Disposed

Varkey Madakampurath v. the Secretary

Kerala HC6 Jun 2023WP(C)/445/2018

Case brief

AI extract

What is this about?

The Court disposed of a writ petition by directing the Panchayat to reconsider the demolition order, specifically noting the petitioner's claim of a deemed registration under Rule 4 and the existence of the cemetery since 1951, with appropriate orders to be passed within two months while an interim stay remains in force.

What did the court decide?

Directing the Panchayat to reconsider the matter considering the claim of deemed registration and existence since 1951, with orders to be passed within two months; interim stay continues.

Varkey Madakampurath Vs the Secretary — Property and Title | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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TUESDAY, THE 6^TH DAY OF JUNE 2023 / 16TH JYAISHTA, 1945

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WP(C) NO.445 OF 2018

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PETITIONER :-

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VARKEY MADAKAMPURATH, AGED 57 YEARS S/O.ABRAHAM (LATE), CHITTARIKKAL P.O., KASARAGODE DISTRICT, PIN – 671 326.

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BY ADV M.SASINDRAN

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RESPONDENTS :-

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1 THE SECRETARY EAST ELERI GRAMA PANCHAYAT, KASARAGODE DISTRICT, PIN – 671 326.

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ADDL.2 THE DISTRICT COLLECTOR KASARGODE. ADDL.3 THE DISTRICT MEDICAL OFFICER KASARGODE. (ADDL.R2 AND R3 ARE IMPLEADED AS PER ORDER DATED 10/09/2018 IN IA.02/2018) BY ADVS. SRI.GEORGE JACOB (JOSE) SRI.N.MANOJ KUMAR, STATE ATTORNEY SRI.APPU P.S., GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO.445 OF 2018

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JUDGMENT

Dated this the 6th day of June, 2023

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This writ petition is filed seeking the following reliefs :-

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“(i) Issue a writ in the nature of certiorari or such other appropriate writ, order or direction calling for the records leading upto the issuance of Exts.P1, P3, P5, P6 and P8 and quash the same.

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(ii) Stay Exts.P1, P3, P5, P6 and P8 and all further proceedings pursuant to the same, pending disposal ofd the writ petition.”

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Heard the learned counsel for the petitioner and the

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learned Government Pleader as well as the learned Standing Counsel appearing for the respondent Panchayat.

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It is submitted by the learned counsel for the petitioner that the petitioner is a Trustee of a church. It is submitted that a cemetery was existing attached to the church since its commencement in the year 1951. It is submitted that there is a deemed registration of the cemetery under Rule 4 of the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998. It is submitted that Ext.P1 notice was issued on 24.4.2017 requiring the Vicar of the church to stop the construction activities in the cemetery of the church. Ext.P2 reply was given on 10.5.2017 stating that there is no construction carried out in the cemetery and

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WP(C) NO.445 OF 2018

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that the cemetery was in existence from 1951 onwards. By Ext.P3 dated 16.6.2017, the petitioner was required to desist from the constructions being carried out under threat of action being taken under Section 235W(2), (3) and (4) of the Kerala Panchayat Raj Act, 1994. Ext.P4 reply was again submitted pointing out that there is no construction in the cemetery. It is submitted that thereafter, Ext.P5 provisional order has been issued stating that the church is engaged in constructing a cemetery. It is submitted by the learned counsel for the petitioner that the allegations in Exts.P1 and P3 notices and Ext.P5 provisional order are contrary to each other. It is submitted that though Ext.P7 detailed reply was submitted by the petitioner, without considering any of these aspects, Ext.P8 order was passed confirming Ext.P5 and requiring the demolition of the constructions. The learned counsel for the petitioner submits that the specific case of the petitioner that the cemetery was in existence from 1951 onwards and that there is a deemed registration under Rule 4 has not been considered even in the passing of Ext.P8. It is submitted that the issue, therefore, requires a reconsideration.

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Though a detailed counter affidavit and reply affidavit have been placed on record in the writ petition, in view of the fact

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WP(C) NO.445 OF 2018

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that all that is being ordered is a reconsideration of the matter with notice to the petitioner and after hearing them and taking note of the specific contention based on Rule 4 of the Kerala Panchayat Raj (Burial and Burning Grounds) Rules, 1998, I am of the opinion that the contentions of the parties do not require to be referred to.

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In the above view of the matter, this writ petition is disposed of directing the Panchayat to consider the specific contention raised by the petitioner that the cemetery was in existence from 1951 onwards and that it has a deemed registration under Rule 4 of the Rules. The petitioner as well as any other affected parties shall be put on notice and the Panchayat shall take a decision in the matter, taking note of the provisions of the Act and the Rules as well, dispassionately and untrammelled by anything stated in Ext.P8. Appropriate orders shall be passed within a period of two months from the date of receipt of a copy of this judgment. The interim order granted by this Court shall remain in force till then.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/17.6.2023

WP(C) NO.445 OF 2018

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APPENDIX OF WP(C) 445/2018

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PETITIONER's EXHIBITS :-

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EXHIBIT P1	TRUE COPY OF RESPONDENT.	THE	NOTICE DATED 24.4.2017 OF THE
EXHIBIT P2	TRUE COPY OF	THE	REPLY FILED ON 10.5.2017.
EXHIBIT P3	TRUE COPY OF RESPONDENT.	THE	E NOTICE DATED 16.6.2017 OF THE
EXHIBIT P4	TRUE COPY OF	THE	REPLY DTD.28.6.2017.
EXHIBIT P5	TRUE COPY OF 2.10.2017 OF	THE THE	PROCEEDINGS NO.A4.2865/2016 DTD. RESPONDENT.
EXHIBIT P6	TRUE COPY OF SECTION 235W(	THE 2).	NOTICE DATED 2.10.2017 UNDER
EXHIBIT P7	TRUE COPY OF	THE	REPLY FILED ON 6.10.2017.
EXHIBIT P8	TRUE COPY OF THE RESPONDEN	THE T.	PROCEEDINGS DTD.06.12.2017 OF

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RESPONDENTS' EXHIBITS :-

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EXHIBIT R1A	TRUE COPY OF HUMAN RIGHTS THE RESPONDEN	THE COMPLAINT DAETD 18/4/2017 OF THE FOUNDATION, KASARGODE ADDRESSED TO T.
EXHIBIT R1B	TRUE COPY OF SENIOR CLERK	THE REPORT DATED 21/4/2017 OF THE OF THE RESPONDENT PANCHAYAT.
EXHIBIT R1C	TRUE COPY OF THE RESPONDEN POLICE STATIO	THE COMMUNICATION DATED 25/5/2017 OF T SUBMITTED TO THE CHITTARICKAL N.
EXHIBIT R1D	TRUE COPY OF SENIOR CLERK	THE REPORT DATED 26/5/2017 OF THE OF THE RESPONDENT PANCHAYAT.
EXHIBIT R1E	TRUE COPY OF RESPONDENT AD	THE REPORT DATED 3/7/2017 OF THE DRESSED TO THE DEPUTY DIRECTOR OF

WP(C) NO.445 OF 2018

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PANCHAYATS.

EXHIBIT R1F	TRUE COPY OF LET DISTRICT MEDICAL THE PANCHAYAT.	TER DATED 5/7/2017 OF THE OFFICER OF HEALTH ADDRESSED TO
EXHIBIT R1G	TRUE COPY OF THE RESPONDENT ADDRE	LETTER DATED 2/10/2017 OF THE SSED TO THE DISTRICT COLLECTOR.
EXHIBIT R1H	TRUE COPY OF THE COLLECTOR RECEIV 17/10/2017.	PROCEEDINGS OF THE DISTRICT ED BY THE RESPONDENT PANCHAYAT ON
EXHIBIT R1I	TRUE COPY OF THE THE DISTRICT COL FROM BURYING COR	PROCEEDINGS DATED 1/1/2018 OF LECTOR PROHIBITING THE CHURCH PSES IN THE NEW CEMETERY.

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EXHIBIT R1J	TRUE COPY OF REP CLERK SUBMITTED	ORT DAT TO THE	ED 14/3/2018 OF THE SENIOR RESPONDENT PANCHAYAT.
EXHIBIT R1K	TRUE COPIES OF 6 DIFFERENT STAGES BURIAL CHAMBERS	COLOUR OF CON IN THE	PHOTOGRAPHS TAKEN AT THE STRUCTION OF THE NEW NEW CEMETERY.
EXHIBIT R1L	TRUE COPY OF THE THE DISTRICT COL RESPONDENT PANCH	COMMUN LECTOR AYAT.	ICATION DATED 13/3/2018 OF ADDRESSED TO THE

Varkey Madakampurath v. the Secretary

Case brief

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Varkey Madakampurath v. the Secretary

Case brief

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