SASIDHARAN M. R. Vs. STATE OF KERALA

JUDGEMENT

(1.) Both these Writ Petitions are inter related. WP (C) No. 2887/2016 is filed by the persons, who are aggrieved by the issuance of the impugned order dated 07/04/2015 passed by the District Collector, Kottayam, by which a prohibitory order has been issued by the Collector against the use of petitioners' family property as burial ground and the said order has been passed on the basis of a complaint preferred by the 6th respondent in the Writ Petition. The 6th respondent in WP (C) No. 2887/2016 has filed WP (C) No. 5983/2016 wherein the main plea sought is for a writ of mandamus for enforcement and implementation of the said order dated 07/04/2015 passed by the District Collector, Kottayam, as affirmed by the appellate order passed by the State Government. WP (C) No. 2887/2016 is taken as the leading case and the matters in relation to that will be dealt with initially.

(2.) WP (C) No. 2887/2016 The case projected in this Writ Petition is as follows: That as per Ext. P21/P5 partition deed registered in Malayalam Era 1120 (viz., 1944 CE) executed by the sons of one Sri. Neelakandan Achari (who is the paternal grandfather of the 3rd petitioner and paternal great grandfather of petitioners 1 & 2), whereby 10 cents of their family property in Sy No. 158/6 to 11 of Ayarkunnam Village, Kottayam District, was set apart to be used for the cremation of the dead persons in that family. It is averred that now there are 16 families who are the descendants of the executants of the said partition deed, who claimed to be the beneficiaries in relation to the use of the said land set apart as per the partition deed for cremation use. According to the petitioners, the said property set apart in Ext. P21 partition deed has been used exclusively as burial ground by the above said family (Manjapallikunnel family) since the year 1944 and that the ancestors of the petitioners were cremated there and that a shrine has been installed in the said property to honour the memory of those cremated ancestors and for paying obeisance to them, etc. Ext. P19 is stated to be the photograph of the "]mZ ]eI" (padha palaka) and it is claimed to be the imprints of the foot of the deceased elders which are held in the shrine. The controversy arose when the contesting respondents 6 & 7 had preferred Ext. R6(d) complaint dated 25/08/2014 before the 3rd respondent District Collector, Kottayam, alleging that a dead body was cremated therein about 2 months earlier which had created nuisance and it has been accordingly prayed in the said complaint that the Collector should issue appropriate directions to prohibit the petitioners and their family from conducting any further cremation in the said land in question. It is the consistent case of the petitioners that they were never given a copy of Ext. R6(d) complaint at any point of time before the issuance of Ext. P13 order dated 07/04/2015 or Ext. P18 appellate order dated 28/12/2015, etc., and that for the first time they received Ext. R6(d) complaint only when the same was produced by the 6th respondent along with affidavit dated 09/09/2016 in IA No. 14638/2016 in this Writ Petition. It is also to be noted at the outset that even the official respondents have admitted that a copy of Ext. R6(d) complaint was never given to the petitioners at any time prior to the issuance of the impugned orders. When the petitioners received notice from the 3rd respondent District Collector, they had preferred Ext. P1 objections contending that the said piece of land has been consistently used for cremation purposes of elders in their family since the year 1944 and that it is a private burning ground which was in existence long prior to the enforcement of the Kerala Panchayath (Burial and Burning Grounds) Rules 1967, which came into force with effect from 12/09/1967 and that therefore it is the said private burning ground which is deemed to have been registered as per the provisions contained in R.4(c) of the Panchayath Rules and that it does not require any licence for its functioning and that therefore the Collector has no authority to prohibit the use of the said private burning ground, etc. Various other contentions and submissions have also been raised by the petitioners in Ext. P1 objection.

(3.) It is also submitted that the respondents 6 and 7 have started residing in the locality only recently. The petitioner would also contend that as per Ext. P8 communication dated 29/10/2014 issued by the 4th respondent Panchayath under RTI proceedings that 6th respondent started to reside in the area only since 1993-1994 and that the 7th respondent is not residing in the said locality, etc. The petitioners would also contend that the inspection of the DMO, which led to Ext. P2 report dated 12/11/2014, was not conducted with due notice to the petitioners and that a copy of Ext. P2 was served to the petitioners only at the time of hearing of Ext. R6(d) proceedings. It is revealed from Ext. PW 2 report that only five bodies have been cremated for the last 10 years in the above property and further that the burning ground is functioning without any licence from the Panchayath or without following the norms and is not in compliance with the 50 meters distance rule as stipulated in the Panchayath Rules. Ext. P6 is the report dated 01/11/2014 submitted by the Panchayath before the 3rd respondent, wherein it has been clearly stated that on enquiry it has been found that the said burning ground has been functioning in the said property for the last 70 years and that it belongs to the Manjappallikunnel family and that there exists a shrine in that property. Further it is also stated therein that the burning ground has no registration with the Panchayath and that it has no licence, etc.