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2022 Supreme(Online)(KER) 59375
HIGH COURT OF KERALA
N. NAGARESH, J
MOHANDAS.K.S – Appellant
Versus
SECRETARY, – Respondent
WP(C)/21547/2022
K.V.BHADRA KUMARI, BYJA E.G.RANJITHA R. NAIR, PREMCHAND M M, SMT.SURYA BINOY SR.GP
Existing crematorium laws do not restrict the establishment of a new crematorium if one already existed, provided no applicable distance violations occur.
Headnote:
Crematorium - Panchayat Resolution - Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998 - Rule 5 - The court addressed the legality of constructing a Gas Crematorium, emphasizing that existing crematorium provisions don't apply to new establishments under the rules, allowing the Panchayat's resolution.
Fact of the Case:
The petitioner contested a Panchayat decision to build a Gas Crematorium on its land, citing proximity to residential houses and a water tank, arguing it violated specific rules prohibiting such constructions near residences.
Finding of the Court:
The court found that a crematorium previously existed on the land and that there were no residences within the prohibited distance as claimed by the petitioner. Consequently, the court ruled that the establishment did not violate existing rules.
Issues: Whether the proposed Gas Crematorium violates the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, particularly Rule 5 concerning distances from residential buildings.
Ratio Decidendi: Rule 5 applies only to new crematoriums, and since a crematorium already existed prior to the current proposal, the rule was deemed inapplicable.
Final Decision: The writ petition was dismissed, allowing the Panchayat to proceed with the Gas Crematorium.
JUDGMENT
Dated this the 31st day of August, 2022 The petitioner, who is a resident of the 4th respondent-Grama Panchayat, is aggrieved by the resolution of the Panchayat resolving to construct a Gas Crematorium in the land owned by the Panchayat. According to the petitioner, the Panchayat originally owned 1 Acre of land. Certain areas of land were granted to landless persons. A Vetenary Hospital is also functioning in the 1 Acre plot. Now, the grievance of the petitioner is that the Panchayat is taking steps to start a Gas Crematorium in the land.
2. The petitioner would submit that there are residential houses within 25 Metres of radius and there is a water tank hardly 22 Metres far from the proposed Gas Crematorium. If the Gas Crematorium starts functioning, it will pollute the drinking water source and will be harmful to the local residents.
3. Counsel for the petitioner urged that the proposed Gas Crematorium is going to be constructed in gross violation of Rule 5 of the Kerala Panchayat Raj (Burial and Burning Grounds) Rules , 1998. The Rules prohibit establishment of Electric or Gas Crematorium within 25 Metres of residential houses. The action of the 4th respondent-Panchayat is therefore highly arbitrary, illegal and unsustainable.
4. Respondents 3 and 4 entered appearance and resisted the writ petition. Respondents 3 and 4 submitted that there are no residential buildings within a radius of 25 Metres from the proposed Gas Crematorium. The Director of Costford, District Medical Officer and District Police Chief made site inspections. Those authorities found that the site is adequate and suitable for constructing a Gas Crematorium. In such circumstances, consent was granted for starting a Gas Crematorium. The Tahsildar also made site visit and reported that the proposed Gas Crematorium is well within the statutory limits.
5. Standing Counsel representing the 4th respondent-
Panchayat submitted that the property is being used as a Public Burial Ground for the last more than 30 years. During `
2009-2010, the Panchayat spent 6.25 lakhs and constructed the existing building and a concrete burial place. There was no objection from any quarters at that time.
6. Counsel for the petitioner would dispute the said statement and would submit that in Ext.P4 information provided by the Public Information Officer of the Grama Panchayat, it has been specifically stated that after 2009-2010 financial year, after the construction of new buildings, no dead bodies were cremated in the area. The finding of the District Collector is ignoring the fact situation as is reflected from Ext.P4.
7. I have heard the learned counsel for the petitioner, the learned Standing Counsel representing respondents 3 and 4 and the learned Senior Government Pleader representing respondents 1 and 2.
8. From the pleadings, it is evident that there existed a Crematorium in the area even prior to 2009-2010. It has been specifically stated by the Panchayat authorities that the burial ground was in existence and the Panchayat had spent funds for the construction of new buildings in the year 2009-2010.
9. Ext.P6 proceedings of the District Collector would show that there is a water tank within 22 Metres of the Burial Ground and residential houses beyond 25 Metres. The contention of the petitioner is that in view of the distance criteria laid down in Rule 5 of the Kerala Panchyat Raj (Burial and Burning Grounds) Rules, 1998, the establishment of a Gas Crematorium there is illegal and unsustainable.
10. It is to be noted that Rule 5(1) deals with starting of new Crematorium/Gas Crematorium/Electric Crematorium. The Rule will apply only to establishment of new Crematorium. From the pleadings and arguments raised at the Bar, it is discernible that there was a Crematorium in existence in the land of the Panchayat even prior to 2009-2010. Therefore, Rule
5 of the Rules, 1998 cannot be made applicable.
In the circumstances of the case, this Court do not find any reason to interfere with
