Judgment :- Dr. AR. Lakshmanan, J. Heard Mr. Mathai M. Paikaday, Senior Advocate for petitioner, Mr. K.M. Sathyanatha Menon for first respondent, Mr. Alexander Thomas, Government Pleader for respondents 2 and 3, Mr. Anil George for 4th respondent and A.P. Chandrasekharan for 5th respondent. 2. The petitioner, a registered Association of the inhabitants of Chungathara Grama Panchayat, challenges the conduct of the Panchayat to convert an area of 1.25 acres of land in Survey No. 748/5A within the Panchayat into a burial ground in violation of the rules applicable to burial grounds and in contravention of the statutory directions issued in this behalf by the Health Inspector and the District Medical Officer that the land should not be used as burial ground. The mass petition preferred by the local residents objecting to the burial of two dead bodies in the property was ignored and on both occasions the Panchayat issued a so called permission to bury them in the property. According to the petitioners, the establishment of burial ground in the property will cause serious health hazards to the residents nearby. 3. According to the petitioners, in the year 1972 when the residents of the locality objected the conversion of the said land into a burial ground, they approached the concerned authorities and the District Medical Officer, Manjeri initiated action on the basis of the complaints received from the residents of the above locality. On 29.12.1972, the Health Inspector issued a notice under Ss.36 and 44 of the Public Health Act, 1939 to the Secretary of the Hindu Burial Ground Protection Committee, Chungathara, directing them not to use the above said land as a burial ground on the ground of health hazards to the residents of the locality. A true copy of the said notice has been produced and marked as Ext. P1. Subsequently on 15.1.1973, the District Medical Officer has informed the residents of the locality under Ext. P2 that all necessary actions had been taken to prevent the use of the above said land as a burial ground. Subsequently in 1992 again there was a move on the part of someone to create law and order problem in the locality racking up the issue of burial ground. P2 that all necessary actions had been taken to prevent the use of the above said land as a burial ground. Subsequently in 1992 again there was a move on the part of someone to create law and order problem in the locality racking up the issue of burial ground. Some members of the above said Smasana Committee filed a petition before the Revenue Divisional Officer, Perinthalmanna in M.C. 44/1992 against the 4th respondent- Thomas Philip -and several others and the same was also not properly prosecuted by the 4th respondent at the instance of the above said people. Around 157 residents of the locality signed a mass memorandum and made a representation before the Grama Panchayat highlighting the health hazards as well as the sentiments of the residents of the locality. The representation submitted by the residents of the locality has been produced and marked as Ext. P3. 4. According to the petitioners, the Panchayat by flouting all the statutory and mandatory provisions in the Kerala Panchayat (Burial and Burning Grounds) Rules, 1967, granted permission to bury a dead body as per the order of the Panchayat dated 25.10 1999. Again it was repeated by the Panchayat on 8.11.1999. It is submitted that the above disputed site is neither registered as a public burial ground nor having a licence issued by the authorities to bury dead bodies. Exts. P1 and P2 orders of the District Medical Officer, Manjeri is still in force. Therefore, it is submitted that the Panchayat authorities without adverting to any of the statutory provisions, violated the fundamental rights guaranteed to the petitioners as well as the residents of the locality and that the above act of the Panchayat is highly arbitrary, illegal and is opposed to public policy and public health. The petitioners have also approached the District Medical Officer, Manjeri for taking necessary action and submitted a petition under Ext. P4. They also submitted a petition before the Deputy Superintendent of Police, Perinthalmanna under Ext. P5. The petitioners have also approached the District Collector to take appropriate action against the Panchayat authorities for the alleged illegal actions. Despite of all these hues and cries of the petitioners as well as the residents of the Mailadumpotty Village, the respondents as well as the higher authorities have turned a blind eye towards this kind of illegal activities. 5. The petitioners have also approached the District Collector to take appropriate action against the Panchayat authorities for the alleged illegal actions. Despite of all these hues and cries of the petitioners as well as the residents of the Mailadumpotty Village, the respondents as well as the higher authorities have turned a blind eye towards this kind of illegal activities. 5. Our attention was also drawn to S.129 of the Kerala Panchayat Act, which empowers the Government to make rules to carry out the purposes of the Act. The learned counsel for the petitioners also drew our attention to Rules 3,6,7 and 10 of the Kerala Panchayats (Burial and Burning Grounds) Rules, 1967. It is also submitted that the area in question has not been registered as a burial ground nor any licence has been obtained under the provisions of the Kerala Panchayats (Burial and Burning Grounds) Rules, 1967 and that the act of the Panchayat is in flagrant violation of the above provisions of the Kerala Panchayats (Burial and Burning Grounds) Rules and of the orders of the District Medical Officer directing the Panchayat not to use the above said land as a public burial ground. 6. With the above arguments, the petitioners have filed the above Original Petition for a mandamus commanding the first and second respondent not to permit the burial of dead bodies in the compound under Survey No. 748/5A at Mailadumpotty and for a further mandamus commanding the second respondent to give adequate and necessary protection to the life and property of the members of the petitioners Association who are residing near the compound under Survey No. 748/5A at Mailadumpotty and for a declaration to the effect that compound under Survey No. 748/5A at Mailadumpotty, Chungathara Panchayat cannot be used as a burial ground by anyone in the locality. 7. The Writ Petition was admitted on 21.12.1999 and on 13.1.2000 in C.M.P. 55076/99, this Bench issued a direction, as prayed for by the petitioners, to respondents 1 and 2, viz., the Grama Panchayat and the Deputy Superintendent of Police, to take all necessary steps to prevent burial of dead bodies in the compound under Survey No. 748/5A at Mailadumpotty, pending final disposal of the Original Petition. 8. The first respondent - Grama Panchayat - filed its counter affidavit through its Secretary. 8. The first respondent - Grama Panchayat - filed its counter affidavit through its Secretary. It is the contention of the Panchayat that from the records available with the Panchayat it is seen that from 1970 onwards the property consisting of 1.25 acres in Sy. No. 748/5A at Mailadumpotty is being used as a burial ground for burying dead bodies and that in the suit - O.S.510/1992 - filed by the 4th respondent before the Munsiff's Court, Manjeri, an Advocate Commissioner was appointed and the Advocate Commissioner inspected the property and found certain skulls and bone parts from the property in question while digging the property. In the Original Suit, a document was produced as Ext. BI - gift deed - admittedly executed by the predecessor-in-interest of the 4th respondent and in the gift deed it has been admitted the existence of a burial ground in the disputed property as on 5.5.1979 and there were clear recital in Ext. B1 gift deed that the disputed property was used as a burial ground if used in the year 1979. The Panchayat has also filed a photo copy of the order of the Sub Divisional Magistrate, Perinthalmanna in M.C. 44/1992 dated 9.9.1998 and marked as Ext. Rl(a). It is submitted by the Panchayat that on the basis of Ext. R1 (a), the property in question was handed over to the Panchayat by proceedings dated 2.11.1998 of the Village Officer, Chungathara under Ext. RI(b) and on 2.11.1998, the property was handed over to the Panchayat by the Village Officer and by order dated 22.12.1998, the Revenue Divisional Officer informed the Panchayat to keep in safe custody the property in question. The order dated 22.12.1998 issued by the Sub Divisional Magistrate, Perinthalmanna has been produced and marked as Ext. Rl(c). It is submitted that from Exts. RI(a) to RI(c) documents, it could be seen that the property was handed over legally to the Panchayat and the panchayat is entitled to use the said property as a burial ground as was done earlier. It was also submitted that no fundamental rights of the petitioners were violated and there is no violation of any of the provisions of the Panchayat Raj Act also and none of the grounds raised by the petitioners are tenable or sustainable in the facts and circumstances of the case. 9. It was also submitted that no fundamental rights of the petitioners were violated and there is no violation of any of the provisions of the Panchayat Raj Act also and none of the grounds raised by the petitioners are tenable or sustainable in the facts and circumstances of the case. 9. An additional counter affidavit was also filed by the first respondent- Panchayat. 10. The 4th respondent - Thomas Philip - filed a separate counter affidavit. According to him, he is the owner and in possession of the property in Survey No. 748/5A and that his father had filed an application before the Land Tribunal, Nilambur, which was numbered as O.A. 1598/1972, for obtaining the "Patta" of the above said property situated in Survey No. 748/5A and that the above O.A. was allowed and a Purchase Certificate dated 4.11.1975 was issued to his father. The said Purchase Certificate has been produced and marked as Ext. R4(1) and after the death of his father in the year 1988, he is the owner of the said property and in actual possession and enjoyment of the same and he is residing on the eastern boundary of the said land. It is the case of the 4th respondent that the property in question was never used as a burial ground at any point of time and the property is being used for gazing cattle and for drying coconut, arecanut, etc. and in the year 1981 his father filed a suit for injunction, which was numbered as O.S.140/1981, for restraining the Panchayat from converting the above property into a burial ground and on 17.8.1984, the suit was decreed exparte and subsequently the exparte decree was set aside. The Panchayat filed an appeal before the Appellate Authority, Appeal No. 174/1982, against the order in O.A. 1598/1972, and in the appeal, an order allowing the appeal was passed and remitted the matter to the Tribunal for fresh disposal for the reason that the Panchayat was not a party to the earlier proceedings in which Purchase Certificate was issued to the 4th respondent. The above matter is still pending before the Land Tribunal and the Panchayat is claiming title over the property of the 4th respondent on the basis the gift deed alleged to be executed in favour of the 4th respondent by one Palangara Raman, for which he is having no title or possession. The above matter is still pending before the Land Tribunal and the Panchayat is claiming title over the property of the 4th respondent on the basis the gift deed alleged to be executed in favour of the 4th respondent by one Palangara Raman, for which he is having no title or possession. Eventhough, the dispute regarding the title of property is still pending before a court of law, the Panchayat is now taking hasty steps to convert it into a burial ground. When the Panchayat again tried to trespass into the property in the year 1992, the 4th respondent has filed a suit, which is numbered as O.S. No. 510/1992, before the Munsiff's Court, Manjeri for the permanent prohibitory injunction restraining the panchayat and others from entering into his property. An interim injunction was granted to the 4th respondent. The suit was subsequently dismissed holding that there is no evidence to prove the exclusive possession of the 4th respondent of the plaint schedule properties. In the judgment it is also held that the question whether the plaint schedule property is a burial ground or not is not a matter to be determined in the suit and that the said question was not decided also (Ext. R4(2)). Again the Sub Divisional Magistrate, Perinthalmanna issued an order in M.C. 44/1992 dated 2.11.1998, by which the property of the 4th respondent was entrusted with the Village Officer, Chungathara, who was acting as a Receiver. On 9.9.1998, the Sub Divisional Magistrate has passed an order in M.C.44/1992 releasing the property from the Receivership of the Village Officer. Against this order, the 4th respondent filed a Criminal Revision Petition Crl.R.P. No. 188/1999 - before the District & Sessions Court, Manjeri and it is pending. The 4th respondent has also denied the allegation that he is colluding with the other respondents to convert his property into a burial ground and from 1972 onwards, he and his family were fighting for the above property and for not converting it into a burial ground. 11. The additional 5th respondent has filed their counter affidavit through M/s. Mohankumar & Associates. 11. The additional 5th respondent has filed their counter affidavit through M/s. Mohankumar & Associates. According to the 5th respondent, as per the registered gift deed executed by one Raman, who was the President of the Burial Ground Committee, the 1.25 acres of land situated in R.S. No. 748/5A is gifted in favour of the Panchayat and from 1981 onwards the Panchayat is in possession of the land in question and even thereafter the public are using the above said land as a burial ground. It is submitted that the petitioners have no locus-standi to file this Original Petition and the same has been filed by the petitioners colluding with the 4th respondent that the burial ground situated in R.S. No. 748/5A is there ever since 1940 onwards and as per R.4 of the Kerala Panchayats (Burial & Burning Grounds) Rules, the burial or burning grounds existing at the commencement of these rules shall be deemed to have been registered under these rules. The Rules came into force only in 1967 and hence, R.4 is applicable in this case and, there is no necessity for obtaining a licence. It is submitted that Ext. P1 has no relevance at all in this case and the third respondent has issued Ext. P1 as if the burial ground has been established subsequent to the Kerala Panchayats (Burial & Burning Grounds) Rules, 1967 came into force. As already stated, the burial ground has been established ever since 1940. Along with the counter affidavit the 5th respondent has filed Ext. R5(a), true copy of the judgment in O.S.510/1992 dated 19.11.1996 of the Munsiff's Court, Manjeri and Ext. R5(b), true copy of the order in M.C. 44/92 of the Sub Divisional Magistrate, Perinthalmanna dated 9.9.1998. 12. Mr. Mathai M. Paikeday, learned Senior Counsel, at the time of hearing has challenged the establishment of the burial ground on three grounds: "(i) The establishment of the burial ground is in violation of Exts. P1 and P2 orders issued by the Health Inspector and the District Medical Officer respectively under the Public Health Act, 1939, which is in full force even today. (ii) The establishment of burial ground will cause serious health hazards to the residents in the locality, the area being a thickly populated one. (iii) The burial in the property has been permitted by the Panchayat in contravention of the Kerala Panchayats (Burial & Burning Grounds)Rules,1967. (ii) The establishment of burial ground will cause serious health hazards to the residents in the locality, the area being a thickly populated one. (iii) The burial in the property has been permitted by the Panchayat in contravention of the Kerala Panchayats (Burial & Burning Grounds)Rules,1967. The burial ground in the property is neither registered nor licensed as provided in the aforesaid rules. It is in fact a private property owned by the 4th respondent". 13. Elaborating Ground No. (i), the learned Senior Counsel submitted that because of the agitation by the inhabitants of the locality on the-grounds of public nuisance and health hazards Exts. P1 and P2 were passed by the Health Inspector and the District Medical Officer as early as in 1972 and 1973 respectively. Ext. P1 reads as follows: NOTICE PUBLIC HEALTH ACT, 1939 Under Section 36 and 44 Read with 134 (1) To The Secretary, Hindu Burial Ground Protection Committee, 8th Ward, Morali P.O., Chungathara. It has been brought to my notice that you have committed the following nuisance which are injurious to public health and you are hereby directed to abate the nuisance as noted below within 25 hrs. from the date of receipt of this notice, failing which suitable action will be taken against you under the provisions of the Public Health Act. 1. The compound under Survey No. 748/5 A at Mailadumpotty, Chungathara Panchayat should not be used as a burial ground. 2. There are houses very close to that ground and there are wells in those houses, which are likely to be polluted, it is a nuisance to the public health. 3. There is complaint from the neighbours of that compound within 90 meters of the house no burial ground will be permitted as per Rule. 4. So, fresh suitable site may be selected and licence obtained for burial purposes forthwith. This will abate the nuisance. Sd/ 29.12.72 Health Inspector P.H.C.WAN". Pursuant to Ext. P1, the District Medical Officer, Manjeri issued a communication to one of the petitioners/ objectors intimating him that in furtherance of the petition the Health Inspector, Wandoor has inspected the site and issued appropriate orders prohibiting the use of the disputed property as burial ground and directed the addressee to pass on the above information to the other three petitioners/ objectors also, who have signed the petition. Exts. Exts. P1 and P2 orders were passed in the year 1972 and 1973 respectively. The orders passed under Ss.36, 44 and 134(1) of the Public Health Act remain in force even today. It has been clearly stated in Exts. P1 and P2 that there are houses very close to the property and there are wells in those houses, which are likely to be polluted. There is a clear finding in Exts. P1 and P2 that the use of the property as a burial ground will cause nuisance to public health. 14. The existence of the orders under Exts. P1 and P2 are not disputed by the learned counsel for the Panchayat. It is also not their case that the orders passed by the competent authorities under Exts. P1 and P2 were set aside or declared void by due process of law. S.136 of the Public Health Act, 1939 provides for an appeal against the orders passed by the Health Inspector and District Medical Officer. The orders which could have been challenged in appeal by the Panchayat or any other person were never done by anyone. Therefore, so long as Exts. P1 and P2 orders remain unchallenged and is in force, the Panchayat, in our opinion, cannot permit burial of dead bodies unless Exts. P1 and P2 orders are challenged and validily set aside by a competent authority. 15. It is not in dispute that the orders under Exts. P1 and P2 were passed by the competent authorities to check nuisance to public health. As early as in 1972, these authorities have found that a burial ground in the disputed property will create health hazards to the local inhabitants and have prohibited the use of the property as a burial ground. It is settled law that non-compliance of the provisions of the rules, grounds of public order, morality and health have to be considered while establishing a burial ground and permission has to be rejected if it is found to be opposed to public interest. In the instance case, the Panchayat has issued orders in the year 1999, viz., on 25.10.1999 and 8.11.1999, contrary to the statutory and mandatory provisions in the Kerala Panchayats (Burial & Burning Grounds) Rules and granted permission to bury two dead bodies when the disputed site is neither registered as a public burial ground nor having a licence issued by the authorities to bury dead bodies. 16. The learned counsel for the Panchayat is not in a position to give proper explanation as to why the Panchayat has not taken any action against Exts. P1 and P2 and except making a bald statement that from the records available with the Panchayat it is seen that from 1970 onwards the property in question is used as a burial ground for burying dead bodies. Mr. Satyanatha Menon has also invited our attention to the averments made, in the counter affidavit in regard to the inspection report submitted by the Advocate Commissioner in O.S.510/1992. It is stated that the Commissioner, who was appointed to inspect the property, found certain skulls and bone parts from the property in question while digging the property. He would also further submit that Ext. B1 was admittedly executed by the predecessor-in-interest of the 4th respondent and there were clear recital in the said gift deed that the disputed property in the suit was used as a burial ground for all these years. He would also, in support of his contention, relied on the Exhibits produced and marked as Exts. Rl(a), RI(b) and Rl(c). It is contended that as per Exts. RI(a) to RI(c) the property has been handed over legally to the Panchayat and the Panchayat is entitled to use the said property as a burial ground as was done earlier. 17. Our attention was invited to certain provisions of the Kerala Panchayats (Burial & Burning Grounds) Rules, 1967. R.3 deals with providing burial and burning grounds by Panchayats, which reads as follows: "3. Providing burial and burning grounds by Panchayats.." (1) A Panchayat shall, if no sufficient provision exists, with the previous permission of the Collector, provide at its cost, places to be used as burial or burning grounds and may charge rents and fees for the use thereof. (2) The request of a Panchayat for permission to use a place as a burial or burning grounds under sub-r.(1) shall be made to the Collector through the District Panchayat Officer concerned. (3) The Collector shall, before granting the permission referred to in sub-r.(2) consult the Health Officer and shall have due regard to his views regarding the suitability of the place from the public health point of view. (3) The Collector shall, before granting the permission referred to in sub-r.(2) consult the Health Officer and shall have due regard to his views regarding the suitability of the place from the public health point of view. (4) The Panchayat may farm out the collection of rents and fees charged under sub-r.(1) for any period not exceeding three years at a time and on such terms and conditions as it may think fit." R.4 deals with deeming provision with regard to registration, which says that the burial or burning grounds existing at the commencement of these rules shall be deemed to have been registered under these rules. R.5 says that no new 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. A proviso was added to R.5 to the effect that in the case of concrete vaults the distance will be twenty five meters from any human habitation. S.6 provides that new burial and burning grounds to be opened only with a licence from the Collector. The said rule is re-produced hereunder: "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-r.(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. (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-r.(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. (d) The Collector shall in every case pass an order under sub-r.(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 applicants can proceed to use the site for the purpose of disposal of the dead but 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-r.(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 may consider necessary, pass such orders on the appeal as they think fit." R.7 deals with registration of burial and burning grounds. As per sub-r.(1) of R.7, a book shall be kept at the office of every Panchayat in which places provided, registered or licensed under Rr. 3, 4 and 6 and all such places provided, registered or licensed before the commencement of these Rules, shall be recorded. As per sub-r.(1) of R.7, a book shall be kept at the office of every Panchayat in which places provided, registered or licensed under Rr. 3, 4 and 6 and all such places provided, registered or licensed before the commencement of these Rules, shall be recorded. Sub-clause (2) of R.7 says that a notice in English and in the principal regional language of the Panchayat area to the effect that a place has been registered under sub-r.(1) shall be affixed at some conspicuous place at or near the entrance of the burial or burning ground for which the places is used. Sub-clause (3) provides that the book referred to in sub-clause (1) shall be periodically inspected by the Officer or Officers authorised to inspect and superintend the affairs of the Panchayat under the Act. R.8 prohibits burial or burning in unauthorised places. R.9 speaks about the maintenance of register for recording burials, etc. Sub-r.(1) of R.9 says that a register shall be maintained by the Executive Authority of the Panchayat or the Secretary or any responsible Officer of any Organisation, Association or Institution, in every place for the disposal of the dead in which shall be recorded every burial, burning or other disposal of a corpse in that place. Sub-r.(2) states that the register referred to in sub-r.(1) maintained by the Secretary or any responsible Officer of any Organisation, Association or Institution shall be open for inspection by the Health Officer, the Health Assistants, the Executive Authority and such other persons as may be authorised by the Executive Authority in this behalf. R.10 gives power to Panchayat to close down a burial or burning ground if the Panchayat is satisfied that any place provided for the disposal of the dead is likely to become dangerous to the health of persons living in the neighbourhood thereof. The Collector if on considering the resolution and recommendations of the Health Officer is satisfied that such place should not be used for the disposal of the dead, under sub-clause (3) of R.10 may give public notice that it shall not be lawful after a period to be specified in such notice to bury or burn or otherwise dispose of any corpse at such place. The Collector before giving notice under this sub-rule shall give the person having control over that place a reasonable opportunity to show cause against such notice and consider his objections, if any. 18. In the instant case the Panchayat, though it is required as per R.3 of the Kerala Panchayats (Burial & Burning Grounds) Rules to obtain previous permission of the Collector for using a particular place as burial or burning ground, has not obtained any licence from the District Collector for using the disputed property as a burial ground. To a query put by the Bench in regard to the permission obtained, if any, as per R.3, the learned counsel for the Panchayat submitted that the Panchayat has not obtained any previous permission from the Collector to use the site in question as a burial or burning ground. According to Mr. Sathyanatha Menon, from the records available, the property is being used as a burial ground from 1970 onwards. The Kerala Panchayats (Burial & Burning Grounds) Rules came into existence in 1967 and in that case, we are of the opinion that the Panchayat cannot use the property as a burial ground without prior permission from the District Collector under R.3. However, it was argued on behalf of the Panchayat that burial or burning grounds at the commencement of these rules in 1967 shall be deemed to have registered under these rules. It is submitted that pursuant to Exts. RI(a) to RI(c) the property has been legally handed over to the Panchayat and the Panchayat has been using the same as burial ground. Kerala Panchayats (Burial & Burning Grounds) Rules came into force in 1967. It is stated in the counter affidavit filed by the Panchayat that as per the records available with them, from 1970 onwards the property is being used as a burial ground for burning the dead bodies. In the above circumstances, the Panchayat cannot use the property as a burial ground without prior permission from the District Collector as provided under R.3. 19. Mr. Kodoth Pushparajan, on behalf of the 5th respondent contended that the burial ground on question was in existence even before the commencement of the Burial & Burning Grounds Rules, 1967 and therefore, the property should be deemed to be a burial ground as provided in R.4. 19. Mr. Kodoth Pushparajan, on behalf of the 5th respondent contended that the burial ground on question was in existence even before the commencement of the Burial & Burning Grounds Rules, 1967 and therefore, the property should be deemed to be a burial ground as provided in R.4. This contention has to be rejected, since the same has been made by the supporting party - the Panchayat - quite contrary to the averments made by the Panchayat itself in their counter affidavit stating that the property in question is being used as a burial ground from 1970 onwards. R.7 envisage certain procedures for registration of burial and burning grounds. The contention of the learned counsel for the 5th respondent cannot be accepted as correct because the mandatory provision envisaged in R.7 of the Burial & Burning Grounds Rules has not been complied with at all by the Panchayat for the purpose of deeming the property as a burial ground as per R.4. As per R.7, a book shall be kept at the office of every Panchayat in which places provided, registered or licensed under Rr. 3,4 and 6 and all such places provided, registered or licensed before the commencement of these rules, shall be recorded and that the book referred to in sub-r.(1) shall be periodically inspected by the Officer or Officers authorised to inspect in this behalf. It is not the case of the Panchayat that a book as contemplated under R.7 has been maintained at all and any periodical inspection of such book has ever been made under the provisions of the Rules. It is also fairly conceded by Mr. Sathyanatha Menon, learned counsel for the Panchayat that a register as provided in R.9 for the disposal of the dead in which shall be recorded every burial, burning or other disposal of a corpse in the place in question has not been maintained. 20. It was argued by the counsel for respondents 4 and 5 that civil disputes with regard to the property are pending and, therefore, this Court cannot express its opinion on the civil dispute or decide the question invoking its jurisdiction under Art.226 of the Constitution of India. 20. It was argued by the counsel for respondents 4 and 5 that civil disputes with regard to the property are pending and, therefore, this Court cannot express its opinion on the civil dispute or decide the question invoking its jurisdiction under Art.226 of the Constitution of India. As regards the civil dispute with regard to the property, we are of the opinion that the said disputes have nothing to do with the present question as to whether the property is a burial ground or not. The civil dispute was in relation to the possession of the property. The question whether the property was used as a burial ground was never in issue as the suit was for an injunction. Even if the property is under private ownership, in order to treat it or to convert it as a burial ground, rules provided under the Burial & Burning Grounds Rules, 1967 has to be complied with, which is not done in this case. It is the specific case of the Panchayat that the property which was gifted to it by someone is being used as a burial and burning ground from 1970 onwards. The Rules came into force in 1967. Therefore the Panchayat is duty bound to approach the Collector, who is the only competent authority for granting permission in regard to the burial and burning grounds. R.3 provides that the Panchayat with the previous permission of the Collector, provide at its cost, places to be used as burial or burning grounds and may charge rents and fees for the use thereof and that such request of the Panchayat for such permission shall be made to the Collector through the District Panchayat Officer concerned. The Collector shall, before granting permission, consult the Health Officer and shall have due regard to his views regarding the suitability of the place from the public health point of view. 21. We have already referred to the scope and ambit of Rr. 4,5,6, 7, 8, 9 and 10. In the instant case, the Panchayat has failed to approach the competent authority for permission to have the burial and burning ground in the place in question. The action of the Panchayat in permitting burial in the disputed property is legally impermissible in law. 4,5,6, 7, 8, 9 and 10. In the instant case, the Panchayat has failed to approach the competent authority for permission to have the burial and burning ground in the place in question. The action of the Panchayat in permitting burial in the disputed property is legally impermissible in law. Though it is argued that the issue is politically motivated and the Panchayat is playing in tune with the whims and fancies of certain politicians and other persons in the locality who are trying to disrupt public order by forcefully converting the disputed property into a burial ground, we do not propose to deal with the said contention. It is also submitted that there is a public burial ground in the very same locality exclusively for Hindus, including Harijans and, therefore, there is no necessity for the present controversy by the Hindu Smashana Samithi. As far as the Christian and Muslim communities are concerned, they have got burial grounds on their own attached to their religious places.. 22. S.44 of the Madras Public Health Act, 1939 says that if the Health Officer is satisfied, whether upon information given under S.43 or otherwise, of the existence of a nuisance, he may, by notice, require the person by whose act, default or sufferance the nuisance arises or continues, or, if that person cannot be found, the owner or occupier of the premises on which the nuisance arises or continues, to abate the nuisance and to execute such works and take such steps as may be necessary for that purpose. Proviso (a) to S.44 states that where the nuisance arises from any defect of a structural character, the notice shall be served on the owner of the premises; and (b) where the person causing the nuisance cannot be found and it is clear that the nuisance does not arise or continue by the act, default or sufferance of the owner or the occupier of the premises, the Health Officer may himself forthwith do what he considers necessary to abate the nuisance and to prevent a recurrence thereof. We, therefore, direct the Panchayat to immediately approach the District Collector under the provisions of the Kerala Panchayats (Burial & Burning Grounds;) Rules, 1967 for permission. The Panchayat shall submit its written representation to the District Collector seeking permission under the provisions of the Rules with supporting documents. We, therefore, direct the Panchayat to immediately approach the District Collector under the provisions of the Kerala Panchayats (Burial & Burning Grounds;) Rules, 1967 for permission. The Panchayat shall submit its written representation to the District Collector seeking permission under the provisions of the Rules with supporting documents. The District Collector may decide the question after giving notice to all parties concerned and also to the parties to the Writ Petition and hear their objections and decide the matter in accordance with law within two months from the date of receipt of a copy of this judgment. Till such time, the first respondent - Grama Panchayat - is restrained from permitting the burial of dead bodies in the compound under Survey No. 748/5 A at Mailadumpotty and permit the burial of dead bodies only in other alternate places. The District Collector may decide the issue without being influenced by any of the findings rendered by this Court while disposing of this Writ Petition. The Original Petition is allowed. However, there will be no order as to costs. We have today directed the respondent No.1- Panchayat in the Original Petition to approach the District Collector, Malappuram to seek permission under the provisions of the Kerala Panchayats (Burial & Burning Grounds) Rules, 1967 and further directed the District Collector to decide the question after giving notice to all parties concerned. Since the Collector was not impleaded as a party respondent, we suo moto implead the District Collector, Malappuram as additional respondent No. 6 in the main priginal Petition. The Registry is directed to forward a copy of this judgment to the District Collector, Malappuram.

Mailadumpotty Janakiya Samrakshana Samithi v. Chungathara Grama Panchayat