IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 WP(C).No. 23429 of 2009(W) -------------------------- PETITIONER(S): --------------- P.C.MATHAI,AGED 82 YEARS, S/O. CHACKO MATHAI, PUTHETHU HOUSE,' THALAKODE POST, KOTHAMANGALAM. BY ADV. SRI.SURIN GEORGE IPE RESPONDENT(S): --------------- 1. THE DISTRICT COLLECTOR, ERNAKULAM. 2. KUNJU MOHAMMED MAULAVI, AMBATTUKUNNEL HOUSE, THALAKODE P.O.,KOTHAMANGALAM. 3. CENTRAL JUMA MASJID, REPRESENTED BY ITS SECRETARY ABOOBACKER T.A. THURUTHELHOUSE, THALAKODE POST, KOTHAMANGALAM. ADV. SRI.BABU KARUKAPADATH FOR R3 SMT.M.A.VAHEEDA BABU FOR R3 SRI.P.G.PRAMOD FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J ........................................... WP(C).NO. 23429 OF 2009 ............................................ DATED THIS THE 30TH DAY OF SEPTEMBER, 2009 JUDGMENT The petitioner, stated to be around 82 years of age, has filed this writ petition seeking directions to the first respondent, District Collector to act on Ext.P4, a representation made by him and others in the locality in which it is found that two structures which are apparently vault type cemeteries have been erected. The petitioner and respondents 2 and 3 were before this court in an earlier round of litigation. Following that, the District Collector decided on the matter. The said order of the District Collector which is placed as Ext.P3 categorically shows the identity of different persons who are heard in the matter and also the fact that the Tahsildar had reported the pendency of different litigations. 2. The petitioner sought a direction to consider Ext.P4 clearly oblivious of the fact that third respondent has challenged Ext.P3 decision of the District Collector by filing appeal before the Government. The said fact is disclosed in the counter affidavit of Wpc 23429/2009 2 the third respondent along with which, the notice of hearing on the appeal pending before the Government is also placed. But the fact of the matter remains that the petitioner who had contested the proceedings before the District Collector has been clearly excluded from proceedings before the Government. If one reads Ext.P3, he cannot but be assured of the fact that the petitioner was a proper party in the appeal before the Government. The non impleadment of the petitioner in the proceeedings has not only led to this writ petition, but also would catapult another series of litigations even on a ground of non hearing. The situation is clearly the making of the third respondent. 3. There is nothing on record showing that the Government had stayed Ext.P3 decision of the District Collector. It has been categorically held by the District Collector that no permit has been taken from the panchayat for establishing the vault type cemetery. It has also been seen by the District Collector that structures were made without authority of law and were attempted to be made operational. The Collector also imposed a fine. The third respondent is stated to have even paid that. Therefore the said construction cannot be taken as a legally Wpc 23429/2009 3 sustainable one, at least during the pendency of the appeal before the Government. 4. For the aforesaid reasons, this writ petition is ordered directing that the Government would consider the appeal referred to in the counter affidavit of third respondent as against Ext.P3 order only after providing the petitioner, an opportunity of hearing and until a decision is taken as aforesaid so that vault type cemetery will not be utilised for any purpose. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/1/10