IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 16TH JULY 2008 / 25TH ASHADHA 1930 WP(C).No. 19223 of 2007(L) -------------------------- PETITIONER: --------------- MADHAVAN NAIR, AGED 83, S/O.ETTICHIRI AMMA, AYODHYA, PENGATTIRI, POST NELLAYA, PALAKKAD DISTRICT. BY ADV. SRI.SANTHEEP ANKARATH RESPONDENTS: ----------------- 1. DISTRICT COLLECTOR, MALAPPURAM. 2. NANNAMBRA GRAMA PANCHAYATH, KUNDUR, ATHANIKKAL, THEYYALINKAL POST, MALAPPURAM DISTRICT, REP. BY ITS SECRETARY. 3. HARIJAN SEVA SAMITHY, NANNAMBRA THEYYALINGAL POST, MALAPPURAM, REP. BY ITS SECRETARY, SRI.BHASKARAN.K., S/O.MUNDAN, AGED 44, KUNNUMMEL HOUSE, THEYYALINGAL POST, MALAPPURAM - 676320. BY ADV. SRI.P.V.KUNHIKRISHNAN FOR R2 SRI.DENIZEN KOMATH FOR R3 GOVERNMENT PLEADER SRI.K.C.SANTHOSH KUMAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.19223/07 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF OBJECTION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT AND DT 10.1.2007. EXT.P2: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DT 20.12.2006 IN WP NO.29171/06. EXT.P3: TRUE COPY OF NOTICE DT 8.5.2007 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P4: TRUE COPY OF ORDER DT 31.5.2007 ISSUED BY THE 1ST RESPONDENT. EXT.P5: TRUE COPY OF PETITION PRAYING FOR ISSUANCE OF COPIES OF THE RECORDS AND DT 2.6.2007 SUBMITTED BY THE PETITIONER. EXT.P6: TRUE COPY OF THE REPORT OF THE TIRURANGADI TAHSILDAR DT 7.3.2007. EXT.P7: TRUE COPY OF REPORT OF THE SECRETARY OF THE SECOND RESPONDENT PANCHAYAT DT 2.2.2007. EXT.P8: TRUE COPY OF PETITION FILED BY THE 3RD RESPONDENT BEFORE THE 1ST AND 2ND RESPONDENTS DT 9.10.2006. EXT.P9: TRUE COPY OF COMPLAINT DT 22.6.2007 SUBMITTED BY THE PETITIONER BEFORE THE SUB INSPECTOR OF POLICE, TANUR. EXTS. OR R3 EXT.R3(a): TRUE PHOTOCOPY OF THE COMPLAINT PREFERRED BY THE PETITIONER SAMITHY BEFORE THE CONCERNED AUTHORITIES. EXT.R3(b): TRUE PHOTOCOPY OF THE OBJECTION PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.R3(c): TRUE PHOTOCOPY OF THE INTIMATION ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT. EXT.R3(d): TRUE PHOTOCOPY OF THE DETAILS OF CORPSES INTERRED. EXT.R3(e): TRUE PHOTOCOPY OF THE REPORT OF VILLAGE OFFICER DT 19.2.2007. EXT.R3(f): TRUE PHOTOCOPY OF the SCENE MAHAZAR IN CRIME NO.319/07 OF THANOOR POLICE STATION. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. =============== W.P.(C) NO. 19223 OF 2007 L ==================== Dated this the 16th day of July, 2008 J U D G M E N T Petitioner is the owner of 1 acre and 40 cents of land in Nannambra village. The dispute in this writ petition concerns 40 cents out of the aforesaid property, in respect of which Ext.P4 order has been passed by the District Collector exercising his powers under the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998. 2. In so far as it is relevant, the facts of the case are that Ext.P8 application was made by the 3rd respondent before the 2nd respondent Panchayat requesting to ensure that their community have a decent burial. The reason for making such a complaint was that according to them, though since olden times, they were using the aforesaid 40 cents as their burial ground, that was obstructed by the petitioner. It would appear that the Panchayat considered the request and by Ext.R3(c) resolved to forward the same to the District Collector for further action in terms of the rules referred to above. 3. Thereupon, the District Collector passed Ext.P4 placing WPC 19223/07 :2 : reliance on Exts.P6 and R3(c) reports submitted by the Tahsildar, Tirurangadi and Village Officer, Nannambra Village respectively. The Collector ordered that in respect of the aforesaid 40 cents, further action in terms of Rule 4(3) will be taken by the 2nd respondent Panchayat. It is this order that is challenged in this writ petition. Rule 4(3) of the Rule provides that: “Where it appears to the Panchayat that there is no owner or person having control of any existing place used for burial, burning or otherwise disposing of the dead, the Panchayat shall assume such control and register such place, or may, with sanction of the District Collector, close down it.” 4. Necessarily, therefore, this Rule apply only in respect of an existing burial ground, which does not have an owner or a person having control over the same. During the course of the enquiry before the District Collector, there was no dispute regarding the title of the petitioner over the land in question. This is not disputed before this court also. If that be so, the land in question cannot be said to be one without an owner and consequently, Rule 4(3) referred to above, can have no application in so far as the aforesaid plot of land is concerned. 5. Counsel for the 3rd respondent submits that what is applicable is Rule 4(2). This rule provides that if any dispute arises as to whether a WPC 19223/07 :3 : cemetery is in existence at the commencement of the Rules, 1998 and deemed to have been registered under the Kerala Panchayat (Burial and Burning Grounds) Rules, 1967, the decision of the Collector shall be final. To invoke Rule 4(2) there must be material to show that the disputed land was one to which the 1967 rules were applicable and that there was a burial or burning ground at the commencement of the rules. The materials that are relied on by the District Collector are Exts. P6 and R3(e). Ext.P6 report of the Tahsildar states that for the last 16 years, there has not been any burial in the land in question although he has mentioned that in the past burials have taken place in the land in question. Similarly, Ext.R3(e) also does not indicate that the land in question was a burial ground when the 1967 Rules were implemented with effect from 2/9/1967. 6. In my view, in order to apply the provisions of Rule 4(2) of the Rules, there must be material to indicate that the burial or burning ground in question was in existence at the time when 1967 rules were implemented and such materials are conspicuously absent in this case. That apart, going by the statements in Ext.P6 and R3(e), it is also evident that the conclusions therein have been arrived at without questioning the petitioner, the landlord of the land in question. For these reasons, I am WPC 19223/07 :4 : not in a position to sustain Ext.P4 order and in my view, the matter needs to be reconsidered by the District Collector. 7. Accordingly, Ext.P4 is quashed and the District Collector, Malappuram is directed to reconsider the matter in pursuance to Ext.P8 application of the 3rd respondent and Ext.R3(c) recommendation of the Panchayat. It will be open to the District Collector to conduct necessary enquiry whether the land in question was a burial ground to which the deeming provisions of the 1967 rules and Rule 4(2) of the 1998 Rules are applicable. The enquiry shall necessarily be with notice to the petitioner and the 3rd respondent and thereafter a fresh decision in this matter will be taken. 8. Considering the urgency of the situation, it is directed that the enquiry as above shall be concluded and a fresh decision shall be taken, as expeditiously as possible, at any rate within 3 months from the date of production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp