ACHUTHAN Vs. STATE

JUDGEMENT

(1.) This petition challenges the validity of an order, Ext. A, passed by the first respondent, the State of Kerala on August 25, 1958, cancelling a resolution passed by the second respondent, the Kozhikode Municipal Council, or simply the Council, on August 30, 1954, by which the latter refused an application, to register certain lands as burial grounds, made by the third respondent, who is now the President of Karaparamba Juma Mosque committee, the fourth respondent being now its Secretary. To appreciate the points in controversy, it is necessary to set out a few facts as disclosed by the affidavits of the parties and by the file of papers placed in my hands by the learned counsel who appeared for respondents 1 & 2.

(2.) The petitioners, seven in number, claim to be residents in the vicinity of the mosque. Some of them and others presented to the Collector, Malabar, a petition on March 9, 1953, which was marked by me as Ext R-l (a), and which referred to earlier petitions of the years 1950, 1952, on the subject addressed to the Collector, to the Municipal Health Officer and to the Municipal Commissioner, Kozhikode, objecting to the move for registration under S.278(1) of the Madras District Municipalities Act, 1920, hereinafter referred to as the Act, of the compound attached to the aforesaid mosque, as a burial ground. It was forwarded by the Collector to the Municipal Commissioner, Kozhikode, for a consideration of the objections to registration. The third respondent, who at the time was the Secretary of the mosque committee, applied on March 23, 1953 to the Municipal Commissioner, Kozhikode for the registration of the land set out by him in a schedule but without specifying its survey numbers, as burial ground. Later, when called upon, he specified them by Ext. R-4 dated July 6, 1954, as survey number 384/7, being land which was described as the seat of the mosque and covered by a wakf more than 100 years ago, and as survey number 385, being land which had been obtained by the mosque by deed, number 992 of the year 1952. A third plot of land which is also involved in this controversy, hearing survey number. 384/4 was not specified or referred to in Ext, R-4. The Council thereupon constituted a special committee, which after inspecting the lands, hearing the parties or their lawyers, and perusing the documents produced, reported to the Council against registration of any of the lands bearing survey numbers 384/7, 385 & 384/4; it may be mentioned, that a claim for registration of land bearing survey number 384/4 also had been made before the special committee, producing a title deed for it, of the year 1947. On August 30, 1954, after perusing the file of papers, and the reports of the special committee and of the Municipal Health Officer against registration, and on taking legal advice, the Council passed proceedings marked Ext. R-7, adopting the report of the special committee and declining registration. Later, there was a representation to the Collector, Malabar, by some of the Muslims for reconsideration which was forwarded by him to the Council. It is seen from Ext. R-8, that the prayer then made was, that if another suitable burial ground could not be provided, the Muslins residents of the locality may be allowed to bury the dead at least in the land bearing survey number 384/7. After further consideration, the Council confirmed its previous resolution by Ext. R-8 dated November 30, 1954. On August 26, 1955, a representation was made to the Madras Government on behalf of some of the Muslim inhabitants, requesting that the lands bearing survey numbers 384/7 & 385 at least, may be registered as burial ground, or that, if that was not possible, another place may be made available. By Ext. R-9 dated December 27, 1956, the Government of Madras ordered, that they saw no reason to interfere with the resolution of the Council.

(3.) Nothing transpired till July, 1958, when a memorandum was presented by the third respondent to the Government of Kerala, after the formation of the Kerala State, requesting Government to intervene and secure the registration of the lands, or to provide other suitable burial ground. The Municipal Commissioner, Kozhikode, as directed, furnished his remarks thereon which were adverse to the claim for the registration of the lands. Government then decided to convene a conference of the Chairman, and the Commissioner of the Council, the leaders of the parties in the Council, and the President and the Secretary of the mosque committee, on August 18, 1958, and a memorandum therefor was issued to the Chairman and the Commissioner of the Council, and to the others inviting them to be present. A conference was held on the appointed date, although, as was stated, the leaders of one of the parties did not attend. Thereafter, the order impugned, Ext. A, was passed on August 25, 1958, which stated that Government find that Karaparamba Juma Mosque and the burial ground attached to it were in existence for nearly a century now; the reason in support of the order was stated to be, that under S.278 of the Act, when an application is made for the registration of a land, which was being used as a burial ground on the date the Act come into force, the Council had no option but to register it, and to refuse to do so, was a contravention of S.278, and therefore an illegality. Accordingly, by Ext. A, the resolution of the Council, Ext. R-7 was cancelled and the Council was directed to sanction registration of the Karaparamba burial ground forthwith; Government also ordered the refund of fines realised for the alleged violation of orders of the Council prohibiting the use of the burial ground, and the withdrawal of prosecutions pending, if any, launched for such violation.