IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 WP(C).No. 11241 of 2009(A) --------------------------------------- PETITIONER(S): ------------------------ 1. JOHNY ABRAHAM, S/O.ABRAHAM, AGED 50 YEARS, EDAPURAYIDATHIL HOUSE, KOLENCHERY. 2. RATHEESH.P.A., S/O.AYYAPPAN KUTTY, AGED 27 YEARS, PATHIRAKOTTIL HOUSE, KOLENCHERY. BY ADVS. MR.MANOJ P.KUNJACHAN, MR.T.RENJIT KUMAR. RESPONDENT(S): --------------------------- 1. SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 2. THE DISTRICT COLLECTOR, ERNAKULAM. 3. THE DISTRICT MEDICAL OFFICER, ERNAKULAM. 4. THE SECRETARY, AIKKARANADU GRAMA PANCHAYATH, KADAYIRUPPU, KOLENCHERY. 5. FR.KURIAKOSE KOREN, VICAR, QUEEN MARY'S CHURCH, KOLENCHERY. R1 TO R3 BY GOVERNMENT PLEADER MR.V. MANU R4 BY ADV. MR.M.PAUL VARGHESE R5 BY ADVS.MR.V.M.KURIAN, MR.MATHEW B. KURIAN, MR.K.T.THOMAS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.11241/2009 A APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER DTD. 08/08/2008 PASSED BY THE 2ND RESPONDENT. P2: COPY OF THE APPEAL PREFERRED AGAINST EXT.P1. P3: COPY OF THE COMPLAINT FILED BY ONE OF THE APPELLANT IN EXHIBIT P2 BEFORE THE 2ND RESPONDENT DTD. 30/01/2009. P4: REPORT OF THE CONCERNED VILLAGE OFFICER IN PURSUANCE TO EXHIBIT P3. P5: COPY OF THE ORDER DTD. 06/03/2009 ISSUED BY THE 1ST RESPPONDENT. P6: COPY OF THE AD CARD SHOWING THE ACCEPTANCE OF EXT.P2. P7: COPY OF THE RECOMMENDATION DTD. 18/10/2007 BY THE 4TH RESPONDENT IN RESPONSE TO THE APPLICATION FOR CEMETERY. P8: COPY OF THE PLAN PREPARED BY THE VILLAGE OFFICER DTD. 02/12/2008. RESPONDENT'S EXHIBITS: R5(A): COPY OF THE REPORT OF THE VILLAGE OFFICER DTD. 17/02/2009 TOGETHER WITH THE ATTACHED PLAN. R5(B): COPY OF THE BUILDING PERMIT DTD. 25/11/2008 ISSUED BY THE LOCAL AUTHORITY TOGETHER WITH APPROVED PLAN. R5(C): COPY OF THE VAKALATH DTD. 03/04/2009 FILED BY THE PETITIONERS IN THE ABOVE WRIT PETITION. R5(D): COPY OF THE CONSENT SUBMITTED BY THE 1ST PETITIONER AND OTHERS BEFORE THE AIKKARANAD GRAMA PANCHAYATH. R5(E): COPY OF THE COMPLETION CERTIFICATE DTD. 09/02/2009. /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL B. RADHAKRISHNAN, J ........................................... WP(C).NO. 11241 OF 2009 ............................................ DATED THIS THE 17TH DAY OF SEPTEMBER, 2009 JUDGMENT The petitioners stand with an interim order in their favour, restraining the fifth respondent from putting into operation, a vault type cemetery. 2. The plea of the petitioners is two fold. 3. Firstly, it is contended that the District Collector had not passed the order sanctioning the installation of the cemetery within a period of six months. Though the decision in Surendran V. District Collector(1999(3) KLT 22(FB)) is referred to in the order issued by this court at the stage of admission, it is pointed out that the said decision was rendered under the 1998 Rules and later, a different set of Rules have come into operation. 4. The second limb of the contention of the petitioners is that while the District Collector had granted the permission in relation to 1.364 cents of land in resurvey No.121/14, in Block No.47 of Aikaranadu North Village, the plan and permit obtained by the fifth respondent from the grama panchayat in terms of Wpc 11241/2009 2 KMBR and the consequent construction on the basis of that permit and plan, are at variance, in as much as the vault structure is only 10 metres away from one of the boundaries of the property of the church and according to the petitioners, that would be within 25 metres from the residence of the first petitioner. 5. It appears that at some point of time, first petitioner had granted a letter of consent, though he now also says that such consent was obtained on the premise that it was for erecting a water tank. If the petitioners' consent was in relation to the alignment resulting in the location of the vault type cemetery in terms of the approval of the District Collector, may be that he could be tied down to that. However, he further contends that the District Collector's sanction order has also been violated and that such violation is the fundamental grievance. This essentially leads to the question whether there is, actually, a violation of the terms of Ext.P1 and if so, whether any change from the site as per Ext.P1 amounts to violation in the matter of construction. 6. Having regard to the fact that the petitioners stand with having given consent at one point of time, I deem it appropriate Wpc 11241/2009 3 to foreclose them on their plea on the basis of Surendran's case as of now but letting them to fall back on that contention, if it becomes ultimately necessary after the directions being issued hereunder are carried out. 7. Preserving the petitioners' right to challenge Ext.P1 and preserving all the defence raised by the fifth respondent, as also the petitioners' further allegations, it is ordered that the District Collector will hear the petitioners, fifth respondent and Grama Panchayat and take into consideration all relevant materials and render a decision as to whether Ext.P1 has been violated. It shall be specifically considered as to whether Ext.R5(b) permit and Ext.R5(e) permit is in consonance with the sanction granted by the District Collector. I say this because the rules under the KMBR and the distant rule under the different provisions of the Kerala Panchayat Raj (Burial and Burning ground) Rules are different. 8. In view of the interim order granted at the stage of admission, I direct that the said interim order will continue to govern the parties, as one having merged in this judgment and will be operative for a period of four months or earlier to be co- Wpc 11241/2009 4 terminus with the District Collector rendering the decision in terms of what is aforesaid. If it is found necessary that there has to be an inspection and measurement to be conducted at the site, it would be sufficient if a competent officer is deputed and local inspection is conducted with notice to the parties. The District Collector will make endeavour to conclude the proceedings as early as possible, having regard to the fact that the matter relates to a vault type cemetery. The petitioners or fifth respondent will place a copy of this judgment and also the materials in this case before the District Collector. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/18/9