IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 WP(C).No. 30540 of 2009(J) ------------------------------- PETITIONER: -------------- T.SUKUMARAN, S/O.RAMAN, PADIYOOR AMSOM AND DESOM, P.O.PADIYOOR, TALIPARAMBA, KANNUR. BY MR.M.RAMESH CHANDER, ADVOCATE. MS.K.A.SANJEETHA, ADVOCATE. MR.ANEESH JOSEPH, ADVOCATE. RESPONDENTS: ------------------ 1. THE DISTRICT COLLECTOR, KANNUR. 2. THE PADIYOOR GRAMA PANCHAYAT, P.O.PADIYOOR, TALIPARAMBA, KANNUR DISTRICT, REPRESENTED BY ITS SPECIAL GRADE SECRETARY. 3. THE SUB INSPECTOR OF POLICE, IRIKKUR POLICE STATION. 4. THE TAHSILDAR, TALIPARAMBA. 5. P.P.KRISHNAN, SON OF ANANDAN, PADIYOOR AMSOM AND DESOM, P.O.PADIYOOR, TALIPARAMBA, KANNUR. 6. P.P.BALAN, SON OF KORAN, RESIDING AT PADIYOOR AMSOM AND DESOM, P.O.PADIYOOR, TALIPARAMBA, KANNUR. BY MR.P.U.SHAILAJAN, ADVOCATE, FOR R5 AND R6. MR.P.M.PAREETH, ADVOCATE, FOR R2. MS. N. SUDHA DEVI, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/05/2010, ALONG WITH WP(C) No.1127 OF 2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.30540/2009 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF REPRESENTATION BEFORE THE DISTRICT COLLECTOR DTD. 23.1.08. EXT. P2 : COPY OF ORDER No.d24177/08/K.DIS. OF THE DEPUTY COLLECTOR DTD. 18.10.08. EXT. P3 : COPY OF ORDER IN I.A.No.922/09 IN O.S. No.143/09. EXT. P4 : COPY OF COMPLAINT TO R3 DTD. 8.4.09. EXT. P5 : COPY OF PETITION TO R2 DTD. 20.8.09. EXT. P6 : COPY OF APPLICATION DTD. 11.8.09. EXT. P7 : COPY OF REPLY DTD. 7.9.09. 2ND RESPONDENT'S EXHIBITS: EXT. R2(a) : COPY OF OFFICE COPY OF THE NOTICE DTD. 4.7.08 ISSUED BY THE RESPONDENT TO RESPONDENTS 5 AND 6. EXT. R2(b) : COPY OF SUBMISSION DTD. 28.7.08 SUBMITTED BY R5. EXT. R2(c) : COPY OF RESOLUTION No.130/2008 DTD. 9.9.08. EXT. R2(d) : COPY OF DISSENTING NOTE DTD. 24.9.08. EXT. R2(e) : COPY OF RESOLUTION No.150/2008 DTD. 24.9.08. EXT. R2(f) : COPY OF GOVT. LETTER DTD. 7.10.08 ISSUED TO THE PANCHAYATH. EXT. R2(g) : COPY OF LETTER DTD. 25.10.08 ISSUED BY THE RESPONDENT TO RESPONDENTS 4 AND 5. EXT. R2(h) : COPY OF LETTER DTD. 30.10.08. 5TH & 6TH RESPONDENT'S EXHIBITS: EXT. R5(a) : COPY OF PLAINT IN O.S.No.143/2009 BEFORE THE MUNSIFF'S COURT, TALIPARAMBA FILED BY THE PETITIONER AND OTHERS. WP(C).No.30540/2009 EXT. R5(b) : COPY OF WRITTEN STATEMENT FILED BY THESE RESPONDENTS IN O.S.No.143/2009 BEFORE THE MUNSIFF'S COURT, TALIPARAMBA. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) Nos.30540 OF 2009 & 1127 OF 2010 --------------------------------------- Dated this the 26th day of May, 2010. J U D G M E N T The petitioner in W.P.(C)No.30540/2009 seeks for a direction to implement Exhibit P2 order in its letter and spirit. The challenge in W.P.(C) No.1127/2010 is against the very same order which is produced as Exhibit P3 therein. 2. The petitioner in W.P.(C) No.30540/2009 is a permanent resident of Padiyoor amsom and desom in Kannur District. The respondents 5 and 6 are the owners of neighbouring properties in Survey No.4/1 of Padiyoor Grama Panchayath at Padiyoor village. It is the case of the petitioner that the said property was being used by the respondents 5 and 6 to bury dead bodies. It is pointed out that they have not obtained any permission or licence from the Panchayath or the District Collector for establishing a burial ground. In these circumstances, the petitioner along with others filed Exhibit P1 representation before the District Collector which was referred to the Deputy Collector to conduct an enquiry. W.P.(C) Nos.30540/09 & 1127/10 2 It is submitted that even after the passing of Exhibit P2 order, an injunction order was passed in I.A.No.922/2009 in O.S.No.143/2009 (produced as Exhibit P3) and in total defiance of the said orders, a dead body was cremated on 07.4.2009. The petitioner along with two others complained to the police as per Exhibit P4 and to the Panchayath as per Exhibit P5. On their request, the Secretary of the Panchayath gave a reply as per Exhibit P7 stating that no permission has been granted to the respondents 5 and 6 to use the property as a burial ground. It is in these circumstances, W.P.(C) No.30540/2009 has been filed by the petitioner. 3. The 1st respondent has filed a detailed counter affidavit in the matter wherein the stand taken is that the burial ground cannot be used in the absence of licence and all possible steps will be taken to implement the order Exhibit P2. 4. In W.P.(C) No.1127/2010, the petitioner submits that the burial ground was in existence prior to even 100 years. The property was purchased from the owner in 2005 by a society of which petitioner is an office bearer. The petitioner was served W.P.(C) Nos.30540/09 & 1127/10 3 with Exhibit P1 notice to which the petitioner gave a reply as per Exhibit P2. The stand taken is that no licence is required for the burial ground since it was in existence from 100 years back. On getting notice in W.P.(C) No.30540/2009, the petitioner came to know that an order has been passed by the District Collector and accordingly, W.P.(C)No.1127/2010 has been filed challenging the order. 5. The petitioner in W.P.(C) No.1127/2010 relies upon Rule 4 of Panchayat Raj (Burial and Burning Ground) Rules 1998 wherein under Rule 4(1) it is provided that “the cemeteries existing at the commencement of these rules and registered or deemed to have been registered under the Kerala Panchayath (Burial and Burning Grounds) Rules, 1967 shall be deemed to have been registered under these rules”. The contention appears to be that there is a deemed registration and therefore, a licence is no longer required. 6. It is vehemently argued by the learned counsel for the petitioner in W.P.(C) No.1127/2010 that Exhibit P3 order passed by the Deputy Collector cannot be sustained in the light of the W.P.(C) Nos.30540/09 & 1127/10 4 fact that no notice was issued to the petitioner even though copy of the order is marked to the petitioner herein. 7. A reading of the order shows that the Deputy Collector passed the order after getting a report from the Tahsildar referred to as item No.2 therein. It appears that the Secretary of the Panchayath by letter dated 15.09.2008 forwarded a resolution of the Panchayath requesting for continued operation of the crematorium. Thereafter the order is passed by the Deputy Collector and the nature of the order is as a stop memo issued against functioning of the crematorium. There is a further direction to the Secretary of the Panchayath to see that the direction is implemented. 8. It is evident that even the complainant, Panchayath and the petitioner in W.P.(C) No.1127/2010 were not personally heard in the matter. The petitioner in W.P.(C) No.1127/2010 was not issued notice to submit any explanation also. In the light of the fact that the petitioner in W.P.(C) No.1127/2010 is relying upon Rule 4 of the relevant Rules, the matter requires an examination at the hands of the District Collector. This is so in W.P.(C) Nos.30540/09 & 1127/10 5 the light of Rule 4(2) of the relevant Rules which provides thus: “If any dispute arises as to whether a cemetery is in existence at the commencement of these rules and deemed to have been registered under the Kerala Panchayat (Burial and Burning grounds) Rules, 1967, the same shall be subject to the decision of the concerned District Collector and the decision thereon shall be final”. 9. Obviously, the District Collector will have to adjudicate such an issue and then consider the question whether if the decision is against the parties concerned, without getting a licence under the relevant Rules, the crematorium can function. In that view of the matter, this matter will have to go back to the District Collector for a fresh decision. In fact, the statutory authority being the District Collector, it is upto the District Collector himself to hear the parties and pass appropriate orders. In the meanwhile, Exhibit P2 stop memo (produced in W.P.(C) No.30540/2009) will be enforced by the Panchayath. It is submitted by the learned counsel for the petitioner in W.P.(C) No.1127/2010 that after Exhibit P2 stop memo was received, no dead body was cremated even though the same is disputed by W.P.(C) Nos.30540/09 & 1127/10 6 the learned counsel for the petitioner in W.P.(C) No.30540/2009. Appropriate orders will be passed by the District Collector after hearing all the parties including the petitioners in these writ petitions and the Panchayath within a period of three months from the date of receipt of a copy of this judgment. In the meanwhile, the petitioner in W.P.(C) No.1127/2010 or anybody under him will not use the property as a crematorium. The Panchayath will see that this arrangement is implemented. These writ petitions are disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp