IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 WP(C).No. 13134 of 2008(L) --------------------------------------- PETITIONERS: --------------------- 1. SHERLY THOMAS, W/O.THOMAS P.M., PALAYIKUDIYIL, ENANALLOOR, AYAVANA P.O - 686 676. 2. THOMAS P.M., PALAYIKUDIYIL, ENANALLOOR, AYAVANA P.O - 686 676. BY ADV. SRI.V.V.ASOKAN, ADV. SMT.S.AMINA. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2. THE DISTRICT COLLECTOR, ERNAKULAM- 682 030 3. THE TAHSILDAR, MUVATTUPUZHA TALUK, MUVATTUPUZHA -686 673. 4. ST.SEBASTIANS CHURCH, ENANALLOOR VILLAGE MUVATTUPUZHA TALUK- 686 676, REPRESENTED BY ITS VICAR- FR.JOSE PULLOPPILLIL. 5. THE METROPOLITAN KOTHAMANGALAM DIOCESE, BISHOP'S HOUSE, KOTHAMANGALAM, P.B.NO.6, PIN- 686 691, REPRESENTED BY REV.DR.GEORGE PUNNOKKOTTIL. 6. AYAVANA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, AYAVANA- 686 676. 7. THE DISTRICT MEDICAL OFFICER, ERNAKULAM -682035. BY GOVT. PLEADER SMT. K.R. DEEPA, ADV. SRI.M.C.CHERIAN - R6, SRI.THOMASKUTTY M.A. - R6, SMT.SARAMMA CHERIAN - R6, SMT.ASHA CHERIAN - R6, SRI.P.M.SANEER - R6, SRI.V.M.KURIAN - R4 & R5, SRI.K.T.THOMAS - R4 & R5, SMT.TULASI PANICKER - R4 & R5. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/06/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.13134/2008-L: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PROCEEDINGS OF THE R.2 DTD. 19/09/2007. EXT.P.2: COPY OF THE REPRESENTATION SUBMITTED BY THE P.2. BEFORE THE R.2. DTD. 24/01/2005. EXT.P.3: COPY OF THE STAY ORDER PASSED BY THE R.1. DTD. 28/01/2008. EXT.P.4: COPY OF THE REPRESENTATION SUBMITTED BY THE P.1. BEFORE THE R.2. DTD. 25/03/2008. EXT.P.5: COPY OF THE PROCEEDINGS OF THE R.1. DTD. 26/03/2008. RESPONDENTS' EXHIBITS: EXT.R4.A: COPY OF THE REPORT DTD. 03/10/2006 PREPARED BY THE PANCHAYATH SUB COMMITTEE. EXT.R4.B: COPY OF THE RESOLUTION DTD. 26/09/2006 PASSED BY THE PANCHAYATH COMMITTEE. EXT.R4.C: COPY OF THE REPORT DTD. 12/01/2007 SUBMITTED BY THE DISTRICT MEDICAL OFFICER. EXT.R4.D: COPY OF THE REPORT DTD. 10/05/2007 SUBMITTED BY THE TAHSILDAR. EXT.R4.E: COPY OF THE SALE DEED NO. 1652/2007 DTD. 03/10/2007. //TRUE COPY// prv. ANTONY DOMINIC, J. ------------------------------------ W.P.(C) 13134 of 2008 ------------------------------------- Dated: JUNE 6, 2008 JUDGMENT The challenge in this writ petition is against Ext.P1 as confirmed by Ext.P5 appellate order passed by the 1st respondent. Petitioners also seek a direction to respondents 4 and 5 not to proceed with the construction of burial ground and vaults in the property comprised in Sy.No.119/2 and 3 of Eranallur village. 2. The grounds on which Ext.P1, as confirmed by Ext.P5, is impugned are that there is violation of Rule 6(7) of the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998 (for short, the Rules), and that though the petitioners had submitted Ext.P2 complaint dated 24.1.2005, when the application was considered by the authorities, they were not given any notice or an opportunity of hearing. It is also stated that while granting permission by Ext.P1 or confirming the same by Ext.P5, the authorities did not apply their mind. 3. In so far as the contention regarding noncompliance with WP(C) 13134/08 2 Rule 6(7) of the Rules is concerned, this Rule provides that the District Collector shall, on receipt of the application, publish in a daily newspaper in the regional language of the locality having wide circulation, in the notice boards of the Panchayat and the village office and other public places as prescribed by the Government, a notice inviting objections, complaints or suggestions with regard to the issue of licence, within thirty days. Learned counsel tells me that in Ext.P1 order it has been stated that the method adopted by the District Collector was that, on receipt of the application, he directed the applicant to publish notice in terms of Rule 6(7) of the Rules and that without satisfying himself about the sufficiency of the notice, permission was granted. 4. A reading of Ext.P5 appellate order rendered by the Government clarifies that on receipt of the application, notice as prescribed under Rule 6(7) of the Rules was published in the Deepika daily dated 25.6.2007. It is also stated that notice was published in the Panchayat Notice Board on 25.6.2007 and in the Village Office on 27.7.2007. Certificates testifying the publication has been issued by the Secretary of the Panchayat and also by the Village Officer. WP(C) 13134/08 3 5. In the aforesaid circumstances, the fact that notices have been published in the newspaper, in the Panchayat Office and in the Village Office, cannot be disputed and, if that be so, there is compliance with Rule 6(7) of the Rules and the contention to the contrary cannot be accepted. It is contended that the notice has not been published in a newspaper having wide publicity, as is contemplated in the Rule and that the petitioners did not come across the notice published to raise objection against the application made. The allegation that notice was published in a newspaper which is not having wide circulation in the area is a matter to be proved by the petitioners. They have not placed any material in this respect. Further, both the authorities were satisfied about the sufficiency of the notice. In such a situation, I am not prepared to accept the vague and unsubstantiated plea of the petitioners and invalidate Ext.P1 or Ext.P5. 6. Notices were published in newspaper, in the Panchayat Office and the Village Office. If publication was so effected, the requirements of the Rule having been satisfied, the fact that the petitioners did not come across the notice will not invalidate the procedure adopted by the authorities. Therefore, if the petitioners WP(C) 13134/08 4 have not raised any objection, that cannot be taken as a denial of an opportunity to raise their objections, but can be taken only as non- availing of the opportunity and hence the action that has been taken by the authorities cannot be invalidated. 7. The petitioners complain that they had submitted Ext.P2 complaint dated 24.1.2005. According to them, despite having filed this complaint, they were not given any notice or an opportunity of hearing at the time when the application was considered. From the papers I notice that the application, on the basis of which Ext.P1 was issued, was submitted by the 4th respondent only on 14.8.2006. It is also seen from Ext.R4(a), the inspection report by the Sub Committee of the Panchayat that prior to the inspection, petitioners were given notice, but the petitioners remained absent. The fact that some time in the past an anticipatory representation was filed does not entitle the petitioners for notice as contended by them. Even otherwise, the manner in which the notice has to be given and the objections are to be heard are provided in Rule 6(7) of the Rules, and once that is complied with, there is absolutely no obligation that prior to the consideration of the application the person who had given a complaint should be WP(C) 13134/08 5 given notice at the time of inspection or when the application is considered. Apart from all these, I also notice that the petitioners were heard at the time when the Appellate Authority considered the appeal filed by the petitioners and passed Ext.P5 order. Therefore, in my view, they cannot even plead of violation of the principles of natural justice. 8. Thus I do not find any substance in the contentions raised by the petitioners to invalidate Exts.P1 or P5. The writ petition is only to be dismissed and I do so. ANTONY DOMINIC, JUDGE mt/-