THOMAS MATHEW Vs. SECRETARY TO GOVERNMENT

JUDGEMENT

(1.) Ext. P9 order passed by the Government is under challenge. As per Ext. P9, permission for opening a concrete vault type cemetery was denied to the petitioners. The main objection that is dealt with in the Government order is that the house of the fifth respondent is located within nine metres of the cemetery. It is stated in the impugned order that the fifth respondent and others had been taxing up the cause of restoration of their land. It is also mentioned in Ext. P9 that the proposed cemetery is located at a higher level and it may contaminate the water in the wells of the residents in the neighbourhood who are living in a lower level.

(2.) Heard the learned counsel appearing for the petitioner, the Panchayat and also the learned Government pleader. It is fairly clear that the Government has not properly appreciated the issue with reference to the crucial and relevant factors. R.5 of the Kerala Panchayat (Burial and Burning Ground) R.1967 reads as follows:

(3.) The Explanation to the Rule unambiguously shows that the date of application for the licence, is the crucial date for the purpose of determining the objectionable distance. Unless the question is tackled from that point of view, it cannot be said that there is a proper decision. The Government is not justified in taking a decision by merely making passing a reference that there are wells in the neighbourhood of the cemetery. For one thing, it has to be noticed that the proposal is for the construction of a concrete vault type cemetery unlike ordinary type of cemetery for burial. It has also to be noted that at the time when the initial inspections were conducted and the reports were submitted by the District Medical Officer and the Panchayat Committee, there were no human habitations within the objectionable distance. Learned counsel appearing for the fifth respondent, however, has a case that the fifth respondent has a thatched house near the area. But, nothing is available on record to establish his case of such habitation. What the Government ought to have considered is not whether there was any other property in the objectionable distance, but whether there was human habitation within the objectionable distance.