Kerala High Court
Ali Ibnu Abithalib Juma Masjid vs The District Collector on 2 November, 2020
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
MONDAY, THE 02ND DAY OF NOVEMBER 2020 / 11TH KARTHIKA, 1942
WP(C).No.13202 OF 2019(A)
PETITIONER/S:
1 ALI IBNU ABITHALIB JUMA MASJID,
VELLIKULANGARA-VALLIKKAD, CHORODE, MUTTUNGAL P.O,
VATAKARA, KOZHIKODE-673 106, REPRESENTED BY ITS
PRESIDENT.
2 NAZAR M.K., AGED 51 YEARS, S/O. MOIDU, MANCHAMKUNIYIL
HOUSE, VELLIKULANGARA, MADAPPALLY COLLEGE P.O,
VATAKARA, KOZHIKODE-673 102.
BY ADVS.
SRI.ABDUL JAWAD K.
SMT.A.GRANCY JOSE
RESPONDENT/S:
1 THE DISTRICT COLLECTOR, KOZHIKODE, PIN-673 020.
2 THE DISTRICT MEDICAL OFFICER(HEALTH),
KOZHIKODE, PIN-673 020.
3 THE TAHSILDAR, VATAKARA TALUK, KOZHIKODE DISTRICT,
PIN-673 101.
4 THE CHORODE GRAMA PANCHAYAT, MUTTUNGAL WEST P.O,
VATAKARA, KOZHIKODE DISTRICT, PIN 673 106.
R4 BY ADV. SRI.T.SETHUMADHAVAN (SR.)
R4 BY ADV. SMT.DEEPA NARAYANAN
R4 BY ADV. SMT.PREETHI. P.V.
R4 BY ADV. SRI.M.V.BALAGOPAL
BY SENIOR GOVERNMENT PLEADER, SRI.S.GOPINTHAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
02.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.13202/2019 2
JUDGMENT
Dated this the 2nd day of November 2020 The petitioners established a burial ground. The District Collector, Kozhikode by Ext.P10 proceedings granted permission, and the Panchayath was directed to maintain the details of the burial ground in the register.
2. The Panchayath by Ext.P12 proceedings taking note of the objection of the local public decided to make a request for revoking the permission granted by the District Collector. The said decision is under challenge in this writ petition.
3. This Court, after hearing the learned counsel for the petitioners and the learned senior counsel appearing for the Panchayath, on 17.09.2020 passed the following interim order:
"The Panchayath refused to register the licence granted by the District Collector for burial ground on the ground that there is imminent threat to the health of persons who are living in the neighbourhood. That decision is under challenge.WP(C).No.13202/2019 3
2. Admittedly, the decision is to be placed before the District Medical Officer(DMO). The DMO, who is an expert to give an opinion as to the alleged threat to the life. Before going to the larger question involves in this case, whether such course of action is available to the Panchayat or not, it is appropriate to have the views of DMO in this case. DMO, based on the present situation in the area, shall report before this Court whether the operation of the burial ground would cause any threat to the health of the persons who are living in the neighbourhood. Such report shall be placed before this Court within a period of two weeks. DMO shall conduct the inspection in the presence of the petitioners and the Panchayat."
4. Pursuant to the above order, DMO conducted an inspection and filed a report. The said report as follows:
"I. As per the Order No.C2/17372/2014 Dated:28.02.2015 of District Medical Officer of Health Kozhikode, No Objection Certificate has given to the establishment of concrete vault type cemetery.
2. At the time of inspection, it is found that there were two Concrete Pits constructed in the proposed site and found it filled with water.WP(C).No.13202/2019 4
3. Complainants were anxious about the pollution of nearby water source due to the functioning of proposed cemetery.
4. In this circumstances the expert team has suggested that, the proposed cemetery can be constructed within concrete vault type modal(water proof) under the close supervision and monitoring of a qualified and approved engineer, if so the complaints can be resolved."
5. The report sufficiently safeguard the apprehension of the local people. Under the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998 (for short, the Rules), the licence has to be issued by the District Collector. There is a prohibition of the use of burial ground registered without a licence from the District Collector. Rule 7 of the Rules mandates that the maintenance of register by the Panchayath Officials in the Panchayath Office. The Panchayath apparently taken the stand adverting to Rule 10 of the Rules. According to the Panchayath, if there is any apprehended danger to the health of persons living in the neighbourhood, they can refuse registration of the cemetery in the register. WP(C).No.13202/2019 5
6. The learned counsel for the petitioners submits that the Panchayath cannot object registration of cemetery before its operation. According to the learned counsel, the right of the Panchayath in terms of Rule 10 of the aforesaid rules would come into play only after registration of the cemetery in the register.
7. Taking note of the nature of the objection, this Court on 17.9.2020 passed the aforesaid order. The report of DMO is on board, as noted above. If the directions in the report of DMO are complied, there is no scope for any apprehension as entertained by the Panchayath. In such circumstances, I need not go into the question raised by the learned counsel for the petitioners that the Panchayath cannot refuse to register on an apprehended injury without registering the cemetery in the register maintained by them.
Having considered the facts and circumstances of the case as above, the Panchayath is directed to register the cemetery in the light of the order passed by the District Collector. However, operation of the cemetery shall be WP(C).No.13202/2019 6 strictly in accordance with the report of DMO as noted above. The constant supervision shall be made by the Panchayath to ensure that there is no leakage from the cemetery so as to affect the peaceful life of others, including contamination of the water. Needful shall be done by the Panchayath to enter in the register within two weeks. However, operation of cemetery will be strictly in accordance with the report of DMO. Ordered accordingly.
The writ petition is disposed of as above.
Sd/-
A.MUHAMED MUSTAQUE JUDGE ln WP(C).No.13202/2019 7 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE RESOLUTION OF THE 4TH RESPONDENT, DATED 05/09/2014.
EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 28/02/2015.
EXHIBIT P3 TRUE COPY OF THE COVERING LETTER DATED 4/3/15, BY THE SECRETARY OF THE 4TH RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE REPORT DATED 25/5/2015 SUBMITTED BY THE VILLAGE OFFICER TO THE 3RD RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE REPORT OF THE 3RD RESPONDENT, DATED 06/06/2016.
EXHIBIT P6 TRUE COPY OF THE REPORT DATED 19/10/2015, SUBMITTED BY THE 3RD RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE REPORT NO. G. 3224/15, SUBMITTED BY THE ASSISTANT COLLECTOR.
EXHIBIT P8 TRUE COPY OF THE REPORT DATED 19/09/2016 SUBMITTED BY THE POLLUTION CONTROL BOARD.
EXHIBIT P9 TRUE COPY OF THE REPORT OF THE SUB COLLECTOR, DATED 24/04/17 EXHIBIT P10 TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT, IN FILE NO. DCKKD.9681/17/D9.
EXHIBIT P11 TRUE COPY OF THE LICENSE IN FORM NO. II GRANTED BY THE DISTRICT COLLECTOR UNDER RULE 6(8) OF THE BURIAL GROUND RULES DATED 22/09/2017.
EXHIBIT P12 TRUE COPY OF THE COMMUNICATION DATED 29/3/2019, BY THE 4TH RESPONDENT.
RESPONDENTS EXHIBITS:
ANNEXURE-R1 : TRUE COPY OF THE COMPLAINT MADE BY 80 FAMILIES RESIDING AROUND THE JUMA MASJID TO THIS RESPONDENT DATED 27.12.2018.