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1988 DIGILAW 266 (KER)

NARAYANAN THAMPI v. DISTRICT COLLECTOR

1988-06-23

BALAKRISHNA MENON, BHASKARAN NAMBIAR

body1988
Judgment :- 1. The petitioner, a member of the Kasankodath Mana said to be the owner of the Kaimanum Vishnu Temple in Kalloor Vadakkummuri village, Mukundapuram Taluk, challenges the validity of R.5 and 6 (8) of the Kerala Panchayats (Burial and Burning Grounds) Rules, 1967 (hereinafter referred to as the rules) as unreasonable and opposed to Art.14 of the Constitution. 2. The 3rd respondent Rev. Fr. Paul Valikodan, the chaplain of the Rosaria Matha Church, Kalloor Vadakkummuri, on 23-3-1981 applied to the 2nd respondent, the Executive Officer of the Panchayat, for a licence to open a cell model cemetery (concrete vault) in 35 cents of land in Sy. No. 1935 of Kalloor Vadakkummuri village. The Panchayat by Ext. RI resolution dated 28-3-1981 resolved to forward the application together with the sketch and plan to the District Medical Officer (hereinafter referred to as the D.M.O.), Trichur and to grant the licence subject to the approval of the Public Health Department. Accordingly the application together with the sketch and the plan and a copy of the resolution were forwarded to the D.M.O., Trichur on 9-4-1981. The D.M.O. after a local inspection of the site forwarded the application to the District Collector with his remarks for appropriate action under the rules. Ext. R2 dated 4-9-1981 is a copy of the proceedings of the D.M.O. forwarding the application and the connected papers to the District Collector. The Collector as per his proceedings G-3-90250/81 dt.11-1-1982 directed the publication of a notice inviting objections and suggestions in regard to the proposal for the establishment of a burial ground in the site proposed. Ext. P2 is a copy of the notice published by the Collector in a local newspaper. The petitioner had, even before the publication of the notice, submitted his objections to the Collector, a copy of which is produced as Ext. P1. The main objection is that the proposed site for the burial ground is within 150 ft. from the Kaimanum Vishnu Temple and the temple tank, and a burial ground so close to the temple and the tank is highly objectionable and will be a health hazard for those using the temple tank. P1. The main objection is that the proposed site for the burial ground is within 150 ft. from the Kaimanum Vishnu Temple and the temple tank, and a burial ground so close to the temple and the tank is highly objectionable and will be a health hazard for those using the temple tank. The objection also stated that the proposed site is a paddy land with porous soil almost at the same level as the temple tank and the establishment of a burial ground at the place suggested will also create communal tension as that would injure the religious feelings of the Hindus of the locality. There were similar objections by others. Ext. P3(a) is a copy of the objections filed by the S.N.D.P. Yogam. Ext. P3 (b) is the objections filed by the Pulayar Maha Sabha and Ext. P3 (c) is a copy of the objections signed by 125 persons of the locality and submitted to the Collector. The Government in its counter affidavit admits that the District Collector had received objections from the Viswakarma Service Society, the people of the locality, the S.N.D.P., Kerala Pulaya Maha Sabha, Yogakshema Sabha, the N.S.S. and also from one Neelakantan Namboodiri of the petitioner's illom. The Collector has not yet enquired into the objections and has not passed final orders on the application for licence for the opening of a new burial ground at the proposed site. The 3rd respondent, the chaplain of the church, in his counter-affidavit has stated that the licence applied for should be deemed to have been granted by virtue of the provisions contained in R.6(8) of the rules and he has started using the place for the purpose of burial of the dead. 3. As per S.57(1) of the Kerala Panchayats Act it is the duty of the Panchayat, subject to the Act and the rules and within the limits of its funds, to make reasonable provision for carrying out the requirements of the Panchayat area in. respect of matters specified therein including "(0 the opening and maintenance of burial and burning grounds". S.129 of the Act empowers the Government to make rules to carry out the purposes of the Act.. The Kerala Panchayats (Burial and Burning Grounds) Rules, 1967 are issued in exercise of the powers conferred on the Government in that behalf under the Act! respect of matters specified therein including "(0 the opening and maintenance of burial and burning grounds". S.129 of the Act empowers the Government to make rules to carry out the purposes of the Act.. The Kerala Panchayats (Burial and Burning Grounds) Rules, 1967 are issued in exercise of the powers conferred on the Government in that behalf under the Act! As per R.3 the Panchayat is enjoined to provide at its cost places to be used as burial or burning grounds with the previous permission of the Collector. The request for such permission is to be submitted to the Collector through the District Panchayat Officer concerned. The Collector is required under sub-rule (3) of R.3 to consult the Health Officer and have due regard to his views regarding the suitability of the place from the public health point of view before permission is granted to the Panchayat to establish a burial or burning ground. As per R.4 the burial or burning ground existing on the date of commencement of the rules are deemed to have been registered under the rules. R.5 and 6 are quoted below: "5. No new burial or burning ground to be located within 50 meters of a dwelling place. No burial or burning ground which is not in existence at the commencement of these rules shall be located within a distance of fifty meters from any human habitation. Provided that in the case of concrete vaults the distance shall be twenty five meters from any human habitation. 6. New burial and burning grounds to be opened only with a licence from the Collector. (1) No new place for the disposal of the dead, whether private or public, shall be opened, formed, constructed or used unless a licence has been obtained from the Collector in this behalf. (2) An application for a licence under this rule shall be in Form I and shall be submitted to the Executive Officer of the Panchayat concerned. (3) An application under sub-rule (2) shall be accompanied by a plan of the place to be licensed and shall specify the locality, boundary and extent thereof, the name of the owner or person or community interested therein, the system of management, and such further particulars as the Collector may require. (3) An application under sub-rule (2) shall be accompanied by a plan of the place to be licensed and shall specify the locality, boundary and extent thereof, the name of the owner or person or community interested therein, the system of management, and such further particulars as the Collector may require. (4) The Panchayat shall, consider the application and forward - the same with its recommendations to the Collector through the Health Officer within a period of one month from the date of its receipt in the Panchayat Office. (5) The Health Officer shall conduct such enquiries as he may deem necessary and forward the application with his specific remark to the Collector within a period of one month from the date of its receipt in his office. (6) The Collector shall on receipt of the application, cause the same to be published in a local daily newspaper having wide circulation in the area, at the cost of the applicant, together with notice inviting objections, if any, to the grant of the licence applied for. (7) The Collector shall consider the objections, if any, received, in pursuance of the notice under sub-rule (6) and after causing such enquiries, as may be necessary, to be conducted in the matter, may (a) grant the licence; or (b) refuse to grant the licence - on grounds of public order, morality or health; or (c) postpone the grant of the licence until objections to the site have been removed or any particulars called for by him have been furnished. (8) The Collector shall in every case pass an order under sub-rule (7) within a period of six months from the date of submission of the application to the Panchayat and if no such order is passed by the Collector within the said period, the licence applied for shall be deemed to have been granted and the applicant may proceed to use the site for the purpose of disposal of the dead out not so as to contravene any of the provisions of these rules or the byelaws made under the Act. (9) The person aggrieved by an order of the Collector under sub-rule (7) may, within a period of thirty days from the date of the order, appeal to the Government. Explanation. (9) The person aggrieved by an order of the Collector under sub-rule (7) may, within a period of thirty days from the date of the order, appeal to the Government. Explanation. The time required for obtaining copies of material papers in connection with the order appealed against shall be excluded in computing the said period of thirty days. (10) The Government may, after such enquiry as they consider necessary, pass such orders on the appeal as they think fit." Rule 7 provides for the registration of burial and burning grounds. R.8 enjoins that "no person shall bury, burn or otherwise dispose of any corpse except in a place which has been registered under R.T subject to the proviso that "it shall be, lawful for the Executive Authority to permit any burial or burning in private grounds in individual cases in which he is satisfied that such burial or burning is not detrimental to human health or sanitation." R.6 quoted above provides for an enquiry by the Health Officer and an enquiry by the District Collector into the objections received in pursuance to the publication referred to in sub-rule (6). Enquiry by the Health Officer is apparently for the purpose of ensuring that the establishment of a new burial or burning ground is not objectionable in the public health point of view. The Collector is required to pause such enquiry as may be found necessary into the objections received and he is required to pass final orders on the application for licence with due regard to the objections received. The Collector is empowered to grant the licence or refuse the same on grounds of public order, morality or health. R.5 enjoins that no burial or burning ground shall be located within the distance mentioned therein from any human habitation. This does not mean that if the distance rule is satisfied, licence is. to be granted for the establishment of a burning or burial ground. R.6 provides for an enquiry for the Collector's satisfaction that the grant of the licence is not objectionable on grounds of public order, morality or health. This does not mean that if the distance rule is satisfied, licence is. to be granted for the establishment of a burning or burial ground. R.6 provides for an enquiry for the Collector's satisfaction that the grant of the licence is not objectionable on grounds of public order, morality or health. Objections concerning public order, morality or health are to be duly enquired into and if the Collector is satisfied that the grant of a licence is objectionable on any of these grounds, the application for licence is only to be rejected even if the location of the burial or burning ground is not within the prohibited distance under R.5. In other words the rule envisages an enquiry and satisfaction by the Collector regarding the matters specified in sub-rule (7) quite apart from the distance rule under R.5. R.5 prescribing the minimum distance from any human habitation for the establishment of a burning or burial ground cannot therefore be challenged as arbitrary and opposed to Art.14 of the Constitution. R.5 read in the context of R.6 cannot also be challenged as unreasonable and as beyond the legislative intent, 4. The challenge in regard to sub-rule (8) of R.6 is that the same is unreasonable in that the legislature never intended that no enquiry need be held or an enquiry, if held, can be perfunctory. The State of Kerala in its counter affidavit states as follows: "It is submitted that the time limit specified in the rule are of a nature of guideline and in many cases due to various administrative reasons the time limit cannot be construed strictly. Sub R.8 of R.6 does not give the applicant unlimited freedom to open the burial ground in cases where the application is not disposed of within a period of six months. This time limit cannot be observed especially where there are objections. There is no question of deliberate delay, except the administrative delay arising in such cases." As noticed in the earlier part of the judgment, the 3rd respondent's application for a licence to establish a burial ground was submitted to the Panchayat on 23-3-1981. The Panchayat together with its resolution Ext.R1 forwarded the same to the District Medical Officer on 9-4-1981 and the D.M.O. after holding an enquiry as provided for under sub-rule (5) forwarded the application together with his report Ext.R2 to the District Collector on 4-9-1981. The Panchayat together with its resolution Ext.R1 forwarded the same to the District Medical Officer on 9-4-1981 and the D.M.O. after holding an enquiry as provided for under sub-rule (5) forwarded the application together with his report Ext.R2 to the District Collector on 4-9-1981. By the time the D.M.O. forwarded the application to the Collector, a period of 5 months and 11 days had expired and the Collector had hardly time to make an enquiry as contemplated by sub-rule (7). He had, however, on 11-1-1982 published the proposal in a local newspaper inviting objections and suggestions. 5. The question, therefore, is whether sub-rule (8) fixing the time limit is unreasonable as opposed to the legislative intent. An application for licence under R.6 is to be submitted to the Executive Officer of the Panchayat. The rule does not provide for any penalty for the failure of the Panchayat to forward the same to the Health Officer within the time specified in sub-rule (4). There is also no penalty for the delay of the Health Officer in forwarding the application to the Collector. Even the Panchayat is not permitted to establish a burial or burning ground without the prior permission of the Collector, obtained after due enquiry from the point of view of public health, as provided for in R.3. If R.6(8) is to be strictly construed, the Panchayat by delaying to forward the application to the D.M.O. for enquiry under sub-rule (5) can foreclose also an enquiry by the Collector under sub-rule (7) and register the burial ground applied for deeming the grant of the licence by the Collector. The Supreme Court in Ramegowda v. Special Land Acquisition Officer (1988 (2) S.C.J. 1. at page 6) stated in the context of S.5 of the Limitation Act: "The law of limitation is no doubt the same for a private citizen as for Governmental authorities. Government, like any other litigant, must take responsibility for the acts or omissions of its officers. The Supreme Court in Ramegowda v. Special Land Acquisition Officer (1988 (2) S.C.J. 1. at page 6) stated in the context of S.5 of the Limitation Act: "The law of limitation is no doubt the same for a private citizen as for Governmental authorities. Government, like any other litigant, must take responsibility for the acts or omissions of its officers. But a somewhat different complexion "is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross purposes with it." Rule 6 contemplates an enquiry from the public hearth point of view by the Health Officer and an enquiry by the Collector from the point of view of public order, morality and health. The Collector has also to consider the remarks of the Health Officer in considering these aspects of the matter. Public health and sanitation are the responsibilities of the Panchayat under S.57 (2) of the Act. Public order and morality are matters required to be considered under the rule itself. It cannot be the intention of the legislature that the rule making authority should be invested with power to subvert the provisions of the Act, The rule itself had been issued under S.129 of the Act "generally to carry out the purposes of this Act." 6. In Kruse v. Johnson ((1898) 2 Q.B. 91) the majority of the learned Law Lords observed that situations might arise in which the courts should be entitled to hold statutory by-laws invalid on the ground of unreasonableness and in such circumstances the court might well say, "Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires." In Mixnam Properties Ltd. v. Chertesy U.D.C. ((1964) 1 Q.B. 214) Diplock Q. said: "The various grounds upon which subordinate legislation has sometimes been said to be void .... can, I think, today be properly regarded as being particular applications of the general rule that subordinate legislation, to be valid, must be shown to be within the powers conferred by the Statute. can, I think, today be properly regarded as being particular applications of the general rule that subordinate legislation, to be valid, must be shown to be within the powers conferred by the Statute. Thus the kind of unreasonableness which invalidates a bye-law is not the antonym of 'reasonableness' in the sense of which that expression is used in the common law, but such manifest arbitrariness, injustice or partiality that a court would say: 'Parliament.never intended to give authority to make such rules; they are unreasonable and ultra wires....' If the courts can declare subordinate legislation to be invalid f or 'uncertainty', as distinct from unenforceable .... this must be because Parliament is to be presumed not to have intended to authorise the subordinate legislative authority to make changes in the existing law which are uncertain...." These decisions are discussed in an article by Alan Wharam in 1973 (36) Modern Law Review at p.. 611. In Indian Express Newspapers v. Union of India ((1985) 1 SCC 6411986 SC 515) the Supreme Court states in Para.75: "A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent Legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. In England, the judges would say "Parliament never intended authority to make such rules. They are unreasonable and ultra vires". Considering the validity of R.45B(3) of the K. E. R. as amended in 1986 extending the period of exemption from acquiring qualification for appointment to the post of headmaster one of us (Bhaskaran Nambiar, J.) on behalf of a Division Bench in Pankajaksy & Others v. George Mathew & Others (1987 (2) KLT 732) stated at page 727: "12. Considering the validity of R.45B(3) of the K. E. R. as amended in 1986 extending the period of exemption from acquiring qualification for appointment to the post of headmaster one of us (Bhaskaran Nambiar, J.) on behalf of a Division Bench in Pankajaksy & Others v. George Mathew & Others (1987 (2) KLT 732) stated at page 727: "12. Thus, the rule made under a statute by an authority delegated for the purpose can be challenged on the ground (1) that it is ultra vires of the Act; (2) it is opposed to the Fundamental rights; (3) it is opposed to other plenary laws. To ascertain whether a rule is ultra vires of the Act, the Court can go into the question (a) whether it contravenes expressly or impliedly any of the provisions of the statute; (b) whether it achieves the intent and object of the Act; and (c) whether it is "unreasonable" to be manifestly arbitrary, unjust or partial implying thereby want of authority to make such rules." The same. Division Bench, considering the validity of the amended R.5 of the Kerala Last Grade Service (Special Rules), in N. C. Narayanan Nair & another v. State of Kerala & Others (1988 (1) KLT 8941988 (1) KLJ 589) stated at page 594: 11. Unreasonableness of a statutory rule, uncertain in its language and unworkable in its operation, leading to the reasonable conclusion that it is manifestly arbitrary, can invalidate the rule as beyond the powers conferred under the statute, for "no authority would have intended to give authority to make such rules". This is a question of competence of the authority apart from the violation of a fundamental right under Art.14." 7. he requirement of sub-rule (8) of R.6 for the Collector to pass an order within a period of six months from the date of the submission of the application to the Panchayat, if construed as a mandatory provision, would. render the sub-rule itself invalid as grossly unreasonable and beyond the legislative intent. Under the rules the application for licence is to be submitted to the executive authority of the Panchayat and not to the Collector who is the authority competent to dispose of the same. If the application is to be submitted to the Collector himself, a period of six months for the disposal of the same may be reasonable. Under the rules the application for licence is to be submitted to the executive authority of the Panchayat and not to the Collector who is the authority competent to dispose of the same. If the application is to be submitted to the Collector himself, a period of six months for the disposal of the same may be reasonable. But in a case like this where the Collector receives the application forwarded to him by the Health Officer who, in his turn, gets the same forwarded by the Panchayat, the time limit fixed for the Collector to dispose of the application cannot be construed as mandatory. Under these circumstances, the expression "shall" in sub-rule (8) cannot be construed as a mandatory provision requiring the Collector to pass orders within the six months' time specified therein. The expression "shall" will have only the same meaning as "may" in the sub-rule and the provision is only directory. The latter part of the sub-rule deeming the licence as having been granted on the expiry of the period of six months and authorising the applicant to proceed to use the site for the purpose of disposal of the dead is invalid as it is unreasonable and opposed to the legislative intent expressed in S.57 (2) of the Panchayats Act. 8. n the present case the burial ground has not yet been registered under R.7. R.8 enjoins that no person shall bury, burn or otherwise dispose of any corpse except in a place registered under R.7. A burial ground can be established only after obtaining a licence as contemplated by R.6 and after its registration under R.7. The 3rd respondent is not, therefore, entitled to use the premises as a burial ground before his application for licence is disposed of by the District Collector. 9. The 1st respondent, the District Collector, Trichur, is directed to dispose of the 3rd respondent's application dated 23-3-1981 under R.6 (2) for the establishment of a burial ground after considering the objections received in pursuance to the notice Ext.P2 in accordance with law and in the light of the observations contained in this judgment. The original petition is allowed as indicated above. There will be no order as to costs.