AVARA JOSEPH Vs. MUNICIPAL COUNCIL ERNAKULAM

JUDGEMENT

(1.) The five petitioners who are said to be residents in Ward No. V of the Ernakulam Municipality have moved this writ application praying that a direction or order be issued to the 1st respondent, the Municipal Council, Ernakulam quashing the proceeding relating to the establishment of a crematorium in Ward No. V at Pachalam.

(2.) Counsel on behalf of the petitioners has attempted to support this writ application on two grounds. (a) That there is no valid or effective resolution passed by the Council to provide a place as a crematorium in Ward No. V and (b) that the power conferred on the Council to resolve that there should be a burial or burning ground or crematorium by S.289 of the Cochin Municipal Act, Act XVIII of 1113 and by S.322 of the Kerala Municipalities Act, 1960 has conferred an arbitrary power on the Council, and this can be exercised only on Rules and or bye laws being framed under the statute.

(3.) I do not think that the petitioners are entitled to succeed on the first point. It is seen from the counter affidavit filed that the proposal to start a crematorium at the place mentioned was started very early, several years back. A resolution was admittedly passed by the Council as early as 6-5-1954. On 2-8-1956 one Sri V. Viswanatha Menon moved a resolution that the Council approve the resolution dated 6-5-1954 & reiterate the necessity of establishing a crematorium as resolved on 6-5-1954. This resolution was put to vote and was lost. It is on the basis of this that counsel on behalf of the petitioner has contended that there is no valid or effective resolution passed by the Council which would justify the establishment of a crematorium at the place in question. According to him, the resolution passed on 6-5-1954 must be taken to have been negatived by the failure to carry the resolution moved on 2-8-1956. This contention overlooks what happened on 24-8-1956. At the meeting of the Council held on that day there was a resolution tabled by one Abraham to the effect that the place originally determined by the resolution dated 6-5-1954 for opening the crematorium be shifted to a more suitable locality. To this resolution an amendment was moved by one Sri. Ramankutty Menon. This amendment sought completely to change the resolution moved by Sri. Abraham and in effect was an attempt to reaffirm the resolution passed on 6-5-1954. The amendment moved by Sri. Ramankutty Menon was put to vote and was carried. Thereafter the amended resolution was moved and that too was carried. The effect of this was that the decision taken on 6-5-1954 was reaffirmed and accepted by the Council. This can be seen from Exts. R 10 and R 11. The original minutes book was also made available to me by counsel appearing for the 1st respondent and it is seen from the minutes book that what transpired on 24-8-1956 was to reaffirm the resolution dated 6-5-1954. It is not possible therefore to accept the contention that there has been no valid of effective resolution or that the Council had not applied its mind to the question as to the place at which the crematorium proposed for Ward No. V should be located.