PRADEEP Vs. KANDANASSERY PANCHAYAT

JUDGEMENT

(1.) The petitioners are the residents of the Kandanassery Village, Talappilly Taluk, Thrissur. The fourth petitioner is the Secretary of Sanlhinikethan Mahilasainajain, Kandanassery, which is running a nursery school in the locality. The fourth respondent, District Collector, Thrissur issued a notification dated 14.12.1984 about the proposal to have a burial ground in Sy. No. 926 of Kandanasserry Village. This notification was issued pursuant to an application filed by the sixth respondent. According to the petitioners, the proposed burial ground was objectionable to the residents of the locality. The nursery school run by the fourth petitioner was very near to the site. Besides they also contended that there is a Vishnu Temple. Ext. P1 is the copy of the objections tiled by the petitioners. The District Collector enquired into the objections. The petitioners did not hear anything about the orders passed by the District Collector.

(2.) After a long gap of 10 years another notification appeared on 5.5.1993 with regard to the same burial ground. The petitioners thereafter filed Exts. P2 and P3 objections. The petitioners were served with a notice from the District Collector about the inspection of the proposed site by the Additional District Magistrate on 6.3.1995. Ext. P4 is the copy of the notice. According to the petitioners, eventhough the Additional District Magistrate visited the property on that day, they were not allowed to speak to him about their objections. Recently, the petitioners were surprised when the 6th respondent started construction for the burial ground at the proposed site. On enquiries, the petitioners understood that on 3.1.1996, an order was passed granting temporary licence to the 6th respondent. They were not served with the copy of order. Subsequently, they applied for and got a copy of the proceedings dated. 3.1.1996 which is produced as Ext. P5. The petitioners challenged in this Original Petition Ext. P5. According to them, Ext. P5 is vitiated on the following grounds. The District Collector has earlier closed the proceedings and the re-opening of the same by Ext. P5 order has caused great hardship to them. The Collector has not referred to the previous enquiries conducted pursuant to the earlier notification. The proposed burial ground violates R.5 of the Kerala Panchayat (Burrial and Burning Ground) Rules. The nursery school conducted by the Santhinikethan Mahilasamajam and its drinking water well are hardly 15 meters away from the proposed burial ground. The report of the Tahsildar relied on in Ext P5 order that the drinking water well is at a distance of 25.1 meters is factually incorrect. The enquiry made by the Tahsildar was without notice to the petitioners. The District Collector has not applied his mind and has not adverted to any of the objections raised by the petitioners. A proper inspection and enquiry would have revealed the seriousness of the issue and the real hardship faced by the residents of the locality. The authorities conveniently closed their eyes to the practical difficulty of conducting a nursery school at close proximity to a burial ground and the plight of the local residents to put up with a burial ground near their place of worship. It is further contended that the resolution of the Panchayat should not have been relied on in Ext. P5. Hence, the petitioners have approached this court praying to quash Ext. P5 and for other incidental reliefs.

(3.) A counter affidavit has been filed on behalf of the second respondent. In the counter affidavit, it is submitted that the petitioner have alternative remedy under R.6(9) of the Kerala Panchayats (Burial and Burning Grounds) Rules, 1967. The Committee of the Church received a copy of Ext. P5 order on 18.1.1996 and on 29.1.1996 they decided to start work. Quotations were invited and the work started as early as on 11.3.1996. All the petitioners, who are neighbours were aware that the work was progressing in these days. It is submitted that neither the Manila Samajam nor the nursery school was in existence when the 6th respondent applied in 1983. The measurement regarding the distance was taken in the presence of the objectors including some of the petitioners. Ext. P5 was issued after considering all the matters. Being a concrete vault type construction it will not in any way pollute the earth. The District Medical Officer has also considered the matter. The belated attempt of the petitioners is only to harass the 6th respondent. On behalf of the fourth respondent, a statement has been filed by the Tahsildar. The files concerned also were produced before me and from the statement and the files the following facts are revealed.