IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 15TH JULY 2008 / 24TH ASHADHA 1930 WP(C).No. 17576 of 2008(P) ---------------------------------------- PETITIONERS: ---------------------- 1. SUBRAHMANIYAN, AGED 46 YEARS, S/O.VELAYUDHAN, POOTHAKUDI, NEDUVATTOM KARA, MANJAPRA P.O. 2. SRI.SUDARSANAN, AGED 43 YEARS, S/O.V.N.PILLAI, AMPADATH MALIKA, NADUVATTOM KARA, MANJAPRA P.O. BY ADV. SRI.GOVIND K.BHARATHAN (SR.) SRI.C.A.JOY RESPONDENTS: ------------------------- 1. THE DISTRICT COLLECTOR, ERNAKULAM DIST. ERNAKULAM, CIVIL STATION, KAKKANAD. 2. MANJAPRA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, MANJAPRA P.O., MANJAPRA. 3. THE VICAR, ST.SEBASTIAN'S CHURCH, SEBIPURAM, MANJAPRA. 4. KERALA STATE POLLUTION CONTROL BOARD, ERNAKULAM REPRESENTED BY SENIOR ENVIRONMENTAL ENGINEER, ERNAKULAM. 5. DISTRICT MEDICAL OFFICER (HEALTH),ERNAKULAM. BY GOVERNMENT PLEADER SMT. K.R. DEEPA - R1 & 5 ADV.SRI.G.P.SHINOD FOR R2 SRI.RAM MOHAN.G. FOR R2 SRI.MANU V. FOR R2 SRI.MARTIN CHACKO FOR R2 SRI.V.M.KURIAN FOR R3 SRI.MATHEW B. KURIAN FOR R3 SMT.TULASI PANICKER FOR R3 SRI.K.T.THOMAS FOR R3 SRI.M.K.CHANDRAMOHAN DAS, SC, PCB - R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/07/2008, THE COURT ON 15/07/2008 DELIVERED THE FOLLOWING: Kss WPC.NO.17576/2008 P APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMPLAINT DTD. 29/11/2005. EXT.P2: COPY OF THE COMMISSION REPORT DTD. 05/12/2005. EXT.P3: COPY OF THE JUDGMENT DTD. 19/12/2005 IN WP(C) NO.33674/2005. EXT.P4: COPY OF THE NOTICE PUBLISHED IN THE DEEPIKA DAILY DTD. 10/08/2005. EXT.P5: COPY OF THE ORDER DTD. 19/11/2005 ISSUED BY THE 1ST RESPONDENT. EXT.P6: COPY OF THE ORDER NO.D.DIS.33101/05/M5 DTD. 01/09/2006. EXT.P7: COPY OF THE COMPLAINT DTD. 15/10/2004. EXT.P8: COPY OF THE JUDGMENT DTD. 24/04/2007 IN WP(C) NO.25682/2006. EXT.P9: COPY OF THE ORDER NO.M5/44480/07 DTD. 28/03/2008. EXT.P10: COPY OF THE ORDER DTD. 07/04/2008 IN WRIT APPEAL NO.1616/2007. EXT.P11: COPY OF THE REPORT NO.K.DIS.NO.9760/05/B3 DTD.20/02/2006. EXT.P12: COPY OF THE ORDER DTD. 31/03/2008. EXT.P13: COPY OF THE OBJECTION SUBMITTED BY T.V.RAVI DTD. 26/07/2007. EXT.P14: COPY OF THE OBJECTION SUBMITTED BY MR.C.K.RAJAN DTD. 26/07/2007. RESPONDENT'S EXHIBITS: EXT.R3(A): COPY OF THE REPORT DTD. 29/06/2005 OF THE DISTRICT MEDICAL OFFICER. EXT.R3(B): COPY OF THE REPORT DTD. 06/06/2008 OF THE EXECUTIVE ENGINEER. EXT.R3(C): COPY OF THE REPORT DTD. 12/07/2007 SENT BY CHIEF ENVIRONMENTAL ENGINEER. EXT.R3(D): COPY OF ORDER PASSED BY THE 1ST RESPONDENT. EXT.R3(E): COPY OF THE MEMORANDUM OF WRIT APPEAL DTD. 22/06/2007. /TRUE COPY/ Kss P.S.TO JUDGE ANTONY DOMINIC, J. = = = = = = = = = = = = = = W.P.(C) No. 17576 OF 2008 (P) = = = = = = = = = = = = = = Dated this the 15th day of July 2008 J U D G M E N T The prayers in this writ petition are for quashing Ext. P9 order passed by the 1st respondent and for a direction requiring him to issue fresh notice mentioning the type of cemetery as contemplated under Rule 6(7) of the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998 (hereinafter referred to as the Rules for short). 2. Briefly stated, the facts of the case are that the 3rd respondent submitted Ext. P15 application to the 2nd respondent, for licence in terms of Rule 6 of the Rules. The Panchayat forwarded the application to the 1st respondent with its recommendations and Ext. P4 notice was published in Deepika daily as provided in Rule 6(7). The 1st respondent thereafter conducted enquiries and obtained Ext. R3(a) report of the District Medical Officer. No objections were received in response to Ext. P4 and after concluding the enquiry, Ext. P5 order was passed allowing the applicant to set out the construction works at the proposed site in Sy. No. 439/25 of Manjapra Village. W.P.(C) No.17576/08(P) - 2 - 3. On the strength of Ext.P5 when construction was started, Ext.P1 complaint was made by the petitioners. Complaining that the 1st respondent did not take action on Ext.P1, petitioners filed W.P.(C) No. 33674/2005. In that writ petition, this court appointed an Advocate Commissioner to ascertain the ground realities and after inspection Ext.P2 report was submitted. Along with Ext.P2 the Advocate Commissioner produced the spot mahazar prepared by him, where it is stated that; “while inspecting the cemetery, it appeared to be in the form of concrete vaults total 28 number of concrete vaults having average depth of 2.10 m, length of 2.10 m and width of 75 c.m. has been constructed with concrete blocks. An outer wall having height of 2.45 m has also been constructed. Plastering of the vaults and wall, construction of concrete slabs to cover the vaults and the roofing of the entire cemented portion are to be completed”. 4. The Commissioner has also noted the distance towards 14 neighbouring houses which are having common boundary with the church compound. It only needs to be mentioned that all these houses are situated at a distance of more than 25 meters away from the site in question. However, in his report, the Commissioner has mentioned that “inside the cemetery, 28 vaults, (construction intended for burial) equal in size has been constructed with W.P.(C) No.17576/08(P) - 3 - hollow-bricks”. In this context it also needs to be mentioned that the 3rd respondent who was the 4th respondent in that writ petition had filed an objection, which is also annexed to Ext.P2, where it has been averred that the aforesaid observation of the Commissioner was an obvious mistake. It is further stated that “construction is made using solid concrete blocks and not hollow-bricks”. 5. W.P.(C)No. 33674/2005 was disposed of by Ext.P3 judgment, directing the District Collector to give an opportunity of hearing to the petitioners therein and the 4th respondent and to take a decision in the matter. Accordingly, the District Collector heard all the parties and issued Ext.P6 order. In the 1st paragraph of Ext.P6 it has been stated that the application made before the Secretary of the Manjapra Grama Panchayat was for “opening and maintaining a vault type burial ground in Sy. No. 439/25 of Manjapra Village”. Proceeding further, the District Collector found that in the notice published, the application was indicated as for cemetery, without mentioning it as vault type cemetery. On the aforesaid basis, the District Collector passed the following order: “In the result, the application to open and maintain a concrete vault type burial ground in 60 sq. m in Sy. No. 439/25 of Manjapra Village is hereby rejected, since there is W.P.(C) No.17576/08(P) - 4 - a factual inaccuracy in the advertisement published in 6(7) notice, insisted by the Rule”. 6. Thereupon, the 3rd respondent herein filed W.P.(C) No.25682/2006 seeking to quash Ext.P6 order. That writ petition was disposed of by a Learned Judge of this Court by Ext.P8 judgment. In the judgment the Learned Judge held that “no prejudice whatsoever has been occasioned to anybody who is entitled to raise objections due to the inaccuracy in the publication which was effected in this case”. Proceeding further, the learned Judge quashed Ext.P6 order (marked as Ext.P11), and held as follows: “Ext.P11 is therefore quashed. The claim of the petitioner church is that the concrete vault type cemetery is being constructed in such a fashion that scope for any peculation and contamination or nuisance is completely eliminated. The District Collect can examine whether this claim is well founded by having necessary inspections conducted through the district functionaries of the Pollution Control Board or the Executive Engineer of the Buildings Division of the Public Works Department as he chooses. Fresh decision as directed above will be taken by the District Collector on merits after hearing the petitioner church and respondents 1 and 2 and after affording opportunity to them to prejudice whatever further materials on which they want to rely on before taking final decision. Final decision as directed above will be taken by the District Collector within two months of receiving copy of this judgment”. 7. Against Ext.P8 judgment the petitioners herein filed W.A. W.P.(C) No.17576/08(P) - 5 - No. 1616 of 2007 but, however, there was no order restraining the further proceedings before the District Collector. As a result thereof, in compliance with the directions in Ext. P8, the District Collector obtained Ext. R3(c) report from the Environmental Engineer of the Kerala Pollution Control Board where it is stated that the cemetery consists of 28 chambers and that the side walls and the floor have been concreted. It is further reported that since the walls have been constructed by concrete and as the nearest well is situated 28 metres away, there is no possibility of any contamination to the drinking water sources. The matter was reconsidered by the District Collector and by Ext. P9 order, the District Collector cancelled Ext. P6 proceedings and allowed the 3rd respondent to construct the cemetery at the proposed site. It was further directed that licence in Form II of the Rules will be issued on production of the completion certificate from the District Medical Officer. 8. It would appear that in the meanwhile the petitioners herein had produced Ext. P9 order of the District Collector before the Division Bench and thereupon the Division Bench passed Ext. P10 order clarifying that if the petitioners are aggrieved, the order W.P.(C) No.17576/08(P) - 6 - should be questioned in appropriate proceedings. Subsequently, this writ petition was filed by the petitioners on 11.6.2008 seeking the reliefs mentioned above. Still later, on 13.6.2008, the petitioners got W.A. No. 1616/07 dismissed as withdrawn by Ext. P16, reserving liberty to raise all contentions which are available to them. 9. While the petitioners contend that the cemetery in question which is permitted to be constructed by Ext. P5 and P9 orders, cannot be constructed within 50 metres of dwelling houses, the 3rd respondent would contend that it being a concrete vault type cemetery, the required minimum distance is only 25 metres from dwelling houses. Admittedly, the nearby dwelling houses are situated beyond 25 metres and within 50 metres of the site in question and therefore the decision of this case will depend upon answer to the question whether the cemetery in question is a concrete vault type cemetery. 10. The relevant Rule is Rule 5 of the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998. Rule 5 reads as follows: W.P.(C) No.17576/08(P) - 7 - “5. No burial and burning ground to be located within the limit of 50 metres of a dwelling house.--(1) No new burial and burning ground shall be provided within the limit of 50 metres of dwelling houses: Provided that in the case of concrete vaults and electric crematorium the distance shall be a minimum of 25 metres from dwelling houses. (2) Whether there is any burial and burning place or not within the specified limit from the dwelling house is to be determined by considering the circumstance on the date of application for licence.” 11. The Rule does not define burial or burning ground or concrete vault. In Webster's New World College Dictionary, vault has been given the meaning as a burial chamber or a concrete or metal enclosure in the ground into which the casket is lowered at burial. The word vault has also the meaning as a construction for covering an area of considerable depth, built or affecting to be built on the principle of the arch; a chamber or passage surrounded by heavy masonry or a burial chamber. Petitioners contend that a cemetery constructed above the ground level and that too using only reinforced cement concrete can be a vault type cemetery. However, neither the rules nor the dictionary meaning of the word vault persuades me to accept that interpretation attempted by the learned senior counsel for the petitioners. Therefore, I proceed on the basis W.P.(C) No.17576/08(P) - 8 - that a concrete chamber, constructed below the ground level, can be considered as a vault type cemetery. 12. If the construction undertaken by the 3rd respondent is factually a concrete vault type cemetery, then the distance rule that is applicable is what is provided in the proviso to Rule 5 and the minimum distance from the dwelling houses is only 25 metres. From the materials available, it is obvious that this requirement is satisfied in this case. 13. Now I shall examine the nature of the cemetery that is constructed by the 3rd respondent. Ext. P15 is the application for licence submitted by the 3rd respondent along with the plan. The application in Form I prescribed by the Rules, does not require details of the nature of the cemetery. However, in the plan attached to Ext. P15, it is specifically mentioned that the cemetery is a vault type cemetery. Ext. P5 order passed by the District Collector states that the application made by the 3rd respondent was for opening and maintaining of a concrete vault type cemetery. Ext. P6 order cancelling Ext. P5 also states that the application was for opening and maintaining a concrete vault type cemetery, but the newspaper advertisement indicated that the request of the applicant was only W.P.(C) No.17576/08(P) - 9 - for a burial ground and it was that inaccuracy that led to the cancellation of Ext. P5. 14. In the spot mahazar attached to Ext. P2 commission report submitted by the Advocate Commissioner, it is stated that he had noticed the construction as one of concrete vaults, though in the report it is stated that the construction is by using hollow bricks, which has been objected by the 3rd respondent by filing their objection. In this case, the District Collector has filed a statement where in at paragraph 5, it is stated that the application submitted was for a vault type cemetery. Ext. R3(d) in this writ petition is an order passed by the District Collector on 19.1.2007 pursuant to the judgment of this Court in W.P.(C) No. 28186/06 where also it is stated that the cemetery is a vault type one. In Ext. R3(c) report submitted by the Environmental Engineer it is stated that the cemetery is constructed by using concrete. 15. The Executive Engineer, PWD has given Ext.R3(b) report to the District Medical Officer where also it is stated that the outer walls of the cemetery and waste pit are constructed with cement concrete with 20 cm. thick and the inner partition walls are constructed with 10 cm. thick cement concrete. It is also stated that W.P.(C) No.17576/08(P) - 10 - the overall size of the cemetery is 11.25 x 6.50 m. and that all chambers except waste pit are covered with removable precast RCC slab. All the aforesaid materials indicate that the cemetery in question is a concrete vault type cemetery. 16. As against the aforesaid materials, petitioners have produced Exts. P11 and P12. Ext. P11 report of the Tahsildar states that it was using cement bricks that 28 vaults have been separated. Going by the term used by the Tahsildar in Ext. P11 report, I am inclined to think that what he would have meant must be concrete blocks as found by the Advocate Commissioner and nothing else. In so far as Ext. P12 is concerned, that is the proceedings of the Sub Divisional Magistrate issued on 31.3.2008. In the counter affidavit filed by the 3rd respondent, it is stated in paragraph 9 that Ext. P12 order has been challenged by the 3rd respondent in Crl.M.C. No. 1544/08 and that the matter stands stayed by this Court. Therefore, the weight of evidence produced by the 3rd respondent and the other materials that are available, leads to the irresistible conclusion that what was applied for by the 3rd respondent in Ext. P15 application was a concrete vault cemetery and that the application was dealt with, considered and orders passed on that W.P.(C) No.17576/08(P) - 11 - basis. 17. Since what is permitted to be constructed is a concrete vault cemetery, then in terms of the proviso to Rule 5 (1) of the Rules, the distance shall be a minimum of 25m. from dwelling houses. The petitioner has no case that there is any dwelling house within 25 metres of the cemetery in question. If that be so, I do not find any violation of Rule 5 of the Rules warranting interference with Ext. P9 order passed by the 1st respondent. 18. Learned counsel for the petitioner was vehemently contending for the position that if the cemetery is allowed to be constructed, the drinking water sources would be contaminated. Apart from the assertion made by the learned counsel, petitioners have not produced any material in support of this contention. On the other hand, Ext. R3(c) report of the Environmental Engineer is to the effect that since the floor of the vault has been concreted, there is no possibility of any seepage of pollution to the water in the neighbouring wells. 19. In view of the aforesaid I hold that there is absolutely no illegality or irregularity in Ext. P6 order. 20. The 2nd prayer is to direct publication of fresh notice in W.P.(C) No.17576/08(P) - 12 - terms of Rule 6(7) of the Rules, specifying the type of cemetery proposed to be constructed. This contention necessarily presupposes that Ext.P4 which was defective since it only mentioned that the proposal was to construct a cemetery. In my view, petitioners cannot seek this prayer for the reason that in Ext.P8 judgment in WP(C) No.25682/06, this Court has already held that no prejudice has been occasioned to anybody due to the inaccuracy in the notice. This finding has become final and since I do not find any defect in the notice, there is no justification to order fresh publication of the notice under Rule 6(7) of the Rules. Writ petition fails and is dismissed. ANTONY DOMINIC, JUDGE jan/-