NARAYANAN THAMPI Vs. DISTRICT COLLECTOR

JUDGEMENT

(1.) The petitioner, a member of the Kasankodath Mana said to be the owner of the Kaimanum Vishnu Temple in Kalloor Vadakkummuri village, Mukundapuram Taluk, challenges the validity of R.5 and R.6(8) of the Kerala Panchayats (Burial and Burning Grounds) Rules, 1967 (hereinafter referred to as the rules) as unreasonable and opposed to Art.14 of the Constitution.

(2.) The 3rd respondent Rev. Fr. Paul Valikodan, the chaplain of the Rosaria Matha Church, Kalloor Vadakkummuri, on 23-3-1981 applied to the 2nd respondent, the Executive Officer of the Panchayat, for a licence to open a cell model cemetery (concrete vault) in 35 cents of land in Sy. No. 1935 of Kalloor Vadakkummuri village. The Panchayat by Ext. R1 resolution dated 28-3-1981 resolved to forward the application together with the sketch and plan to the District Medical Officer (hereinafter referred to as the D.M.O.), Trichur and to grant the licence subject to the approval of the Public Health Department. Accordingly the application together with the sketch and the plan and a copy of the resolution were forwarded to the D.M.O., Trichur on 9-4-1981. The D.M.O. after a local inspection of the site forwarded the application to the District Collector with his remarks for appropriate action under the rules. Ext. R2 dated 4-9-1981 is a copy of the proceedings of the D.M.O. forwarding the application and the connected papers to the District Collector. The Collector as per his proceedings G-3-90250/81 dt. 11-1-1982 directed the publication of a notice inviting objections and suggestions in regard to the proposal for the establishment of a burial ground in the site proposed. Ext. P2 is a copy of the notice published by the Collector in a local newspaper. The petitioner had, even before the publication of the notice, submitted his objections to the Collector, a copy of which is produced as Ext. P1. The main objection is that the proposed site for the burial ground is within 150 ft. from the Kaimanum Vishnu Temple and the temple tank, and a burial ground so close to the temple and the tank is highly objectionable and will be a health hazard for those using the temple tank. The objection also stated that the proposed site is a paddy land with porous soil almost at the same level as the temple tank and the establishment of a burial ground at the place suggested will also create communal tension as that would injure the religious feelings of the Hindus of the locality. There were similar objections by others. Ext. P3(a) is a copy of the objections filed by the S.N.D.P. Yogam. Ext. P3(b) is the objections filed by the Pulayar Maha Sabha and Ext. P3(c) is a copy of the objections signed by 125 persons of the locality and submitted to the Collector. The Government in its counter affidavit admits that the District Collector had received objections from the Viswakarma Service Society, the people of the locality, the S.N.D.P., Kerala Pulaya Maha Sabha, Yogakshema Sabha, the N.S.S. and also from one Neelakantan Namboodiri of the petitioner's illom. The Collector has not yet enquired into the objections and has not passed final orders on the application for licence for the opening of a new burial ground at the proposed site. The 3rd respondent, the chaplain of the church, in his counter affidavit has stated that the licence applied for should be deemed to have been granted by virtue of the provisions contained in R.6(8) of the rules and he has started using the place for the purpose of burial of the dead.

(3.) As per S.57(1) of the Kerala Panchayats Act it is the duty of the Panchayat, subject to the Act and the rules and within the limits of its funds, to make reasonable provision for carrying out the requirements of the Panchayat area in. respect of matters specified therein including "(0 the opening and maintenance of burial and burning grounds". S.129 of the Act empowers the Government to make rules to carry out the purposes of the Act. The Kerala Panchayats (Burial and Burning Grounds) Rules, 1967 are issued in exercise of the powers conferred on the Government in that behalf under the Act. As per R.3 the Panchayat is enjoined to provide at its cost places to be used as burial or burning grounds with the previous permission of the Collector. The request for such permission is to be submitted to the Collector through the District Panchayat Officer concerned. The Collector is required under sub-rule (3) of R.3 to consult the Health Officer and have due regard to his views regarding the suitability of the place from the public health point of view before permission is granted to the Panchayat to establish a burial or burning ground. As per R.4 the burial or burning ground existing on the date of commencement of the rules are deemed to have been registered under the rules. R.5 and 6 are quoted below: