Dismissed

Thankappan P.K. v. the Secretary, Valokom Grama Panchayat

Kerala HC26 May 2016WP(C)/6879/2007

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition filed by the President of a Mahasabha against the rejection of an application to register a community burial ground. The Court held that the petitioner's earlier opposition to a proposed burial ground on the same land in 1999 belied the claim of immemorial use, and prior administrative decisions were final.

What did the court decide?

Petitioner's application for registration of the community burial ground was rejected; writ petition dismissed.

Thankappan P.K. Vs the Secretary… — Constitutional and Fundamental Rights | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THURSDAY, THE 26TH DAY OF MAY 2016/5TH JYAISHTA, 1938

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WP(C).No. 6879 of 2007 (R)

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PETITIONER:

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THANKAPPAN. P.K., S/O.KUNJU, AGED 50 YEARS NANTHOTTIL HOUSE, MEKKADAMPU P.O. PRESIDENT OF THE AMBALAMPADI BRANCH NO.317 KERALA PULAYAR MAHASABHA REG.NO.ER/701/90.

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BY ADVS.SRI.M.V.PAULOSE

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RESPONDENTS:

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1. THE SECRETARY VALAKOM GRAMA PANCHAYATH MEKKADUMPU P.O., MUVATTUPUZHA.

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2. THE VALOKOM GRAMA PANCHAYATH REPRESENTED BY THE SECRETARY, MEKKADUMPU P.O.

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3. THE SECRETARY TO GOVERNMENT LOCAL ADMINISTRATION DEPARTMENT, GOVERNMENT OF KERALA SECRETARIAT, TRIVANDRUM.

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4. THE SECRETARY TO GOVERNMENT REVENUE DEPARTMENT, SECRETARIAT, TRIVANDRUM.

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5. DISTRICT COLLECTOR, ERNAKULAM.

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[ADDL. 5TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 01.03.2007 IN THE WRIT PETITION].

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6. JOHNEY KAKKANAT HOUSE, PEECHAD HOUSE PEECHAD KARA, VALAKOM VILLAGE MEKKADAMPU, MUVATTUPUZHA.

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[ADDL. 6TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 08.08.2007 IN I.A. NO.10021 OF 2007].

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BY ADVS. SRI.PEEYUS A.KOTTAM SRI.M.A.THOMAS KUTTY SMT.ASHA CHERIAN SRI.P.M.SANEER BY GOVERNMENT PLEADER SRI. MANOJ P. KUNJACHAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 6879 of 2007 (R)

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APPENDIX

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PETITIONER'S EXHIBITS :-

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EXT.P1	-	COPY OF THE EXTRACT OF THE PERIODICAL REGISTER OF VALAKOM VILLAGE OFFICE.
EXT.P2	-	COPY OF APPLICATION DATED 06.02.2007 FILED BYD THE PETITIONER BEFORE THE 1ST RESPONDENT FOR REGISTRATION.
EXT.P3	-	COPY OF THE ORDER NUMBER 1/34/07 DATED 12.02.2007 OF THE 1ST RESPONDENT REJECTING THE APPLICATION FOR REGISTRATION.
EXT.P4	-	COPY OF THE CERTIFIED COPY O.S. NO.392/68 OF MUNSIFF'S COURT, MUVATTUPUZHA.
EXT.P5	-	COPY OF THE SETTLEMENT REGISTER OF PROPERTIES KEPT IN VALAKOM VILLAGE.
EXT.P6	-	COPY OF A MEMO NO.L/DIS/319/81 OF THE WELFARE OFFICER, MUVATTUPUZHA.
EXT.P7	-	COPY OF DECISION NO.4 DATED 11.05.1981 OF THE VALAKOM PANCHAYAT.
EXT.P8 RESPOND	- ENTS' E	COPY OF THE DEED NO.2437/1114 (ME) OF THE SUB-REGISTRY, MUVATTUPUZHA. XHIBITS:-

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EXT.R1(A)	-	COPY OF THE G.O.(MS) NO.117/93/RD DATED 25.02.1993 ISSUED BY THE GOVERNMENT.
EXT.R1(B)	-	COPY OF THE REPORT SUBMITTED BY THE MEMBER SECRETARY, POLLUTION CONTROL BOARD, DATED 25.06.1999.
EXT.R1(C)	-	COPY OF THE REPORT OF THE DISTRICT MEDICAL OFFICER OF HEALTH, ERNAKULAM DATED 07.10.1995.
EXT.R1(D)	-	COPY OF THE DECISION NO.III OF THE VALAKOM GRAMA PANCHAYAT MEETING HELD ON 07.08.1995.
EXT.R1(E)	-	COPY OF THE DECISION NO.V(1) OF THE VALAKOM GRAMA PANCHAYAT COMMITTEE MEETING HELD ON 04.08.2006.
EXT.R1(F)	-	COPY OF THE JUDGMENT DATED 31.08.2005 IN W.A. NO.329/ 2000(C) OF THIS COURT.

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[CONTD....]

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WP(C).No. 6879 of 2007 (R)

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EXT.R1(G)	-	COPY OF THE ORDER DATED 16.09.2006 ISSUED BY THE DISTRICT COLLECTOR, ERNAKULAM.
ANNX.A1	-	COPY OF JUDGMENT DATED 31.08.2005 IN W.A. NO.329/2000.
ANNX.A2	-	COPY OF PROCEEDINGS/ORDER NO.D-DIS/96500/93/MS DATED 16.09.2006 OF DISTRICT COLLECTOR, ERNAKULAM. [ANNX. A1&A2 PRODUCED ALONG WITH I.A. NO.10021/2007]
EXT.R6(A)	-	COPY OF JUDGMENT DATED 31.08.2005 IN W.A. NO.329/2000 OF THIS COURT.
EXT.R6(B)	-	COPY OF PROCEEDINGS/ORDER NO.D-DIS/96500/93/M5 DATED 16.09.2006 OF DISTRICT COLLECTOR, ERNAKULAM.
EXT.R6(C)	-	COPY OF RESOLUTION DATED 13.07.1999 OF THE 2ND RESPONDENT PANCHAYAT. //TRUE COPY//

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P.A. TO JUDGE

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K. VINOD CHANDRAN, J.

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---------------------------------W.P(C). No.6879 of 2007-R

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---------------------------------Dated this the 26^th day of May, 2016

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JUDGMENT

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The petitioner, in his capacity as President of an Association called the Ambalampadi Branch of Kerala Pulayar Mahasabha, has filed the above writ petition, claiming that 62 cents of property in Survey No.396/7 of Valakom Village has been used as a Community Burial Ground from time immemorial and that the application made by the Sabha, Ext.P2 was rejected by Ext.P3, arbitrarily, without showing any reason. The petitioner, by the above writ petition, seeks that Ext.P3 be quashed and the Panchayat be directed to issue Registration Number to the

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W.P.(C) No.6879 of 2007-R

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burial ground, as applied for in Ext.P2.

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The learned counsel for the addl. 6^th

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respondent and the Panchayat have filed Counter Affidavits and have argued before me,that no burial ground was in existence and there was only a proposal to build a new burial ground in the 24 cents of property, comprised in the very same survey number. The entire 62 cents was with the Revenue Authorities; out of which 24 cents was assigned to the Panchayat for the purpose of construction of a new burial ground. Due to objections from various quarters and after detailed discussion and deliberation, the land was found to be not suitable for such a purpose. It is also submitted that the proposal to construct a new burial ground in the 24 cents was finally decided to be not

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W.P.(C) No.6879 of 2007-R

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proceeded with by the resolution of the Panchayat at Ext.R6(c) dated 13.07.1999, wherein the petitioner too had been a party, as he was a member of the Panchayat at that point of time.

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The further application submitted by the Sabha had also been rejected by the District Collector, as has been noticed in Ext.P3 order, by Ext.R6(b) dated 16.09.2006. The present attempt of the petitioner, it is contended, is a malafide one, suppressing the earlier proceedings and the finalisation of the same. The case of immemorial use is a new one which was not taken up at the earlier time and is a mere ruse to get over the earlier proceedings, is the argument.

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It is seen from Ext.P7 produced by the

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W.P.(C) No.6879 of 2007-R

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petitioner along with his Reply Affidavit that the entire proceedings were commenced in the year 1981. By Ext.P7, it is seen that on 11.05.1981, the Panchayat had taken a resolution to seek for assignment of 62 cents of land in Survey No.396/7 in Valakom Village from the Revenue Department for the purpose of building a burial ground. Subsequently, there were objections raised from various quarters, especially the residents in the adjacent properties and the proposal was dropped, despite the fact that 24 cents out of the 62 cents was assigned by the Revenue Department to the Panchayat. It is clear from Ext.R1(d) that there was a proceeding initiated before this Court to enforce the decision of the Panchayat to erect a burial ground in the 24 cents, in

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W.P.(C) No.6879 of 2007-R

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which a decision was directed to be taken by the District Collector.

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The judgment in the Writ Appeal is seen

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at Ext.R1(f), wherein the District Collector was directed to take a decision, pursuant to which Ext.R1(g) decision was taken by the District Collector, in which the addl.6^th respondent and the Community members of the petitioner were parties. A reading of the various documents produced by the respondent Panchayat in its Counter Affidavit would indicate that the decision of the District Collector was on the basis of the reports obtained from the various authorities. Exts.R1(d)&(e) dated 17.08.1995 and 04.08.2006, respectively, were the decision of the Panchayat that the burial ground need not be

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W.P.(C) No.6879 of 2007-R

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constructed in the 24 cents of property. Ext.R1(c) is the report of the District Medical Officer and Ext.R1(b) is the report of the Pollution Control Board, both of which recommend that the 24 cents is not a property, which is conducive for a burial ground. It is also evident from a reading of the resolution of the Panchayat produced as Ext.R6(c) that the Panchayat had on 13.07.1999 resolved not to go ahead with the proposal of constructing the burial ground in the 24 cents, despite the dissent note by the petitioner in the meeting, wherein he participated as a member.

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It is also pertinent to note that the resolution at Ext.R6(c) indicates that the petitioner, who was a member, expressed his dissent in so far as the decision of the

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W.P.(C) No.6879 of 2007-R

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Panchayat not to construct a new burial ground in the property. This belies the contention of the petitioner in the writ petition that the property was used as a burial ground from time immemorial. It is also evident from the records that the property was never that of the Panchayat and was with the Revenue Department. Though the Panchayat had earlier decided to construct a burial ground in the said property, in the 24 cents assigned to it by the Revenue Department, much water had flowed under the bridge and the subsequent events as evidenced from the various documents, indicate that after much deliberations and various proceedings, the Panchayat had finally decided to give up such proposal. The District Collector, who was directed to consider the issue by a Division

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Bench of this Court, had also rejected the

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proposal as early as in 2006. The decision was taken on the basis of the report of the Panchayat, the District Medical Officer and the Pollution Control Board. The said decision has not been challenged and has acquired finality. The petitioner's attempt now to bring in a new case has to be rejected.

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The writ petition hence would stand dismissed. No costs.

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Sd/-

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K. VINOD CHANDRAN, JUDGE.

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//True Copy//

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P.A. to Judge.

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sp/26/05/16

Thankappan P.K. v. the Secretary, Valokom Grama Panchayat

Case brief

What is this about?

What did the court decide?

Thankappan P.K. v. the Secretary, Valokom Grama Panchayat

Case brief

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