Kerala High Court
Siddharthan Nair.C vs The State Of Kerala on 9 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 09TH DAY OF FEBRUARY 2021 / 20TH MAGHA,1942
WP(C).No.12546 OF 2020(S)
PETITIONER:
SIDDHARTHAN NAIR.C
AGED 58 YEARS
S/O.NARAYANAN NAIR, CHOORAPPILAKKIL, ELATHUR.P.O,
KOZHIKODE-673303
BY ADVS.
SRI.T.D.SUSMITH KUMAR
SRI.C.SIVADAS
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001
2 THE DISTRICT COLLECTOR,
DISTRICT COLLECTORATE OFFICE, CIVIL STATION.P.O,
KOZHIKODE-673020
3 THE DISTRICT MEDICAL OFFICER,
DISTRICT COLLECTORATE OFFICE, CIVIL STATION.P.O,
KOZHIKODE-673020
4 SENIOR ENVIRONMENTAL ENGINEER
KERALA STATE POLLUTION CONTROL BOARD, ZAMORINS
SQUARE, LINK ROAD, KOZHIKODE-673002
5 KAKKODI GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY, KAKKODI GRAMA
PANCHAYATH, KAKKODI.P.O, KOZHIKODE-673611
SRI. TEK CHAND SENIOR GOVERNMENT PLEADER FOR R1 TO
R3,
SRI.T.NAVEEN, STANDING COUNSEL FOR R4,
SRI VIND SINGH CHERIAN FOR R5
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.12546 OF 2020(S) 2
JUDGMENT
Dated this the 9th day of February 2021
SHAJI P.CHALY,J
This is a Public Interest Litigation filed by a resident of Kozhikode,
challenging Exhibit P1 issued by the Kakkodi Grama Panchayath, Kozhikode
District, the 5th respondent, informing that construction of a public burial
ground/crematorium was being inaugurated on 5.3.2020, in Re-Sy.No.54/3 of
Kakkodi Village and all further actions taken by the Grama Panchayat in that
regard. Petitioner has also sought for a writ of mandamus seeking to declare
that the decision taken by the Grama Panchayat to construct the public burial
and burning ground/ crematorium in the aforesaid property is illegal, arbitrary,
unscientific , unreasonable and liable to be interfered with, and for other
related reliefs.
2. The paramount contention advanced by the petitioner is that petitioner
is an ardent devotee of Bhagavathi of a very ancient Kanat Parambath
Bhagavathi Temple, about 500 years old, located at a place called Makkada,
which is a place of worship for the public, and also other temples situated
nearby.
3. Petitioner explains the importance of the deity in the writ petition. The
case of the petitioner is that the said temples are situated on the valley of a
hill viz., Ayyappan Kunnu, recognized and accepted as the Poongavanam of
the deity Ayyappa of the Ayyappa temple, which according to the petitioner, is
similar to Poongavanam of the Sabarimala Shrine. Various other factors in
respect of the religious belief and the Hindu mythology are also narrated to
substantiate the contentions.
4. It is also stated that there are several houses in the valley of the
Ayyappan Kunnu and therefore, petitioner contends that if the public burial
and burning ground is permitted to be constructed in the property in question,
it would seriously affect the people of the locality, the persons visiting the
nearby temple and the children of the nearby schools. It is also submitted that
the action of the Panchayat is in violation of the provisions of the Kerala
Panchayath Raj (Burial and Burning Grounds) Rules, 1998 and therefore,
seeks interference with the decision of the Panchayat to proceed with the
construction. At the outset it is clarified that in Exhibit P1 notice of
inauguration of the construction work was proposed on 5.3.2020 and writ
petition was filed only on 22.6.2020.
5. Anyhow the 5th respondent Panchayat has filed a very detailed counter
affidavit refuting the allegations and claims and demands raised by the
petitioner. Among other contentions, it is submitted that the proposed
crematorium would be equipped with latest technology consisting of gas
chamber and lofty gas/smoke emission paraphernalia; that Panchayat does
not have a public crematorium at all and there is no violation of the rules
prescribed for the purpose. It is significantly pointed out that the petitioner is
not even a native or resident within the limits of the Grama Panchayat as is
evident from his address given in the cause title. That apart it is stated that
the petitioner is hailing from Elathur in Calicut Corporation and none of the
residents of the Grama Panchayat have raised any objection against the
proposed crematorium since it is their long cherished requirement. That apart
it is stated that Kakkodi Grama Panchayat has currently a population of
40,000 and out of which 72% belong to Hindu religion.
6. It is also submitted that though petitioner has approached various
authorities by submitting Exhibits P2 to P5 representations, in none of those
representations, petitioner has highlighted the issue with respect to the
importance and relevance of temples and deities described in the writ
petition, and therefore, the attempt of the petitioner is to adorn himself as a
representative of the devotees, without any scrap of paper to prove it. It is
also submitted that the attempt of the petitioner is to grab publicity, which is
liable to be pruned as is held by the Apex Court as well as this Court in its
various judgments since there is no public interest involved. It is also pointed
out that though a suit, O.S.No.71/1989 was preferred before the Munsiff
Court, Kozhikode, by four members of a family, it was dismissed as per an
order dated 17.3.1994, and though an appeal was preferred as
A.S.No.47/1994, it was dismissed as per a judgment dated 30.11.1996.
7. The sum and substance of the contention put forth by the Panchayath
in that regard is that though the said aspect was known to the petitioner,
petitioner has not revealed the said aspect in the writ petition, leading to
suppression of material facts and therefore, it is submitted that petitioner has
not approached this Court with clean heart, mind and soul. It is also equally
important to note that the total outlay of the project envisaged by the
Panchayath is Rs.56,75,000/- and any delay in construction of the
crematorium would be detrimental to the interest of it, especially due to the
fact that the financial year is coming to and on 31.3.2021. Other submissions
are also made justifying the action of the Panchayath .
8. We have heard learned Standing Counsel for Pollution Control Board
also, which is the 4th respondent and learned Standing Counsel has submitted
that so far the Panchayath has not approached the Pollution Control Board to
secure necessary permit/consent.
9. We have heard learned counsel for petitioner Sri.Susmith Kumar.T.D.,
learned Senior Government Pleader Sri.Tek Chand, learned Standing Counsel
Sri.T.Naveen, learned Standing Counsel Sri.Vinod Singh Cherian for the 6 th
respondent and perused the pleadings and documents on record.
10. Respective counsel have addressed their arguments in accordance
with the pleadings put forth. The issue is guided by the Rules, 1998. Rules 3
thereto makes it clear that any Panchayat shall, if no sufficient provision exists,
with the previous sanction of the District Collector, provide land to be used as
burial or burning grounds or cemeteries by meeting the expenditure from the
Panchayat fund and may charge rents and fees as the Panchayat may decide,
for the use thereof. The said provision makes it clear that the Panchayat has
to secure necessary previous sanction from the District Collector for putting up
a burial ground/burning ground/crematorium and in order to grant such
sanction the report of the District Medical Officer has to be taken into account
in accordance with the mandate contained under sub- rule 2 of rule 3.
Evidently as per Exhibit R5(a), in the 13 th Five Year Plan, permission is granted
to the Panchayat for the construction of a crematorium. Exhibit R5(a)
permission secured by the Grama Panchayath is not under challenge.
Therefore, the primary requirement of securing permission as per the Rules is
already secured by the Panchayath and it can only be legally presumed that
before granting permission all the statutory requirements under the rules 1998
has been followed by the District Collector and included in the project in
question. Therefore, the contention advanced by the learned counsel for
petitioner that the construction was attempted to be carried out violating the
primary rule of securing permission, cannot be sustained under law. Rule 5 of
rules 1998 deals with the distance criteria for the establishment of burial and
burning grounds, which stipulates that no burial or burning ground shall be
established within the 50 meters of residential area and water sources.
However, the proviso thereto makes it clear that the distance criteria in
respect of concrete cemeteries, electric crematorium, petroleum and gas
crematorium is only 25 meters from the respective aspects as above.
11. Now going by the pleadings put forth by the petitioner in the writ
petition, petitioner himself has admitted that construction is attempted to be
made within a distance of 75 meters, 85 meters, 120 meters and 150 meters
away from the temples in question. It is also relevant to note that petitioner
has no case that there are any residential buildings or water sources within
the statutory prescriptions of 50/ 25 meters.
12. Going by the counter affidavit filed by the Grama Panchayath it is
explicit that the nature of construction of crematorium proposed is applying the
latest technology consisting of gas chamber and lofty gas/smoke emission
paraphernalia. Therefore, the distance criteria that can be applied as per the
proviso to rule 5 of Rules, 1998, is only 25 meters. So also we find that the
crematorium is proposed to be constructed by the Panchayath in a large area
of 1.25 Acres. It is also evident that the plan for construction of the
crematorium is approved by the Secretary of the Grama Panchayat. But fact
remains that the other requirements in regard to the pollution is not secured by
the Panchayath before establishing the same. However, learned Standing
Counsel for Panchayath submitted that Panchayath would secure necessary
permissions from the Pollution Control Board before the crematorium is
established and appropriate steps are being taken in that regard.
13. Having assimilated the factual and legal situation, we are of the
considered opinion that petitioner has not made out any case of public interest
in the subject issue. The issue is guided by the provisions of Rules, 1998, which
is framed as per the powers conferred on the State Government under section
254 of the Kerala Panchayat Raj Act, 1994. This we say because, going by the
counter affidavit filed by the Panchayath, which stands undisputed, the
Panchayat area is having a population of 40,000 people and out of which 72%
is belonging to Hindu religion, and therefore, the crematorium for the disposal
of the dead is imminently required, in which alone the public interest is
involved and not otherwise.
14. Taking into account the legal and factual aspects, we are of the
considered and definite opinion that the reliefs sought for by the petitioner
cannot be granted.
Needless to say the writ petition fails, accordingly it is dismissed.
Sd/-
S.MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P.CHALY
smv JUDGE
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF UNDATED INVITATION
NOTICE PERTAINING TO THE INAUGURATION OF
THE FUNCTIONING OF THE CONSTRUCTION WORK
OF THE BURIAL AND BURNING ISSUED BY THE
CONVENOR, WELCOME COMMITTEE ALONG WITH
ITS TRUE ENGLISH TRANSLATION
EXHIBIT P2 THE TRUE COPY OF THE NOTICE DATED
20.05.2020 ISSUED BY THE PETITIONER TO
THE DISTRICT COLLECTOR, KOZHIKODE ALONG
WITH ITS TRUE ENGLISH TRANSLATION
EXHIBIT P3 THE TRUE COPY OF THE NOTICE DATED
20.05.2020 ISSUED BY THE PETITIONER TO
THE DISTRICT MEDICAL OFFICER, KOZHIKODE
ALONG WITH ITS TRUE ENGLISH TRANSLATION
EXHIBIT P4 THE TRUE COPY OF THE NOTICE DATED
20.05.2020 ISSUED BY THE PETITIONER TO
THE SENIOR ENVIRONMENTAL ENGINEER, KERALA
STATE POLLUTION CONTROL BOARD, KOZHIKODE
ALONG WITH ITS TRUE ENGLISH TRANSLATION
EXHIBIT P5 THE TRUE COPY OF THE NOTICE DATED
20.05.2020 ISSUED BY THE PETITIONER TO
THE KAKKODI GRAMA PANCHAYATH, KAKKODI,
KOZHIKODE ALONG WITH ITS TRUE ENGLISH
TRANSLATION.
EXHIBIT P6 THE TRUE COPY OF THE REPLY LETTER DATED
08/07/2020 ISSUED BY THE DISTRICT MEDICAL
OFFICER (HEALTH), KOZHIKODE TO THE
PETITIONER ALONG WITH ITS TRUE ENGLISH
TRANSLATION.
RESPONDENT'S EXHIBITS:
EXHIBIT R5(a) COPY OF THE PROJECT NO.SO149/20 FOR
RS:56,75,000.00 OF KAKKODI GRAMA
PANCHAYAT FOR CREMATORIUM CONSTRUCTION
WITH ENGLISH TRANSLATION
