K.C.BABU Vs. STATE OF KERALA

JUDGEMENT

(1.) Both these Writ Appeals arise from a common judgment dated 8.2.2018 of the learned Single Judge in W.P(C). Nos.38856/2015 and 22773/2016. The issue urged in the writ petitions, by the writ petitioner who is the appellant before us , was with regard to the legality of the permission directed to be granted by the Government to the Noorul Emam Juma Masjid, Pudukkad for construction of a vault type cemetery for burying the dead. The writ petitioner/appellant is stated to be a person residing in the neighbourhood of the place earmarked for construction of the cemetery and it was his case in the writ petition that the objection, to the proposal of the Juma Masjid for construction of the cemetery, had been raised before the Panchayat as also before the District Collector, and on a consideration of the objection raised by the petitioner, the Panchayat authorities as also the District Collector had taken a decision not to grant permission for construction of a cemetery in the location identified by the Juma Masjid in its property. The Juma Masjid, however, carried the order of the District Collector in appeal before the State Government, without making the petitioner/complainant a party in those proceedings, and the State Government by Ext.P14 order, set aside the order of the District Collector and directed him to consider the application submitted by the Juma Masjid for construction of a vault type cemetery, in accordance with the rules. In Ext.P14 order, the Government placed reliance on the report of the Kerala State Minority Commission, which apparently visited the place and discussed the issue of construction of a cemetery with the local people, Revenue, Health and Panchayat authorities. In the writ petition, it was the specific case of the petitioners that the Kerala State Minority Commission had no role to play in a matter regarding suitability of a property for construction of a cemetery and hence the State Government, in placing reliance on the report of the Kerala State Minority Commission, had abdicated its statutory role as an appellate authority while deciding the legality and propriety of establishing a cemetery at the location identified by the Juma Masjid in its property. It is also the case of the petitioner that in the proceedings before the appellate authority, he was denied a hearing and therefore the ultimate decision of the State Government as appellate authority was vitiated since there was no adequate consideration of the material that could have been placed by the petitioner on the aspect of legality of the construction that was proposed.

(2.) The learned Single Judge, after adverting to the rival submissions, and taking note of the contents of the Ext.P14 order that was impugned by the writ petitioner, found that in Ext.P14 order, the State had, in its capacity as the appellate authority, considered the various aspects that were required to be considered and directed the District Collector to grant permission in accordance with the rules. The learned Single Judge also noted that the petitioner also did not have a case that there were any buildings within a distance of 25 mts from the site where the construction of the vault type cemetery was proposed and therefore there was no necessity to remand the matter to the State Government/District Collector for fresh adjudication. The writ petitions were therefore dismissed, leaving Ext.P14 order of the State Government untouched.

(3.) In the appeal before us, it is the contention of the learned counsel Sri.Manu Govind, appearing for the appellant that the learned Single Judge erred in not remitting the matter to the State Government since a plain reading of the order of the State Government indicates that there is some confusion as regards which of the applications submitted by the Juma Masjid was under consideration by the State Government. It is pointed out that, while the operative portion of Ext.P14 order refers to a consideration of alternate proposals of the Juma Masjid by the District Collector in accordance with the Rules, the first of the proposals submitted by the Juma Masjid had already been rejected by the District Collector on an earlier occasion and, as regards the second application, the same was the subject matter of the appeal pursuant to the District Collector having rejected that application on merits. A confusion therefore persists as to which application was directed to be considered by the District Collector.