IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 WP(C).No. 29565 of 2011(U) ---------------------------------------- PETITIONER(S): -------------------------- KRISHNAN BHATTATHIRIPAD,AGED 62 YEARS, SON OF KRISHNAN BHATTATHIRIPAD CHEMMANGATTU MANA, ADATT VILLAGE, THRISSUR TALUK, THRISSUR. BY ADV. SRI.BOBY MATHEW SRI.E.T.MATHEW RESPONDENT(S): -------------------------- 1. THRISSUR MUNICIPAL CORPORATION, REPRESENTED BY ITS SECRETARY, THRISSUR.PIN-680 001 2. PARAMEKAVU DEVASWOM, REPRESENTED BY ITS PRESIDENT AND SECRETARY PARAMEKAVU DESOM, CHEMBUKAVU VILLAGE, THRISSUR TALUK, THRISSUR.PIN-680 026 R1 BY ADV. SRI.K.P.VIJAYAN SRI.V.M.SYAM KUMAR SMT.KRIPA ELIZABETH MATHEWS R2 BY ADV. SRI.M.RAMESH CHANDER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2011, THE COURT ON 07/12/2011 DELIVERED THE FOLLOWING: sts WP(C)NO.29565/2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P-1 TRUE COPY OF THE PLAINT IN THE SUIT O.S.2238/2009 ON THE FILE OF THE MUNSIFF COURT, THRISSUR. EXT.P-2 TRUE COPY OF THE ROUGH SKETCH SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S.2238/2009 EXT.P-3 TRUE COPY OF THE WRITTEN STATEMENT DATED 16/07/2010 OF THE 1ST RESPONDENT IN O.S.2238/2009 EXT.P-4 TRUE COPY OF THE WRITTEN STATEMENT DATED 11/06/2010 OF THE 2ND RESPONDENT IN O.S.2238/2009 EXT.P-5 TRUE COPY OF THE ORDER C2/10082/2010/D.DIS DATED 15/11/2010 ISSUED BY THE CHIEF TOWN PLANNER, THIRUVANANTHAPURAM. RESPONDENTS' EXHIBITS : EXT.R2(A) COPY OF THE ORDER IN IA 8931/09 DATED 15/10/2010 OF THE ADDITIONAL MUNSIFF COURT, THRISSUR. EXT.R2(B) COPY OF THE BUILDING PERMIT GRANTED BY THE THRISSUR CORPORATION DATED 12/10/2011. EXT.R2(C) COPY OF THE RECEIPT ISSUED BY THE THRISSUR CORPORATION DATED 22/9/2011. EXT.R2(D) COPY OF THE PERMISSION GRANTED BY THE ASSISTANT DIVISIONAL OFFICER, FIRE AND RESCUE SERVICES,THRISSUR DATED 12/9/2011. EXT.R2(E) COPY OF THE NO OBJECTION GIVEN BY THE PARAMEKAVU VIDYA MANDIR FOR THE CONSTRUCTION OF THE CREMATORIUM DATED 12/4/2011. EXT.R2(F) COPY OF THE NO OBJECTION CERTIFICATE FOR THE CONSTRUCTION OF THE CREMATORIUM DATED 15/3/2011. EXT.R2(G) COPY OF THE NO OBJECTION CERTIFICATE GRANTED BY THE DISTIRCT COLLECTOR, THRISSUR DATED 14/7/2004. EXT.R2(H) COPY OF THE CONSENT GRANTED BY THE KERALA STATE POLLUTION CONTROL BOARD. EXT.R2(I) COPY OF THE PERMISSION GRANTED BY THE TOWN PLANNER DATED 15/11/2010. EXT.R2(J) COPY OF THE DEED DATED 01/6/2004. /TRUE COPY/ P.S.TO.JUDGE sts HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.29565 Of 2011 ---------------------- Dated this the 7th day of December, 2011. J U D G M E N T The writ petition is filed seeking a direction commanding the 1st respondent not to grant sanction or issue work permit for the construction and establishment of the crematorium in survey No.56/2 of Ayyanthole Village in Thrissur Taluk, to quash the permit if any granted for the construction of the crematorium and for a direction commanding the 1st respondent to take steps to stop the construction and establishment of the crematorium by the 2nd respondent in survey No.56/2 of Ayyanthole Village in Thrissur Taluk. 2. The petitioner and the 2nd respondent Devaswom are adjacent property owners. The petitioner submits that both of them have together, for valid consideration, purchased an extent of 3.100 cents having a width of 6.40 metres and length of 2 furlong to be used as a private road leading to their properties. The petitioner submits that by virtue of registered title documents both the petitioner and 2nd respondent have equal right of ownership in the said private road. The road is in their ::2:: W.P.(C).No.29565 Of 2011 joint possession and enjoyment. The case of the petitioner is that the said private road, in which the petitioner has half right, was proposed by the 2nd respondent as access to the crematorium set up by the 2nd respondent in about 2½ acres on the north-western corner of their property. The petitioner objected to the user of the private road as access to the proposed crematorium. The dispute raised in the writ petition is the subject matter of O.S.No.2238/2009 on the file of the Munsiff Court, Thrissur filed by the petitioner. Plaint 'A' schedule in the said suit is the property of the petitioner and 'B' schedule is the private road referred above. Ext.P1 is the copy of the plaint in the suit. The suit was filed for a permanent prohibitory injunction to restrain the Devaswom and Municipal Corporation, Thrissur from doing any act so as to interfere with or reducing the petitioner’s right and enjoyment of plaint 'B' schedule private road; restraining the starting of crematorium proposing to take dead bodies through plaint 'B' schedule private road and also restraining grant of permit to the crematorium approving plaint 'B' schedule private road as its access. I.A.No.8931/2009 in O.S.No.2238/2009 filed for temporary injunction was dismissed ::3:: W.P.(C).No.29565 Of 2011 by order dated 15.10.2010. The petitioner preferred C.M.A.No.146/2010 before the District Court, Thrissur and the same is pending. The contention of the petitioner is that in view of the pendency of O.S.No.2238/2009 pending before the Munsiff Court, Thrissur, the 1st respondent ought not have issued permit or allow construction or any work towards the establishment of crematorium. 3. In the counter affidavit filed by the 2nd respondent it is pointed out that for the very same reliefs as prayed in the present writ petition, the petitioner filed O.S.No.2238/2009, that the learned Munsiff by a considered order in I.A.No.8931/2009 had dismissed the I.A and the appeal preferred by the petitioner as C.M.A.No.146/2010 is pending consideration before the appellate court and therefore, the petitioner cannot choose forums after forums for the very same reliefs. It is also pointed out that for the construction of the crematorium, the Corporation issued Ext.R2(b) building permit after considering the NOCs issued by the Divisional Officer, Fire & Rescue Services, Paramekkavu Vidya Mandir, Central Board of Secondary Education, District Collector and Kerala State Pollution Control ::4:: W.P.(C).No.29565 Of 2011 Board. True copies of the NOCs issued by the aforesaid authorities are marked as Exts.R2(d) to R2(g). The permission granted by the Town Planner dated 15.11.2010 is marked as Ext.R2(i). 4. In the light of the exhibits produced in support of the contention that the crematorium is being constructed as per the valid permit issued by the Thrissur Corporation and that is in public interest and for public good that the Devaswom has started the construction of the crematorium, the contentions raised in the writ petition are devoid of any merit and it is liable to be dismissed. It is noticed that the petitioner had already approached the civil court for necessary reliefs. Without prejudice to the right of the petitioner to pursue his remedies before the civil court, the writ petition is dismissed. HARUN-UL-RASHID, Judge. bkn/-