The critical date for assessing distance restrictions for cemetery establishment is the application date, not the date of sanction.

1 Ext. P9 order passed by the Government is under challenge. As per Ext. P9, permission for opening a concrete vault type cemetery was denied to the petitioners. The main objection that is dealt with in the Government order is that the house of the fifth respondent is located within nine metres of the cemetery. It is stated in the impugned order that the fifth respondent and others had been taxing up the cause of restoration of their land. It is also mentioned in Ext. P9 that the proposed cemetery is located at a higher level and it may contaminate the water in the wells of the residents in the neighbourhood who are living in a lower level.

2 Heard the learned counsel appearing for the petitioner, the Panchayat and also the learned Government pleader. It is fairly clear that the Government has not properly appreciated the issue with reference to the crucial and relevant factors. R.5 of the Kerala Panchayat (Burial and Burning Ground) R.1967 reads as follows:
"5. No new burial or burning ground to be located within 50 metres of a dwelling place. No new burial or burning ground which is not in existence at the commencement of these rules shall be located within a distances of fifty metres from any human habitation.
Provided that in the case of concrete vaults the distance shall be twentyfive metres from any human habitation.
Explanation:- The date of application for licence shall be the crucial date and not the date of sanction for taking into account the existence of human habitation within the Limit.

3 The Explanation to the Rule unambiguously shows that the date of application for the licence, is the crucial date for the purpose of determining the objectionable distance. Unless the question is tackled from that point of view, it cannot be said that there is a proper decision. The Government is not justified in taking a decision by merely making passing a reference that there are wells in the neighbourhood of the cemetery. For one thing, it has to be noticed that the proposal is for the construction of a concrete vault type cemetery unlike ordinary type of cemetery for burial. It has also to be noted that at the time when the initial inspections were conducted and the reports were submitted by the District Medical Officer and the Panchayat Committee, there were no human habitations within the objectionable distance. Learned counsel appearing for the fifth respondent, however, has a case that the fifth respondent has a thatched house near the area. But, nothing is available on record to establish his case of such habitation. What the Government ought to have considered is not whether there was any other property in the objectionable distance, but whether there was human habitation within the objectionable distance.

4 That the crucial date is the date of application, is no more res integra; (See the Full Bench decision of this Court in Surendran v. District Collector (1999 (3) KLT 22). I set aside Ext. P9. There will be a direction to the first respondent to consider the appeal petition filed by the petitioner afresh with notice to the petitioner, the respondent Panchayat and also the fifth respondent. It is made clear that the issue has to be tackled from the point of view of the crucial date, namely the date of application for the cemetery. In other words for the only reason that there are at present human habitations in the neighbourhood and that too in the objectionable distance, the licence cannot be refused. The crucial question is whether there were human habitations within the objectionable limits at the time when the application was made and at the time when the inspection was conducted on the basis of the application. Appropriate orders as above shall be passed within a period of four months from the date of production of copy of this judgment.
The writ petition is disposed of as above.