Pradeep v. Kandanassery Panchayat — 1996 DIGILAW 314 (KER)

Judgment :- S. Sankarasubban, J. The petitioners are the residents of the Kandanassery Village, Talappilly Taluk, Thrissur. The fourth petitioner is the Secretary of Sanlhinikethan Mahilasamajam, Kandanassery, which is running a nursery school in the locality. The fourth respondent. District Collector, Thrissur issued a notification-dated 14.12.1984 about the proposal to have a burial ground in Sy. No. 926 of Kandanasserry Village. This notification was issued pursuant to an application filed by the sixth respondent. According to the petitioners, the proposed burial ground was objectionable to the residents of the locality. The nursery school run by the fourth petitioner was very near to the site. Besides they also contended that there is a Vishnu Temple. Ext. P1 is the copy of the objections filed by the petitioners. The District Collector enquired into the objections. The petitioners did not hear anything about the orders passed by the District Collector. 2. After a long gap of 10 years another notification appeared on 5.5.1993 with regard to the same burial ground. The petitioners thereafter filed Exts. P2 and P3 objections. The petitioners were served with a notice from the District Collector about the inspection of the proposed site by the Additional District Magistrate on 6.3.1995. Ext. P4 is the copy of the notice. According to the petitioners, even though the Additional District Magistrate visited the property on that day they were not allowed to speak to him about their objections. Recently, the petitioners were surprised when the 6th respondent started construction for the burial ground at the proposed site. On enquiries, the petitioners understood that on 3.1.1996, an order was passed granting temporary licence to the 6th respondent. They were not served with the copy of order. Subsequently, they applied for and got a copy of the proceedings dated. 3,1.1996, which is produced as Ext. P5. The petitioners challenged in this Original Petition Ext. P5. According to them, Ext. P5 is vitiated on the following grounds. The District Collector has earlier closed the proceedings and the re-opening of the same by Ext. P5 order has caused great hardship to them. The Collector has not refered to the previous enquiries conducted pursuant to the earlier notification. The proposed burial ground violates R.5 of the Kerala Panchayat (Burial and Burning Ground) Rules. The nursery school conducted by the Santhinikcthan Mahilasamajam and its drinking water well are hardly 15 meters away from the proposed burial ground. The Collector has not refered to the previous enquiries conducted pursuant to the earlier notification. The proposed burial ground violates R.5 of the Kerala Panchayat (Burial and Burning Ground) Rules. The nursery school conducted by the Santhinikcthan Mahilasamajam and its drinking water well are hardly 15 meters away from the proposed burial ground. The report of the Tahsildar relied on in Ext. P5 order that the drinking water well is at a distance of 25.1 meters is factually incorrect. The enquiry made by the Tahsildar was without notice to the petitioners. The District Collector has not applied his mind and has not adverted to any of the objections raised by the petitioners. A proper inspection and enquiry would have revealed the seriousness of the issue and the real hardship faced by the residents of the locality. The authorities conveniently closed their eyes to the practical difficulty of conducting a nursery school at close proximity to a burial ground and the plight of the local residents to put up with a burial ground near their place of worship. It is further contended that the resolution of the Panchayat should not have been relied on in Ext. P5. Hence, the petitioners have approached this court praying to quash Ext. P5 and for other incidental reliefs. 3. A counter affidavit has been filed on behalf of the second respondent. In the, counter affidavit, it is submitted that the petitioner have alternative remedy under R.6(9) of the Kerala Panchayats (Burial and Burning Grounds) Rules, 1967. The Committee of the Church received a copy of Ext. P5 order on 18.1.1996 and on 29.1.1996 they decided to start work. Quotations were invited and the work started as early as on 11.3.1996. All the petitioners, who are neighbours were aware that the work was progressing in these days. It is submitted that neither the Mahila Samajam nor the nursery was in existence when the 6th respondent applied in 1983. The measurement regarding the distance was taken in the presence of the objectors including some of the petitioners. Ext. P5 was issued alter considering all the matters. Being a concrete vault type construction it will not in any way pollute the earth. The District Medical Officer has also considered the matter. The belated attempt of the petitioners is only to harass the 6th respondent. On behalf of the fourth respondent, a statement has been filed by the Tahsildar. Ext. P5 was issued alter considering all the matters. Being a concrete vault type construction it will not in any way pollute the earth. The District Medical Officer has also considered the matter. The belated attempt of the petitioners is only to harass the 6th respondent. On behalf of the fourth respondent, a statement has been filed by the Tahsildar. The files concerned also were produced before me and from the statement and the files the following facts are revealed. 4. The 6th respondent filed an application on 8.2.1983 for the licence to construct burial ground. This application was submitted to the first respondent- Panchayat. The first respondent -Panchayat has passed a resolution on 9.2.198 3 and forwarded the same to the District Medical Officer, Thrissur by letter dated 13.5.1983. The District Medical Officer forwarded the proposal recommending the same. On the basis of the instruction of the District Collector, the Tahsildar made enquiries. He furnished report dated 16.11.1983 suggesting that the site be inspected by the Deputy Collector as wet land converted to paramba without sanction. In the said report, it was slated that there was no drinking water well within the radius of 50 meters. In the meanwhile, complaints were received and they were also ordered to be enquired. On 30.3.1984, the third respondent reported that consent for conversion has been obtained. Subsequently, on 4.1.1985, a notification was published as envisaged under the Rules inviting objections for the proposed burial ground. Pursuant to this, objections were received and they were forwarded to the 41h respondent by letter dt. 28.1.1985. In the meanwhile, a mass petition dated 17.1.1985 was filed before the Government which was forwarded to the third respondent. The third respondent filed a report on 14.6.1985. In that report, he noted that a nursery school was situated within 13 metres. He had reported that there was no temple and there was no house within the distance of 50 metres. Further, he recommended that the nursery school should be shifted. Subsequently, the Deputy Collector inspected the site on 11.11.1985 and he found that the well and the nursery school were within the objectionable area. Therefore, he directed the Tahsildar to find out whether the open place behind the Church could be used for the purpose of burial ground and to ascertain from the 6th respondent whether they were prepared to construct a vault type cemetery. Therefore, he directed the Tahsildar to find out whether the open place behind the Church could be used for the purpose of burial ground and to ascertain from the 6th respondent whether they were prepared to construct a vault type cemetery. The Tahsildar again visited he property on 14.10.1987 and he reported that the well was within 11.40 metres, but he did not consider the question regarding the vault type cemetery. On 30.6.1986, the 6th respondent filed an application wherein it was stated that the 6th respondent was prepared to construct cell-type cemetery for which an application was made earlier. On 11.6.1988, the 6th respondent informed the District Collector that the area for the proposed cemetery is 21.15 metre square in Sy.No. 926. The Tahsildar was requested by letter dt.19.7.1989 to find out whelher it will be possible to find out a location which will be unobjectionable for the purpose of constructing a burial ground. On 29.12.1989, the Tahsildar filed a report stating that since there are wells within 15 metres of the compound he could not find any unobjectionable site. He was again requested to find out whether there will be objection within 25 metres. Thereafter, he visited the site again and filed a report on 7.12.1990. In that report, he has stated that there is a well near the western boundary of the land in Sy. No. 926, where the cemetery is proposed to be established. Hence, it is necessary to note the exact location of the proposed cemetery in the above survey number. Thereafter, on 12.12.1990, he sent another report in which it is stated as follows: "It is stated in the reference I st cited that a Cell type Cemetery should be only at a distance of 25 metre from any objectionable elements. Hence, the above type of Cemetery can be located in Sy.No. 926 of Kandanassery village as required". Along with the report apian was also given. In the plan, the location of the proposed cemetery is marked as W. But no details are given as to what is the distance of the proposed site from the boundaries of the property. Thereafter, it is seen that the Medical Officer is consulted and he recommends the proposed burial ground with certain conditions. Subsequently, on the recommendations of the District Collector, a fresh notification is made on 5.5.1993 calling for objections. The petitioners and others filed objections. Thereafter, it is seen that the Medical Officer is consulted and he recommends the proposed burial ground with certain conditions. Subsequently, on the recommendations of the District Collector, a fresh notification is made on 5.5.1993 calling for objections. The petitioners and others filed objections. The Additional District Magistrate informs that he will make site inspection on 15.12.1994, but he could not make the inspection as the site was not demarcated. Subsequently, it is seen that he inspected the site on 6.3.1995 and on the basis of the inspection and other records, the Collector passed Ext. P5. 5. From the facts narrated above, the following picture emerges. (1) Initially a notification was published on 4.1.1995. On the objections it was found that the licence cannot be granted as it will be violating rules. Subsequently, the 6th respondent is asked whether he is prepared to construct a vault type cemetery. The 6th respondent agrees for this, but says that it should be in the same site. Thereafter, a fresh notification is issued on 5.5.1993. The objections were again called for. The A.D.M. visits the property on 6.3.1995 and recommends to grant licence. I find that the notifications published on 4.1.1985 and 5.5.1993 are similar in nature except that in the second notification, the construction of the vault type cemetery is mentioned. It is important to point out items 7,10 and 11 in both the notifications. Against item 7, it is stated "to open a burial ground for the Kandanissery-Ariyannur Roman Catholics only". Against item 10, it is stated "No. distance of 55 metres only". Then against item 11, it is stated "55 metres". It show that the second notification was issued without taking into account the distance mentioned for vault type cemetery. Against items 10 and 11, the distance ought to have been mentioned as 25 metres since it has actually come in the report that the well and the school are existing within 30 metres. It is pertinent to note that the boundaries mentioned in both the notifications are same, namely, east, north and south, balance of the property west-Pulicotil Perinchu Louis Property. Thus, both the notifications contained the same descriptions. 6. Before going into the contentions raised by the petitioner, I shall first deal with the preliminary objection raised by the 6th respondent. It is pertinent to note that the boundaries mentioned in both the notifications are same, namely, east, north and south, balance of the property west-Pulicotil Perinchu Louis Property. Thus, both the notifications contained the same descriptions. 6. Before going into the contentions raised by the petitioner, I shall first deal with the preliminary objection raised by the 6th respondent. The 6th respondent contended that under R.6 clause (9) the petitioner has got an opportunity to file an appeal before the Government, since he has not exhausted the alternative remedy the petition is not maintainable. Learned counsel for the petitioner contended that it is a case where the principles of natural justice have been violated. The petitioners were kept in a dark as to the fate of the previous notification and further the enquiry was conducted without giving them a opportunity to present their case. Learned counsel further contended that they were not served with a copy of the order. They came to know about the order only when the 6tli respondent began to start the constructions. Hence, according to learned counsel for the petitioners, they approached this court directly. It is true that this court can refuse to exercise its power under ait. 226 of the Constitution of India if there is alternative remedy. But, there is no rule. With regard to certiorari, that it will lie only where there is no other equally effective remedy. The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as the whether it should, in exercise of its direction, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate 10 it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies. But, this is a rule of policy, convenience and discretion rather than a rule of law. The superior court will readily issue a certiorari in a case where there lias been a denial of natural justice before a court of summary jurisdiction. But, this is a rule of policy, convenience and discretion rather than a rule of law. The superior court will readily issue a certiorari in a case where there lias been a denial of natural justice before a court of summary jurisdiction. There may conceivably be cases where the error, irregularity or illegality touching jurisdiction or procedure committed by an interior court or tribunal of first instance is so patent and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an i inferior court or tribunal of first instance acts wholly without jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of Mr play the superior Court may, quite properly exercise its power to issue the prerogative writ of certiorari. See in this connection U.P. State v. Mohammed Nooh (AIR 1958 SC 86). To the same effect is the decision of this Court reported in-A/wi/iani v. Returning Officer (1993 (1) KLT 548). In view of the above, the preliminary objection raised is rejected. Learned Counsel for the petitioner raised the following contentions: (1) When the Collector found that the original proposal could not be granted he ought to have rejected the application. (2) When it was found that a new application is necessary it ought to have been forwarded through the Panchayat. (3) The second publication has not correctly described the location of the property. (4) There has been a violation of the principles of natural justice in the procedure adopted by the Collector; and (5) Ext. P5 order docs not deal with the other requirements in R.6(7)(b). I shall consider the contentions one by one. 7. Regarding the first contention, learned counsel for the petitioner submitted that the original application submitted by the first respondent could not be allowed since the distance rule was violated and hence the Collector should have dismissed the application without proceeding further whether the application can be granted after curing certain defects. I am afraid that this contention of the learned counsel of the petitioner cannot be accepted. R.6(7) of the rules contains three parts. I am afraid that this contention of the learned counsel of the petitioner cannot be accepted. R.6(7) of the rules contains three parts. It shows that the Collector can after enquiry either grant the licence or to refuse to grant the licence on certain circumstances or postpone the grant of the licence until objections to the site have been removed or any particulars called for him have been furnished. Thus, the Collector can postpone the decision to find out whether application can be granted after removing the objections. Hence, it is not necessary for the Collector to reject an application. In a given case, if the objectors may allow the obstructions to be removed and pave the way for the construction of the cemetery. Hence, I am of the view that the learned counsel is not correct in his submission. The next submission is that the Collector was wrong in allowing the 6th respondent to covert his application to one for vault type without following the procedure. According to him, the fresh proposal suggested by him is a completely different one. It was a new location and hence the fresh proposal ought to have been processed through the procedures laid down under R.6. Here, the procedure followed is that a fresh notification was issued. That is not enough. As per R.6, the proposal has to be routed through the Panchayat. The Panchayat has to give its recommendation and the same has to pass through the D.M.O. and it is only after that the notification can he issued. In this particular case, the D.M.O. recommended. But the recommendation of the Panchayat is essential because the Panchayat knows about the local conditions and whether any law and order problem or any problem regarding the public order is likely to arise. It is well known that when a procedure is prescribed under the Act or rules, mat procedure has been followed and if a thing is done in a particular way, it has to be in that way. It cannot be said that the recommendation of the Panchayat is not mandatory. Rules are intended to see mat burial ground is located without evading the distance rule and also to see that it does not create any problem regarding public order, morality or health. Hence, the non-consultation with the Panchayat is fatal and the impugned order is liable to be quashed. 8. Rules are intended to see mat burial ground is located without evading the distance rule and also to see that it does not create any problem regarding public order, morality or health. Hence, the non-consultation with the Panchayat is fatal and the impugned order is liable to be quashed. 8. The next ground submitted is that the location has not been properly described in the second notification. As I have already stated, the location is the same in both the notifications. There is absolutely no difference between the first and second notifications. Further, I find that in the plan prepared by the Tahsildar no data is given to identify the location except marking the-location. No other details are given as to how the location is to be identified. The notification is published for a purpose. Here, that purpose is lost by not giving the description of the property clearly. The next ground is violation of the principles of natural justice. According to the petitioners, after a second notification was published, they filed their objections. Even though it was stated that the site will be inspected on 15.12.1994, there was no inspection on that day. It seems that the ADM inspected the site on 6.3.1995. It is not clear that any measurement was made on that day. The petitioners have averred clearly that the Collector did not enquire to their complaints. This is not denied either in the counter affidavit of the 6th respondent or in the statement filed by the fourth respondent. Further, it is seen that the Tahsildar did not measure the property after the objections were received from the petitioners. In the report dated. 29.10.1994, what is stated is that it is seen that the nursery school and the well are 26.1 meter and 25.1 meter away. The next is the inspection made by the Additional District Magistrate to which also the petitioners have complaint. R.6(7) directs the Collector to consider the objections, if any, received and alter causing such enquiries, as may be necessary, pass orders. The enquiry should not be an empty formality. It is a matter in which many people are affected and their objections have to be considered. Learned counsel for the 6th respondent as well as the Government Pleader submitted that since the rule only says to consider the objections, it is not necessary to give a personal hearing. 9. The enquiry should not be an empty formality. It is a matter in which many people are affected and their objections have to be considered. Learned counsel for the 6th respondent as well as the Government Pleader submitted that since the rule only says to consider the objections, it is not necessary to give a personal hearing. 9. In this context, I would like to rely on the following observations of Lord Bridge in Lyod v. Me. Mchon (1987 (AC) 625): "It is well established that when a statute has conferred on anybody the power to make decision affecting individuals, the court will not only require the procedure prescribed under the statute to be followed but readily apply so much and no more to be introduced by way of additional safeguards as well as ensure the attainment of fairness". In Wade on Administrative law (7 th Edn.) it is stated as follows in page 526: "Thus, the objectors at public enquiries should be given a fair opportunity to be given to meet adverse evidence enquiry must not be unfairly renewed". Lord Reid said in Wiseman v. Bornernan (1971) A.C. 297: "For a long time courts have without objection from Parliament, supplemented procedure laid down in legislation where they have found it necessity for the purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation...". 10. The procedure has been laid down in order to sec that starting of new burial or burning ground is not against public interest. The distance rule mentioned in R.5 is one of the guidelines prescribed to prevent any adverse effect. Similarly, public order, morality and health are the essential aspects to he looked into. When objections are specific, they have to be enquired into. If the enquiry is done without informing the objectors, the enquiry loses all its significance. The rule itself gives a discretion to the Collector to make such enquiries as he deems fit. No statutory procedure is likely to cover every possibility of unfairness. Gaps may therefore he filled by resorting to the justice of the common law. One of the important restrictions is the distance rule. When specific objections are raised that residential building, well, schools etc. No statutory procedure is likely to cover every possibility of unfairness. Gaps may therefore he filled by resorting to the justice of the common law. One of the important restrictions is the distance rule. When specific objections are raised that residential building, well, schools etc. come within the prohibited distance, it is necessary to consider the objections seriously. The Collector should not rest on the measurements made before the publication of the notification. The measurement should be taken again after giving notice to the objectors who have raised their objections specifically. Similarly, such objectors should be heard personally so as to see that no problem with regard to public order or morality arises. 11. In this case, the distance noted is 25.1 metres and 26.1 metres with regard to the well and nursery school. Hence, measurement ought to have been taken after notice to the objectors to allay their fears. Moreover, in Ext. P5, the Collector has not referred to the aspects of public order, morality and health. See Narayanan Tharnpi v. District Collector (1988 (2) KLT 48). The licence should not be granted on the mere ground that R.5 is not violatived. The Col lector has to assess the effect of public order, morality and health. Such an assessment is not made in Ext. P5 order. Hence, I quash Ext. P5. The sixth respondent will be at liberty to file a fresh application for the construction of a burial ground in accordance with the Rules. Original Petition is allowed.