IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933 WA.No. 1963 of 2011(U) ------------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.29565/2011 Dated 07/12/2011 .................... APPELLANT(S): --------------------- KRISHNAN BHATTATHIRIPAD,AGED 62 YEARS, SON OF KRISHNAN BHATTATHIRIPAD CHEMMANGATTU MANA ADATT VILLAGE, THRISSUR TALUK, THRISSUR. BY ADV. SRI.S.RAMESH BABU RESPONDENT(S): ------------------------- 1. THRISSUR MUNICIPAL CORPORATION REPRESENTED BY ITS SECRETARY THRISSUR. 2. PARAMEKAVU DEVASWOM, REPRESENTED BY ITS PRESIDENT AND SECRETARY PARAMEKAVU DESOM, CHEMBUKAVU VILLAGE THRISSUR TALUK, THRISSUR. ADV. SRI.K.P.VIJAYAN FOR R1 SRI.M.RAMESH CHANDER FOR R2 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MANJULA CHELLUR, Ag.C.J & P.R.RAMACHANDRA MENON, J. ---------------------------------------------- W.A.No. 1963 of 2011 ---------------------------------------------- Dated this the 21st day of December, 2011 JUDGMENT Manjula Chellur, Ag.C.J. Heard learned counsel for the appellant as well as the learned counsel appearing for respondents 1 and 2. 2. The Writ Petition came to be filed by the appellant before the learned Single Judge seeking the following reliefs: “a) issue a Writ of Mandamus or any other appropriate Writ, Order or Direction commanding the 1st Respondent not to grant sanction or issue work permit for the construction and establishment of the crematorium in Sy.No:56/2 of the Ayanthole village in Thrissur Taluk; b) issue a Writ of Certiorari or any other appropriate Writ, Order or Direction quashing the permission if any granted for the construction of the crematorium in Sy.No.56/2 of the Ayanthole village in Thrissur Taluk; c) issue a Writ of Mandamus or any other appropriate Writ, Order or Direction commanding the 1st Respondent to take steps to stop the construction and establishment of WA.1963/11 2 the crematorium by the 2nd Respondent in Sy.No.56/2 of the Ayanthole village in Thrissur Taluk; d) Pass such other Orders as deemed fit and proper by this Hon'ble Court; and award costs of this proceeding to the Petitioner.” 3. The dispute seems to be with regard to user of a road over which both the appellant and the second respondent have right to use the same by virtue of purchase of the respective properties from a third party. The appellant is the owner of 'A' schedule property and second respondent is putting up a crematorium at the end of 'B' schedule pathway in a vast extent of 20 acres by using 50 cents out of it. 4. It is not in dispute that an Original Suit came to be filed as O.S.No.2238 of 2009 on the file of the Munsiff's Court, Thrissur by the very appellant restraining the second respondent or any one claiming under them from using the pathway on the ground that it is only a private pathway and it cannot be treated as a public pathway by making a crematorium at the end of the road, wherein the public would use as a public road. It is also not in dispute that the ex parte temporary injunction granted can be vacated by the Munsiff's Court after contest by the second WA.1963/11 3 respondent before the Civil Court. Aggrieved by the said order, a Civil Miscellaneous Appeal is pending before the concerned appellate authority and the suit is also still pending before the Munsiff's Court. In the meanwhile, the present Writ Petition came to be filed seeking the above reliefs. 4. We note from several Annexures produced along the Writ Appeal, the permit for construction of a crematorium came to be granted subject to several conditions and after receiving No Objection Certificates from different authorities like Fire Department, School, Central Board of Secondary Education, District Collector and the Pollution Control Board. All such NOCs are also before the Court at Exhibits R2(D) to R2(G). According to the appellant herein, the proposed user of the crematorium as indicated in the counter affidavit filed by the second respondent Devaswom before the learned Single Judge discloses that permission given by the Pollution Control Board, i.e., to say, instead of using the crematorium for 20 bodies in a month, they would use the same for 8 bodies at a time in a day and also they would use LPG, instead of firewood. As on today, though the crematorium is nearing completion, it has not started functioning and it is yet to commence its functioning after completion of the WA.1963/11 4 crematorium. It is not in dispute that the Pollution Control Board has also given No Objection Certificate with several conditions, taking into consideration the health hazards that may be caused due to the use of firewood in the crematorium. If, after functioning of the crematorium, such violations are noticed by the appellant, it is always open to him to bring to the notice of the concerned department including the Pollution Control Board that there is violation of conditions imposed either by the Corporation or by the Pollution Control Board or the Chief Town Planner. It is premature to accept the challenge raised by the appellant that certainly the second respondent is going to violate the conditions imposed by several departments at the time of issuing permission for consideration of a crematorium. In that view of the matter, we are of the opinion, we should not express any view in one way or other with regard to the nature of right as such as the same is the subject matter pending before the Civil Court. So far as the user of the crematorium, as we indicated above, the appellant has every right to bring to the notice of the concerned department, if the second respondent were to violate any of the terms of conditions imposed. WA.1963/11 5 With the above observations, we dispose of the Writ Appeal. MANJULA CHELLUR, ACTING CHIEF JUSTICE P.R.RAMACHANDRA MENON, JUDGE vgs