PENTECOST MISSION Vs. STATE OF KERALA

JUDGEMENT

(1.) Sub-rule (9) of Rule 6 of Kerala Panchayat Raj (Burial & Burning Grounds) Rules, 1998, (hereinafter referred to as the 'Rules of 1998') reads as follows:

(2.) Before however, we may take into consideration the rival contentions raised by the learned Counsel appearing for the parties on the crucial issue as stated above, it will be useful to extract a resume of the facts culminating into filing of the present appeal.

(3.) The Pentecost Mission, petitioner in the original lis and the appellant in this Writ Appeal, in its Ezhamkulam Branch of church claims to have around 500 believers. They have no cemetery for burying corpse. An extent of 2.05 Acres of land in Resurvey No. 412/19 and 412/20 in Block No. 20 of Ezhamkulam Village of Adoor Taluk was purchased by the petitioner in 1999. It was purchased with the sole object of establishing a cemetery therein. The property lies as one compact block. On the immediate eastern side of the property is the old cemetery belonging to the Catholic Church and the same was in existence for the past more than 60 years and is being used as a cemetery even now. In fact the existence of the said cemetery was the impetus for purchasing the aforesaid property. Petitioner submitted an application seeking permission for establishment of a burial ground in the said property under the provisions of the Rules of 1998. The District Collector, Pathanamthitta directed the petitioner to produce certain records. The petitioner was required to submit a plan of the proposed cemetery by an approved engineer. The plan was accordingly prepared and submitted along with the other documents. It is the case of the petitioner that the plan Ext.P2 would certainly show that there was no residential building or well situate within the limit of 50 metres from the plot proposed for construction of cemetery. The plan would also show that on the immediate eastern side of the existing cemetery is the cemetery owned by Malankara Syrian Catholic Church. As required under the provisions of the Rules of 1998 the second respondent gave public notice dated 7.9.2002 regarding the application submitted by the petitioner seeking permission for establishment of the cemetery in the plot in question. It was also advertised in the notice boards of Ezhamkulam Grama Panchayat, Ezhamkulam Village Office and Adoor Taluk Office. The notice was published calling for objections, if any, from any person aggrieved regarding the establishment of the cemetery within 30 days. The Ezhamkulam Grama Panchayat Committee as per resolution No. II dated 23.8.2001 recommended establishment of the cemetery in the plot in question. Ext.P4 resolution was passed after considering the objections of respondents 4 and 5 as is evident from the resolution itself. The sub committee conducted an enquiry into the application, visited the site and found that there were no residential houses within a distance of 50 metres from the plot in question. The District Medical Officer also certified that the plot in question was suitable for establishing a burial ground. By Ext.P5 the Tahsildar reported that the plot in question belongs to the petitioner and there were no houses or wells situated within a distance of 50 metres from the said plot and further that there was no objection for any cemetery being established therein. It is the case of the petitioner that Exts.P4 to P6 would manifest that there were no residential houses within the prohibited area. The proposal was submitted in due compliance with the provisions of the Rules of 1998. On the basis of the materials referred to above and also considering the fact that there was no objection raised from any person within the time prescribed, the second respondent as per order dated 16.10.2002 permitted the petitioner to establish cemetery in the plot in question (Ext.P7). In the said order the petitioner was however required to produce a certificate from the District Medical Officer regarding the suitability of the cemetery being used for burying. The District Medical Officer, Pathanamthitta on being satisfied, issued a certificate dated 8.11.2002 (Ext.P8) certifying that the plot in question is suitable for the required purpose. The District Medical Officer also issued a certificate dated 23.11.2002 to the effect that the burial ground type cemetery constructed in the plot in question had been inspected and found suitable for the use (Ext.P9). On the basis of materials as referred to above, the second respondent as per order dated 25.11.2002 granted permission to the petitioner for burying corpse in the cemetery (Ext.P10). Petitioner has also been issued a licence in Form No. II in due compliance with Sub-rule (8) of the Rules of 1998 (Ext.P11). While so, respondents 4 and 5 challenged the order Ext.P10 by filing O.P. No. 39919 of 2002. It is further the case of the petitioner that the wife of the 5th respondent along with others filed a suit O.S. No. 162 of 1992 in the Munsiff's Court, Adoor against the vendors of the petitioner and others for a prohibitory injunction not to start any burial ground in the plaint schedule property, a portion of which has been purchased by the petitioner. The suit was instituted in a representative capacity seeking to represent the inhabitants of the locality under Order VIII, Rule (1) of the Code of Civil Procedure. The suit was dismissed vide judgment, Ext.P13, dated 14.12.1995 holding that the plaintiffs "therein had failed to establish that a burial ground in the said property was a nuisance to the living of the plaintiffs in their properties. It is the case of the petitioner that respondents 4 and 5 were barred by the principles of res judicata from raking up the issue again. O.P. No. 39919 of 2002 was disposed of by this Court vide judgment dated 27.1.2003 directing the first respondent to consider and dispose of Ext.P12 appeal. Meanwhile the petitioner was also prohibited from burying dead bodies till the appeal was disposed of. In the meanwhile the Panchayat Committee passed a resolution deciding to request the District Collector to cancel the orders issued by him on the ground that there are five families within the prohibited distance of 50 metres and that majority of the people of the locality opposed sanctioning of the cemetery. The case of the petitioner however is that Exts.P2, P4, P5 and P6 would clearly show that there were no dwelling houses or well within 50 metres of the cemetery and therefore there was no basis for the statement of the Panchayat that there are five families within 50 metres of the cemetery in question. The appeal was allowed vide order, Ext.P15, dated 16.7.2003 and the order of the District Collector, Ext.P7, dated 16.10.2002 was set aside. The petitioner challenged the appellate order before the learned Single Judge on various grounds like, that the appellate authority wrongly assumed that there were five dwelling houses within 50 metres of the proposed burial ground and that there was no basis for the statement made by the Panchayat that there are five families within 50 metres. Even if there are five houses within the prohibited distance, while arriving at the decision the position as on the date when the application was made for permission to start a burial ground ought to have been taken and not at the time when the order was made.