Dismissed

Hari Prasad v. the District Collector

Kerala HC2 Nov 2018WP(C)/840/2013

Case brief

AI extract

What is this about?

High Court of Kerala dismissed a writ petition challenging the District Collector's permission to construct a vault-type cemetery. The Court rejected claims of arbitrariness and water pollution, distinguishing the case from open burial ground precedents, and noted that all authority reports were duly considered.

What did the court decide?

Writ petition dismissed; statutory authorities permitted to conduct future inspections.

Hari Prasad Vs the District Collector — Constitutional and Fundamental Rights | Kerala HC (2018)

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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 SHAJI P.CHALY

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FRIDAY ,THE 02ND DAY OF NOVEMBER 2018 / 11TH KARTHIKA, 1940

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WP(C).No. 840 of 2013

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PETITIONER/S:

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1 HARI PRASAD, AGED 27 YEARS, S/O. O.RAJENDRAN, PUSHPANJALI HOUSE, NARIKULANGARA, URAKAM P.O., THRISSUR DISTRICT. 2 SUSHIL JOHN, AGED 45 YEARS, S/O.A.L.JOHN, ATHIYUNGAL HOUSE, POOCHUNNI PADAM, URAKAM P.O., THRISSUR DISTRICT. 3 VIJAYAN, AGED 62 YEARS, S/O.VELAYUDHAN, KUZHICHAMADAM HOUSE, POOCHUNNI PADAM, URAKAM P.O., THRISSUR DISTRICT.

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BY ADV. SRI.SURAJ.S

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RESPONDENT/S:

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1 THE DISTRICT COLLECTOR, THRISSUR.

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2 THE VICAR, LITTLE FLOWER CHURCH, POOCHUNNI PADAM, URAKAM P.O., THRISSUR DISTRICT, PIN-680562.

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3 THE CHERPU GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, CHERPU, THRISSUR, PIN-680562.

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4 THE SECRETARY, THE CHERPU GRAMA PANCHAYATH, CHERPU, THRISSUR, PIN-680562.

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5 THE POLLUTION CONTROL BOARD, OFFICE OF THE ENVIORNMENTAL ENGINEER, THRISSUR, PIN-680001.

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W.P.(C) No.840 of 2013

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6 THE ADDITIONAL DISTRICT MAGISTRATE, THRISSUR, PIN-680001.

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7 THE SUPERINTENDENT OF POLICE, THRISSUR, PIN-680001.

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*ADDL. CHEENATH ANTONY KURIAN, R8 AGED 60 YEARS, S/O.ANTONY, CHEENATH HOUSE, URAKAM.P.O., POOCHUNNI PADAM, THRISSUR -680562.

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**ADDL. KOODALI VARGHESE JOHNSON, R9 AGED 47 YEARS, S/O.VARGHESE, P.O.VALLICHIRA, THRISSUR - 680562. ADDITIONAL R8 AND R9 ARE IMPLEADED AS PER ORDER DATED 05/03/2013 IN IA NO. 3285/2013. BY ADVS. R1, R6 & R7 BY SMT. RAJI T.BHASKAR, GOVERNMENT PLEADER R2 BY SRI.M.GOPIKRISHNAN NAMBIAR SRI. ABRAHAM THOMAS SRI.P.BENNY THOMAS SRI.P.GOPINATH SRI. K. JOHN MATHAI R3 & R4 BY SRI.SAIJO HASSAN SRI.SEBIN THOMAS SRI.SWATHY DAS SRI. I.J. AUGUSTINE SRI. PRATHAP PILLAI SRI. P.E. SAJAL SRI.BENOJ C AUGUSTIN SMT.J.KASTHURI R5 BY SRI. T.NAVEEN SC KERALA STATE POLLUTION CONTROL BOARD R8 & R9 BY SRI. JOHN VARGHESE

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.10.2018, THE COURT ON 02.11.2018 DELIVERED THE FOLLOWING:

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W.P.(C) No.840 of 2013

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JUDGMENT

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Petitioners seek the following reliefs:

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“i) Issue a writ of certiorari or appropriate writ, order or direction quashing the Ext.P14; and

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ii) Issue such other writ, order or direction which this Hon'ble Court may deem just, fit and proper in the facts and circumstances of the case.”

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Brief material facts for the disposal of the

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writ petition are as follows:

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Petitioners are aggrieved by the sanction

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accorded by the 1^st respondent District Collector, to the 2^nd respondent to construct a vault type cemetery in a densely populated area and near to a water source of the locality, and against the report filed by the Additional District Magistrate and the Superintendent of Police. The 2^nd respondent filed an application before the 4^th respondent for constructing a vault type cemetery in the church property, evident from Ext.P1. According to the petitioners, the application was opposed by majority of people residing near to the church and an Action Council was formed against the construction of cemetery. Ext.P2 is a notice issued by the Action Council opposing the application submitted by the petitioner. Since there was wide-spread agitation during the year 2001, the construction of the cemetery was stopped. However, yet

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W.P.(C) No.840 of 2013 4

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another application was filed in the year 2010 to restart

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the construction of the cemetery on the basis of the earlier application. The 1^st respondent forwarded the

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same to the 4^th respondent, i.e., the Secretary of the Cherpu Grama Panchayat, as per Ext.P3 communication dated 20.07.2010. On receipt of Ext.P3, 4^th respondent sent a reply, stating that the permission for constructing the cemetery can be granted as per the sanction given by the District Medical Officer, evident from Ext.P4. On coming

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to know about the action of the 2^nd respondent and consequential proceedings, Ext.P5 mass petition was submitted before the 1^st respondent. Yet another representation viz., Ext.P6 was also submitted before the

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5^th respondent, the Pollution Control Board, against granting permission for constructing the cemetery. That apart, Ext.P7 representation was submitted by the 1^st petitioner before the 1^st respondent dated 15.02.2012.

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The 2^nd petitioner also submitted a representation, evident from Ext.P8. Similarly, Ext.P9 representation

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was submitted by the Secretary of the 'Cherpu Bhagavathy Kshetra Kshema Samithi'.

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advertisement in a vernacular daily dated 24.01.2012, calling objection from the general public against the

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construction of the cemetery. Other representations are

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also submitted on account of the paper publication issued, by the 1^st petitioner and a member of the public. A hearing was conducted by the 6^th respondent, i.e., the Additional District Magistrate, Thrissur and has drawn Ext.P12 report. According to the petitioners, it was reported that a water channel was situated very near to the cemetery and the cemetery was proposed to be constructed just 2 metres away from the water channel. It was also reported that there was a possibility of polluting the “Peruvanam Chira”, which was the main water source of the locality and has got historical and religious importance. That apart, the 6^th respondent further reported that, construction of the cemetery will cause communal disharmony in the locality. Similarly, the 7^th respondent has submitted Ext.P13 report, stating that, if permission is granted for construction of the cemetery, it will cause serious law and order situation in the locality. It is the case of the petitioners that, without considering any of these reports, Ext.P14 order is passed by the District Collector, and therefore, the same is illegal and arbitrary, liable to be interfered with by this Court, exercising the power conferred under Article 226 of the Constitution of India.

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W.P.(C) No.840 of 2013

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The 2^nd respondent has filed a detailed counter

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affidavit, refuting the allegations and claims and demands raised by the petitioners. According to the 2^nd respondent, the Panchayat after due consideration and detailed inspection recommended construction of the

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cemetery and has issued a resolution to that effect, evident from Ext.R2(a) dated 30.03.1999. The 3^rd

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respondent again on 27.12.2001 issued resolution No.677 to the 1^st respondent District Collector, evident from Ext.R2(b). Thereafter, the District Medical Officer under the direction of the 1^st respondent conducted a detailed inspection of the proposed cemetery and issued Ext.R2(c) letter dated 20.08.2010. In Ext.R2(c) letter, the

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District Medical Officer categorically stated that the 'site is suitable for burial purpose' and that it has no objection under 'public health point of view' in granting the licence to the Vault type cemetery. Further, the

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District Medical Officer has issued Ext.R2(d) letter dated 26.03.2012, granting permission for construction of Vault type cemetery.

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It is also stated that, the 5^th respondent

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Pollution Control Board also conducted inspection of the site under the direction of the 1^st respondent and has submitted Ext.R2(e) report. The 5^th respondent also

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W.P.(C) No.840 of 2013

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granted consent to the 2^nd respondent for establishing the cemetery, evident from Ext.R2(f) dated 31.07.2012, by imposing necessary conditions to be complied with by the 2^nd respondent. In Ext.R2(f), it is categorically stated that, the proposed vault type cemetery is in accordance with the provisions of the Water (Prevention & Control of Pollution) Act, 1974, the Air (Prevention & Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986. It is also the case of the 2^nd respondent that, it has complied with all the conditions prescribed under Ext.R2(f) consent, in its proposed plan, and it was

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only after considering the due compliance of the conditions of Ext.R2(f) and on the basis of Exts.R2(a) to R2(e), 1^st respondent has issued Ext.P14 granting

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permission for construction of vault type cemetery in Survey No.47/2 of Urakam Village.

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The 2^nd respondent has also explained in the

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counter affidavit the nature of vault type cemetery, by which it is stated that, a vault type cemetery is constructed above the ground with reinforced concrete cement pit below. Ext.R2(g) is a sketch drafted by a Registered Supervisor, which will show that the vaults

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are situated above the ground, can be opened and closed in sliding motion. The dead bodies are kept in the vault

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and the same stays there till fully decomposed (2 years)

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and it is only after the complete decomposition of the dead body, the residue is pushed inside the RCC pit.

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Hence the residue particles of the dead body will go under the ground only after it is fully decomposed and

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not any time before. It is also submitted that, even after the complete decomposition of the dead body, the residue is collected and contained in the RCC pit wherein it stays for good. Therefore, there is no contact of the

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residue with the earth and hence there cannot be any apprehension as to the causation of ground water

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pollution. Therefore, the apprehension expressed by the petitioners on account of pollution of water is uncalled

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for. That apart, other contentions with respect to

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factual circumstances leading to the proposal for construction of vault type cemetery are all narrated, and it is stated that, in order to meet the requirements of

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the parish members, the construction is imminently required.

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parishioners, have also filed a counter affidavit and has produced Exts.R8(a) to R8(f). Since the counter

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affidavit is almost in similar lines with the counter affidavit filed by the 2^nd respondent, the details are not

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W.P.(C) No.840 of 2013

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being recited.

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The 2^nd respondent has produced additional documents along with I.A.No.13121 of 2018 viz., Exts.R2(m) and R2(n). Ext.R2(m) is a consent to establish crematorium issued by the 7^th respondent to the 2^nd respondent valid up to 30.08.2020, and Ext.R2(n) are photographs evidencing the completion of construction on the basis of the interim order passed by this Court. Petitioners have also produced additional documents.

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I have heard learned counsel for the petitioners and the respective counsel appearing for the respondents. Perused the documents on record and the pleadings put forth by the respective parties.

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The paramount contention advanced by learned counsel for the petitioners is that, while considering the application for permission for construction of a cemetery, the 1^st respondent should have taken into account the provisions of the The Panchayat (Burning and Burial Ground) Rules, 1967, and sufficient consideration should have been provided to the public order, especially in view of the fact that reports are submitted by the Additional District Magistrate as well as the District Police Superintendent stating that, if the construction of the cemetery is carried out, there is likelihood of

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W.P.(C) No.840 of 2013 10

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law and order situation. That apart, it is submitted

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that, from the narration contained in Ext.P12, it is evident that, there are water sources situated close to the proposed cemetery.

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Learned counsel for the petitioners has also relied on the judgments rendered by this Court in ' Pradeep vs. Kandanassery Panchayat ' [1996 KHC 399 : 1996 (2) KLT 775] and ' Kurian Kurian v. District Collector ' [1998 KHC 345 : 1998 (2) KLT 185]. It is true, this

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Court was considering a similar issue as is reported by the Additional District Magistrate as well as the Superintendent of Police, and held that, the likelihood of problems relating to public order is also an aspect to be taken into account by the statutory authorities while drawing up of reports and granting permission. Therefore, according to the learned counsel for the petitioners, the District Collector has not taken into account the vital issues that are ought to have been considered before passing Ext.P14 order. Having not done so, the order is clearly arbitrary and illegal, liable to be interfered with by this Court.

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On the other hand, learned counsel for the 2^nd respondent, relying upon the documents produced along with the counter affidavit, submitted that, the Pollution

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W.P.(C) No.840 of 2013

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Control Board has inspected the premises and has issued

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the consent to establish, only after verifying the

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factual and legal circumstances in respect of the

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distance to be maintained from various installations. So also, learned counsel has relied on Ext.R2(c) report of

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the District Medical Officer, wherein NOC was issued, subject to certain conditions. It is also pointed out that, the Panchayat has passed Exts.R2(a) and R2(b) resolutions dated 30.03.1999 and 27.12.2001, taking into

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account the entire factual and legal circumstances. It is further pointed out that, the decisions relied upon by

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the petitioners are in respect of open burial grounds, which has got direct contact with the soil and likelihood of seepage, and therefore, the parameters and the proposition of law laid down thereunder cannot be equated with the subject issues raised in the writ petition, since the construction carried out by the 2^nd respondent

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is that of vault type cemetery, which is completely covered with reinforced concrete, and there is no likelihood at all for the residue, keeping in contact

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with soil and causing any seepage or damage to the nearby water sources. That apart, it is submitted that, it is clearly stated in the reports that, even though there is a water source nearby, the same was remaining filled up

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W.P.(C) No.840 of 2013

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and no water was flowing and the District Collector has taken into account all these aspects and has passed Ext.P14 order, and therefore, there are no circumstances established by the petitioners justifying interference of this Court, exercising the power of judicial review.

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Learned counsel for the 8^th respondent also has

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taken me through the documents produced along with the counter affidavit and specifically to Ext.R8(c) communication issued by the Tahsildar dated 03.04.2001, wherein it is stated that, there is a 'puramboke thodu' 3 metres away from the proposed site, and as per the records and on ground, it is remaining as a dry land. It is also stated thereunder that, there is no flow of water through the water channel so found on records. Other documents issued by the District Medical Officer as well as the Pollution Control Board are also relied upon by the 8^th respondent.

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That apart, learned counsel for the 2^nd respondent has invited my attention to the judgment of

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the apex court in ' Ashray Adhikar Abhiyan v. Union of India and Others ' [(2002) 2 SCC 27], wherein the apex court considered the question of right of decent burial

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or cremation, and held that, Article 21 of the Constitution of India enables the citizens for a decent

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W.P.(C) No.840 of 2013

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burial also.

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Taking into account the rival submissions made across the Bar, and on appreciation of Ext.P14, in my considered opinion, 1^st respondent has taken into account the reports of various statutory authorities, including the Additional District Magistrate as well as the Superintendent of Police. It is also pointed out thereunder that, in the report of the District Medical Officer, it is reported that, there are no drinking water source within 7.5 metres of the proposed construction. The adverse reports submitted by the Additional District Magistrate as well as the Superintendent of Police were also taken into account. Therefore, according to me, the District Collector has evaluated the pros and cons and the facts and figures before passing Ext.P14 order. Ext.P14 order cannot be said to be totally perverse or illegal. It cannot also be said that, the question with

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respect to the public order was not taken into account by the District Collector. It is quite clear from the order that, the adverse reports submitted by the Additional District Magistrate as well as the Superintendent of Police were taken into account and on evaluation of the situation alone, Ext.P14 order was passed. Definitely, while considering the various reports, 1^st respondent was

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aware of the situation and the difference by and between

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an open ground burial and burial in a vault type cemetery.

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The judgments of the learned Single Judge of this Court supra are in relation to open ground burial and the factual and legal situations in respect of open burial ground and vault type cemetery are entirely different. It was assimilating the situations with respect to the cases considered by the learned Single Judge, it was held that the statutory authority, while drawing up the report and passing orders, should take into account the public order as well as the objections raised by the residents of the locality. Moreover, this

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is a case where, on account of the objections raised and the representations received from the petitioners and others, public notice was issued inviting for a hearing, by publishing a notice in a vernacular daily with

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sufficient circulation, and it was hearing all concerned and stakeholders, the District Collector has passed

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Ext.P14 order. Therefore, as contended by the

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petitioners, it cannot be said that the order was passed without taking into account the objections raised by the residents of the locality. Therefore, I do not find any reason to interfere with the order passed by the District

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Collector.

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It is true, an interim order was passed by this Court as early as on 08.01.2013, however, the writ petition was dismissed for default and according to the petitioners, constructions were carried out. However, at that point of time, restoration application was filed by the petitioners and accordingly, the writ petition was restored to the files. However, as per order dated 04.04.2018, 2^nd respondent was permitted to complete the construction at the risk and cost of the 2^nd respondent, with a further rider that the same shall not be used without securing orders from this Court. Therefore, according to the 2^nd respondent, the construction is complete in all respects and the 2^nd respondent has submitted application before the Pollution Control Board and consent to establish was granted as per Ext.R2(m) valid up to 30.08.2020.

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Upshot of the above discussion is, writ petition has no sustenance, accordingly it is dismissed. However,

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I make it clear that, the statutory authorities will be at liberty to conduct any inspection with respect to the construction carried out by the 2^nd respondent and verify whether there are any possibilities of seepage. It is also made clear that, the Pollution Control Board will

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W.P.(C) No.840 of 2013

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also be at liberty to conduct any periodical inspection

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and ascertain whether the conditions imposed in the consent to establish are complied with by the 2^nd respondent.

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Pending interlocutory applications, if any, will

stand dismissed.

Sd/-

SHAJI P.CHALY

JUDGE

W.P.(C) No.840 of 2013

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	A TRUE COPY OF 2ND RESPONDENT.	THE	APPLICATION FILED BY THE
EXHIBIT P2	A TRUE COPY OF ACTION COUNCIL	THE DAT	NOTICE ISSUED BY THE ED 12/12/2001.
EXHIBIT P3	A TRUE COPY OF ISSUED BY THE 1 RESPONDENT.	THE ST	LETTER DATED 20/07/2010 RESPONDENT TO THE 4TH
EXHIBIT P4	A TRUE COPY OF OF THE 4TH RESP	THE OND	REPORT DATED 06/08/2010 ENT.
EXHIBIT P5	A TRUE COPY OF	THE	MASS PETITION.
EXHIBIT P6	A TRUE COPY OF THE SECRETARY O	THE F T	REPRESENTATION FILED BY HE ACTION COUNCIL.
EXHIBIT P7	A TRUE COPY OF THE 1ST PETITIO RESPONDENT.	THE NER	REPRESENTATION FILED BY BEFORE THE 1ST
EXHIBIT P8	A TRUE COPY OF THE 2ND PETITIO RESPONDENT.	THE NER	REPRESENTATION FILED BY BEFORE THE 1ST
EXHIBIT P9	A TRUE COPY OF THE SECRETARY O KSHEMA SAMITHI	THE F C BEF	REPRESENTATION FILED BY HERPU BHAGAVATHUY KSHETRA ORE THE 1ST RESPONDENT.
EXHIBIT P10	A TRUE COPY OF 1ST PETITIONER	THE BEF	OBJECTION FILED BY THE ORE THE 1ST RESPONDENT.
EXHIBIT P11	A TRUE COPY OF DEVADAS BEFORE	THE THE	OBJECTION FILED BY SREE 1ST RESPONDENT.
EXHIBIT P12	A TRUE COPY OF RESPONDENT BEFO	THE RE	REPORT FILED BY THE 6TH THE 1ST RESPONDENT.
EXHIBIT P13	A TRUE COPY OF RESPONDENT BEFO	THE RE	REPORT FILED BY THE 7TH THE 1ST RESPONDENT.
EXHIBIT P14	A TRUE COPY OF RESPONDENT.	THE	ORDER OF THE 1ST
EXHIBIT P15	A TRUE COPY OF ISSUED TO THE 2 RESPONDENT DATE	THE ND D 3	CONSENT TO ESTABLISH RESPONDENT BY THE 5TH 1/07/2012.

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W.P.(C) No.840 of 2013

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R2(A)	TRUE COPY OF THE RESOLUTION NO.255 DATED
	30/03/1999 ISSUED BY THE 3RD RESPONDENT.

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EXHIBIT R2(B)	TRUE COPY OF THE RESOLUTION NO.677 DATED 27/12/2001 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT R2(C)	TRUE COPY OF THE LETTER DATED 20/08/2010 SUBMITTED BY THE DISTRICT MEDICAL OFFICER, THRISSUR TO THE 1ST RESPONDENT.
EXHIBIT R2(D)	TRUE COPY OF THE LETTER DATED 26/03/2012 SUBMITTED BY THE DISTRICT MEDICAL OFFICER, THRISSUR TO THE 1ST RESPONDENT.

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EXHIBIT R2(E)	TRUE COPY OF THE REPORT DATED 29/03/2012 SUBMITTED BY THE 5TH RESPONDENT TO THE 1ST RESPONDENT.
EXHIBIT R2(F)	TRUE COPY OF THE CONSENT NO. PCB/DO/TSR/F/ICE/796/2012 DATED 31/07/2012 GRANTED BY THE 5TH RESPONDENT TO THE 2ND RESPONDENT.
EXHIBIT R2(G)	TRUE COPY OF THE PLAN SKETCH DRAFTED BY A REGISTERED SUPERVISOR.

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EXHIBIT R2(H) TRUE COPY OF THE LETTER DATED 15/02/2012 WRITTEN BY THE CHAIRMAN OF THE KERALA PRADESH CONGRESS COMMITTEE (MINORITY DEPARTMENT) TO THE 1ST RESPONDENT. EXHIBIT R2(I) TRUE COPY OF THE LETTER DATED 22/02/2012 WRITTEN BY THE SECRETARY OF THE LOCAL COMMITTEE OF COMMUNITY PARTY OF INDIA (MARXIST). EXHIBIT R2(J) TRUE COPY OF THE LETTER DATED 22/02/2012 WRITTEN BY THE SECRETARY OF THE LOCAL COMMITTEE OF COMMUNITY PARTY OF INDIA. EXHIBIT R2(K) TRUE COPY OF THE REQUEST MADE BY 275 PARISHIONERS BEFORE THE 1ST RESPONDENT. EXHIBIT R2(L) PHOTOGRAPHS SHOWING THE STAGE OF WORKS.

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EXHIBIT R2(M) TRUE COPY OF THE CONSENT TO ESTABLISH CREMATORIUM ISSUED BY THE 7TH RESPONDENT TO THE 2ND RESPONDENT VALID UP TO 30/08/2020

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W.P.(C) No.840 of 2013

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DATED 17/05/2018. EXHIBIT R2(N) PHOTOGRAPHS EVIDENCING THE COMPLETION OF CONSTRUCTION. EXHIBIT R8(A) TRUE COPY OF THE RESOLUTION NO.677 DATED 27/12/2001 ISSUED BY THE 3RD RESPONDENT. EXHIBIT R8(B) TRUE COPY OF THE LETTER DATED 09/01/2002 ISSUED BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT. EXHIBIT R8(C) TRUE COPY OF THE REPORT DATED 03/04/2001 SUBMITTED BY THE TAHSILDAR, THRISSUR TO THE 1ST RESPONDENT. EXHIBIT R8(D) TRUE COPY OF THE REPORT DATED 20/08/2010 SUBMITTED BY THE DISTRICT MEDICAL OFFICER, TRICHUR TO THE 1ST RESPONDENT. EXHIBIT R8(E) TRUE COPY OF THE LETTER DATED 26/03/2012 SUBMITTED BY THE DISTRICT MEDICAL OFFICER, TRICHUR TO THE 1ST RESPONDENT. EXHIBIT R8(F) TRUE COPY OF THE REPORT DATED 29/03/2012 SUBMITTED BY THE 5TH RESPONDENT TO THE 1ST RESPONDENT.

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//TRUE COPY//

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P.S. TO JUDGE

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St/-

Hari Prasad v. the District Collector

Case brief

What is this about?

What did the court decide?

Hari Prasad v. the District Collector

Case brief

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