W.A. Nos. 418 and 762 of 2009. Case: Sree Venketeswara Seva Sangham Vs Antony. High Court of Kerala (India)

Case NumberW.A. Nos. 418 and 762 of 2009
CounselFor Appellant: P. Vyayakumar, adv.and For Respondents: K.K. Chandran Pillai, Sr. Advocate, K. Anand, M.K. Chandra Mohandas, Girija Gopal, Spl. Government Pleader, P. Vinod Kumar, T.K. Ajith Kumar, J. Sushanth and P.M. Joseph, Advs.
JudgesAshok Bhushan, Actg. C.J. and A.M. Shaffique, J.
IssueConstitution Of India - Articles 226, 320, 320(3)(c); Government Of India Act, 1935 [repealed] - Section 256; Kerala Municipality Act, 1994 - Sections 483, 483, 484, 485, 486, 487, 488, 489, 490, 491, 492, , 483(1), 484, 484(1), 486; Mines Act, 1952 - Section 2(1)
Citation2015 (1) KLT 629
Judgement DateDecember 17, 2014
CourtHigh Court of Kerala (India)

Judgment:

Ashok Bhushan, Actg. 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. 6threspondent, 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.

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 Kanayannur 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 anybody-else 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."

2. Counter affidavits were filed in the Writ Petition by both 6th and 7th respondents. The 7th respondent claimed to be the owner of 40 cents of property in Survey No. 219/2. It was pleaded by 7th respondent that the crematorium is in existence for the last more than 100 years much before the petitioners started residing at Thammanam. It was pleaded that the crematorium was in existence from time immemorial. The settlement register of Poonithura Village of Kanayannur Taluk, published as early as in 1083 M.E., shows that the land is used as crematorium since even then. The relevant pages of settlement register dated 20th Chingam 1081 M.E. was produced as Ext. R7(a). The 6th respondent Samithy was formed to maintain and look after the crematorium. 6th respondent was permitted to construct a boundary wall vide memo dated 30.09.1969.

3. The 6th respondent has also filed its counter affidavit pleading that the crematorium is being used for the last for more than 100 years. A document showing deposit of fee for Sree Venketeswara Seva Sangham as early as on 04.08.1970 in the Corporation of Kochi was annexed as Ext. R6(a). It was pleaded that the case of the petitioners that the cremation was started only in the year 2003 was false. News paper report dated 16.04.1974 showing cremation in the property as well as another news paper report dated 12.05.2003 of 'Mathrubhoomi' daily were annexed.

4. The learned Single Judge, after hearing the parties, by impugned judgment dated 10.12.2008, allowed the Writ Petition quashing Ext. P4 building permit and directed the Corporation to reconsider the application dated 13.01.2004 in the light of the statutory provisions. No opinion was expressed by the learned Single Judge about the consent issued by Pollution Control Board and No Objection Certificate issued by Assistant Divisional Officer, Fire and Rescue Services.

5. Learned Single Judge while allowing the writ petition held that the crematorium having not been registered under the Municipal Corporations Act, 1961 and Kerala Municipality Act 1994 cannot be treated to be legally and validly running, hence it cannot claim to have a deemed registration. Mere factual existence of cremation ground does not entitle the respondent to use it as a cremation ground unless the cremation ground was functioning in compliance with the statutory requirement i.e., registered under 1961 Act or have an entry in the register maintained under the Kerala Municipality Act 1994. Learned Single Judge held that even if it is accepted that the cremation ground in question was in existence when the Municipal Corporations Act, 1961 came into force, learned Single Judge is not prepared to accept the plea of the respondent that respondents 6 and 7 were entitled for deemed registration under 1967 Rules, since they have no case that at the time when the cremation ground was functioning, it was in compliance with the statutory requirements then in force. It was further held that only if it was functioning in compliance with the provisions of Municipal Corporations Act, 1961, then only the cremation ground can find place in the register maintained by the Corporation under Section 340 of the Municipal Corporations Act, 1961.

6. Sri. P. Vijaya Kumar, learned counsel appearing for the appellants, challenging the judgment of learned Single Judge, raised the following submissions in support of the appeals.

7. He submits that the cremation ground was in existence and functioning for more than 100 years, which is clearly proved by the entry in settlement register of Village in question of the year 1081 M.E. as 'Chudukadu Parambu' i.e., cremation ground. Hence there were no requirement of its registration under the Kerala Panchayats Act 1960, the Kerala Municipal Corporations Act 1961 or the Kerala Municipality Act, 1994. He submits that the plot in question was included in Vyttila Panchayat until it became part of the Cochin Corporation. As per the Kerala Panchayats Act 1960, rules were framed by the State Government namely, "Kerala Panchayats (Burial and Burning Grounds) Rules 1967", in which R. 4(1) provides that the burial or burning grounds, existing at the commencement of the rules, shall be deemed to have been registered under these rules. He submits that the view of the learned Single Judge that since it was not registered under the Kerala Panchayats Act 1960 and the Kerala Municipal Corporations Act 1961, the benefit of 'deemed registration' shall not accrue to the cremation ground is erroneous. He submits that the learned Single Judge committed error in taking the view that only those cremation grounds shall be deemed to have been registered which have registration in accordance with the law then in existence. He submits that the learned Single Judge has taken a contrary view to an earlier judgment of a learned Single Judge reported in Komalavally Amma v. President, Kerala Bhrahmana Sabha (1987 (2) KLTST 50 (C. No. 72)). He further submits that the Division Bench judgment relied on by learned Single Judge, in W.A. Nos. 15 and 137 of 1974 where the Division Bench has held that the factual existence of the burial ground before promulgation of the Kerala Rules shall not suffice to receive protection under R. 4(1), is incorrect. He further submits that the Division Bench in the said case has considered the case of Malabar Area which had different enactment to govern whereas the present case was part of Cochin area. The learned Counsel for the appellant submits that the case of the petitioner that for the first time in the year 2003, an attempt was made to bury the dead body in the area have been disproved by materials on record. Petitioners had no case to stop the functioning of the cremation ground. It is submitted that the building permit granted permission only to erect a chimney in the existing crematorium which itself accept the existence of me cremation ground and same was not to be registered as a...

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