Kerala High Court
K.C.Babu vs State Of Kerala on 5 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
WEDNESDAY, THE 5TH DAY OF JUNE 2024 / 15TH JYAISHTA, 1946
WP(C) NO. 10435 OF 2020
PETITIONER/S:
K.C.BABU
KADUVAPARAMBIL, PUDUKAD, THATTAMPADI, KARUMALLOOR P.O,
ERNAKULAM DISTRICT 683511
BY ADVS.
A.JAYASANKAR
MANU GOVIND
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT
(DB) DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695 001
2 THE DISTRICT COLLECTOR,
ERNAKULAM, CIVIL STATION, KAKKANAD, KOCHI 682 030
3 DISTRICT POLICE CHIEF,
ERNAKULAM (RURAL), ALUVA 683 101
4 DISTRICT MEDICAL OFFICER(HEALTH),
ERNAKULAM 682 011
5 DEPUTY DIRECTOR OF PANCHAYATHS,
ERNAKULAM, CIVIL STATION, KAKKANAD, KOCHI 682 030
6 KARUMALLOOR GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY, KARUMALLOOR P.O, 683511
W.P.(C)NO.10435 of 2020
2
7 NOORUL EMAN JUMA MASJID,
PUDUKAD, KARUMALLOOR P.O, 683511 REPRESENTED BY ITS SECRETARY C.S
SHANAWAS
8 HASEENA BEEGUM A
UNDER SECRETARY, LOCAL SELF GOVERNMENT (DB) DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM 695 001
BY ADVS.
GOVERNMENT PLEADER
SRI.C.ANIL KUMAR
SRI. AJMAL V. A.
SMT.A.K.PREETHA
T.H.ABDUL AZEEZ(K/149/1970)
OTHER PRESENT:
SRI. BIMAL K NATH- SR. GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.06.2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)NO.10435 of 2020
3
JUDGMENT
The petitioner has approached this Court challenging
Ext.P17 order passed by the first respondent disposing
appeal against Ext.P8 order.
2. By Ext.P17 order, the seventh respondent is
allowed to construct a concrete vault type burial ground.
Ext.P18 is the order passed by the second respondent
consequent to Ext.P17 appellate order. The petitioner is
challenging Ext.P17 order on the ground that the local
authority viz. respondent No.6 Panchayat was not heard
before passing Ext.P17 order.
3. The respondent No.6 Panchayat has filed a counter
affidavit supporting the contention of the petitioner that the
sixth respondent was not heard before passing Ext.P17
order.
4. The learned counsel for 7th respondent points out
W.P.(C)NO.10435 of 2020
that the Government had earlier considered the appeal
against Ext.P8 and the same was challenged by the very
same petitioner before this Court and finding that the
petitioner was not heard in the matter, this Court, as per
Ext.P13 judgment directed to reconsider the appeal after
setting aside the earlier appellate order passed by the first
respondent. Thereafter, all the interested persons were
heard and the Panchayat was also represented through the
Assistant Director of Panchayat.
5. On 28.05.2020, this Court passed an interim order
directing the learned Government Pleader to verify whether
the Panchayat was heard before passing Ext.P17 order.
6. Today, when the matter was taken up for hearing,
the learned Government Pleader submits that the Panchayat
was not heard before passing Ext.P17 order.
7. The contention of the learned counsel for the 7 th
respondent that the Panchayat was represented by the
Assistant Director of Panchayat during the hearing of the
appeal is unsustainable since the Assistant Director of
W.P.(C)NO.10435 of 2020
Panchayat is not an officer of the Panchayat. It appears from
the pleadings that the Panchayat had objected the opening of
the proposed concrete vault type burial ground and hence
I find the Panchayat ought to have been heard before passing
Ext.P17 order.
8. The learned counsel for the 7 th respondent Juma
Masjid pointed out that though it filed Application as early as
in 2015, it could not open the Burial ground even now, on
account of the technical objections raised by the parties and
the members within the limits of the 7th respondent have
been experiencing lot of difficulties for want of place for the
burial of the dead bodies. Though it is true that there is
inordinate delay in completing the proceedings on account of
the series of orders and litigations, but, this Court will not be
justified in confirming Ext.P17 when it is found that a
necessary party was not heard.
Accordingly, this writ petition is disposed of setting
aside Ext.P17 Appellate Order and P18 consequential order
and directing the first respondent to reconsider the appeal
W.P.(C)NO.10435 of 2020
filed by respondent No.7 afresh, after hearing all the affected
parties, within a period of two months from the date of
receipt of a copy of this judgment.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Shg
W.P.(C)NO.10435 of 2020
APPENDIX OF WP(C) 10435/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS NO. DDIS/33366/07/M5 DATED
22-09-2017 OF THE 2ND RESPONDENT
EXHIBIT P2 TRUE COPY OF THE NEWS ITEM APPEARED IN MATHRUBHUMI DAILY
DATED 02-09-2013
EXHIBIT P3 TRUE COPY OF THE MINUTES OF THE MEETING HELD AT
RESIDENCE OF WND RESPONDENT ON 14-09-2013
EXHIBIT P4 TRUE COPY OF THE ORDER NO. M5/57971/13 DATED 20-09-2013
OF THE 2ND RESPONDENT
EXHIBIT P5 COPY OF THE JUDGMENT DATED 27-05-2014 IN WPC NO.
30948/2013 OF THIS HONOURABLE COURT
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 26-11-2014 IN WPC NO.
31146/2013 OF THIS HONOURABLE COURT
EXHIBIT P7 TRUE COPY OF THE REPORT NO. L.DIS (C2)-4797/14 DATED 21-
04-2014 OF THE 4TH RESPONDENT
EXHIBIT P8 TRUE COPY OF THE PROCEEDINGS NO 57971/13/M5 DATED 21-02-
2014 OF THE 4TH RESPONDENT
EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 03-11-2015 IN WPC NO.
32843/2015 OF THIS HONOURABLE COURT
EXHIBIT P10 TRUE COPY OF THE RESOLUTION DATED 31-12-2015 ADOPTED BY
THE 6TH RESPONDENT
EXHIBIT P11 TRUE COPY OF THE STATEMENT DATED 04-01-2016 FILED BY THE
6TH RESPONDENT BEFORE THE 1ST RESPONDENT
EXHIBIT P12 TRUE COPY OF THE ORDER G.O(RT) NO 1905/16/LSGD DATED 10-
06-2016 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P13 TRUE COPY OF THE JUDGMENT DATED 21-05-2019 IN WA NO.
1213/2019 AND WA 1216/2019 AND WA 1216/2019 OF THIS
HONOURABLE COURT.
EXHIBIT P14 TRUE COPY OF THE REPORT DATED 28-09-2019 OF THE 2ND
RESPONDENT
EXHIBIT P15 TRUE COPY OF THE OBJECTION DATED 11-11-2019 SUBMITTED BY
THE PETITIONER BEFORE THE 1ST RESPONDENT
W.P.(C)NO.10435 of 2020
EXHIBIT P16 TRUE COPY OF THE NOTICE DB3/71/2019/LSGD DATED 04-12-
2019 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P17 TRUE COPY OF THE ORDER G.O(RT) NO. 340/2020/LSGD) DATED
08-02-2020 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P18 TRUE COPY OF THE PROCEEDINGS OF 2ND RESPONDENT DATED 06-
03-2020
RESPONDENTS' EXTS
EXT.R7(a)
TRUE COPY OF THE APPROVAL ISSUED BY THE DISTRICT MEDICAL
OFFICER OF HEALTH DATED 21.04.2014.
EXT.R7(b)
TRUE COPY OF THE REPORT PREPARED BY THE TAHSILDAR AND
FORWARDED TO THE DISTRICT COLLECTOR DATED 21.08.2019.
EXT.R7(c)
TRUE COPY OF THE REPORT DATED 20.01.2020 FROM TAHSILDAR.
PARAVUR TO THE DISTRICT COLLECTOR, ERNAKULAM
EXT.R7(d)
TRUE COPY OF THE REPORT FORWARDED BY THE DISTRICT
COLLECTOR TO THE PRINCIPAL SECRETARY (LSGD) DATED
28.01.2020
EXT.R7(e)
TRUE COPY OF THE REPORT DATED 28.09.2019 SUBMITTED BY
THE DISTRICT COLLECTOR TO THE SECRETARY (LSGD)
EXT.R7(f)
TRUE COPY OF THE COMMUNICATION ISSUED BY THE ALANGAD
JAMATH COMMITTEE TO THE 7TH RESPONDENT EXPRESSING THEIR
INCONVENIENCE DATED 28.07.2013
EXT.R7(g)
TRUE COPY OF THE COMMUNICATION ISSUED BY THE NEERKODE
JUMA MASJID TO THE 7TH RESPONDENT 29-3-2014
EXT.R7(h)
TRUE COPY OF THE COMMUNICATION ISSUED BY THE VANIYAKKAD
MUSLIM JAMA-ATH COMMITTEE TO THE 7TH RESPONDENT
26-3-2014
EXT.R7(i)
TRUE COPY OF THE COMMUNICATION ISSUED BY THE PATTALAM
MUSLIM JAMA-ATH TO THE 7TH RESPONDENT. 15-3-2014
EXT.R7(j)
TRUE COPY OF THE COMMUNICATION ISSUED BY THE PARAPPURAM
JAMA MASJID TO THE 7TH RESPONDENT. 26-3-2014
EXT.R7(k)
TRUE COPY OF THE LICENSE ISSUED BY THE DISTRICT
COLLECTOR DATED 22.05.2020
EXT.R7(l)
TRUE COPY OF THE COMPLETION REPORT DATED 10.06.2020
ISSUED BY THE DISTRICT MEDICAL OFFICER
