JUDGMENT K. Sukumaran, J. 1. Burial grounds have posed burning problems in this State. One might be tempted to think: Are such contests necessary when ones mortal remains (the flame of life having already flickered and gone out not to be relumed) are on the last lap of its earthly journey? 2. Tensions, however, have been there. Some such are the well known Thykal case in 1960, Rev. Fr "Antony v. Health Inspector 1964 K.L.T 15 a comparatively recent one, Manager, Samajam School v. State of Kerala 1980 K.L.T. 947 and the latest, the Division Bench decision unreported thus far, in M) K. M. Narayanan Nampoodiri v. District Collector O.P. No.2036/82. 3. When man was nomadic, little appears to have been thought of about the dead or even the near dying. In a life of eternal flight and fight, pent up lives used to be discarded on the way. At about Alexanders time, Scythians were seen burying their dead in lieu of eating them! Burial problems, of course, did not arise when many a mariner found his watery grave. Philosophical poesy of Thomas Grey pictured colourfully how the path of glory leads to the grave. Kumaran Asan, (the Malay al am Poet, who got the silken shawl and golden bracelet from the Prince of Wales) immortalised the burial ground by his poetic passion portraying it as the place where Mans arrogance has its setting site, where friends depart, where the supreme spiritual lessons are taught. 4. Mans craze for immortality made him think of living through massive pyramids the finger posts pointing the soul to the sky” that wedge like cleave the desertairs. (See In Quest of Civilisation by Laitham page 74). Cenotaphs, some of them indeed beautiful and real treasures of art, have attempted in modest measures, such, a feat in the Indian soil. 5. Among Mangols burying in a high place was considered as a singular mark of honour. K. G. Fraser has referred to the caves of dead bodies and their later transmutations as temples, among certain communities in Srilanka. Herbert Spencer traces the genesis of religion to the worship of the forebears. Similar approaches in the Hindu religion, had been indicated by Dr. Sir S. Radhakrishnan in his book. The Indian Philosophy, Vol. 1, Page 87. Professor Monnier William has written learnedly on the shrardha and its significance, under the Hindu Law concept. 6. Herbert Spencer traces the genesis of religion to the worship of the forebears. Similar approaches in the Hindu religion, had been indicated by Dr. Sir S. Radhakrishnan in his book. The Indian Philosophy, Vol. 1, Page 87. Professor Monnier William has written learnedly on the shrardha and its significance, under the Hindu Law concept. 6. Burning ghats where dead bodies used to be cremated were familiar sights in the Indian scene from very early times. Changes came in with the arrival of the English, and the setting up of their forts and factories. A description of an Anglo-Indian burial ground of the earlier days as given by Mrs. Frank Penny in Fort St. George Madars reads: There was no limit then to size, and no Government regulations to insure the order which marks the Anglo-Indian burial-ground of today. Masonry was cheap, and it seemed as though the mourner endeavoured to show the magnitude of his, grief by the dimensions of the monument. In consequence, many of the erections partook more of the nature of small temples than tombs, and they became the haunts of all kinds of men and animals. The burial-ground was open to the public, and there idlers beggars and vendors or fruit and lift sweet-meats congregated to loaf and sleep and eat, sheltering themselves in the tombs from the sun by day and the dews by night. Even herdsmen with their goats and buffaloes joined the throng. At last it became a disgrace to the English community, and efforts were made to do way with the abuse. (See Fort St. George Madras by Mrs. Frank Penny, Page 188). It is perhaps an interesting piece of historical information that one of the renowned High Courts of India, is sited in an old cemetery. The book states: "The old cemetery of St. Marys lies outside the Fort on the North beyond the glacis, Where the Law Courts now- stand". (See Page 188) 7. Congestion in the cemeteries had been felt with the urbanisation of areas. A picture of the burial ground around in one of the most populous cities of the world, London, is available in a recent publication: Londons Secret History. Marys lies outside the Fort on the North beyond the glacis, Where the Law Courts now- stand". (See Page 188) 7. Congestion in the cemeteries had been felt with the urbanisation of areas. A picture of the burial ground around in one of the most populous cities of the world, London, is available in a recent publication: Londons Secret History. It is in these words: "The raised levels of many of the churchyards still bear silent testimony to the extent to which the corpses had to be packed in; and when there was no more room in the churchyards the dead were unceremoniously tumbled into communal pits. Two of these are covered today by Liverpool Street Station and Golden Square."� (See Londons Secret History by Peter Bushell, Page 74.) 8. That country, however, rushed with legislation when the need arose. The Cemeteries Clauses Act, 1847, Burial Act 1852 and 1855, the Public Health (Internments) Act, 1879, the Burial Act, 1900 and 1906 are some of the Legislative enactments. Law of Burials by Brook Little was a well-known guide book on cemeteries, so was Edvin 'Austins Burial Grounds and Cemeteries(1907). Burial places have been subjected to frequent discussions and debates in the parliament. (e. g. See The History of Our Own Times, by Justine Me Carthv, Vol. V, Page 66). 9. Whatever may be the philosophical subtleties or historic perspectives, mundane institutions have necessarily to deal with concrete conflicts. One such has been, present in this case as emerging from the outskirts of the Trichur town. 10. St. Josephs Church at Poonkunnam, of comparatively recent origin (1964), attempted to have a new burial place. Its close proximity to a residential house- posed a serious invasion on the legal rights for a reasonably comfortable life was the complaint of the plaintiff who came to the Court with a fervent plea for the protection of his rights. The local authority which should have paid serious attention and evinced anxious consideration in relation to this sensitive issue, allowed itself to be swayed from the right and proper path by subtle and strong manipulative exercises was the further grievance of the - plaintiff. 11. The courts below have concurred to uphold the plaint claim and injunct the defendant from opening up a new burial ground. The concurring adverse decisions have been appealed against before this Court. 12. 11. The courts below have concurred to uphold the plaint claim and injunct the defendant from opening up a new burial ground. The concurring adverse decisions have been appealed against before this Court. 12. The concurring decisions reached by the courts below after satisfactory discussion of the evidence and a correct application of the legal principles, should ordinarily, shut out the appellant at the threshold. That should be? sufficient to foreclose detailed or de novo consideration of excruciating details in relation to the character and construction of the burial ground or the disposal of the dead. 13. A pressing plea for a binding legal precedent got the appeal admitted and led to long arguments before, this Court and a fresh and anxious assessment of the contentions. The conclusion of the courts below was found to be unassailable even on such fresh evaluation of the massive evidence and other useful material available in the case. The legal principles could not be faulted with, either. 14. Looked from a different angle too, the plaintiff deserved being non-suited. 15. The new parish is attached to an ancient and bigger church, the Lourde Church of Trichur. It has a spacious cemetery and all facilities for burying the dead. Deaths, according to the priest of the plaintiff parish, are few and far between. If that be so, there cannot be any particular hardship or difficulty for the burial of those who pass away within the area of the parish. The distance between the parish and the Lourde Church burial ground cannot be considered as an unduly long; nor the route as in any way an inconvenient one. At the time when the Poonkunnam church was constructed, no difficulty had been experienced. If that was so at the time when the new church came into existence, it could not be otherwise now when the means of communication have picked up speed many times what the earlier modes could command. The appellant parish is sufficiently rich to afford arranging for speedy and special conveyances for taking the dead to the existing burial ground. An apprehension about some possible inconveniences arising out of the railway gate being shut in a chancy situation and on a rare occasion is more imaginary than real. The appellant parish is sufficiently rich to afford arranging for speedy and special conveyances for taking the dead to the existing burial ground. An apprehension about some possible inconveniences arising out of the railway gate being shut in a chancy situation and on a rare occasion is more imaginary than real. Even if the funeral travel is held up for about five minutes, it cannot be considered as a severe burden on those entrusted with the care and management of the mortal remains of the deceased person. The lower appellate court was particularly emphatic on that aspect. (Vide paragraph 15 of the judgment). In that view of the matter also, the concurrent decision of the courts below do not require interference in the attenuated second appellate jurisdiction. 16. It is well-known that a discretion exercised by the lower courts in a suit of this nature, one under section 34 of the Specific Relief Act, 1963, on due advertance to the relevant materials and proper application of the correct legal principles, would not warrant disturbance at the second appellate level [See Sital Raut v. Adalat Raut A. I. R. 1935 Patna 256, and Shiam Lai v. Mohamad Ali A. I. R. 1935 All 174, as some among the illustrative cases]. 17. The questions of law as formulated by the appellant in the second appeal have some overlapping of ideas. The pointed contentions would be: (i) there is no legal jurisdiction for an injunction against the opening of a cemetery without there being a clear finding of nuisance, attributable to such a cemetery, (ii) availability of another burial ground by itself cannot bar the opening of a new cemetery. 18. The Learned Munsiff (A. M. Sivadas) exhibited an intelligent approach to the problem and made a detailed discussion of the events and facts and the legal principles. The appellate court affirmed the trial court findings, after due advertence to all the contentions urged before it. The concurrent views are against the opening of a new cemetery. 19. The fact that the burial ground had been licenced by the Municipality, according to the courts below, could not be a valid ground for the civil court to decline relief, if relief is otherwise due. This proposition is now well- settled. The concurrent views are against the opening of a new cemetery. 19. The fact that the burial ground had been licenced by the Municipality, according to the courts below, could not be a valid ground for the civil court to decline relief, if relief is otherwise due. This proposition is now well- settled. The fact that there was permission by a local authority is no doubt, entitled to great weight, as the expression of opinion of a democratic organisation at the grassroot level. That view, however, is not necessarily the final verdict. The final decision rests with the civil court. The courts below have admirably discharged that responsibility in the present case. 20. The evidence which had been neatly analysed and properly considered by the Munsiff with whom the appellate judge, concurred, would not lead to a conclusion different from the one come to by the courts below. 21. The reports of the Advocate Commissioner, Exts. C-1 and C-2 dated 22nd July 1978 and 20th September 1978 respectively, contain primary materials and data. They reveal the following: The plaintiffs residential boundary of the site where the cemetery is proposed rub against each other. The distance between the western boundary of the site1 of the proposed cemetery and the eastern boundary of the plaintiffs residential property is only 18 feet; and the distance up to the house of the plaintiff is only 78 feet. 22. The area is admittedly a crowded residential one. This has been admitted by the defence witnesses and D.W.1, the Vicar, himself. The documents of acquisition of the present church site, particularly Ext. B-11 and Ext. B-12 of 1962, also, by their description of property, loudly proclaimed the residential character of the area. 23. The health hazard posed by the proposed cemetery has been spoken to by competent witnesses. P.W.4, the Assistant Engineer of the Municipality, had given vivid details about the possibility of noxious gas escaping the concrete vaults, and about obnoxious overflows from the underneath cells. A grave and serious threat is then posed, particularly in view of the plaintiffs dependence for drinking water on the well in the residential compound. The courts below were not impressed by the defence evidence, having regard to the professional inadequacies and other unreliable features of those witnesses. A grave and serious threat is then posed, particularly in view of the plaintiffs dependence for drinking water on the well in the residential compound. The courts below were not impressed by the defence evidence, having regard to the professional inadequacies and other unreliable features of those witnesses. I am in agreement with this general assessment and careful appreciation of the evidence on that aspect as undertaken by the courts below. 24. Doubtless, to those who are near and dear to the departed soul, the place where his mortal remains are consigned is sacred, pure and haloed. But mark that, it is so sacred, so haloed, so endearing only to those who have the strong emotional and sentimental attachment, quite often arising out of familial nexus. No Roseberry is ordinarily visible outside the family fold. The attachment is personnel. The lavished affection is subjective and the reverence is obviously individualistic. 25. Quite often, the cemetery site causes distress and mental depression. The idea is so transparent from a statement of Disraeli who described the House of Lords (where he went as Earl of Beaconsfield late in the evening of his life) as the cemetery of wit and intellectual ambition. (See The Earl of Beaconsfield P. 186). The hard reality cannot be wished away. The situation was so viewed by the trial court on the basis of evidence before it. That was why that court dismissed, and in view absolutely correctly, a suggestion that the cemetery in question as designed by the defendant parish, would have an enchanting appearance. The trial court was emphatic in its observation: Whether the cemetery will have a beautiful appearance or not a cemetery is always a cemetery. That impression would not be in any way erased by the testimony of experts like D.Ws. 2 and 3, rightly characterised by the trial court as interested and ill-informed witnesses. 26. The proximity to a cemetery, could be a strong and continuous cause for annoyance. While all others' Wake up to see the rosy fingers of, the dawn (as Homer would put it), the plaintiff and the members of his family, have to rub their eyes against a ghastly sight. The annoying experience would continue till the all powerful sleep over-powers them. While all others' Wake up to see the rosy fingers of, the dawn (as Homer would put it), the plaintiff and the members of his family, have to rub their eyes against a ghastly sight. The annoying experience would continue till the all powerful sleep over-powers them. Whether it be a routine day or one for a special occasion, no one, viewing the cemetery and sensing its distressing atmosphere, can have relaxing moments or pleasure some time. That would be so whether they are at the dining table or conversing with one another or relaxing in a lazy afternoon atmosphere. The gnawing experience is insufferable in the extreme. 27. The standard text books and early decisions Maider Mai v. Ugar Sain A.I.R. 166 Punjab 509 and Madurai Municipality v. M. G. Ethiraj A.I.R. 1973 Madras 69 on nuisance have been adverted to by the courts below. The annoyance element involved in the concept of nuisance has been particularly referred to with reference to the Latin and French equivalents and with treatises of Stephen and Blackstone Counsel for the respondent referred to the guidelines available in Statutes dealing with cognate problems. Legislative provisions under one enactment or ocher could be taken as a general indication of the legal position. The provisions of the Panchayat Act and the Rules (to which attention was drawn by counsel for the respondent), that way, are helpful to understand the general pattern for the consideration and grant of licence for cemeteries. 28. In a sense, the Municipality had adhered to similar practices, when they had insisted on No Objection from those residing within the distance of 100 metres, and when it had insisted on a report of the officials after inspection, as an indispensable requirement for grant of licence of a cemetery. These guidelines certainly support the basic approach adopted by the courts below. I am in agreement with the contention of the respondent and the conclusions of the courts below. 29. Even a requirement such as contained in the Kerala Education Acts and Rules, such as Chapter IV Rule 4 (1) of the Kerala Education Rules should be observed while granting a fresh licence when a new cemetery is to be opened. I am in agreement with the contention of the respondent and the conclusions of the courts below. 29. Even a requirement such as contained in the Kerala Education Acts and Rules, such as Chapter IV Rule 4 (1) of the Kerala Education Rules should be observed while granting a fresh licence when a new cemetery is to be opened. That is the view taken by this Court in a recent case Manager, Samajam School v. State of Kerala The fact that the distance requirement is contained in a Statute like the K.E.R. is no good ground to overlook it. If the Government overlooks it, the Court will correct it” this Court held. 30. The question whether cemetery is a nuisance was left open in 1964 KLT 15 supra. The Samajam case 1980 K.L.T. 947, viewed the objectionable nature of the cemetery only from the point of view of the Kerala Educational Rules and the provisions contained therein. The proximity producing health hazards to the staff and students was noted as the underlying principle for such a salutary statutory provision. The Division Bench which decided O.P. No. 2036 of 1982, rightly gave the thrust on the public health and public interest aspects. The court held that considerations are so serious that no submerging of a statutory periscope in relation to the objectionable character of the newly open cemetery was permissible. A rule which made it possible for the automatic sanctioning of a cemetery by an efflux of six months time was found to be obnoxious from the larger statutory objective, and was read down by this Court. Here again, the concern of the court in the larger public interest has been unmistakably expressed. It is desirable that every endeavour is made to perceive peoples feelings and preserve societal harmony and thus protect public interest. 31. It was Jessel, M.R. who, in very early times, spoke about burial grounds constituting nuisance. That genius in law, had no difficulty in noting the distinction between the use of a land or, of a house Case a park or garden or a chapel or for some other purpose of that kind and not for actual burials [See Lord Cowly v. Byas (1877) 1 Ch. D. 944. The protection of the Burial Acts, it was later noted, was available, whether the burial ground was public or private. [See Greenwood v. Wadsworth (1873) L.R. 16 Eq. 288. D. 944. The protection of the Burial Acts, it was later noted, was available, whether the burial ground was public or private. [See Greenwood v. Wadsworth (1873) L.R. 16 Eq. 288. The broad approach of Jessel, M.R. was approvingly adopted in Godden v. Hythe Burial Board 1906 2 Ch. 270. 32. Some persuasive passages from American Jurisprudence, Vol. 58 page 603 have been referred to by counsel for the appellant. It was noticed that most of those passages were based on the decisions of the State Courts in the United States. Endeavours made to obtain the full text of the leading judgment was ultimately successful, thanks to a helpful attitude taken by the American Center Library. The judgment will pay perusal. The useful thoughts on this topic in those decisions though rendered in a distant place, formulate principles which have relevance in the Indian situation too. The principles will buttress the conclusion come to by this Court. 33. In one of the American States, an Ordinance was issued prohibiting the establishment of new burial ground within the city of Charleston. The validity of that Ordinance was upheld in City Council of Charleston v. Wentworth Street Baptist Church 4 Strob 306. A contention on behalf of the land owner that he was entitled to use his land for any lawful purpose did not appeal to the court. That court observed: Such a claim would equal, in intensity of selfishriess, the example put by Lord Bacon, of the man who would set his neighbours house a-fire to roast his egg. The decision noted the existence of other statutes in some States restricting the location of cemeteries and prohibiting their establishment within a certain distance of a dwelling without the consent of the owner. 34. This decision was followed in Young v. Brown 46 S.E 2nd 673. The difficulties encountered by Courts in undertaking harmonisation of the rights” the rights of the owner of the property generally to make a lawful use of it and the right of the other to be protected in the reasonable enjoyment of his property, were noted by the Court. The tracing of the position back to Blackstone and the progressive developments in legal notions and the emergence of elements not originally recognised at common law” were all adverted to and analysed. The tracing of the position back to Blackstone and the progressive developments in legal notions and the emergence of elements not originally recognised at common law” were all adverted to and analysed. A passage in para (2, 3) of the Judgment is illuminating: "Nuisance is a question of degree depending upon varying circumstances. Resort must always be had to sound common sense and due regard should be given to the notions of comfort and convenience entertained by persons generally of ordinary tastes and susceptibilities. A lawful business should not be enjoined on account of every trifling or imaginary annoyance, such as may offend the taste or disturb the nerves of a fastidious or over-sensitive person, but on the other hand no one, whatever his circumstances or condition may be, should be compelled to leave his home or life in mental discomfort, although caused by a lawful and useful business carried on in his vicinity. Emotions caused by the consent reminder of death may be just as acute in their painfulness as suffering perceived through the senses." (Presumably the consent reminder is a printing error for constant reminder.) 35. A further principle laid down therein is that even when a cemetery, under the prevailing circumstances, does not constitute a private nuisance from the health hazard point of view or operate offensively to the physical senses of those living thereby, it can constitute nuisance. A burial once in a while or the existence of a tombstone, may be not distressing depressants but: "There is the passage of the funeral procession with its mourners and the last rites at the grave followed by frequent visits of the bereaved persons, all of which are conductive to depression and sorrow and when constantly recurring in close proximity to a residence may deprive the home of the comfort and repose to which the owner is entitled. Proper respect for the dead and those in grief and sorrow naturally imposes a restraint at such times on the usual laughter and play of children and social and family gatherings could not be held? under cheerful surroundings.... " 36. Yet another helpful decision of the Supreme Court in the case of Freser at al v. Fred Parker Funeral Home 201 S.C. 21 S.E. 2nd 577. It dealt with, the principles of law relating to maintenance and operation of a funeral home in a residential district. 37. under cheerful surroundings.... " 36. Yet another helpful decision of the Supreme Court in the case of Freser at al v. Fred Parker Funeral Home 201 S.C. 21 S.E. 2nd 577. It dealt with, the principles of law relating to maintenance and operation of a funeral home in a residential district. 37. Many of the considerations applicable to a funeral home, were found to be relevant to connection with the cemetery too, in Toung v. Brown 46 S.C. 2nd 673 supra. 38. While therefore, recognising that cemetery is a necessity it is necessary to assess the various factors to decide whether it would nevertheless constitute annoyance and nuisance. The oft quoted general statement was repeated in that case too: "Each case must be determined by the facts and circumstances developed therein."� The decision is important in its emphasis of such factors like the doom and depression brought about by the existence of a cemetery as possible factors constituting nuisance. With a spread of gloom, depression, nervousness, sleeplessness, and excitement of children” all aggregating to an aversion of being near the place, life loses its joy and charm; all around is depression and offensive annoyance. The situation would be one in which the court could grant relief to the complaining citizen. 39. The evidence in the case, as noted earlier, fully justifies the find mgs about the annoyance that could be caused by the cemetery and about the intensity of the annoyance being of such a degree as to constitute nuisance known to law. 40. The appellate judgment, has affirmed the decision of the trial court. That Court too considered Exhaustively the evidence of P. Ws. 1, 2 and 4 about the locality of the plaintiffs residence and about the proposed location of the cemetery. The source of drinking Water drawn from a nearby well was an additional aspect adverted to by the appellate court. 41. Four officers of the Municipality including the building Inspector who visited the site and prepared the report had in one voice cautioned against the construction of the cemetery. While it is certainly open to the representatives of a local authority to over-rule the objections or views of the officaldom, they must do so on rational and reasonable grounds. No such ground was indicated before the courts below. None is discernible from the files. 42. While it is certainly open to the representatives of a local authority to over-rule the objections or views of the officaldom, they must do so on rational and reasonable grounds. No such ground was indicated before the courts below. None is discernible from the files. 42. Arbitrariness is writ large in the manner in which the official views had been jettisoned by the Municipal Council otherwise than by a proper or legal method. That is hardly the proper style of functioning of any statutory body much-less of a local authority. There cannot be an doubt that a manipulative exercise on the part of a Municipality as attempted in an ugly way in the present case, is no reason for denying to the plaintiff a relief which he richly deserves in the circumstances. 43. The Appellate Court, in particular, adverted to the fact that the Poonkunnam Church had come into existence only in 1964, that the residents within that parish are attached to the Lourdh Church, and that as such the inhabitants of Poonkunnam were parishners of the Lourdh Church with rights to bury their dead in the cemetery of the Lourdh Church. All that could be pointed out as a difficulty in availing of that facility was die existence of a railway gate. The existence of an alternate route by which the railway gate can be avoided is in evidence. The appellate court was fully justified in observing that the existence of a railway gate was hardly a cause for inconvenience, for it is well known that the fast moving trains pass by the gate in a very short time. A remote possibility of a closure of a railway gate for a short duration, should it chance that the funeral procession reach that spot at the precise moment, is not a sufficient ground to invade the peaceful residence of the plaintiff with the construction of a new cemetery causing disturbance and annoyance not only to the plaintiff but also to large sections of the residents of the locality. 44. Counsel for the defendant parish put to P.W. 1 a question, referring to the burial that had taken place in a family compound by name Pallath Paramba. There was a further question, invoking his view and vision of the vedantas. 44. Counsel for the defendant parish put to P.W. 1 a question, referring to the burial that had taken place in a family compound by name Pallath Paramba. There was a further question, invoking his view and vision of the vedantas. Its substance and spirit, when translated, would read: Is not the Hindu God Shiva, one with ashes splashed all over his body, and dancing in the grave yards?� It is not for the Courts with their limited familiarity of the vedic lore, to comment on topics of dizzy philosophical heights. However, even with a limited reading, one cannot possibly, miss that great German philosopher, who perhaps was eloquent on the difference between shava (the dead body) and shiva (the dancing dynamism). The passage reads: Nishkala Shiva SANSKRIT is called the dead body, the corpse (sava) SANSKRIT ........If the sign "P, or i" omitted from the written name of Shiva, there is left the script equivalent for shava. without this f or i shiva is but a corpse, a shava. Who or what, then, is this enlivening vowel-sign, or i, if not the Goddess, Shakti, the supreme representative of movement and life? The Absolute (Brahman) regarded in and by itself, devoid of this activating, vitalising energy, this sign of its procreative, cosmogonic impulse (maya), is but a corpse. The German Philosopher, Hegel, in the closing, Crowning paragraph of his note. The phenomenology of the Universal Spiritual Principle refers to this same ultimate as does leblose Einsame, the lifeless solitary one.� (Myths and Symbols of Indian Art and Civilisation by Hemirich Zimmer Page 206.) Other writers, not necessarily philosophers, too had indelible impressions of Shivas vitality and life. George Moore, who had lived, and written upon, material life; with the full gusto of a youth, had a distinct impression of shiva, not as of a decadant dying body but one with dance, dynamism and its rhythm, and the splendorous splash of life in all its glory and glow. In his book. The Confessions of a Young Man he says: "If you had read Schopenhauer you would know that the flesh is not ephemeral, but the eternal objectification of the will to live. In his book. The Confessions of a Young Man he says: "If you had read Schopenhauer you would know that the flesh is not ephemeral, but the eternal objectification of the will to live. Siva is represented not only with the necklace of skulls, but with the lingam"� (emphasis supplied) The imprecise impressions of philosophy as entertained by counsel for the defendant, who made his per adventure in the trial court, cannot however, be of any avail, when the facts do make out a positive actionable nuisance, by the proposal to set up a cemetery almost on the eves of the plaintiffs house. The conclusion of the courts below, in the above situation, have only to be affirmed. I do so. The second appeal is dismissed with costs throughout. 45. After having dealt with the main issue, it now remains to deal with a subordinate contention based on the infallibility of the Municipality. 46. I regret to observe that the local authority in the present case had not been fair, rational or reasonable in relation to its functioning, in its approach and in its final resolution sanctioning the cemetery. Things were, to put it bluntly, manipulated in that body. The files (Ext. B-5) do disclose that the report of the Health Officer had not been called for. That is at variance with the practice hitherto adopted by the Municipality. (Seethe evidence of P.W. 2). The Municipality did not bother to obtain no objection certificate from those who are resident within a distance of 100 metres, a practice punctiliously stuck to by it as regards other cases, (vide page 43 of Ext. B-15). There is no .explanation, for this divagation from this proper path and legal approach. 47. A mass petition had been filed before the Municipality by the residents of the area. That did not even produce the reaction which people could expect even from an Eastern despot. Apart from Ext. B-1, a further representation Ext. B-2 praying for an opportunity to put forward their case, was also presented before the Municipality. This again was spurned by the Municipality, mercilessly and arbitrarily. This strange conduct strange as it comes from a local authority which had had a good tradition of able administration is an external manifestation of the foul forces at play in its internal working. The manner in which the resolution was passed is most obnoxious. This again was spurned by the Municipality, mercilessly and arbitrarily. This strange conduct strange as it comes from a local authority which had had a good tradition of able administration is an external manifestation of the foul forces at play in its internal working. The manner in which the resolution was passed is most obnoxious. Grant of licence for the cemetery was not an item included in the agenda of the meeting at which such a resolution was passed. (See the evidence of P.Ws. 1 and 2). The relevant rules (See schedule I of the Kerala Municipalities Act) and the general law relating to meetings (See Shackleton on The Law and Practice of Meetings, Pages 32 and 114 to 117) emphasise the importance of inclusion of an agenda as a condition precedent for the validity of a resolution or decision touching it. This is for a good and sound reason, recognised as such for ages. Absence of a notice regarding a subject, deprives the members of their valuable right to know about the issue, to learn about it and to ponder about the various possibilities. It renders impossible a meaningful participation in the deliberations; to put forward, forcefully and logically, ones view points, and to attempt effectively and earnestly to persuade and ultimately win over, if possible, others of a different opinion. A proper inclusion of an item of discussion in the agenda is the very basic requirement of a democratic functioning. No democratic institution worth its name, can afford to throw to the winds, these rudiments of democratic modality. 48. It is unimaginable how in respect of such a sensitive issue which vitally affects the rights and feelings of the citizens, a council could act in the manner in which it did in the year of our lord, 1978. That the attention of the members of the council was not specifically invited to such an item, is -ordinarily sufficient to invalidate the decision. The ugly haste with which the Municipal Council had acted has been commented upon by the learned Munsiff who disposed of the interim application; and by the courts below later. The manner in which the Municipal Council functioned might have shocked Lord Brice, who, in the infancy of local self Government movement, said that the essence of the modern democracy lay in local self Government. The manner in which the Municipal Council functioned might have shocked Lord Brice, who, in the infancy of local self Government movement, said that the essence of the modern democracy lay in local self Government. I hope that there would not be a repeat performance of such an unbecoming scene in this Municipality in years to come. 49. Before parting with the case, an important matter which needs a serious consideration by the Governmental authorities may be indicated. It relates to the tampering of records in the Municipality. The tampering was with reference to Ext. B-7; the obvious object was to wriggle out of an admission of the defendant. 50. Ext. B-2 (Marked as such in IA 2046/78) blue print dated 12th October 1978 and the plan signed by the defendant and Shri K.M. Musthafa, Musthafa Baik the licensed building surveyor indicated the distance between the road and the burial pitch as 15.22 metres. However, the very same plan as seen in the Municipal file give the distance as 32.20 metres. There are patent over writings and additional writings in this blue print. A white paint is seen used, with a broad brush. It must be remembered in this connection that while passing the interim order, the learned Munsiff' had particularly relied upon the distance factor as a substantial reason for granting the injunction against the construction of the cemetery. Rule 32 of the Public Health Rules which insisted on a minimum distance of 300 feet between the residential house and burial ground was referred to. The advent of concrete vaults as possible innovations in cemeteries had been noted by the local authorities administration. This resulted in an addition of Rule 5(i) in the Panchayat Burning Ground Rules. 1967. Even there, a minimum distance of 25 meters from any human habitation, had been mandated. The learned Munsiff noted on the basis of the undisputed materials available at that time (the distance could not be successfully disputed even later) that the distance of 78 feet is equivalent to 23.2 metres and consequently the proposed construction was within the prohibited distance. It is thereafter that this crude correction and additional writings were t attempted in the blue print Ext. B-7 marked by P.W. 2 on 13th February 1982. Obviously, someone had tampered with the records between 12th October 1978 and 13th February 1982. Which is the unholy hand that committed the crime? It is thereafter that this crude correction and additional writings were t attempted in the blue print Ext. B-7 marked by P.W. 2 on 13th February 1982. Obviously, someone had tampered with the records between 12th October 1978 and 13th February 1982. Which is the unholy hand that committed the crime? This has necessarily to be investigated. It must be someone connected with the file, and presumably one directly dealing with the issue and the files. Earnest efforts should be made to bring to book those responsible for the heinous acts. The cumulative effect of the various circumstance is to rouse a strong suspicion about the integrity of the officials involved in such matters. If records of a local authority are open to fabrication in this manner, the interests of honest and innocent citizen who cannot ordinarily pry into the privacy of these files, would be in eternal jeopardy. There cannot be any doubt that the corrupt elements responsible for such dastaidly acts should be weeded out from the democratic institutions. 51. This is not the first instance where this Court had noticed it in this Municipality. Achutha Menon v. Trichur Municipality O.P.Nos.5287 and 11011 of 1983 affirmed by a Division Bench in W. A. No. 182 of 1985, pointed out how even forged documents had found their easy access to the municipal offices, and those having been acted upon, resulting ultimately in a monstrous violation of municipal laws. There does not appear to have been any cleansing operation even after the startling revelation connivance of municipal officials with corrupt elements had been noted in yet another decision by this Court (C.R.P. No. 741 of 1987). The facts of the present case amply justify a direction to the Government to have a deeper probe into the matter. Action too is to be taken to demonstrate that the Government seriously views the much felt, and much talked about, necessity of cleansing public life starting from the ground level. A copy of judgment will be forwarded to the Government for such action as it might deem fit to take.