JOSE PADINJARAYIL Vs. THODUPUZHA VINJANAMATHA CATHOLIC CHURCH

JUDGEMENT

(1.) Four writ petitions were filed. Two writ petitions by the persons objecting to the church using concrete vaults for burial of parishioners, without obtaining licence from the Municipalities in terms of Section 484 of the Kerala Municipality Act, 1994 (" the Act" for short). Two writ petitions by the Church, one for a direction to issue occupancy certificate and grant licence as against the Municipality and second for a direction restraining the Municipality from interfering in the use of the said vaults as made. All the four writ petitions were heard together by the learned Single Judge and they were disposed of by judgment dated 18.10.2016. These nine appeals arise from the said common judgment. The appeals are virtually in two categories. One appeal out of the nine is by the objector and the rest of the appeals is filed by the Church and its Administrators with the leave of the Court. Facts are not in dispute.

(2.) Having heard learned counsel for the parties, with their consent we are disposing of these batch of appeals by a common order. Section 484 of the Kerala Municipality Act reads as follows :

(3.) Learned Single Judge, after hearing all the parties, has directed, rather relegated the parties before the Municipal authorities clearly holding that a licence as contemplated under Section 484 of the Act was a must, which had not been granted. Learned Single Judge accordingly directed compliance of the provisions of Section 484 of the Act, but in the meantime, protected the church in as much as directing the Municipality not to take action for demolition of the vaults already constructed till a decision is taken under the said Section. Primarily the church filed an appeal. But after some arguments, it agreed to abide by the judgment of the learned Single Judge. The reason is obvious. The Kerala Panchayat (Burial and Burning Grounds) Rules, 1998, in fact had no application. They applied to the Panchayat and as the rule is framed under the Panchayat Raj Act, 1994, in our opinion, the District Collector wrongly assumed jurisdiction in the matter and wrongly granted permission to the church in as much as the church is located in a Municipal area covered by the Municipality Act. This being the position, undisputedly, the church was using the vaults even though constructed under the permit granted by the Municipality without a licence duly obtained under Section 484 of the Municipality Act. Thus, they must cure the defect by awaiting the decision of the Municipality in this regard. The Municipality, while disposing of the application of the church, in this regard would act consistent with the provisions of Section 484 and in particular section 484 (3) (a) and take into account the opinion of the District Medical Officer as well as the District Collector, which as noted above have already expressed their opinion. Needless to say that considering the urgency of the matter the Municipality would dispose of the proceedings in accordance with law, at the earliest, preferably within one month. By way of abundant caution, we would like to note two things. Firstly, it shall not be a ground for the Municipality to refuse grant of licence merely on the ground that the vaults were constructed and being used without a licence. Secondly, even if licence is to be refused, it is expected that as there are statutory remedies available to the church, the Municipality would not precipitate the matter within the statutory period available, to avail remedies. Thus it is now for the Municipality to take appropriate action and it is expected that all the parties would co-operate in the matter to facilitate an early decision.