Dismissed

Mathew v. the State of Kerala

Kerala HC2 Mar 2022WP(C)/25222/2018

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ petition where a retired defense officer challenged a notice directing him to regularize unauthorized tombs or remove them. The court held that while fundamental rights under Article 21 are not absolute, state laws mandating permissions from the Panchayat and District Collector for burial grounds are valid and applicable, so the petitioner failed to show i

What did the court decide?

The writ petition seeking to quash the notice was dismissed; the petitioner is directed to comply with statutory requirements for burial ground licenses or remove the unauthorized construction.

Mathew Vs the State of Kerala — Landlord and Tenant | Kerala HC (2022)

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'CR'

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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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WEDNESDAY, THE 2^ND DAY OF MARCH 2022 / 11TH PHALGUNA, 1943 WP(C) NO. 25222 OF 2018

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PETITIONER:

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MATHEW

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AGED 78, S/O. PAILO, KOZHIPPADAN HOUSE, MURIYAD DESOM, MURIYAD P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

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BY ADV SRI.N.L.BITTO

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RESPONDENTS:

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1 THE STATE OF KERALA

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REPRESENTED BY THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2 THE MURIYAD GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, MATTATHUR P.O., THRISSUR DISTRICT- 680 001.

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3 VILLAGE OFFICER MURIYAD VILLAGE

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MUKUNDAPURAM TALUK, THRISSUR DISTRICT- 680 001.

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BY ADVS. R1 & 3 - SMT.K.K.PREETHA,SENIOR GOVERNMENT PLEADER R2 – SMT.P.R.REENA, STANDING COUNSEL

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.02.2022, THE COURT ON 02.03.2022 DELIVERED THE FOLLOWING:

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'C.R.'

J U D G M E N T

Dated this the 2^nd day of March, 2022

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Petitioner in the writ petition is a resident within the limits of Muriyad Grama Panchayat, Thrissur District-the 2^nd respondent. Petitioner seeks to quash Exhibit P5 notice issued by the Secretary of the Grama Panchayat, directing the petitioner to seek regularisation of the tombs constructed in the property of the petitioner for burying dead bodies without securing permission from the District Collector in contemplation of Rule 6 of the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998. Petitioner was also directed to file suitable application for regularisation of the construction, failing which petitioner was directed to remove the constriction and report the matter before the Panchayat.

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The submission made by the petitioner is that he is a retired person from the defence and he has purchased 27 cents of property in survey No.172/1 of Muriyad Village, as per document No.1008 of 2004 of Kallettumkara Sub Registrar's Office, to construct a prayer home. It is further stated that he has constructed a residential building in the said property and he is residing there; that he has a last wish that he and his

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family members want to be buried in the said property and for the said purpose he constructed three tanks, which can be used as tombs later. However, the Panchayat has issued Exhibit P5 notice without understanding the real implications in respect of the construction carried out by the petitioner. It is also pointed out that provisions of the Paddy Land and Wetland Act, 2008 or the provisions of the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998 are not applicable in the case, as the petitioner is using the property for his individual purpose and no public interest is involved in the matter.

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That apart, it is submitted that the Panchayat has no right to impose restrictions on the petitioner for cremation of his own body in his property, where he is residing. Other contentions are also raised, basically stating that Exhibit P5 notice issued by the Panchayat is violative of the principles of natural justice and therefore, arbitrary and illegal, liable to be interfered with by this court under Article 226 of the Constitution of India.

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The 2nd respondent has filed a counter affidavit basically contending that no sanction from the Panchayat has been obtained by the petitioner for making such a construction, which is clearly violative of the provisions of Kerala Panchayat Raj Act, 1994 and the Kerala

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Panchayat Building Rules, 2011. It is also submitted that complaints are raised that the three tanks were constructed in the paddy field violating the provisions of Kerala Conservation of Paddy Land and Wetland Act, 2008.

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That apart, it is submitted that the local residents have submitted a complaint to the District Collector and the District Collector in turn has sought for a report from the panchayat as per Exhibit R2(b) communication dated 17.7.2018 in regard to the illegal construction carried out by the petitioner.

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It is further stated that the matter has been discussed by the Panchayat Committee on 9.7.2018 and as per resolution No.35 of the Panchayat Committee, it is decided that show cause notice is to be served on the petitioner regarding the unauthorised construction, and also filed a report before the District Collector, Agricultural Officer, Village Office etc., evident from Exhibit R2(c) dated 7.7.2018. On the basis of R2(c), the Secretary of the Panchayat has issued a notice dated 13.7.2018 to the petitioner and to which, the petitioner has submitted Exhibit R2(d) reply dated 17.7.2018. Therefore, according to the Panchayat, it is clear from the reply of the petitioner that he has constructed three cemeteries with cement masonry wall and concrete,

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but he claims that he is entitled to make such construction and therefore, requested to drop further action.

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The sum and substance of the contention of the Panchayat is that petitioner has violated the provisions of Kerala Panchayat Raj Act, 1994, the Kerala panchayat Building Rules, 2011 and the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998 and therefore, the Panchayat was justified in issuing Exhibit P5 and other notices to the petitioner.

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I have heard, learned counsel for the petitioner Sri. N.L.Bitto, learned counsel for the Grama Panchayat Smt. P.R. Reena and learned Government Pleader Smt. K.K.Preetha and perused the pleading and material on record.

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Learned counsel for the petitioner primarily submitted that as a citizen of this country, by virtue of the fundamental rights guaranteed under Article 21 of the Constitution of India, petitioner is entitled to construct tombs in his property so as to conduct the burial without securing any permission. It is also submitted that Panchayat or District Collector are not not vested with powers to interfere with the construction of tombs made by the petitioner. That apart, it is submitted that construction of a tomb in a paddy field will not have any adverse

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consequences as per the Kerala Conservation of Paddy Land and Wetland Act, 2008. On the other hand, learned counsel for the Panchayat has submitted that the petitioner is not entitled to make any construction in the property situated within the limits of the Grama Panchayat, without securing permit in accordance with the provisions of the Kerala Panchayat Raj Act, 1994 and Kerala Panchayat Building Rules, 2011 (Now replaced by the Kerala Panchayat Building Rules, 2019).

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The Learned Government Pleader submitted that going by the provisions of the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998 no cemetery, tomb or other constructions can be made for burial or burning of bodies, without securing adequate licence for such constructions from the District Collector.

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I have evaluated the rival submissions made across the Bar. First of all, a building includes, as per Section 2(m) of the Kerala Panchayat Building Rules, 2011, "any structure for whatsoever purpose and of whatsoever material constructed and every part thereof whether used for human habitation or not and includes foundations, plinth, walls, floors, roofs, chimneys, plumbing and building services, verandah, balcony, cornice or projections, part of a building, wells or anything affixed thereto or any wall enclosing or intended to enclose any land or

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space and signs and outdoor display structures".

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Therefore, there is no doubt in my mind that, in order to carry

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out any construction whether it be a tank or a tomb, permit from the Panchayat is required as per the provisions of Kerala Panchayat Building Rules, 2011. In that view of the matter the contention advanced by learned counsel for the petitioner that no permit is required for construction of the tomb, cannot be sustained under law. Now, coming

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to the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998, constituted as per the powers vested with the Government under Section 254(2) of the Kerala Panchayat Raj Act, 1994, it clearly specifies the procedure in regard to the issuance of licence to burial or burning grounds. Rule 6 deals with the same and it reads thus:

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6. Issue of licence to burial or burning grounds .

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(1) No new burial or burning ground, whether public or private, shall be opened, constructed or used without a licence from the concerned District Collector.

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(2) In the case of increasing or expanding the area of an existing cemetery ground the same shall be considered as opening of a new cemetery and these rules shall be applicable to such burial grounds.

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(3) Application for licence shall be submitted to the concerned Secretary in Form No. 1.

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(4) Application for licence shall be accompanied by a plan of the ground to be registered showing the

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location, boundary, extent etc., the name of the owner or person or community interested therein, the system of management and such other particulars as the District Collector may require.

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(5) In the case of a private cemetery the Panchayat shall consider the application within thirty days from the date of receipt of the application and forward the same with its recommendations to the concerned District Collector through the District Medical Officer.

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(6) The District Medical Officer shall conduct such enquiries as he may deem necessary on the application received from the Panchayats and shall forward the application with his specific recommendations to the District Collector within thirty days of its receipt. (7) The District Collector, shall, on receipt of the application, publish the same in a daily newspaper in the regional language of the locality having wide circulation, in the notice board of the Panchayat, notice board of village and other public places specified by the Government, a notice inviting objections, complaints or suggestion, if any, with regard to the issue of licence, in writing within thirty days at the cost of the applicant. (8) 7-)o ഉപചടപപക�രമ�ള ന��ട�സ� അ��സര�ച� ആന�പനമ� പര�ത�ന��, അഭ�പപ��നമ� എന�ങ�ല�� ലഭ�ച�ട�ന ങ�ൽ ആ�ത� പര�ഗണ�ചന$ഷവ�� കനമന� നത�ന�നപ�� സ�സ�� മല��കരണ ��പ�ണന*�ർഡ�ൻ്�ന/ ജ�ല�തല ഉന23�ഗസൻ്�ന/ അന�4ഷണ /�ന5�ർട� വ�ങ�

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പര�ന$�ധ�ചന$ഷവ�� ജ�ല�കളക:ർക�:-

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(a) grant licence in Form No. II; or

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(b) refuse to grant licence; or

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(c) postpone the grant of a licence until objections regarding the ground have been removed or any particulars called for by him have been furnished.

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(9) The District Collector shall pass an order under subrule (8) within six months from the date of receipt of the application and shall inform the same to the concerned Panchayat.”

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13. On a reading of the said provisions, it is quite clear and

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evident that without a licence from the concerned District Collector, no burial ground shall be opened, whether it be public or private.

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Rule 8 of Kerala Panchayat Raj (Burial and Burning Grounds)

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Rules, 1998 deals with prohibition of use of ground not registered, licenced or provided to dispose of the corpse, which clearly specifies that

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no person shall bury, burn or otherwise dispose of any corpse other than in any ground, which has been registered or has been deemed to be registered or for which licence has been given or provided under the rules.

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Rule 9(1)of the Kerala Panchayat Raj (Burial and Burning

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Grounds) Rules, 1998 further makes it clear that a register in Form No.III for recording the details regarding burial, burning or otherwise disposing

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of the corpse, shall be maintained by the Secretary or the Officer authorised by him in the case of public cemeteries and by the Secretary or other responsible officer of the organization, association or institution having control of such places in the case of private cemeteries and in each case of burial, burning or otherwise disposing of the corpse, details regarding it shall be recorded in the register.

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Sub-rule 2 thereto makes it clear that registers maintained by

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the Secretary or other responsible officers of the organisation, association or institution having control of the private cemeteries may be inspected by the Secretary of the Panchayat or the officer authorised by him in this behalf.

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Rules 10 and 11 of Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998 are relevant to the context, they read thus:

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“ 10. Prohibition of cemeteries dangerous to health or overcrowded with graves .- (1) If the Panchayat is satisfied,(a) that any ground for the burial or burning which is registered or for which licence has been issued is in such a state or condition as to endanger or likely to endanger the health of persons living in the neighbourhood therefore: or

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(b) that any burial ground is overcrowded with graves, and in the case of a public place for burial or burning or otherwise disposing of the corpse and other place as aforesaid, or there exists or is provided another convenient place duly authorised for the disposal

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of the corpse for the persons who ordinarily use such place, the Panchayat may decide requiring to prohibit burial, burning or otherwise disposing of any corpse in such place.

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(2) The decision under sub-rule (1) shall be forwarded to the District Medical officer and the District Medical Officer shall after conducting necessary enquiries in the matter submit the decision of the Panchayat to the District Collector with his specific recommendations.

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(3) If the Collector, on considering the decision of the Panchayat and the recommendations of the District Medical officer is satisfied that such place shall not be used for the disposal of the corpse, may give a notice that it shall not be lawful after the period to be specified in such notice to bury, burn or otherwise dispose of any corpse in such place: Provided that before giving notice, the person having control over such place shall be given a reasonable opportunity to file objections, if any, against such action.

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(4) Every notice under sub-rule (3) shall be affixed on the notice board of the Panchayat Office, in a conspicuous place in the constituency in which the cemetery is located and at the entrance of the cemetery.

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(5) After the expiry of the period specified in such notice, no person shall bury, burn or otherwise dispose of the corpse at such place.

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(6) Any person having complaint on the notice under sub rule (3) may, within thirty days from the day of the notice, file an appeal to the Government.

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Explanation .-- The time required for obtaining copies of material records connected with the notice appealed against,

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shall be excluded in computing the above said Thirty days. (7) The Government may, after conducting such enquiries as they deem necessary, pass such orders on the appeal as they think fit.

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11. Prohibition in respect of corpses ,- No person shall,-- (a) bury or cause to be buried any corpse or part thereof in a grave, whether dug or constructed of masonry or otherwise in such a manner that the surface of the coffin or the surface of the corpse, where no coffin is used, is at a depth less than 2 metres from the surface of the ground; or (b) build or dig or cause to be built or dug any grave in any burial ground at a distance less than 75 centimeters from the margin of any other existing grave ;

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d) convey or cause to be conveyed a corpse or part thereof to any burial or burning ground but not cause the burial or burning of the same to commence within six hours after its arrival at such place; or

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(e) when a corpse or a part thereof is burnt or caused to be burnt permit the same or any part thereof or clothes thereon to remain without being completely reduced to ashes, or

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(f) carry through any street a corpse or a part thereof not decently covered; or

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(g) while carrying a corpse or a part thereof within the Panchayat area leave the same in or around any street for any purpose whatsoever; or

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(h) remove, otherwise than in a closed receptacle, any corpse or part thereof kept or used for the purpose of

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dissection:

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Provided that the condition in clause (a) may be relaxed in the case of cemeteries located in sandy and low lying areas.

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On a reading of these rules, it is explicit that a private tomb or a private cemetery cannot be constructed at the whims and fancies of

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any private individual, be in his property or not, without securing adequate license from the District Collector also, and in terms of the Rules 1998. As I have pointed out above, petitioner has a case that by virtue of Article 21 of the Constitution of India, he is entitled as of right to construct a tomb in his property for burial of the dead bodies of his family members without any clearance, however, the fundamental right guaranteed under Article 21 is not an absolute right, which can be enjoyed by the petitioner without adhering to the reasonable framework of law constituted by the State Government for the purpose. That said nobody can be permitted to be unruly in the guise of right to life guaranteed under article 21 of the Constitution of India, which if permitted would be an inroad into the rule of law prevailing in the country. It is also to be borne in mind that the activities, freedom and life of citizens are regulated by law for the common good and advantages, and for the coexistence of all in the society enjoying peace, harmony, and tranquility. To put it otherwise legal framework regulating

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human life plays its dominant position in democracy, and therefore individual freedom has to concede to the freedom, rights and interests of the community at large, failing which there would be utter confusion and chaos in the administration of justice, thus ruining the fabric of peaceful coexistence in the society.

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This I say because, under the Kerala Panchayat Raj Act, 1994 or under the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998, there is no prohibition from constructing a private cemetery or a tomb, but the requirement is that a person constructing private cemetery or tomb shall secure adequate permit/licence from the respective statutory authority. Analysing so, it can never be said that the petitioner is prevented from making construction of a tomb. Therefore, under any circumstances, it cannot be said that there is violation of fundamental rights guaranteed to the petitioner under Article 21 of the Constitution of India. In this case, admittedly, the petitioner has not secured any permit or licence from the respective statutory authorities for construction of the tomb.

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In that view of the matter, I am of the considered opinion that petitioner has not made out any case for interference with Exhibit P5 notice issued by the Secretary of the Grama Panchayat dated 23.7.2018,

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directing the petitioner to remove the unauthorised construction, there being no arbitrariness or illegality or any other legal infirmities susceptible to be interfered with in a proceeding under Article 226 of the Constitution of India. Needless to say, the writ petition fails. Accordingly it is dismissed.

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Sd/Shaji P. Chaly, Judge

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Shaji P. Chaly,

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sou.

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APPENDIX OF WP(C) 25222/2018

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