IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 27TH JUNE 2007 / 6TH ASHADHA 1929 WP(C).No. 3528 of 2005(T) ------------------------- PETITIONER: ------------ DEEPA T.K., W/O. RAMESAN, AGED 35 YEARS, PUTHIYAPURAYIL, ADOOR, KADACHIRA P.O., KANNUR DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE SRI.B.PRAMOD RESPONDENTS: ------------- 1. THE DISTRICT COLLECTOR, KANNUR. 2. THE SECRETARY, KADAMBOOR GRAMA PANCHAYAT KANNUR. 3. SUB INSPECTOR OF POLICE, EDAKKAD. 4. THE VIYYATHUL ISLAM DARSA MADRASSA, MUSLIM JAMAYAT MOSQUE COMMITTEE, ADOOR, KADAMBOOR, KANNUR, REP.BY ITS SECRETARY. BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.M.K.SUMOD SRI.K.V.SOHAN GOVERNMENT PLEADER SRI.RAVIKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/06/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS EXT.P1 TRUE COPY OF THE MEMORANDUM DTD. 12-12-02 FILED BEFORE THE FIRST RESPONDENT. EXT.P2 TRUE COPY OF THE RESOLUTION DTD. 28-12-02 PASSED BY R2 EXT.P3 TRUE COPY OF THE REPRESENTATION DTD. 19-12-03 SUBMITTED BY N.K.DASAN MASTER BEFORE R1 EXT.P4 TRUE COPY OF THE LETTER DTD. 1-7-04 ISSUED BY R1 EXT.P5 TRUE COPY OF THE REPRESENTATION DTD. 18-11-04 SUBMITTED BY THE PETITIONER BEFORE R2 EXT.P6 TRUE COPY OF THE COMPLAINT DTD. 20-11-04 FILED BY THE PETITIONER BEFORE R1 /True Copy/ PA to Judge. K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - W.P.(C).No.3528 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of June, 2007 JUDGMENT Petitioner has approached this court praying for a direction to respondents 1 to 3 to take effective steps to prevent the property owned by the 4th respondent lying in R.S.No.71/1.72/1 of Kadambur village being used as a burial ground. Further direction is sought to ensure strict compliance of Kerala Panchayat Raj ( Burning and Burial Ground) Rules, 1998 in relation to the property in question. Case of the petitioner in brief is as follows: Petitioner and other residents are aggrieved by the health risk posed by an illegal burial ground maintained by the fourth respondent. As a result of the objections raised by the residents against the said cemetery, the second respondent Panchayat had prohibited burials in the said property. But flouting the same, burial has increased. 2. In the counter affidavit filed by the fourth respondent, it is interalia stated as follows: WPC No.3528/05 2 “ It is respectfully submitted that the Aadoor Jumath Mosque situated in Kadambur amsom, Aadoor desom of Kannur District has been in existence even before the independence. About 215 of Muslim families residing at Aadoor Mahal depend the said mosque for prayer and other religious ceremonies. About ½ Km away from the said mosque, there is a land measuring 1 acre 54 cents of land which is being used as burial ground. The said burial ground is in existence at the very inception when the mosque came, i.e. before 1947. The dead bodies of the above mentioned 215 Muslim families situated in Aadoor mahal are being buried in the said burial ground. The said property is being used as a burial ground even before 1947 till today continuously and without any interruption from any corner. Originally the property belonged to one Poovalayil Mammed. He orally dedicated the property on Wakf to use the same as burial ground. Thereafter on the death of the said Mammed, his children namely Usmankutty and Moosankutty executed a register Wakf Deed in favour of the 4th respondent committee. The allegation that the property is being used as a burial ground without licence is baseless. As already stated the said property is being continuously used as burial ground for past more WPC No.3528/05 3 than 60 years. As pr the Kerala Panchayat ( burial and Burning grounds) Rules 1967, all the property used as a burial ground before the said rules has to be treated as the burial grounds with valid registration and licence. The same provision has been reiterated in Section 4 of the Kerala Panchayat Raj ( Burial and Burning grounds ) Rules 1998. Therefore no express licence is required for the above mentioned burial ground. An inspection of the burial ground and examination of the residence of the locality would reveal that the burial ground is in existence for more than 60 years. It is submitted that if any order is passed prohibiting burying, the said dead bodies in the burial ground, all the Muslim people living in the Aadoor Mahal would be put to irreparable loss and hardship which cannot be compensated in terms of money. They have no other burial ground to bury their dead bodies. The right to decent burial is a fundamental right. Such a right would be infringed if a prohibitory order is passed.” 3. Learned Government Pleader points out that memo is filed by him containing the statement of facts furnished by the District Collector. Case of the Government Pleader is that in view of the objections of the local residents the case itself become infructuous. It is submitted that the district administration will WPC No.3528/05 4 guard against the burial of dead bodies in future. 4. Learned counsel for the fourth respondent submits that fourth respondent is entitled to the benefit of Rule 4(1). Apparently there is a dispute and it is the competent authority - District Collector who is to decide the dispute under Rule 4. In such circumstances, I feel that it is a case where a decision should be taken in accordance with law by the first respondent after hearing all the affected parties. Accordingly the writ petition is disposed of directing the first respondent to consider the matter as a dispute under Rule 4 of the Kerala Panchayat Raj ( Burial and Burning) Rules and after affording an opportunity of hearing to the petitioner, second respondent, fourth respondent and any other affected party, a final decision will be taken within three months from the date of production of a copy of this judgment. In the light of the stand taken by the District Collector that he will guard against any burial, there is no need for me to pass any interim order. (K.M.JOSEPH, JUDGE) sv. WPC No.3528/05 5