IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 2ND FEBRUARY 2010 / 13TH MAGHA 1931 WP(C).No. 28087 of 2009(E) -------------------------- PETITIONER(S): --------------- C.V.WILSON, PASTOR, ASSEMBLIES OF GOD CHURCH, KARIYAMBADI PO., MEENANGADI (VIA), MUTTIL NORTH VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADV. SRI.SARVOTHAMAN RESPONDENT(S): --------------- 1. SPECIAL GRADE SECRETARY, MUTTIL GRAMA PANCHAYATH, MUTTIL P.O., WAYANAD DISTRICT. 2. DISTRICT COLLECTOR, WAYANAD. 3. DISTRICT MEDICAL OFFICER OF HEALTH, DISTRICT MEDICAL OFFICE (HEALTH), WAYANAD, MANANTHAVADY. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT (RB) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 5. P.V.SATHEESAN, S/O. VISWANATHAN, PALAKKUNNU PARAMBIL HOUSE, MUTTIL, KARYAMBADI P.O., WAYANAD DISTRICT. ADV. SRI.S.M.PRASANTH FOR R5 SRI.MANOJ RAMASWAMY FOR R1 SMT.MERIL MUTHU P.JOHN FOR R1 MR.V.MANU, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.28087/2009 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF LETTER NO.C2/5668/08/DMO(H)W. DATED 01/07/2008 ISSUED BY R3 TO R1. P2 : COPY OF JUDGMENT DATED 28/02/2009 IN O.S.NO.138/2008 OF THE MUNSIFF'S COURT, KALPETTA. P3 : COPY OF ORDER NO.M3-12589/08 DATED 26/06/2009 ISSUED BY R2. P4 : COPY OF CERTIFICATE DATED 31/08/2009 ISSUED BY THE CONSTRUCTION COMPANY SILPASREE CONSTRUCTION CO. P5 : COPY OF ORDER NO.B4-1136/09 DATED 14/9/09 ISSUED BY R1. P6 : COPY OF LETTER NO.48470/RB3/09/LSGD DATED 24/8/2009 ISSUED BY R5 ADDRESSED TO R1. P7 SERIES : COPY OF PHOTOGRAPHS OF MAINLY SIX PIT WELL-BUILT CONSTRUCTION OF THE CELL-TYPED CONCRETE VAULT. P8 : COPY OF RESIDENTIAL / OWNERSHIP CERTIFICATE DATED 27/5/2008. P8(a) : COPY OF TAX RECEIPT FOR THE YEAR 2008-09. P9 : COPY OF RESOLUTION NO.110 DATED 11/7/2008. P10 : COPY OF LETTER DATED 06/05/2008. P11 : COPY OF LETTER NO.B4/1047/08 DATED 25/7/2009. P12 : COPY OF INSPECTION REPORT DATED 08/05/2008. P13 : COPY OF LETTER NO.B-3-9031/08 DATED 15/1/2009. P14 : COPY OF REQUEST LETTER DATED 22/9/2009. P15 : COPY OF REQUEST LETTER DATED 22/9/2009 BY THE PETITIONER. P15(a) : COPY OF ACKNOWLEDGMENT RECEIPT NO.10050 DATED 22/9/2009. P16 : COPY OF LETTER DATED 09/07/2008 VIDE NO.M-3-12589/08. P17 : COPY OF REPORT BY LETTER NO.C2-5311/08 DATED 24/05/2008. RESPONDENT'S EXHIBITS R1(a) : COPY OF PETITION SUBMITTED BY R5 DATED 16/04/2008. WPC NO.28087/2009 R1(b) : COPY OF NOTICE ISSUED VIDE NO.B2-894/08 DATED 12/04/2008 BY THE 1ST RESPONDENT. R1(c) : COPY OF APPLICATION SUBMITTED BY THE PETITIONER ALONG WITH THE SITE PLAN. R1(d) : COPY OF CIRCULAR DATED 20/06/2007 ISSUED BY R4. R1(e) : COPY OF LETTER NO.C2/8881/08/G.M.O. DATED 11/03/2009 ISSUED BY R3. R1(f) : COPY OF LETTER DATED 24/09/2009 ISSUED BY THE DISTRICT TOWN PLANNER, WAYANAD. R5(a) : COPY OF LETTER DATED 11/3/2009 OF R3 ADDRESSED TO R1. R5(b) : COPY OF LETTER DATED 19/7/2009 OF R3 ADDRESSED TO R2. R5(c) : COPY OF LETTER DATED 24/9/2009 OF THE DISTRICT TOWN PLANNER ADDRESSED TO R1. R5(d) : COPY OF REPORT OF THE VILLAGE OFFICER, VYTHIRI DATED 06/05/2008. ANNEXURE C1 : COPY OF PRESENTATION OF STATEMENT SHRI.C.V.WILSON. ANNEXURE C2 : COPY OF PRESENTATION OF STATEMENT SHRI.P.V.SATHEESAN. ANNEXURE C3 : COPY OF PHOTOGRAPHS TAKEN OF THE PROPOSED SITE ON 09/12/2009. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.28087 of 2009 (E) --------------------------------- Dated, this the 2nd day of February, 2010 J U D G M E N T Challenge in this writ petition is against Exts.P5 & P6. 2. Briefly stated the facts of the case, are that the petitioner claims to the Pastor of a Church by name Assemblies of God Church, Kariyamvadi, Meenangadi in Wayanad District. According to the petitioner, attached to the Church, a Cemetery was in existence since 1986. The petitioner wanted to construct a concrete wall and therefore, made an application to the 1st respondent on 10/05/2008. According to the petitioner, on receipt of the application, the 1st respondent got an enquiry conducted through the District Medical Officer. Accordingly, the 2nd respondent conducted inspection and issued Ext.P1 proceedings recommending the application made by the petitioner. 3. It is stated that sometime in 2007, the 5th respondent purchased a property in the neighbourhood of the Church property. Coming to know of the application made by the petitioner, the 5th WP(C) No.28087/2009 -2- respondent approached the Munsiff Court, Kalpetta by filing O.S.No.138/2008 seeking a prohibitory injunction against the petitioner from constructing the concrete vault. That suit was dismissed by Ext.P2 judgment dated 28/02/2009. In the meantime, the Panchayat processed the application made by the petitioner and by Ext.P9 proceedings dated 22/07/2008 recommended to the Collector to grant licence to the petitioner in terms of the Kerala Panchayat Raj (Burial and Burning Grounds) Rules 1998. 4. In the light of the materials available, the District Collector considered the application and issued Ext.P3 proceedings dated 26/06/2009 passing an order under Rule 6(8)(a) of the Rules subject to the conditions mentioned therein. The petitioner submits that based on Ext.P3, they constructed the vault and Ext.P4 is the completion certificate issued by the Contractor. While matters stood thus, the 5th respondent is stated to have made a representation before the Minister for Local Self Government Department on 24/07/2009. On the representation so made, Ext.P6 order was issued by the Secretary to the Government directing the Panchayat that in view of the alleged violation of the WP(C) No.28087/2009 -3- provisions of the Municipality Building Rules, the work shall be stopped and a report shall be submitted. Based on Ext.P6, the 1st respondent issued Ext.P5 prohibitory order requiring the petitioner to stop further construction. It is thereupon that this writ petition has been filed challenging Exts.P5 & P6 and for other consequential reliefs. 5. The contention raised by the learned counsel for the petitioner is that the findings in Exts.P5 & P6 that there is violation of the provisions contained in Rules 59 and 69 of the Kerala Municipality Building Rules is without any merit. It is also the case of the petitioner that, if at all the 5th respondent is aggrieved, he ought to have pursued appellate remedy against Ext.P3 order of the District Collector which he has not done, and that on the other hand, he made a complaint, on the basis of which Exts.P5 & P6 were issued. 6. The learned counsel for the Panchayat contends that the Kerala Municipality Building Rules apply to the Panchayat. It is stated that the use of a place for disposal of dead bodies is a hazardous use as provided in Rule 30 of the Building Rules. It is WP(C) No.28087/2009 -4- stated that in such a case, compliance with Rules 59 & 69 is mandatory. It is stated that therefore Exts.P5 & P6 are perfectly valid. 7. On behalf of the 5th respondent the learned counsel submits that against Ext.P3 proceedings of the District Collector, an appeal has been filed by him before the 4th respondent, which is pending. It is stated that therefore irrespective of Exts.P5 & P6 he is entitled to seek remedy before the appellate authority and that the findings in Ext.P2 judgment of the Civil Court does not stand in his way. It is also his contention that the findings of violation of the provisions of the Building Rules are perfectly legal. 8. I have considered the submissions made by both sides. 9. As already seen, the petitioner made an application to the 1st respondent Panchayat in terms of the provisions contained in the Kerala Panchayat Raj (Burial and Burning Grounds) Rules 1998. It was this application which was considered by the District Collector, and after all procedural formalities Ext.P3 order was issued. The Rules itself provide for remedy against such an order, which is an appeal as provided in Rule 6(10) of the Rules. Exts.P5 & WP(C) No.28087/2009 -5- P6 evidently are not orders issued pursuant to any appeal that was filed, but admittedly were orders on a representation dated 24/07/2009 filed by the 5th respondent. In my view, when a statutory remedy is available, the Government should not have passed orders such as Ext.P6 entertaining a representation. Therefore, Exts.P5 & P6, in my view, are misconceived. If as stated by the 5th respondent, he has filed an appeal before the 4th respondent, it is up to the Government to examine whether the appeal is in terms of Rule 6(10) of the Rules and if so, entertain the same, with notice to the parties and pass orders thereon in accordance with law. Therefore, I quash Exts.P5 & P6, and this writ petition is disposed of clarifying that it will be open to the 5th respondent to pursue the appeal, which is stated to have been filed before the 4th respondent, in which event, the 4th respondent shall consider the appeal untrammelled by the observations made in this judgment. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg