IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 WA.No. 1166 of 2009 ---------------------------------- AGAINST JUDGMENT IN WPC 32759/2008 DATED 6.11.2008 APPELLANT/PETITIONER ------------------------------------ M.P.MUHAMMED, S/O.KHADER HAJI, AGED 34 YEARS, MADATHINGAL HOUSE, KUZHIKMANNA, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENTS/RESPONDENTS ---------------------------------------------- 1. DISTRICT COLLECTOR, MALAPPURAM. 2. THE TAHSILDAR, ERNAD TALUK, MALAPPURAM DISTRICT. 3. THE SECRETARY, KUZHIMANNA GRAMA PANCHAYATH, MALAPPURAM DISTRICT. 4. THE DISTRICT MEDICAL OFFICER, D.M.O.OFFICE, MANJERI, MALAPPURAM DISTRICT. R1, R2 & R4 BY SR.GOVERNMENT PLEADER SMT.K.MEERA R3 BY ADV. SRI.M.MUHAMMED SHAFI THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R.Bannurmath, C.J. & A.K. Basheer, J. -------------------------------------------------------- W.A. No.1166 of 2009 -------------------------------------------------------- Dated this the 23rd day of September, 2009 JUDGMENT S.R.Bannurmath, C.J. Aggrieved by the judgment of the learned Single Judge dated 6th November, 2008 in W.P.(C) No.32759 of 2008, the petitioner has approached this Court in the present writ appeal. 2. The subject matter of the writ petition was non- consideration of the application filed in the year 2007 seeking permission for opening a burial ground under the provisions of the Kerala Panchayat Raj Burning and Burial Ground Rules. As according to the petitioner-appellant, the District Collector declined to consider the prayer on the ground of pendency of litigation in a civil court and especially the interim order of injunction granted against the petitioner-appellant for using the land as burial ground, the writ petition was filed. 3. The learned Single Judge considering the fact of pendency of civil dispute in respect of the land in question, rightly W.A.No.1166 of 2009. - 2 - rejected the prayer in the writ petition which was to the effect “issue a writ of mandamus or any other appropriate writs, orders or directions commanding the first respondent to consider and pass orders on the application submitted by the petitioner for licence to open a burial ground in R.S.No.116/4 of Kuzhimanna Village, notwithstanding the pendency of O.S.No.318/2007 of the Munsiff Court, Manjeri”. 4. Admittedly, the suit O.S.No.318 of 2007 is filed against the petitioner-appellant in the year 2007 wherein an interim order injuncting burial of dead bodies in the property in dispute is passed. Without making any effort either to get the temporary injunction vacated or to expedite the hearing of the suit itself, the petitioner has now approached this Court in the writ petition. Though it is admitted that there is such an injunction order by the competent court, it is submitted by the learned counsel for the appellant that it should not prevent the District Collector from considering his application for permission to open burial ground. W.A.No.1166 of 2009. - 3 - 5. In our view, this is putting the cart before the horse. Unless the appellant gets the injunction order against him vacated, he will not be entitled for any licence/permission, as rightly observed by the learned Single Judge. Even if such permission is granted it will be only on paper, as the same cannot be implemented. Hence, we find no merit in the writ appeal and the same is rejected. However, it is made clear that it is open for the appellant to approach the civil court to get the injunction order vacated or suitably modified, and only thereafter, after the injunction is vacated or suitably modified, it is open for him to move the District Collector to consider his application for licence. With this observation, the writ appeal is dismissed. S.R.Bannurmath, Chief Justice A.K. Basheer, Judge vns