ST. MARYS ORTHODOX CHURCH Vs. THANKAMANI RAJAN

JUDGEMENT

(1.) This Regular Second Appeal essentially arises out of the challenge made as against the permission granted by the statutory authorities concerned for the establishment of a vault type cemetery in the appellant St.Mary's Orthodox Church, Vettipuram, Pathanamthitta district. The contesting respondents herein had filed Original Suit, O.S. No. 57/1999 before the Munsiff's Court, Pathanamthitta, praying to set aside the impugned orders issued by the statutory authorities concerned in the matter of permission for construction of a vault type cemetery by the St.Mary's Orthodox Church authorities concerned (respondents 5 and 6 in the O.S.) and for consequential injunction. The trial court has decreed the suit in favour of the plaintiffs. Aggrieved by the impugned judgment and decree rendered by the Munsiff's Court, Pathanamthitta, on 29.9.2000 in O.S. No. 57/1999, the church authorities had filed Appeal Suit, before the District Court concerned. The lower appellate court, as per the impugned judgment dated 20.3.2004, dismissed A.S. No. 23/2003, confirming the impugned judgment and decree of the trial court in the said suit. It is aggrieved by this, the church authorities concerned have preferred this Regular Second Appeal before this Court under Sec. 100 of the Code of Civil Procedure.

(2.) The gist of the case projected in the plaint is as follows:- That the plaint schedule property is owned by the 5th respondent St.Mary's Orthodox Church, Vettipuram, Pathanamthitta district. The 5th defendant church had initially submitted an application on 29.4.1987 before the 8th respondent Pathanamthitta Municipality for permission to establish an open burial ground. By Ext.B-19 dated 14.5.1990, the Municipality informed the church that the property in question is not suitable for establishing an open type burial ground and that the District Medical Officer (DMO) has informed that if an application for permission to construct an vault type cemetery is submitted by the church, then the same could be considered and that accordingly, the Municipality informed that if the church is willing to construct a vault type cemetery, then they may submit necessary application and plan for the same. Ext.B-19 proceedings dated 14.5.1990 was on the basis of Ext.X-1(e) proceedings dated 20.4.1990 of the DMO referred to in Ext.B-9. Thereafter, the defendant church had submitted application dated 13.6.1990 for permission to construct a vault type cemetery in their property. Based on Ext.X-1(a) proceedings dated 29.10.1990 of the DMO, the Municipal Council, by resolution dated 29.12.1990, granted necessary permission to the church for constructing the vault type cemetery. Thereafter, the Municipality by Ext.B-2(d)/B-3 order dated 13.3.1991 issued necessary permit/licence to the church for construction of the vault type cemetery. After the commencement of the construction, there were various litigations including Writ Petitions filed before this Court, which interdicted the construction. But the District Collector concerned was directed by this Court in the judgment dated 29.5.1991 in O.P. No. 5540/1991 and judgment dated 18.6.1996 in O.P. No. 12456/1991 to examine the grievance of the objectors against the establishment of the vault type cemetery and take a decision thereon in accordance with law. The District Collector, by Ext.B-12 dated 16.7.1996, in exercise of his statutory powers conferred under Sec. 45(2) of the Kerala Municipalities Act, 1960, ultimately found that there is no illegality or impropriety in the impugned licence granted by the Municipality to the church and thus refused to interfere with the impugned resolution of the Municipality. Thereupon, an objector had approached the State Government to ventilate the grievances and the Government, by Ext.B-13 dated 4.5.1998, in exercise of their statutory powers conferred under Sec. 45(1) of the Act found that there are no grounds to interfere with the impugned permission granted by the Municipality and accordingly, repelled the objection, but, however, directed that the plan for the construction of the vault type cemetery should be vetted by the Chief Town Planner, etc.

(3.) Later in pursuance of these proceedings of the Collector and the State Government, the defendant Municipality renewed the licence/permission as per Ext.B-14 dated 29.8.1998 for construction of the vault type cemetery. The four plaintiffs herein and another person had approached this Court again by filing Writ Petition as O.P. No. 17816/1998 before this Court praying to quash Ext.B-12 herein (proceedings dated 16.7.1996) issued by the District Collector), Ext.B-13 herein (G.O. dated 4.5.1998 issued by the Government) and for incidental reliefs. This Court as per Ext.B-15 judgment dated 16.9.1998 dismissed O.P. No. 17816/1998 rejecting the contention of the petitioners therein that there is a prohibited distance of 25 meters in making construction of a vault type cemetery as per the Municipalities Act and also the finding therein that all legal formalities required for the impugned permission have been duly granted by the official respondents therein and accordingly, dismissed the said Original Petition, as per Ext.B-15 judgment rendered on 16.9.1998. Aggrieved by this, the petitioners in that Original Petition had filed W.A. No. 2063/1998 before the Division Bench of this Court, in which, additional contesting respondents 6 to 19 (14 persons), who voiced similar objection as that of the petitioners therein, had also got themselves impleaded in that Writ Appeal to support the appellants therein. The Division Bench of this Court, as per Ext.B-17 judgment dated 9.11.1998, held that the grievances of the appellants therein could be adjudicated only in a properly instituted civil suit and accordingly, gave liberty to the five appellants therein and 14 additional contesting respondents therein to immediately file a suit before the competent civil court praying for appropriate reliefs. It is on this basis, that the four plaintiffs herein had filed the present suit praying for the afore stated reliefs.