Hindu Aikya Vedi vs State Of Kerala
2022 Latest Caselaw 7129 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
        THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                  &
            THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
  THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
                    WP(C) NO. 23303 OF 2020
PETITIONER/S:

            HINDU AIKYA VEDI
            DISTRICT COMMITTEE OFFICE, AMRITHAKRIPA, PAVAMANI
            ROAD, KOZHIKODE-673 002, REPRESENTED BY STATE
            SECRETARY, K. SHYNU, S/O. K. VELAYUDHAN, AGED 42
            YEARS, SHYPURAM, NADAKKAVU P.O, KOZHIKODE-673 006
            BY ADV T.D.SUSMITH KUMAR


RESPONDENT/S:

    1       STATE OF KERALA
            REPRESENTED BY THE SECRETARY, LOCAL SELF
            GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT,
            THIRUVANANTHAPURAM-695 001
    2       KOZHIKODE CORPORATION,
            REPRESENTED BY ITS SECRETARY, BEACH ROAD,
            CORPORATION BUILDING, KOZHIKODE-673 032
    3       SENIOR ENVIRONMENTAL ENGINEER,
            KERALA STATE POLLUTION CONTROL BOARD, ZAMORINS
            SQUARE, LINK ROAD, KOZHIKODE-673 002
            BY ADVS.
            SRI.V.TEKCHAND, SR. GP
            SRI.G.SANTHOSH KUMAR (P).
            SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL
            BOARD,



     THIS    WRIT   PETITION    (CIVIL)     HAVING    COME    UP    FOR
ADMISSION    ON   23.06.2022,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W. P. (C) No. 23303 of 2020
                                        -2-



                               JUDGMENT

S. Manikumar, C. J.

Instant writ petition has been filed for the following reliefs:-

"i) to call for entire Records leading to the Exhibit P-1, pertaining to the renovation of the Chaalathara Shmashanam located at Mavoor Road, Kozhikode owned by the 2 nd Respondent and all further actions taken by the 2 nd Respondent thereof;

ii) issue a Writ of Mandamus or any other appropriate Writ, Order or Direction by setting aside the decision taken by the 2nd Respondent to the limited extent to stop the functioning of the traditional crematorium until further Orders, owing to renovation works, in the backdrop of the functioning of Electrical Crematorium;

iii) issue a Writ of Mandamus or any other appropriate Writ, Order or Direction to the 2 nd Respondent to resume the functioning of at least Two traditional cremation unit pertaining to the Chaalathara Shmashanam located at Mavoor Road, Kozhikode;

(iv) issue a Writ of Mandamus or any other appropriate Writ, Order or Direction to the 2nd Respondent to retain Two traditional cremation unit out of Fourteen traditional Cremation W. P. (C) No. 23303 of 2020

unit, pertaining to the Chaalathara Shmashanam located at Mavoor Road, Kozhikode, reckoned upon the population density of the Kozhikode Corporation;

(v) issue a Writ of Mandamus or any other appropriate Writ, Order or Direction to the 2nd Respondent to retain two traditional cremation unit, with advanced Chimney facilities in consultation with the 3rd Respondent, in order to facilitate minimal pollution if any is necessitated;

(vi) issue a Writ of Mandamus or any other appropriate Writ, Order or Direction to the 2 nd Respondent to consider and dispose the Exhibit P-2 and Exhibit P-3 applications preferred by the Petitioner after due opportunity to the Petitioner in accordance with law."

2. Short facts leading to the filing of the writ petition are as

hereunder:-

a) Petitioner is an ardent believer in the Hindu faith and avouch

all essential rituals thereof, very especially 16 samskaras (Shodasha

Samskara), out of the Forty Samskaras envisaged in Vedas, i.e. rituals

stretching from Garbadhan (Conception) to Antyeshti (Funeral rites).

These samskaras to be observed by or for an individual, beginning

with conception and continuing up to the last rites performed after W. P. (C) No. 23303 of 2020

death. Petitioner firmly believes that all his life is attributed to the said

samskaras and he got crystal clear exemplar for such a justification.

b) Petitioner has submitted that Kozhikode Corporation, the 2 nd

respondent, has stopped the traditional crematorium in Chaalathara

Shmashanam located at Mavoor Road of Kozhikode city, which came

into existence more than 100 years ago and having much historical

importance. It is accentuated that the entire Hindu community in the

Kozhikode Corporation has been using the crematorium for their

traditional cremation or Antyeshti, irrespective of caste or creed, by

observance of all funeral rites.

c) Petitioner has further submitted that amongst 16 samskaras in

Hindu schools of thought, Antyeshti (Last rites or Funeral rites) got

such a prime importance amid the followers of Hindu community,

since the main purpose of the same is to purify and free the soul from

the body of the deceased in order to secure a Rebirth in another realm,

render the soul a safe journey to heaven, and to turn the soul into a

benign ancestor, instead of a haunting ghost.

d) Petitioner has also submitted that Chapter-II of Ext. P4 W. P. (C) No. 23303 of 2020

Sanatana Dharma, reckoned upon Chapter X of the Rigveda, depicts

that everyone owes to dead, which commence from the moment of the

life departs and ends on the tenth day, a Hindu priest comes to the

home and cleanses the relatives, which allows them to return to normal

everyday life, since then only Preta become Pitri. According to

Dharamshastras, it is believed that the unfulfilled desires of the

deceased get pacified when the last rites are performed duly without

any omission. Wherefore, on account of Hindu Schools of thought,

Antyeshti (Last rites or Funeral rites) comes under the ambit of

Essential Religious Practice envisaged by the Article 25 of the

Constitution of India.

e) In such a contextual situation, petitioner has preferred

applications Exts. P2 and P3 to the 2nd respondent Corporation, with

prayer to enhance the traditional cremation, as well as an interlocutory

application in Ext. P2, with prayer to stop the renovation work till the

disposal of the Ext. P2. Howbeit, the 2nd respondent even denounced

Ext. P2 and Ext. P3 and is in furtherance of renovation work by

abruptly stopping the traditional crematorium. W. P. (C) No. 23303 of 2020

f) Petitioner has further contended that the petitioner has no

intention to hamper or halt the renovation of the said crematorium by

installing Gas Cremation Furnace, but nothing than to retain and

facilitate traditional cremation with observance of Antyeshti by

providing options apart from the Gas Cremation Furnace by keeping at

least two traditional burial unit in the said crematorium.

g) It is also contended that the cessation of traditional

crematorium under the guise of renovation and implementing only gas

furnace chamber, by denouncing the hues and cry of the Hindu

believers, by curtailing their right to profess Antyeshti, as an essential

religious practice under Article 25, right to dignity and fair treatment

under Article 21 of the Constitution of India, which is not only

available to a living man, but also to his body after his death,

thereupon the 1st respondent is confined with the rights of dead

persons, and ensure that a dead body is cremated in a decent and

dignified manner, in accordance with the religious beliefs a man kept

or professed, is utmost arbitrary, illegal, illogical, and devoid of

rationale, which is flagrant violation of the Articles 21, and 25 of the

Constitution of India.

W. P. (C) No. 23303 of 2020

3. Thus, instant writ petition is filed.

4. Kozhikode Corporation, the 2nd respondent, has filed a counter

affidavit dated 16.11.2020 in the writ petition, which is reproduced:-

"3. It is submitted that there are 6 crematoriums in Kozhikode Corporation area that are under the ownership of this respondent. These are; 1) crematorium at Mavoor road, 2) crematorium at West hill, 3) crematorium at Puthiyapaalam, 4) crematorium at Manari, 5) crematorium at Mankavu and 6) crematorium at Nallalam Santhinagar. The crematorium at Mavoor road came into existence more than 100 years ago.

4. It is true that the municipal corporation had decided to renovate the old and dilapidated crematorium at Mavoor road, so as to make eco-friendly with all modern amenities. In order to proceed with the work, this respondent had to stop the function of the crematorium to a certain extent, at least the old/dilapidated traditional one, which cover maximum area. It will not in any way affect the believers or right to decent burial, since, there are crematoriums within two to three kilometers, owned and operated by this respondent itself having traditional crematorium. Further there is facility within the Mavoor road crematorium for decent burial viz. gas and electrical.

5. It may be noted that the crematorium at Mavoor road is having one electrical crematorium, one gas crematorium and 10 open, traditional cremation beds. Unlike all other crematoriums W. P. (C) No. 23303 of 2020

this crematorium under consideration is situated in the heart of the city surrounded by tall buildings and the same is situated in the busiest road in Kozhikode, the Mavoor road. This crematorium is near to the KSRTC and Mofusil bus stand as shown in Ext.P-1.

6. It may be noted that the conditions of the old, open crematoriums are in dilapidated condition. The land is low-lying and gets waterlogged easily and causes inconvenience to people who come for the cremation of their dearly ones. Open cremations in the heart of city caused severe pollution as the smoke spreads into the city without moving up causing discomfort and health problems to people coming to the Mavoor road. Hence this respondent with the help of local MLA, Sri Pradeep Kumar A. decided to renovate the existing old traditional crematorium by raising the area to prevent water logging ad provide gas crematoriums with 3 cremations beds and a chimney of 30 M height to solve the issue of pollution. The picture of present situation in crematorium is shown in Ext.P-2.

7. It is submitted that Sri.Pradeep Kuamr A., MLA had allotted Rs.2.28 Crores and this respondent had allotted Rs.0.75 Crore for the renovation work. The work is entrusted to M/s.ULCCS. In order to start the work, it was necessary to stop the old traditional crematorium as the entire area needs to be raised to prevent water logging in future. Moreover, it is not possible to do a construction work when an open cremation is going on. However it is pertinent to notice that this respondent W. P. (C) No. 23303 of 2020

has not closed the electrical and gas crematoriums existing in the compound as closing all of them together can affect cremations in the corporation area badly. The facility of open traditional cremation is available in all other 5 crematoriums under corporation, which are not in the heart of city.

8. It is submitted that renovation of Mavoor road crematorium was undertaken as a part of request from various organizations due to the demand from people. At present due to the dilapidated condition of the crematorium, proper cremation with a decent and dignified manner in accordance with the religious belief of a person cannot be done. Moreover open cremations are causing a lot of pollution in the busiest road of Kozhikode. This respondent under takes this work to provide a proper environment to the people coming for cremation to do all necessary rituals in a most dignified manner. A 3D view of proposed work is shown in Ext. P-3.

9. It may be noted that this respondent has not denied the right of the public. There are different options to the public viz, they can use any crematorium within the city or use the other facilities within the Mavoor road crematorium. This respondent is not denying the right of decent burial, but the intention of this respondent is to facilitate decent burial, by renovating the old and dilapidated crematorium.

10. The contention raised by the petitioner that upon implementation of gas furnace crematorium, essential rituals W. P. (C) No. 23303 of 2020

cannot be performed is not true. While master plan for this crematorium was made with the help of MLA and PWD Architect wing, all provisions are provided in the building for performing all rituals. A big ritual area of 15 M² area and separate toilet spaces are provided in the building to perform all rituals. A small space is provided inside the building to store all necessary items required for performing various essential rituals. The smoke from the furnace passes through various purification processes before moving to the 30 M height chimney which takes care of the pollution created at the site. Plan of the proposed work is shown in Ext.P-4.

11. It may be noted that the renovation work at the crematorium has not been started due to the protest from organizations including the petitioner. This respondent under the leadership of worshipful Mayor and MLA Sri Pradeep Kumar had convened a meeting of all these protesters on 30/10/2020 and had ensured that renovations will provide a clean environment for cremations to be done in a proper and dignified manner in accordance with the religious belief of a person and thereby provide better facility to the people. In the meeting, it was decided to include a traditional crematorium in the proposed renovation. Hence there is no space for the apprehension raised by the petitioner. The proposed crematorium have all facilities viz., gas crematorium, electrical crematorium, traditional crematorium, space for cafeteria, bathing space, toilet, counter for articles used in the crematorium rituals, assembly hall, dress W. P. (C) No. 23303 of 2020

changing room etc. The proposed work is finalized after due deliberation. It is very inclusive and have all kind of facilities. The existing system has its own disadvantages. The crematorium is situated in the core city area and it has busy street, bus station etc. There is no scientific system for abating air pollution. In the present crematorium, there is smoke, bad smell and air pollution and the same remains within the area and in its vicinity for hours. The proposed crematorium will mitigate all such nuisance.

12. It is further submitted that during the meeting held on 30/10/2020, it was decided to measure the land so as to identify the encroachments if any and steps are being initiated to measure the boundary of the land. Now a days people prefers gas/electric crematorium, considering the convenience and pollution of air. But certain people prefer traditional open wooden pyre for which there are different options viz opting other crematorium within two to three kilometers as stated above. Further there is proposal for open wooden pyre in the existing place."

5. On this day, when the matter came up for hearing, Mr. G.

Sathosh Kumar, learned counsel for the Kozhikode Corporation, the

2nd respondent, submitted that in order to proceed with the renovation

work, Corporation had to stop the functioning of the crematorium to a

certain extent, and now, renovation work has been completed.

Placing on record the above submission and counter affidavit of W. P. (C) No. 23303 of 2020

the Kozhikode Corporation, the 2nd respondent, instant writ petition is

closed.

Sd/-

S. MANIKUMAR CHIEF JUSTICE

Sd/-

SHAJI P. CHALY JUDGE

Eb

///TRUE COPY/// P. A. TO JUDGE W. P. (C) No. 23303 of 2020

APPENDIX OF WP(C) 23303/2020

PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE ORDER BEARING NO.EG 112/119/36/15 DATED 23.09.2020 ISSUED BY THE SECRETARY, KOZHIKODE CORPORATION ALONG WITH ITS TRUE ENGLISH TRANSLATION.

EXHIBIT P2         THE TRUE COPY OF THE APPLICATION
                   PREFERRED BY THE PETITIONER TO THE 2ND
                   RESPONDENT DATED 25.09.2020, ALONG WITH
                   ITS TRUE ENGLISH TRANSLATION.
EXHIBIT P3         THE TRUE COPYOF THE INTERLOCUTORY
                   APPLICATION PREFERRED BY THE PETITIONER
                   DATED 19.10.2020 IN EXHIBIT P2 ALONG
                   WITH ITS TRUE ENGLISH TRANSLATION.
EXHIBIT P4         THE TRUE COPY OF THE PAGE NO. 183 TO
                   PAGE NO. 190 OF THE SANATANA DHARMA, AN
                   ADVANCED TEXT BOOK OF HINDU RELIGION AND
                   ETHICS, PUBLISHED BY THE BOARD OF
                   TRUSTEES, CENTRAL HINDU COLLEGE, BENARES
                   (1904 EDITION, DIGITALIZED BY UNIVERSITY
                   OF CALIFORNIA, SAN DIEGO).
EXHIBIT P5         THE TRUE COPY OF THE REGISTRATION
                   CERTIFICATE DATED 19.12.2017, HAVING
                   REGIISTRATION NO. TVM/TC/1332/2017
                   ISSUED BY THE SANGHAM REGISTRAR, SOCIETY
                   REGISTRAR, THIRUVANANTHAPURAM, ALONG
                   WITH ITS TRUE ENGLISH TRANSLATION.