IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 6TH MARCH 2009 / 15TH PHALGUNA 1930 WP(C).No. 7353 of 2009(L) ------------------------- PETITIONER(S): --------------- K.S.SURESH, `KORAMANGALATHU', MARKET ROAD, THRIPPUNITHURA, ERNAKULAM, PIN-682 301. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND RESPONDENT(S): --------------- 1. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM, PIN-695 001. 2. THE SECRETARY, THRIPPUNITHURA MUNICIPALITY, THRIPPUNITHURA, ERNAKULAM, PIN-682 301. 3. THE PRESIDENT, SREE RAMA DEVASWOM, THEKKUMBHAGOM, THRIPPUNITHURA, ERNAKULAM, PIN-682 301. ADV. SRI. V.M. KURIAN, S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 7353 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 6th March, 2009. J U D G M E N T The petitioner is a resident of the Tripunithura Municipality. The 3rd respondent started construction of a building inside a cemetery established by the 3rd respondent 75 years ago. Ext. P1 building permit had been issued to the 3rd respondent for the purpose. The petitioner challenged the same in appeal No. 17/2009 before the Tribunal for Local Self Government Institutions. The same was dismissed by Ext. P7 order holding that the petitioner's objection is want of compliance with the requirements of Section 484 of the Kerala Municipality Act and he has no allegations of violation of the Kerala Municipality Building Rules and in so far as the cemetery was established 75 years ago, compliance or non-compliance of the provisions of Section 484 does not arise. Against that order the petitioner has filed this writ petition. 2. The petitioner's primary contention is that the finding in Ext. P7 order that the petitioner had not disputed that there is no violation of the Kerala Municipality Building Rules is not correct and that the petitioner had raised such a contention. The petitioner therefore submits that Ext. P7 is unsustainable. 3. I have heard the learned counsel for the petitioner. 4. Since the petitioner disputes the finding in Ext. P7 that the petitioner had no case that any provisions of the Kerala Municipality Building Rules had been violated, I perused the appeal filed by the petitioner before the Tribunal, which is Ext. P2. None of the grounds mentioned in Ext. P2 relate to violation of the Kerala Municipality Building Rules. The whole case of the petitioner is that the burning and burial ground had been established in violation of the Kerala Municipality Act and Rules. Of course, the petitioner would contend that in ground 2 of Ext. P2 appeal, he has contended as follows: W.P.C. No. 7353/2009. -: 2 :- “2. The 1st respondent has wilfully failed to comply with the Kerala Municipality Act and Rules thereunder.” He would submit that the said ground is sufficient to show that he has alleged violation of Kerala Municipality Building Rules as well. But, I am of opinion that the said ground has to be read in the light of the averments and other grounds in the appeal. Nowhere in the appeal is their even any mention of Kerala Municipality Building Rules. The violation complained of by the petitioner is that several dwelling houses including that of the petitioner are situated within a radius of 25 meters from the proposed crematorium and hundreds of dwelling houses are situated within the radius of 50 meters from the proposed crematorium. This is not a stipulation in the Municipality Building Rules, but one in Section 485A of the Kerala at Act which reads thus: “485A. Burial and burning grounds to be at distant places from residential buildings:- No Municipality shall grant a licence under Section 484 for using any place as crematoria for burial or burning of dead bodies within a distance of fifty metres from residential buildings or utilise for such purposes under Section 485. Provided that in the case of concrete vault such distance shall not be less than twenty-five metres.” Therefore, it is abundantly clear that the petitioner's grounds were in relation to the requirements under Section 484 and not in relation to the Kerala Municipality Building Rules. 5. Therefore, I do not find any merit in the contention of the petitioner that the finding in Ext. P7 that the Tribunal had no case that any provisions of the Kerala Municipality Building Rules had been violated, is unsustainable. W.P.C. No. 7353/2009. -: 3 :- 6. The petitioner cannot also sustain any ground regarding violation of Section 484 or 485A in so far as Ext. P1 building permit was not for starting of a new cemetery. Admittedly, the cemetery was in existence for over 75 years. The3rd respondent obtained Ext. P1 permit only for construction of a building in the old cemetery for which Section 484 and Section 485A are not applicable at all. Therefore, the petitioner cannot sustain any challenge against Ext. P1 on the basis of Sections 484 and 485A also. As such there is no merit in this writ petition and accordingly the the same is dismissed. Sd/- S. Siri Jagan, Judge. Tds/ [True copy] P.S to Judge.