for the same, and based on the same, 6th respondent built a family tomb therein. As per the rules of the Church, when the sanction is given to a person for constructing a tomb and when it is constructed, the same can be used exclusively for the family of that person.
5. It is also submitted that, on 19.02.2012, when the 6th respondent visited his family tomb for offering prayers, it was seen that the family tomb was demolished. On enquiry with the Church authorities, it was informed that in the committee meeting held on 22.08.1988, a decision was taken not to allow any more people other than priests to construct tombs thereafter. Since the 6th respondent obtained sanction and constructed the tomb much before the decision of the W.P.(C) No.15179 of 2018 4 committee dated 22.08.1988, the restriction made is not applicable to them. It was thereupon that petitioner approached the Consumer Disputes Redressal Forum, Ernakulam, and an order was passed by the Forum in C.C.No.714/2013, directing the Church authorities to re- construct the family tomb of the 6th respondent.
6. Aggrieved by the said order of the Forum, the 4 th respondent as well as the 6 th respondent preferred appeals before the State Consumer Disputes Redressal Commission, wherein the appeal preferred by the 6th respondent was partly allowed, by directing to pay compensation of Rs.25,000/-. It was also directed thereunder that, if the opposite parties in the complaint, viz., the Church and its Trustee are not carrying out the construction, the 6th respondent will be at liberty to carry out the construction and realize the cost, which was quantified at Rs.25,000/-. A further direction was also passed, directing the Trustee of the Church to pay an amount of Rs.10,000/- towards cost.
7. I have heard learned counsel for the petitioner, learned Government Pleader and the 6th respondent who appeared in person. Even though notice is served on W.P.(C) No.15179 of 2018 5 respondents 2 to 5, there is no appearance.
8. The discussion of facts made above would make it clear that, petitioner was never a party in the complaint pending before the Consumer Forum or in the appeal proceedings. Therefore, the challenge made by the petitioner against Ext.P1 judgment of the Commission can never be sustained. Moreover, if the petitioner is in any manner aggrieved, there is a remedy of appeal to the National Commission, in accordance with the provisions of the Consumer Protection Act, 1986. Looking the issue at a different angle by and between the petitioner and the 6 th respondent, if there is any dispute, it is a clear civil dispute by and between the parties. The District Collector is vested with powers under the Rules, 1998, in respect of granting permission for burial and burning grounds, and there is no power vested with the 1st respondent to adjudicate the civil dispute by and between the parties arising in respect of a tomb constructed within the cemetery. Therefore, I do not think petitioner is entitled to get a relief for consideration of Ext.P3.
9. Taking into account the totality of the circumstances and reckoning the law, I am of the considered opinion that, the W.P.(C) No.15179 of 2018 6 writ petition itself is not maintainable under law. Petitioner is also unable to point out any illegality, arbitrariness or unfairness on the part of the 1 st respondent, justifying interference of this Court under Article 226 of the Constitution of India.
The writ petition fails, accordingly it is dismissed.
Sd/-
SHAJI P. CHALY JUDGE St/-
03.08.2018