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2014 Supreme(Ker) 981
High Court of Kerala
Ashok Bhushan, A.M. Shaffique, JJ.
Sree Venketeswara Seva Sangham & Anr - Appellant
Versus
Antony & Ors - Respondent
W.A. No. 418 of 2009
Decided On : 17-12-2014
Headnote:
Municipal Corporations Act, 1961 - Sections. 340, 338 & 339 - Kerala Panchayats (Burial and Burning Grounds) Rules 1967 - Rule. 7 and 4( 1) -Burial ground - Registration - Licence - Whether rule indicates that the legal fiction is created by the Legislature as 'deemed registration' for burning and burial grounds existing at the commencement of the rules - Challenged - Held, A plain reading of the rule indicates that the legal fiction is created by the Legislature as 'deemed registration' for burning and burial grounds existing at the commencement of the rules - In the event entry of a burial or burning ground which is deemed to be registered under the 1967 Rules is not maintained by the Panchayat or Municipal Office, the same cannot be read as to prejudice the general public or persons who are running the burning and burial ground - Section 340 gives an obligation on the Municipal Officials to enter all such places registered, licensed, or provided under Section 338 or Section 339 and all such places registered, licensed or provided before the commencement of the Act - The rule in its plain meaning cannot be read to extend the deeming provision only to burial and burning grounds which were registered under any earlier provisions of law - Under the 1994 Act registration is necessary for a new burial and burning ground.
Ashok Bhushan, Ag. C.J.
1. These two writ appeals arise out of a judgment and order of Learned Single Judge dated 10.12.2008 in W.P.(C) No.31463 of 2007 and W.P.(C) No.32933 of 2007. The appellants were respondents in the writ petition, whereas the writ petition was filed by private respondents. Parties shall be referred to as described in the writ petition. W.P.(C) No.31463/07 is being treated as leading writ petition and it is suffice to refer the pleadings of said writ petition for deciding both these appeals. Brief facts of the case which need to be noted are: 7th respondent, the Cochin Thirumala Devaswom Committee, is the owner of a property in Survey No.219/2 of Poonithura Village in Kanayannur Taluk measuring about 40 cents. 6th respondent, Sree Venketeswara Seva Sangham, has been running a burial ground in that property. The case of respondents has been that the said burial ground is in existence for more than 100 years and in the settlement register of Poonithura Village of the year 1081 (Malayalam Era), a 40 cent area in survey No.219/2 is indicated as "Chudukadu Parambu"(cremation ground). On a complaint submitted by certain local residents, Kochi Corporation issued a stop memo dated 19.07.2003.
2. 6th respondent, Sree Venketeswara Seva Sangham, earlier filed W.P.(C) No.29269 of 2003 challenging the communication issued by the Cochin Corporation. The writ petition was disposed of giving liberty to 6th respondent to file an appeal before the Corporation of Kochi. This Court vide its judgment and order dated 02.04.2004 directed the Cochin Corporation to pass orders within three months after receiving the copy of the order and after notice to the petitioner and respondents 5 and 6 to that writ petition. Subsequent to the above order of the Court, a notice is claimed to have been issued on 16.06.2004 by the Corporation. 7th respondent had made an application dated 13.01.2004 to the Corporation seeking permission for erecting cremation chimney. On 24.01.2007 the Kerala State Pollution Control Board has granted its consent to establish the chimney having 30 meters height for the old crematorium. The Assistant Divisional Officer (Fire and Rescue) services, Ernakulam also issued NOC dated 17.02.2007 after surveying the spot. The Corporation of Kochi issued a building permit dated 17.02.2007 permitting the 7th respondent to construct a cremation chimney with 30 meters height. Petitioners filed the writ petition challenging the building permit, consent by the Pollution Control Board as well as NOC given by the Assistant Divisional Officer(Fire and Rescue) Services by filing W.P.(C) No.31463 of 2007. In the writ petition petitioners prayed for the following reliefs:
"i) call for all records relating to this case and peruse the same.
ii) issue a writ in the nature of certiorari or such other appropriate writ order or directions quashing Ext.P4, P5 and P5 (a).
iii) Issue a writ in the nature of certiorari or such other appropriate writ order or directions quashing the entire proceedings taken by the 1st respondent for issue of any licence to respondents 6 and 7 for establishment and maintenance of burial ground/crematorium in the property bearing survey No.219/2 of the Poonithura Village in Kanayannoor Taluk which belongs to 7th respondent either by themselves or to anybody after calling for the same.
iv) Issue a writ in the nature of mandamus or such other appropriate writ order or direction commanding respondents 1 to 3 to recall Ext.P4, P5 and P5(a) and to re-consider the issue after conducting proper enquiry with notice to the affected parties and as directed in Ext.P3 judgment.
v) Issue a writ in the nature of mandamus or such other appropriate writ order or direction commanding the respondents not to issue any licence to respondents 6 to 7 or to anybodyelse for establishment and maintaining of any burial ground, burning ground/crematorium in the property in survey No.219/2 belonging to the 6th and 7th respondent."
3. Co
