Kerala High Court
V.N.Sasidharan vs State Of Kerala on 4 May, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 8TH DAY OF APRIL 2013/18TH CHAITHRA 1935
WP(C).No. 8889 of 2012 (I)
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PETITIONER :
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V.N.SASIDHARAN, AGED 59 YEARS
S/O. NARAYANAN, VADAKKE VELIYIL, KALAVOOR P.O.
ALAPPUZHA DISTRICT.
BY ADV. SRI.N.RADHAKRISHNAN
RESPONDENT(S) :
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1. STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVT.
LOCAL SELF GOVT. DEPARTMENT
GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001.
2. THE DISTRICT COLLECTOR
ALAPPUZHA-688001.
3. THE DISTRICT MEDICAL OFFICER
ALAPPUZHA-688001.
4. THE TAHASILDAR
AMBALAPUZHA TALUK, ALAPPUZHA-688001.
5. MANNACHERRY GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY, ALAPPUZHA-688522.
6. THE VICAR
ST. THOMAS CHURCH, KALAVOOR, ALAPUZHA-688522.
R1 TO R4 BY GOVT. PLEADER SRI. P. PADMALAYAN
R6 BY ADVS. SRI.MATHEW JOHN (K)
SRI.DOMSON J. VATTAKUZHY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/03/2013,
ALONG WITH WPC. 21698/2012, THE COURT ON 08-04-2013 DELIVERED
THE FOLLOWING:
Mn
...2/-
WP(C).No. 8889 of 2012 (I)
APPENDIX
PETITIONERS' EXHIBITS :
EXT.P1 TRUE COPY OF THE APPLICATION SUBMITTED IN FORM NO.1
EXT.P2 TRUE COPY OF THE RESOLUTION BY THE PANCHAYATH COMMITTEE
DATED 4-5-2005.
EXT.P3 TRUE COPY OF THE COMMUNICATION FROM THE DISTRICT MEDICAL
OFFICER, HEALTH, ALAPPUZHA TO THE DISTRICT COLLECTOR,
ALAPPUZHA.
EXT.P4 TRUE COPY OF THE REPORT BY THE DISTRICT MEDICAL OFFICER,
ALAPPUZHA DATED 15-7-2011.
EXT.P5 TRUE COPY OF THE COMPLAINT BY THE PETITIONER AND OTHERS
DATED 9-5-2011.
EXT.P6 TRUE COPY OF THE REPORT BY THE RDO ALAPPUZHA DATED 8-6-2011.
EXT.P7 TRUE COPY OF THE REPORT BY THE TAHASILDAR, ALAPUZHA DATED
26-2-2011.
EXT.P8 TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR
DATED 24-9-2011.
EXT.P9 TRUE COPY OF THE JUDGEMENT IN WPC 27758/2011 DATED 7-12-2012.
EXT.P10 TRUE COPY OF THE ORDER NO. G.O.(RT) NO. 896/2012/LSGD DATED
26-3-2012.
RESPONDENTS' EXHIBITS :
EXT.R6(a) COPY OF THE NOTICE DATED 23.12.1998 ANNOUNCING ABOUT THE HOLY
MASS BEING CELEBRATED IN THE CHURCH WITH EFFECT FROM
25.12.1998.
EXT.R6(b) COPY OF THE APPLICATION SUBMITTED BY THE 6TH RESPONDENT
DATED 25.4.2005.
EXT.R6(c) COPY OF THE REPLY DATED 3.11.2008 BY THE PUBLIC INFORMATION
OFFICER.
EXT.R6(d) COPY OF THE LETTER DATED 16.9.2010 BY THE 6TH RESPONDENT TO
THE SECRETARY MANNCHERRY GRAMA PANCHAYATH.
EXT.R6(e) COPY OF THE LETTER DATED 29.9.2010 BY THE SECRETARY OF THE
GRAMA PANCHAYATH TO THE DISTRICT MEDICAL OFFICER.
(Contd...)
WP(C).No. 8889 of 2012 (I)
EXT.R6(f) COPY OF THE LETTER DATED 22.10.2010 BY THE DISTRICT MEDICAL
OFFICER TO THE DISTRICT COLLECTOR.
EXT.R6(g) COPY OF THE NEWS ITEM IN THE DEEPIKA DAILY DATED 17.11.2010.
EXT.R6(h) COPY OF THE NOTICE DATED 22.12.2010 ISSUED BY THE DISTRICT
COLLECTOR.
EXT.R6(i) COPY OF THE NOTICE DATED 17.2.2011 ISSUED BY THE DISTRICT
COLLECTOR.
EXT.R6(j) COPY OF THE COMMUNICATION DATED 24.2.2011 BY THE DISTRICT
COLLECTOR.
EXT.R6(k) COPY OF THE COMMUNICATION DATED 8.6.2011 BY THE DISTRICT
COLLECTOR BY THE REVENUE DIVISIONAL OFFICER.
EXT.R6(l) COPY OF THE PETITION DATED 9.5.2011 BY THE PETITIONER AND
OTHERS BEFORE THE DISTRICT COLLECTOR.
EXT.R6(m) COPY OF THE REPLY DATED 15.7.2011 BY THE DISTRICT MEDICAL
OFFICER TO THE DISTRICT COLLECTOR.
EXT.R6(m) IN COPY OF THE REPORT DATED 15.7.2011 BY THE DISTRICT MEDICAL
IA 11225/2012 OFFICER TO THE DISTRICT COLLECTOR.
EXT.R6(n) COPY OF THE APPLICATION DATED 21.9.2010 SUBMITTED BEFORE THE
DISTRICT MEDICAL OFFICER BY THE 6TH RESPONDENT.
//TRUE COPY//
P.S. TO JUDGE
Mn
A.M.SHAFFIQUE, J.
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W.P.(C) Nos. 8889 of 2012 - I
&
21698 of 2012 - J
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Dated this the 8th April, 2013
J U D G M E N T
These writ petitions are filed challenging an order passed by the District Collector, Alappuzha granting permission to construct a concrete vault which was confirmed by the Government. Hence the cases are heard and disposed by a common judgment. The documents and parties referred are with reference to W.P.(C) No. 8889 of 2012, unless other wise stated.
2. The petitioners in the writ petitions are nearby residents of the Church where the cemetry in the form of a concrete vault is proposed to be constructed.
3. Ext.P8 is the proceedings of the District Collector, Alappuzha by which permission was granted to the 6th respondent to construct a concrete vault for St.Thomas W.P.(C) No. 8889 of 2012 - I 2 Church, Kalavoor in an extent of 52.20 ares of land situated in Block No.4, Re.Sy.No.116/1, of Mannancherry Village at Ambalappuzha. Ext.P10 is the order passed by the Government dismissing the appeal filed by certain persons in the locality against the proceedings of the District Collector at Ext.P8.
4. The petitioners contend that the concrete vault proposed by the 6th respondent was permitted to be constructed in violation of the Kerala Panchayat Raj Act (Burial and Burning Grounds) Rules, 1998 (hereinafter referred to as the 'Rules'). The contention urged by the petitioners is that an application for putting up a concrete vault was submitted initially by the Vicar of Church in 2005 and by resolution dated 4.5.2005, the Panchayat had forwarded the documents to the District Medical Officer (for short 'DMO') in terms of Rule 6(5) of the Rules. But nothing was heard in the matter. Subsequently it seems that in the year 2010, the Church authorities have approached the DMO, who opined as per Ext.P4 report that the concrete vault could be constructed in the proposed area. The contention of the W.P.(C) No. 8889 of 2012 - I 3 petitioner is that there was no decision by the Panchayat on the basis of any fresh application submitted by the Church authorities. Ext.P1 dated 21.9.2010 is the fresh application. Thereafter there was no decision by the Panchayat. According to the petitioners, the resolution dated 4.5.2005 at Ext.P2 was forwarded to the DMO along with the fresh application which was considered and approved by the DMO. It was also contended that the time limit specified under the Rules was not complied and several deficiencies pointed out were not considered by the Authorities.
5. According to the petitioners, the existence of vault would create severe environmental problems as the water body in the nearby locality will be affected by the cemetery coming into existence in that area and that the cemetery is in close proximity with the neighbouring residences. Reference is made to the judgment of the Supreme Court in Commissioner of Police, Bombay v. Gordhandas Bhanji (AIR 1952 S.C. 16(1). This judgment is relied upon to indicate that the authority who has passed the order has to rely upon the materials forming part W.P.(C) No. 8889 of 2012 - I 4 of the impugned order and cannot bring new explanations subsequent to the same. The judgment of the learned Single Judge in Kurian Kurian v. District Collector [1998 (2) KLT 185] is also relied upon to contend that the question of health hazard was not independently considered by the District Collector. Reliance is placed on the following portions of the judgment:
"xxxxxxxxxThe mere fact that the thodu is situated beyond the distance prescribed under the Rules does not free the authorities from looking into the question whether there is any health hazard. xxxxxxx Sub-rule (b) is relevant, that the Collector may refuse to grant the licence on grounds of public order, morality or health. Thus, even if there is no non-compliance of the provisions of the rules on account of distance if the Collector is satisfied that licence cannot be granted on grounds of public order, morality or health, then the application has to be rejected. This aspect has been stressed in the decision of this Court reported in Narayanan Thampi v. District Collector, 1988 (2) KLT 48, by a Division Bench when it observed as follows:-
"The Collector is required to cause such enquiry as may be found necessary into the objections received and he is required to pass final orders on the application for licence with due regard to the objections received. The Collector is empowered to grant the licence or refuse the same on grounds of public order, morality or health". xxxxxxxx W.P.(C) No. 8889 of 2012 - I 5
6. Counter affidavit is filed by the respondents supporting the stand taken by the District Collector as well as the Government.
7. Heard learned counsel for the petitioners, learned Additional Advocate General Sri.P.C.Iype appearing for the official respondents and learned counsel appearing for the party respondent.
8. On a factual consideration of the above matter, the question to be considered is whether the cemetery will cause any pollution to the nearby locality and whether there is any procedural violation or illegality in the orders passed by the District Collector and the Government.
9. The main contention urged by the learned counsel for the petitioners is the validity of the resolution passed by the Panchayat. According to them, the decision of the Panchayat at Ext.P2 is not a recommendation for putting up a cemetery and the said decision was taken in the year 2005. The decision now W.P.(C) No. 8889 of 2012 - I 6 made by the District Collector is based on a fresh application at Ext.P1 in the year 2010 against which there is no decision by the Panchayat. Learned counsel appearing for the 6th respondent having referred to various averments in the affidavit filed by the Government, submits that the Church was established in the property on 25.12.1998. The application for constructing the concrete vault was submitted before the Panchayat in 2005. The Panchayat had no objection and hence a decision was taken by the Panchayat to forward the application to DMO in terms with Rule 6(5) as per Ext.P2 resolution. When no action was seen taken with reference to the application, the 6th respondent got Ext. R6(c) information under the Right to Information Act in which it is stated that the application was lost. Thereafter, a fresh application was submitted to the Panchayat which was forwarded to the DMO. By Ext.P3 dated 29.9.2010, the DMO forwarded Ext.R6(f) report to the District Collector stating that the concrete vault can be installed in the said premises. On admitted facts, it is evident that Ext.P2 resolution was passed W.P.(C) No. 8889 of 2012 - I 7 by the Panchayat only on 4.5.2005. A reading of the above resolution would show that they have forwarded the application received from the Church to the DMO in terms of Rule 6(5). The argument of the petitioners that there is no decision of the Panchayat in the said resolution, is not acceptable. They have taken up the matter before the committee when the request was received in 2005 and decided to forward the same in terms of Rule 6(5)which reads as under:
"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".
Once such a decision has been taken to forward the application to DMO in terms with Rule 6(5) lack of a categoric statement in the resolution in regard to their recommendation cannot be taken as an illegality to contend that there was no decision by the Panchayat. Apparently when they received the second application, Ext.P1, the Panchayat did not feel to modify the earlier decision, Ext.P2. If the view taken by the Panchayat is W.P.(C) No. 8889 of 2012 - I 8 the same in terms of Ext.P2, there is nothing wrong on the part of the Panchayat relying upon the said resolution. At best, it can be termed only as an irregularity and it has to be considered whether such irregularity causes any prejudice to the petitioners. No such prejudice is caused to the petitioners in that regard. Therefore, Ext.P2 decision is valid and is in accordance with the provisions contained in the Rules.
10. Petitioners have a case that the time limit as specified under the Rules had not been complied with. The 2nd application is dated 21.9.2010, DMO's report to the District Collector is dated 22.10.2010 and the order was passed by the District Collector on 24.9.2011, well after the time of six months stipulated under the Rules. Reference is made to the judgment of this Court in Surendran v. State of Kerala [1999 (3) KLT 22] by contending that the time limit specified under the Rules is mandatory and non compliance would result in clear violation of the Rules. Paragraph 12 reads as under:
W.P.(C) No. 8889 of 2012 - I 9 "12. As already stated in the present case the fixation of time limit is very important. The Panchayat is directed to transmit the Resolution with its remarks and that of the D.M.O. within one month. The Collector is directed to dispose of the matter within six months from the date of filing of the application. Under Explanation to R. 5 of the Rules, the date of application for licence is taken as a crucial date regarding the location of the buildings etc. The above entire provision read together will show that time factor has been introduced in order to see that it is complied with mandatorily;
otherwise it may lead to very difficult situation especially with regard to persons who had purchased the property or constructed buildings after six months' period is over because their objections will not be taken into consideration. Hence we hold that the direction, to dispose of the matter within six months, to the Collector is mandatory and after that he becomes functus officio." On the other hand, the learned Additional Advocate General submits that the factual circumstances involved in the case would justify that there was no delay in considering the application. Reliance is placed on the Division Bench judgment of this Court in Pentecost Mission v. State of Kerala [2006 (4) KLT 153] wherein this court while considering the Rules opined that six months should start from the date when the Collector receives the application with all necessary particulars. W.P.(C) No. 8889 of 2012 - I 10 It is held as under:
xxxx " 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-r.(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 R.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".xxxx W.P.(C) No. 8889 of 2012 - I 11 "8. In Surendran v. District Collector (supra), the question under consideration was as to whether the time limit under sub-r. (8) of R.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 (1988 (2) KLT
48), holding that the time limit under sub-r. (8) of R.6 of the 1967 Rules as directory needed reconsideration.
xxxxxxxxxxxxxxx The learned Full Bench considered the matter in the context of Rules of 1967 which have a material difference from the Rules of 1998. R. 6 of Rules of 1967 reads as follows:
xxxxxxxxxxxx A comparison of the Rules of 1967 and 1998 would show that whereas, under sub-r. (8) of R. 6 of 1967 Rules the Collector has, in every case, to pass an order under sub-r. (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- r. (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 W.P.(C) No. 8889 of 2012 - I 12 the date of receipt of application by the District Collector under the 1998 Rules. We may mention here that a part of sub-r.(8) of R. 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-r.(8) of R.6 of the 1967 Rules and sub-r.(9) of R.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".
W.P.(C) No. 8889 of 2012 - I 13 Therefore the apparent difference in the 1967 Rules and 1998 Rules had been clearly stated in the above judgment.
11. In the case on hand it could be seen that a fresh application was submitted before the Panchayat on 21.9.2010. The same was sent to the DMO on 29.9.2010, who forwarded the report to the District Collector on 22.10.2010. Publication was made by the District Collector on 7.11.2010. Notice was published in the locality and individual notices were given. Hearing was held on 12.1.2011. On the request of objectors a site inspection was made by the District Collector on 21.2.2011. On the basis of the request made by the objectors the Collector directed the Revenue Divisional Officer (RDO) to conduct further enquiries. The RDO submitted a report on 8.6.2011 as R6(k). There was an allegation that DMO's report was incorrect. The Collector again directed the DMO to submit a fresh report after site inspection. The DMO gave a further report along with Ext.P4 letter dated 15.7.2011, which was taken into W.P.(C) No. 8889 of 2012 - I 14 consideration and the impugned order was passed by the District Collector. Therefore, it is evident that the application complete in all particulars were received by the District Collector only on 15.7.2011 and there was no delay on the part of the District Collector in passing the impugned order.The learned counsel for the 6th respondent also relied upon following portion of the judgment in [2008 (1) KLT 692] for contending that having participated in the proceedings it is not open for the petitioners to challenge the jurisdiction of the District Collector to pass the impugned order.
"3. The petitioner has chosen, not to point out the lack of jurisdiction of the Registrar or the Government before those authorities, when the matter was heard. The petitioner who took the chance before both the forums, cannot be permitted to turn round and cry about the lack of jurisdiction when the decision goes against her. This is a well settled principle in writ jurisdiction. See the decision of the Division Bench in Trivandrum Co-operative District Wholesale Society v. Deputy Registrar of Co-operative Societies, Trivandrum (1975 KLT 589)".
W.P.(C) No. 8889 of 2012 - I 15
12. Another contention raised is regarding validity of the application form submitted by the Church. The applicant is Rev.Father Reji Puthuveetti Kalam and the address is shown as St.Thomas Church, Klavoor P.O. The property shown is having an extent of 52.20 ares. In the Column for possession it is mentioned as by way of sale deed. The right to property is shown at Column No. 7 as ownership by title. The contention of the petitioners is that in so far as the property, it is not belonging to Rev.Father Reji Puthuveettil Kalam, the application is improper. This is a highly technical argument. A perusal of the application would show that the application is submitted for putting up cemetery in the property belonging to the applicant, who is representing a Church. In Column 4 of Ext.P1, it is stated that the property belongs to St.Thomas Church. The applicant is only a representative of the Church and therefore I do not think that this contention has any relevance.
13. Another contention raised is regarding the validity of the publication. According to the learned counsel, in terms W.P.(C) No. 8889 of 2012 - I 16 of Rule 6(7), the District Collector has to publish the application in a daily newspaper in regional language of the locality having wide circulation. Admittedly, the publication had been done. The contention is regarding the newspaper Deepika daily, which according to the petitioners does not have wide circulation. If the District Collector had thought fit that the publication is enough in such a newspaper, I do not think that petitioners can contend otherwise. More over it is not a case that the Collector has not given an opportunity to any person to ventilate their grievance.
14. Yet another contention raised by the petitioners is that the cemetery will cause pollution in the nearby locality. It is contended by the 6th respondent that the cemetery is a concrete vault which is beyond a distance of 50 Metres from the nearby residence and permissible as per Rules. No pollution will be caused as there is no burning of the bodies or any effluent being discharged into the nearby water source. As per Rule 5 of the Rules, a concrete vault can be provided within a W.P.(C) No. 8889 of 2012 - I 17 distance of 25 meters from dwelling homes. The question regarding pollution had been gone into in great detail by the fact finding authorities under the Rules and they have come to a conclusion that the cemetery can be installed in the said location. This court exercising jurisdiction under Article 226 of the Constitution of India, cannot go into the said factual findings and form a different opinion.
15. True that, the existence of a cemetery in the neighbouring locality may cause some inconvenience, but the dead has to be buried and when religious factions comes forward to make arrangements to bury their dead with all its religious custom, rites and rituals, the same cannot be denied by pointing out some irregularity in the action of the authorities in complying with the provisions of the Rules.
16. Apparently being a concrete vault, there is no chance for any pollution being caused to the nearby areas and there is no reason to doubt that it may affect the water sources in the area. The apprehension expressed by persons like petitioners W.P.(C) No. 8889 of 2012 - I 18 had been considered in detail and the permission has been granted. Having heard the learned counsel appearing for the petitioners, I do not think that any prejudice will be caused to them on account of the concrete vault being situated inside the church premises. Therefore, even assuming that there is some force in the contention of the learned counsel for the petitioners that the Panchayat ought to have issued a proper recommendation on the basis of Ext.P1 application, taking into consideration the larger public interest involved in the matter and especially when it relates to a burial place and that too, a concrete vault, which does not cause any inconvenience to any person, I do not think that this Court will be justified in interfering with Ext.P8 and P10 orders.
Hence these writ petitions are dismissed.
Sd/-
A.M.SHAFFIQUE, JUDGE.
rka /true copy/
W.P.(C) No. 8889 of 2012 - I
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