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2014 DIGILAW 1058 (KER)

Sree Venketeswara Seva Sangham v. Antony

2014-12-17

A.M.SHAFFIQUE, ASHOK BHUSHAN

body2014
JUDGMENT Ashok Bhushan, Ag. C.J. 1. These two writ appeals arise out of a judgment and order of Learned Single Judge dated 10.12.2008 in W.P.(C) No.31463 of 2007 and W.P.(C) No.32933 of 2007. The appellants were respondents in the writ petition, whereas the writ petition was filed by private respondents. Parties shall be referred to as described in the writ petition. W.P.(C) No.31463/07 is being treated as leading writ petition and it is suffice to refer the pleadings of said writ petition for deciding both these appeals. Brief facts of the case which need to be noted are: 7th respondent, the Cochin Thirumala Devaswom Committee, is the owner of a property in Survey No.219/2 of Poonithura Village in Kanayannur Taluk measuring about 40 cents. 6th respondent, Sree Venketeswara Seva Sangham, has been running a burial ground in that property. The case of respondents has been that the said burial ground is in existence for more than 100 years and in the settlement register of Poonithura Village of the year 1081 (Malayalam Era), a 40 cent area in survey No.219/2 is indicated as "Chudukadu Parambu"(cremation ground). On a complaint submitted by certain local residents, Kochi Corporation issued a stop memo dated 19.07.2003. 2. 6th respondent, Sree Venketeswara Seva Sangham, earlier filed W.P.(C) No.29269 of 2003 challenging the communication issued by the Cochin Corporation. The writ petition was disposed of giving liberty to 6th respondent to file an appeal before the Corporation of Kochi. This Court vide its judgment and order dated 02.04.2004 directed the Cochin Corporation to pass orders within three months after receiving the copy of the order and after notice to the petitioner and respondents 5 and 6 to that writ petition. Subsequent to the above order of the Court, a notice is claimed to have been issued on 16.06.2004 by the Corporation. 7th respondent had made an application dated 13.01.2004 to the Corporation seeking permission for erecting cremation chimney. On 24.01.2007 the Kerala State Pollution Control Board has granted its consent to establish the chimney having 30 meters height for the old crematorium. The Assistant Divisional Officer (Fire and Rescue) services, Ernakulam also issued NOC dated 17.02.2007 after surveying the spot. The Corporation of Kochi issued a building permit dated 17.02.2007 permitting the 7th respondent to construct a cremation chimney with 30 meters height. The Assistant Divisional Officer (Fire and Rescue) services, Ernakulam also issued NOC dated 17.02.2007 after surveying the spot. The Corporation of Kochi issued a building permit dated 17.02.2007 permitting the 7th respondent to construct a cremation chimney with 30 meters height. Petitioners filed the writ petition challenging the building permit, consent by the Pollution Control Board as well as NOC given by the Assistant Divisional Officer(Fire and Rescue) Services by filing W.P.(C) No.31463 of 2007. In the writ petition petitioners prayed for the following reliefs: "i) call for all records relating to this case and peruse the same. ii) issue a writ in the nature of certiorari or such other appropriate writ order or directions quashing Ext.P4, P5 and P5 (a). iii) Issue a writ in the nature of certiorari or such other appropriate writ order or directions quashing the entire proceedings taken by the 1st respondent for issue of any licence to respondents 6 and 7 for establishment and maintenance of burial ground/crematorium in the property bearing survey No.219/2 of the Poonithura Village in Kanayannoor Taluk which belongs to 7th respondent either by themselves or to anybody after calling for the same. iv) Issue a writ in the nature of mandamus or such other appropriate writ order or direction commanding respondents 1 to 3 to recall Ext.P4, P5 and P5(a) and to re-consider the issue after conducting proper enquiry with notice to the affected parties and as directed in Ext.P3 judgment. v) Issue a writ in the nature of mandamus or such other appropriate writ order or direction commanding the respondents not to issue any licence to respondents 6 to 7 or to anybodyelse for establishment and maintaining of any burial ground, burning ground/crematorium in the property in survey No.219/2 belonging to the 6th and 7th respondent." 3. Counter affidavits were filed in the writ petition by both 6th and 7th respondents. The 7th respondent claimed to be the owner of 40 cents of property in Survey No.219/2. It was pleaded by 7th respondent that the crematorium is in existence for the last more than 100 years much before the petitioners started residing at Thammanam. It was pleaded that the crematorium was in existence from time immemorial. The settlement register of Poonithura Village of Kanayannur Taluk, published as early as in 1083 M.E., shows that the land is used as crematorium since even then. It was pleaded that the crematorium was in existence from time immemorial. The settlement register of Poonithura Village of Kanayannur Taluk, published as early as in 1083 M.E., shows that the land is used as crematorium since even then. The relevant pages of settlement register dated 20th Chingam 1081 M.E. was produced as Ext.R7 (a). The 6th respondent Samithy was formed to maintain and look after the crematorium. 6th respondent was permitted to construct a boundary wall vide memo dated 30.09.1969. 4. The 6th respondent has also filed its counter affidavit pleading that the crematorium is being used for the last for more than 100 years. A document showing deposit of fee for Sree Venketeswara Seva Sangham as early as on 04.08.1970 in the Corporation of Kochi was annexed as Ext.R6(a). It was pleaded that the case of the petitioners that the cremation was started only in the year 2003 was false. News paper report dated 16.04.1974 showing cremation in the property as well as another newspaper report dated 12.05.2003 of 'Mathrubhoomi' daily were annexed. 5. The learned Single Judge, after hearing the parties, by impugned judgment dated 10.12.2008, allowed the writ petition quashing Ext.P4 building permit and directed the Corporation to reconsider the application dated 13.01.2004 in the light of the statutory provisions. No opinion was expressed by the learned Single Judge about the consent issued by Pollution Control Board and No Objection Certificate issued by Assistant Divisional Officer, Fire and Rescue Services. 6. Learned Single Judge while allowing the writ petition held that the crematorium having not been registered under the Municipal Corporations Act, 1961 and Kerala Municipality Act 1994 cannot be treated to be legally and validly running, hence it cannot claim to have a deemed registration. Mere factual existence of cremation ground does not entitle the respondent to use it as a cremation ground unless the cremation ground was functioning in compliance with the statutory requirement i.e. registered under 1961 Act or have an entry in the register maintained under the Kerala Municipality Act 1994. Mere factual existence of cremation ground does not entitle the respondent to use it as a cremation ground unless the cremation ground was functioning in compliance with the statutory requirement i.e. registered under 1961 Act or have an entry in the register maintained under the Kerala Municipality Act 1994. Learned Single Judge held that even if it is accepted that the cremation ground in question was in existence when the Municipal Corporations Act, 1961 came into force, learned Single Judge is not prepared to accept the plea of the respondent that respondents 6 and 7 were entitled for deemed registration under 1967 Rules, since they have no case that at the time when the cremation ground was functioning, it was in compliance with the statutory requirements then in force. It was further held that only if it was functioning in compliance with the provisions of Municipal Corporations Act, 1961, then only the cremation ground can find place in the register maintained by the Corporation under Section 340 of the Municipal Corporation Act, 1961. 7. Sri.P. Vinod Kumar, learned counsel appearing for the appellants, challenging the judgment of learned Single Judge, raised the following submissions in support of the appeals. 8. He submits that the cremation ground was in existence and functioning for more than 100 years, which is clearly proved by the entry in settlement register of Village in question of the year 1081 M.E. as 'Chudukadu Parambu' i.e. cremation ground. Hence there were no requirement of its registration under the Kerala Panchayats Act 1960, the Kerala Municipal Corporations Act 1961 or the Kerala Municipality Act, 1994. He submits that the plot in question was included in Vyttila Panchayat until it became part of the Cochin Corporation. As per the Kerala Panchayats Act 1960, rules were framed by the State Government namely, Kerala Panchayats (Burial and Burning Grounds) Rules 1967", in which Rule 4(1) provides that the burial or burning grounds, existing at the commencement of the rules, shall be deemed to have been registered under these rules. He submits that the view of the learned Single Judge that since it was not registered under the Kerala Panchayats Act 1960 and the Kerala Municipal Corporations Act 1961, the benefit of 'deemed registration' shall not accrue to the cremation ground is erroneous. He submits that the view of the learned Single Judge that since it was not registered under the Kerala Panchayats Act 1960 and the Kerala Municipal Corporations Act 1961, the benefit of 'deemed registration' shall not accrue to the cremation ground is erroneous. He submits that the learned Single Judge committed error in taking the view that only those cremation grounds shall be deemed to have been registered which have registration in accordance with the law then in existence. He submits that the learned Single Judge has taken a contrary view to an earlier judgment of a learned Single Judge reported in Komalavally Amma v. President, Kerala Bhrahmana Sabha, 1987 (2) KLT SN 50 Case No. 72. He further submits that the Division Bench judgment relied on by learned Single Judge, in W.A. Nos.15 and 137 of 1974 where the Division Bench has held that the factual existence of the burial ground before promulgation of the Kerala Rules shall not suffice to receive protection under Rule 4(1), is incorrect. He further submits that the Division Bench in the said case has considered the case of Malabar Area which had different enactment to govern whereas the present case was part of Cochin area. The learned Counsel for the appellant submits that the case of the petitioner that for the first time in the year 2003, an attempt was made to bury the dead body in the area have been disproved by materials on record. Petitioners had no case to stop the functioning of the cremation ground. It is submitted that the building permit granted permission only to erect a chimney in the existing crematorium which itself accept the existence of the cremation ground and same was not to be registered as a new cremation ground. It is submitted that the petitioners who have come to live, in the nearby area subsequent to the existence of cremation ground, cannot object the running of the cremation ground and the provisions of Kerala Municipality Act, 1994 are not attracted nor the petitioners are obliged to obtain any licence under the 1994 Act nor the provisions of 1994 Act are attracted with regard to the running of an existing crematorium. 9. Sri.K.K. Chandran Pillai, learned Senior Counsel appearing for respondents/writ petitioners supported the judgment of the learned Single Judge. 9. Sri.K.K. Chandran Pillai, learned Senior Counsel appearing for respondents/writ petitioners supported the judgment of the learned Single Judge. It is submitted that there being no registration of the crematorium under any statute prior to enforcement of 1967 Rules, the benefit of deemed registration was not available to the appellants. He submits that mere factual existence of burial ground does not suffice unless it is proved that there has been lawful existence of the burial ground. Reliance has been placed on the Division Bench judgment in W.A. Nos.15 and 137 of 1974 (P.P.Abubacker v. Kuttiyil Nanu). He submits that the learned Single Judge has correctly followed the above Division Bench judgment. He submits that there are material on record, including the Advocate Commissioner's report, indicating that both on eastern and western side there are residential houses of petitioners and across the road there is a LPG godown. According to him, the 6th and 7th respondents cannot be allowed to use the property as burial ground without obtaining licence under the 1994 Act. He submits that the learned Single Judge has permitted the 6th and 7th respondents to make an application afresh for building permit, hence there is no prejudice to 6th and 7th respondents. It is submitted that in pursuance of earlier order of this Court dated 02.04.2004 the Municipal Corporation of Kochi did not hear the writ petitioners and has illegally issued the building permit dated 17.02.2007 which has rightly been set aside by the learned Single Judge. He submits that before the grant of building permit, petitioners were entitled to be heard. 10. We have considered the submissions of learned counsel for the parties and has perused the record. From the submissions of learned counsel for the parties and the pleadings on record, following are the issues which arise for consideration in the present appeals: (1) Whether the property in survey No.219/2 was a property which was being used as burial ground prior to enforcement of Kerala Panchayats (Burial and Burning Grounds) Rules, 1967 ?; (2) Whether the property in question shall be treated as deemed to be registered under Rule 4(1) of the 1967 Rules ? (3) Whether the benefit of deemed registration under Rule 4(1) can not be extended to the property in question, since it was not recorded in the register maintained under the Municipal Corporation Act, 1961 and Kerala Municipality Act, 1994 ? (3) Whether the benefit of deemed registration under Rule 4(1) can not be extended to the property in question, since it was not recorded in the register maintained under the Municipal Corporation Act, 1961 and Kerala Municipality Act, 1994 ? (4) Whether the learned Single Judge committed error in not following the earlier judgment of a learned Single Judge reported in Komalavally Amma v. President, Kerala Bhrahmana Sabha, 1987 (2) KLT SN 50 Case No. 72 ? (5) Whether the Division Bench judgment in W.A. Nos. 15 & 137 of 1974 dated 09.09.1974 was applicable in the facts of the present case ? and (6) Whether the learned Single Judge committed error in setting aside Ext.P4 building permit ? 11. Before we proceed to consider the above issues, it is necessary to look into the statutory provisions regulating the burial/burning grounds. The Cochin Panchayats Act (XX of 1120 M.E.) was enacted for better provisions of administration of rural affairs by Panchayats. Under Section 81(2) (xxii), the Government was empowered to make rule to carry out the purpose of the Act. Section 81(2) (xxii) of the Cochin Panchayats Act (XX of 1120) is quoted below: "81(2) In particular, and without prejudice to the generality of the foregoing power, Government may make rules- ............... (xxii) regulating contracts between the panchayat and the owners or occupiers of private premises for the removal therefrom of rubbish or filth, or any kind of rubbish or filth."� The Cochin Panchayats Act (XX of 1120 M.E.) was superseded by the Act namely the Travancore - Cochin Panchayats Act, 1950. Under Section 43(i) the Panchayats were obliged to provide facilities for opening and maintenance of burial and burning grounds. Section 43(i) of the Travancore - Cochin Panchayats Act, 1950 is quoted as below: "43. Subject to such rules as may be prescribed, it shall be the duty of a Panchayat, within the limits of the funds at its disposal to make reasonable provision for carrying out the requirements of the Panchayat area in respect of the following matters, namely:- ............... (i) opening and maintenance of burial and burning grounds;"� Another provision which is relevant is Section 97 of the Travancore - Cochin Panchayats Act, 1950 which contains the power of Government to make rules. (i) opening and maintenance of burial and burning grounds;"� Another provision which is relevant is Section 97 of the Travancore - Cochin Panchayats Act, 1950 which contains the power of Government to make rules. Section 97(2)(xix) provides for making of rules for burial and burning grounds and licensing of private burial and burning grounds which reads as follows: "97. (2) In particular and without prejudice to the generality of the foregoing power, Government may make rules- ............... (xix) as to the provision of burial and burning grounds, the licensing of private burial and burning grounds, the regulation of all grounds so provided or licensed, the closing of any such grounds, and the prohibition of the disposal of corpses except in such grounds or other permitted places;"� Thereafter came the Kerala Panchayats Act, 1960. Under Section 129(2) of the Kerala Panchayats Act, 1960 the rule making power was vested in the State. In exercise of power under Section 129(2) the State framed the rules namely, the Kerala Panchayats (Burial and Burning Grounds) Rules, 1967. Rule 4 of the above rules is relevant for the present case. Rule 4 provided for existing burial and burning grounds to be deemed registered. Rule 4 is quoted as below: "4. Existing burial and burning grounds to be deemed registered- (1) The burial or burning grounds existing at the commencement of these rules shall be deemed to have been registered under these rules. (2) If any dispute arises as to whether a burial or burning grounds is in existence at the commencement of these rules, such dispute shall be referred to the Collector, whose decision thereon shall be final. (3) If it appears to the Panchayat that there is no owner or person having the control of any existing burial or burning ground the Panchayat shall assume such control, and register such place, or with the permission of the Collector, close it."� Rule 5 of 1967 rules provides that no burial or burning ground to be located within 50 meters of a dwelling place and Rule 6 provided that new burial and burning grounds to be opened only with 'a licence from the Collector'. As noted above, the area in question was included in the Vyttila Panchayat till 01.11.1967 when Corporation of Kochi was constituted. The Kerala Municipal Corporations Act, 1961 governs the municipal area in the State of Kerala. As noted above, the area in question was included in the Vyttila Panchayat till 01.11.1967 when Corporation of Kochi was constituted. The Kerala Municipal Corporations Act, 1961 governs the municipal area in the State of Kerala. Section 338 to 346 relate to Disposal of dead. Section 338, 339 and 340 of the Act are relevant which are quoted below: "338. Registration or closing of ownerless places for disposal of dead.- (1) If it appears to the commissioner that there is no owner or person having the control of any place used for burying or otherwise disposing of the dead, he shall assume such control and register such place, or may, with the sanction of the council, close it. (2) Licensing of places for disposal of dead.- No new place for the disposal of the dead, whether public or private, shall be opened, formed, constructed, or used unless a licence has been obtained from the commissioner on application. (3) Such application for licence shall be accompanied by a plan of the place to be registered, showing the locality, boundaries, and extent thereof, the name of the owner or person or community interested therein, the system of management and such further particulars as the commissioner may require. (4) The commissioner may with the sanction of the council- (a) grant or refuse a licence, or (b) postpone the grant of a licence until his objections to the site have been removed or any particulars called for any him have been furnished. 339. Provision of burial and burning grounds and crematoria within or without the city by the corporation - (1) The council may, and shall if no sufficient provision exists, provide places to be used as burial or burning grounds or crematoria, either within the city or with the sanction of Government without the limits of the city, and may charge and levy rents and fees for the use thereof with the sanction of Government. (2) If the corporation provides any such place without the limits of the city, all the provisions of this Act and all byelaws framed under this Act for the management of such places within the city shall apply to such place ans all offences against such provisions or bye-laws shall be cognisable by the magistrates as if such place were within municipal limits. 340. 340. Register of registered, licensed and provided places and prohibition of use of other places.-(1) A book shall be kept at the municipal office in which the places registered, licensed, or provided under section 338 or section 339 and all such places registered, licensed or provided before the commencement of this Act, shall be recorded, and the plans of such places shall be filed in such office. (2) Notice that such place has been registered, licenced or provided as aforesaid, shall be affixed in English and Malayalam to some conspicuous place at or near the entrance to the burial or burning ground or other place as aforesaid. (3) The commissioner shall annually publish a list of all places registered, licensed or provided as aforesaid or provided by the Government. (4) No person shall bury, burn or otherwise dispose of any corpse, except in a place which has been registered, licensed or provided as aforesaid. 340. Register of registered, licensed and provided places and prohibition of use of other places.- (1) A book shall be kept at the municipal office in which the places registered, licensed, or provided under Section 338 or section 339 and all such places registered, licensed or provided before the commencement of this Act, shall be recorded, and the plans of such place shall be filed in such office. (2) Notice that such place has been registered, licensed or provided as aforesaid, shall be affixed in English and Malayalam to some conspicuous place at or near the entrance to the burial or burning ground or other place as aforesaid. (3) The commissioner shall annually publish a list of all places registered, licensed or provided as aforesaid or provided by the Government. (4) No person shall bury, burn or otherwise dispose of any corpse, except in a place which has been registered, licensed or provided as aforesaid."� The Kerala Municipal Corporation Act, 1961 was superseded by the Kerala Municipality Act, 1994. Section 483 to 492 contain a heading disposal of dead"�. Section 483 and 484 are relevant and are quoted below: "483. (4) No person shall bury, burn or otherwise dispose of any corpse, except in a place which has been registered, licensed or provided as aforesaid."� The Kerala Municipal Corporation Act, 1961 was superseded by the Kerala Municipality Act, 1994. Section 483 to 492 contain a heading disposal of dead"�. Section 483 and 484 are relevant and are quoted below: "483. Registration or closing of ownerless places for disposal of the dead.- (1) Every owner or person having control of any place used at the commencement of this Act as a place for burial, burning, or otherwise disposing, of the dead, shall, where such place is not already registered, apply to the Municipality to have such place registered. (2) Where it appears to the Municipality that there is no owner or person having control of such place, it shall assume such control and register such place or may, with the sanction of the Government, close it. 484. Licensing of places for disposal of the dead.- (1) No new place for the disposal of the dead, whether public or private, shall be opened, formed, constructed or used except on a licence from the Municipality. (2) An application for a licence under sub-section (1) shall be accompanied by a plan of the place to be registered showing 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 Municipality may require. (3) On receipt of an application under sub-section (2) the Secretary shall,- (a) Send the application to the Municipal Health Officer where the Municipality has appointed a Municipal Health Officer, and in other cases, to the District Medical Officer of the Health Department having jurisdiction over the area and to the concerned District Collector for their opinion on the application; and (b) publish a public notice inviting objections and suggestions, if any regarding the application (4) The Municipality, after considering the views of the officers under sub-section (3) and all other objections and directions received before the date specified in the notice, may- (a) grant or refuse to grant a licence; or (b) postpone the grant of a licence, until objections to the site have been removed or any particulars called for by it having been furnished."� All the issues as noted above being interconnected, are being considered together. 12. 12. From the facts which have been noted above it is clear that the Survey number in question was through out under the jurisdiction of Panchayat prior to 01.11.1967 when Corporation of Kochi was constituted. Rule 4(1) the Kerala Panchayats (Burial and Burning Grounds) Rules, 1967 specifically provided that the existing burial and burning ground, shall be deemed to have been registered under these rules. The Rules, 1967 were published in the Kerala Gazette No.36 on 12th September 1967 and rules were to be commenced as per Rule 1 (2) on the date of its publication in the Gazette. The Rules 1967 thus came into force with effect from 12th September, 1967. A plain reading of the rule indicates that the legal fiction is created by the Legislature as 'deemed registration' for burning and burial grounds existing at the commencement of the rules. 13. When legislature creates a legal fiction, it creates a legal fiction for assuming the existence of fact which does not really exist. The Apex Court had occasion to examine the concept of legal fiction in large number of cases. In State of U.P. v. Hari Ram, (2013) 4 SCC 280 , following was laid down in paragraphs 18, 19 and 20: "18. The legislature is competent to create a legal fiction, for the purpose of assuming existence of a fact which does not really exist. Sub-section (3) of Section 10 contained two deeming provisions such as deemed to have been acquired and deemed to have been vested absolutely. Let us first examine the legal consequences of a deeming provision. In interpreting the provision creating a legal fiction, the court is to ascertain for what purpose the fiction is created and after ascertaining this, the court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. This Court in Delhi Cloth and General Mills Co. Ltd. v. State of Rajasthan held that what can be deemed to exist under a legal fiction are facts and not legal consequences which do not flow from the law as it stands. 19. This Court in Delhi Cloth and General Mills Co. Ltd. v. State of Rajasthan held that what can be deemed to exist under a legal fiction are facts and not legal consequences which do not flow from the law as it stands. 19. James, L.J. in Levy, In re, ex p Walton speaks on deeming fiction as: (Ch D p. 756) "When a statute enacts that something shall be deemed to have been done, which in fact and [in] truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to."� 20. In Szoma v. Secy. of State for Work and Pensions the Court held: (AC p. 574, para 25) "25. it would be quite wrong to carry this fiction beyond its originally intended purpose so as to deem a person in fact lawfully here not to be here at all. The intention of a deeming provision, in laying down a hypothesis, is that the hypothesis shall be carried as far as necessary to achieve the legislative purpose, but no further"� 14. To the same effect there is yet another judgment of the Apex Court reported in Rajasthan State Industrial Development & Investment Corpn. v. Diamond & Gem Development Corpn. Ltd., (2013) 5 SCC 470 wherein the Apex Court has laid down in paragraphs 26, 27 and 28 as follows: "26. The expression as if is used to make one applicable in respect of the other. The words as if create a legal fiction. By it, when a person is deemed to be� something, the only meaning possible is that, while in reality he is not that something, but for the purposes of the Act of legislature he is required to be treated that something, and not otherwise. It is a well-settled rule of interpretation that, in construing the scope of a legal fiction, it would be proper and even necessary to assume all those facts on the basis of which alone such fiction can operate. The words as if� in fact show the distinction between two things and, such words must be used only for a limited purpose. They further show that a legal fiction must be limited to the purpose for which it was created. The words as if� in fact show the distinction between two things and, such words must be used only for a limited purpose. They further show that a legal fiction must be limited to the purpose for which it was created. [Vide Radhakissen Chamria v. Durga Prosad Chamria, CIT v. S. Teja Singh, Ram Kishore Sen v. Union of India, Sher Singh v. Union of India, State of Maharashtra v. Laljit Rajshi Shah, Paramjeet Singh Patheja v. ICDS Ltd. (SCC p. 341, para 28) and CIT v. Willamson Financial Services.] 27. In East End Dwellings Co. Ltd. v. Finsbury Borough Council this Court approved the approach which stood adopted and followed persistently. It set out as under: (AC p. 133) The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."� 28. In Industrial Supplies (P) Ltd. v. Union of India this Court observed as follows: (SCC p. 351, para 25) "25. It is now axiomatic that when a legal fiction is incorporated in a statute, the court has to ascertain for what purpose the fiction is created. After ascertaining the purpose, full effect must be given to the statutory fiction and it should be carried to its logical conclusion. The court has to assume all the facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction. The legal effect of the words as if he were in the definition of owner in Section 3(n) of the Nationalisation Act read with Section 2(1) of the Mines Act is that although the petitioners were not the owners, they being the contractors for the working of the mine in question, were to be treated as such though, in fact, they were not so.� 15. The Apex Court in Delhi Cloth & General Mills Co. Ltd. v. State of Rajasthan, (1996) 2 SCC 449 has held that what is deemed by legislature are existence of facts and what follows from the deemed fact is also to be deemed. Following was laid down in paragraphs 11 and 12: "11. The Apex Court in Delhi Cloth & General Mills Co. Ltd. v. State of Rajasthan, (1996) 2 SCC 449 has held that what is deemed by legislature are existence of facts and what follows from the deemed fact is also to be deemed. Following was laid down in paragraphs 11 and 12: "11. Mr Sorabjee cited the following passage in the judgment in State of Bombay v. Pandurang Vinayak Chaphalkar: "When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. (Vide Lord Justice James in Levy, Re, ex p Walton, Ch D at p. 756.)� He brought to our attention the oft-quoted observations of Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council, cited therein: "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. The statute says that you must imagine a certain state of affairs. It does not say that, having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."� The judgment in M. Venugopal v. Divisional Manager, LIC also cites Lord Asquith and says that the legislature can introduce a statutory fiction and the courts have to proceed upon the assumption that that state of affairs existed on the relevant date. Reliance was placed by Mr Sorabjee upon J.K. Cotton Spg. and Wvg. Mills Ltd. v. Union of India. The Explanations to Rules 9 and 49 of the Central Excise Rules, 1944, had provided that excisable goods produced or manufactured in any place or premises at an intermediate stage and consumed or utilised for the manufacture of another commodity in a continuous process would be deemed to have been removed from such place or premises immediately before such consumption or utilisation. This Court said that it was well settled that a deeming provision was an admission of the non-existence of the fact deemed. Therefore, in view of the deeming provision under the Explanations, although the goods which were produced or manufactured at an intermediate stage and, thereafter, consumed or utilised in the integrated process for the manufacture of another commodity were not actually removed, they had to be regarded as having been removed. 12. It is to be noted that what is to be deemed is a matter of fact; there is a deeming fiction. It is also to be noted that when a fact is to be deemed, its consequences and incidents are also to be deemed; that is to say, what follows from the deemed fact is also to be deemed."� 16. When a fact is to be as 'deemed', its consequences and incidents are also to be deemed i.e. what follows from the facts are also to be deemed. Although there has been several provisions governing the Panchayats in Cochin area prior to the enactment of the Kerala Panchayats Act, 1960, but none of the parties have claimed that any rules were framed under the earlier enactment regulating the burial and burning grounds. It appears that for the first time the statutory rules have been framed as the Kerala Panchayats (Burial and Burning Grounds) Rules, 1967. Rule 4 of the above rules contains a heading existing burial and burning grounds to be deemed registered. A provision was introduced by Rule 6 that no new burial and burning grounds to be opened except with the permission/license obtained from the Collector. Rule 7 provided for registration of burial and burning grounds. Rule 7(1) is as follows: "7. Registration of burial and burning grounds.- (1) A book shall be kept at the office of every Panchayat in which places provided, registered or licensed under rules 3, 4 and 6 and all such places provided, registered or licensed before the commencement of these rules, shall be recorded.� The above rule clearly indicate that entries to be made in the book kept at the office with regard to the burial and burning grounds and entries shall be made in the book of the places provided, registered or licensed even before commencement of the rules. The rule thus fully contemplates that the burial and burning grounds, which were in existence prior to the enforcement of the rules, shall be deemed to be registered and entered in the register maintained by the Panchayat. After the area came under the Kerala Municipal Corporations Act, 1961, Section 340 of the 1961 Act also came to be applicable. Section 340 provided for keeping a register of registered, licensed and provided places, which is required to be recorded in a book kept in the Municipal Office. The requirement of entry of burial and burning grounds in the register by a Panchayat or the Municipal office was a duty entrusted to the local authorities on which general public has no control. In the event entry of a burial or burning ground which is deemed to be registered under the 1967 rules is not maintained by the Panchayat or Municipal Office, the same cannot be read as to prejudice the general public or persons who are running the burning and burial ground. It has been held in large number of cases by the Apex Court that if a duty or performance of it is entrusted to public authorities on which general public has no control it is always treated to be directory. The principle was stated by the Privy Council in the following words in Montreal Street Railway Company v. Normandin, AIR 1917 P.C. 142 : "When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void, acts done in neglect of this duty would work serious general inconvenience or injustice to persons, who have no control over those entrusted with the duty, and at the same time, would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only...."� The above preposition was reiterated by the Apex Court in [ AIR 1957 SC 912 ] State of U.P. v. Manbodhan Lal Srivastava, which is quoted as below: "10. The question may be looked at from another point of view. Does the Constitution provide for the contingency as to what is to happen in the event of non-compliance with the requirements of Art.320(3)(c) ? The question may be looked at from another point of view. Does the Constitution provide for the contingency as to what is to happen in the event of non-compliance with the requirements of Art.320(3)(c) ? It does not, either in express terms or by implication provide that the result of such a noncompliance is to invalidate the proceedings ending with the final order of the Government. This aspect of the relevant provisions of part XIV of the Constitution, has a direct bearing on the question whether Art.320 is mandatory. The question whether a certain provision in a statute imposing a duty on a public body or authority was mandatory or only directory, arose before their Lordships of the Judicial Committee of the Privy Council in the case of Montreal Street Rly. Co. v. Normandin, AIR 1917 P.C. 142 . In that case the question mooted was whether the omission to revise the jury lists as directed by the statute, had the effect of nullifying the verdict given by a jury. Their Lordships held that the irregularities in the due revision of the jury lists, will not ipso facto avoid the verdict of a jury. The Board made the following observations in the course of their judgment: "............... The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th ed., p.596 and following pages. When the provisions of a statute relate t the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done."� The principle laid down in this case was adopted by the Federal Court in the case of Biswanath Khemka v. The King Emperor, 1945 F C R 99: (AIR 1945 F C 67) (c). In that case, the Federal Court had to consider the effect of non-compliance with the provisions of S.256 of the Government of India Act, 1935, requiring consultation between public authorities before the conferment of magisterial powers or of enhanced magisterial powers,etc. The Court repelled the contention that the provisions of S.256, aforesaid, were mandatory. It was further held that noncompliance with that section would not render the appointment otherwise regularly and validly made, invalid or inoperative. That decision is particularly important as the words of the section then before their Lordships of the Federal Court, were very emphatic and of a prohibitory character."� Thus the failure of Panchayat and Municipal Corporation to enter the property as burial ground in the Register maintained by it cannot cause any prejudice to the rights of respondents 6 and 7 to use the property as a cremation ground. 17. Before we proceed further it is to be noted that respondents 6 and 7 had filed copy of the settlement register of the plot No.219/2 where 40 cents of land is recorded as Chudukadu Parambu� (cremation ground). The said settlement register was prepared in the year 1081 M.E i.e. 1906, more than 100 years ago. There are other materials including deposit of receipt by 6th respondent on 04.08.1970 for construction of compound wall for burial ground in Survey No.219/2 which clearly mentioned in column No.2 to the following effect: "License for the construction of compound wall for a burial ground in Sy.No.219/2, Poonithura Village"�. Certain news items of burial in 1974 and 2003 have also been referred to. In view of the above materials the case of the petitioners that for the first time in the year 2003 a deadbody was attempted to be buried in the plot is wholly incorrect and false. Learned Single Judge while deciding the writ petition has also proceeded on the assumption that cremation ground in question was in existence when the Kerala Panchayats Act, 1960 came into force. It is useful to quote paragraph 17 of the judgment of the learned Single Judge which is to the following effect: "17. Learned Single Judge while deciding the writ petition has also proceeded on the assumption that cremation ground in question was in existence when the Kerala Panchayats Act, 1960 came into force. It is useful to quote paragraph 17 of the judgment of the learned Single Judge which is to the following effect: "17. Even if it is accepted that the cremation ground in question was in existence when the Kerala Panchayat Act, 1960 came into force, I am not prepared to accept the plea of the respondents that respondents 6 and 7 were entitled to deemed registration under the 1967 rules since they have no case that, t that time the cremation ground was functioning in compliance with the statutory requirements then in force. Only if it was functioning in compliance with the provisions of Kerala Panchayat Act, 1960, could the cremation ground have found a place in the register maintained by the Corporation under Section 340 of the Municipal Corporations Act, 1961. Only such of those cremation grounds which were functioning as per the provisions of the 1961 Act could find a place in the register maintained under Section 486 of the Kerala Municipality Act, 1994. In this case, respondents 6 and 7 have no case that they have registration under any of these enactments.� Although the learned Single Judge proceeded with the assumption that the cremation ground was in existence prior to the enforcement of 1967 Rules, but he held that cremation ground cannot be treated to have deemed registration under 1967 Rules since respondents 6 and 7 have failed to prove that the cremation ground was functioning in compliance with the statutory requirement then in force. No statutory requirement then in force has been referred by learned Single Judge or pointed out to establish that cremation ground was running in violation of a particular rule. It is neither pointed out on behalf of the writ petitioners nor referred to in the judgment that there was any statutory rule prior to enforcement of 1967 Rules for registration. The learned Single Judge gives following reason for denying the benefit of deemed registration to the cremation ground: "Even if their lapse in compliance with the requirements of the Kerala Panchayat Act 1960 and 1967 Rules is condoned, respondents ought to have got the cremation ground registered under the Municipal Corporation Act, 1961 or under S.483 of Kerala Municipality Act."� 18. We proceed to examine as to whether under the provisions of Municipal Corporation Act, 1961 as well as under the Municipalities Act, 1994, there was a statutory obligation on respondents 6 and 7 to get the cremation ground registered. We first take the provisions of Municipal Corporation Act 1961. Section 338(1) provides that if it appears to the Commissioner that there is no owner or person having the control of any place used for burying or otherwise disposing of the dead, he shall assume such control and register such place, or may, with the sanction of the council, close it�. In this case Section 338(1) is not attracted, since the cremation ground was owned by respondents 6 and 7. Section 338(2) provides that no new place for the disposal of the dead, whether public or private, shall be opened, formed, constructed, or used unless a licence has been obtained from the commissioner on application.� The above provision is also not attracted since present was not a case of opening of any new place. Even the learned Single Judge himself has assumed that cremation ground was in existence at the time of Kerala Panchayats Act, 1960 and 1967 Rules. As noted above, the property in question came under the Municipal Corporation, Kochi only on 01.11.1967 and prior to that date it was included in the Vyttila Panchayat. The provisions of Municipal Corporation Act, 1961 thus came to be applicable to the cremation ground in question only with effect from 01.11.1967. Section 338 containing the provision for registration was not attracted nor there was any statutory obligation on respondents 6 and 7 to get the cremation ground registered. Section 340(1) provides that a book shall be kept at the Municipal office in which the place is registered, licensed, or provided under Section 338 or Section 339 and all such places registered, licensed or provided before the commencement of this Act, shall be recorded, and the plans of such place shall be filed in such office. Section 340 gives an obligation on the Municipal Officials to enter all such places registered, licensed, or provided under Section 338 or Section 339 and all such places registered, licensed or provided before the commencement of the Act. The cremation ground in question being in existence prior to enforcement of Municipal Corporation Act, 1961, it was the duty of the Municipal Officials to enter into the register. The cremation ground in question being in existence prior to enforcement of Municipal Corporation Act, 1961, it was the duty of the Municipal Officials to enter into the register. We have already held that non-entry of the cremation ground in the register maintained by Municipal Corporation will not in any way prejudice to the right of respondents 6 and 7. Other provisions of 1961 Act under Chapter XII relates to other matters and have no applicability. 19. We now come to Section 483 of the Municipality Act, 1994. Section 483(1) provides, every owner or person having control of any place used at the commencement of this Act as a place for burial, burning, or otherwise disposing, of the dead, shall, where such place is not already registered, apply to the Municipality to have such place registered.� Respondents 6 and 7 has come with the case that the cremation ground shall be deemed to be registered under Rule 4(1) of 1967 Rules and the cremation ground has to be treated as registered prior to the enforcement of Municipal Corporation Act, 1961 and Kerala Municipality Act, 1994. Section 484(1) provides that no new place for the disposal of the dead, whether public or private, shall be opened, formed, constructed or used except on a license from the Municipality.� Present is not a case of opening of a new place for the disposal of the dead hence Section 484 is also not attracted. In view of the foregoing discussion, we are of the view that the very basis for denying the benefit of deemed registration of the cremation ground as taken by learned Single Judge was non-existent and on the reasons given by learned Single Judge the benefit of deemed registration could not have been denied to respondents 6 and 7. 20. We thus are of the view that the very premise taken by the learned Single Judge to deny the cremation ground to be treated as deemed registration is non-existent. There are two more reasons for our above view. Firstly, the rule in its plain meaning cannot be read to extend the deeming provision only to burial and burning grounds which were registered under any earlier provisions of law. The word used in Rule 4 of the 1961 Rules is; the existing burial and burning grounds�. The word exist� in the Law Lexicon of P. Ramanatha Aiyar explains as follows: "Exist. The word used in Rule 4 of the 1961 Rules is; the existing burial and burning grounds�. The word exist� in the Law Lexicon of P. Ramanatha Aiyar explains as follows: "Exist. To have existence: to live. To be in being. To EXIST, LIVE, Existence is the property of all things in the universe: life, which is the inherent power of motion, is the particular property communicated by the Divine Being to some parts only of his creation : exist therefore, is the general term and live the specific term. Existence, in its proper sense, is the attribute which we commonly ascribe to the Divine Being, life is that mode of existence which he has made for other objects besides himself."� The word exist has been used denoting a fact in existence. Further, there being no provision prior to enforcement of 1967 Rule referred to in the judgment or pointed out by counsel for the petitioners requiring registration of burial and burning grounds, the benefit of deemed registration under Rule 4(1) cannot be denied to appellants' burial and burning ground. 21. The learned Single Judge has placed heavy reliance on a Division Bench judgment of this Court in W.A. Nos. 15 and 137 of 1974. In the said case the Court has considered an area which was governed by Madras Village Panchayat Act, 1950/Madras District Board Act 1920. In the said case the Division Bench noted that there was a specific provision in the rules framed under the Madras Village Panchayat Act 1950 requiring registration by every owner or person having the control to use the burning or otherwise disposal of dead. It is useful to quote paragraph 3 of the judgment which is to the following effect: "3. However, we think the learned Judge was quite right in his conclusion that in order to apply the provisions of Rule 4(1) of the Kerala Panchayats (Burial and Burning Grounds) Rules, 1967, not merely the factual but also the lawful, existence of the burial ground at the commencement of the Rules must be proved. Rule 4(1) and (2) of the Rules read as follows: "4. Existing burial and burning grounds to be deemed registered- (1) The burial or burning grounds existing at the commencement of these rules shall be deemed to have been registered under these rules. Rule 4(1) and (2) of the Rules read as follows: "4. Existing burial and burning grounds to be deemed registered- (1) The burial or burning grounds existing at the commencement of these rules shall be deemed to have been registered under these rules. (2) If any dispute arises as to whether a burial or burning grounds is in existence at the commencement of these rules, such dispute shall be referred to the Collector, whose decision thereon shall be final. (3) If it appears to the Panchayat that there is no owner or person having the control of any existing burial or burning ground the Panchayat shall assume such control, and register such place, or with the permission of the Collector, close it."� Having regard to the fact that the use of a burial ground cannot be regarded as an ordinary and normal use of the premises, and to the object and purpose of requiring registration or the taking of a licence before a place in to be used as a burial ground, we are unable to accept the contention strenuously pressed before us by Counsel for the appellant in Writ Appeal No.15 of 1974 that for the purpose of attracting the rule, it is enough to merely prove the factual existence of a place as a burial ground at the time of the commencement of the Rules, and that beyond this, it was unnecessary to establish that the place had been lawfully and peacefully enjoyed as a burial ground. We think that without this limitation that the place had been legally and validly used as a burial ground prior to the relevant date, disastrous consequences are likely to follow. We find that under the provisions of the preceding statute and the rules, to which we shall immediately refer the use and enjoyment of premises as a burial ground without registration or licence is not only illegal but even made a punishable offence. We refer to the Madras Village Panchayats Act 1950 and the Rules promulgated under Section 112(2) of the said Act, and published in the Fort St.George Gazette dated 27th March 1950. We refer to the Madras Village Panchayats Act 1950 and the Rules promulgated under Section 112(2) of the said Act, and published in the Fort St.George Gazette dated 27th March 1950. Rules 2(1) and 3(1) of the Rules may be noticed: "2.(i):- Every owner or person having the control of any place used as a place for burying, burning or otherwise disposing of the dead shall, if such place be not already registered under the madras Village Panchayats Act, 1950, or under the Madras District Boards Act, 1920, apply to the Panchayat to have such place registered. x x x x 3(i) : 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 Panchayat on application."� From those Rules, it will be clear that the use of a preexisting burial ground which was in existence before the dare of the promulgation of the Kerala Rules would be regarded as use of a burial ground registered under the Kerala Rules. But we do not think it was either contemplated or countenanced by the Act or the Rules that a burial ground which was being used or enjoyed under the previous law without satisfying its requirements as to licence or registration should also receive the benefit of the deeming provision under the Kerala Rules. To so hold, would be frustrating the very object and purpose of the provision. We are therefore unable to agree with the argument of counsel for the appellant that the mere factual existence of a burial ground before the promulgation of the Kerala Rules would suffice to receive the protection under Rule (1) of the Kerala Rules. In this view, the conclusion of the learned Judge is correct. We dismiss these writ appeals, but in the circumstances, without costs."� The Division Bench in the said case held that the benefit of deemed registration shall not be extended, since there was a specific provision requiring the registration under Madras Village Panchayat Act, 1950 and the place where burial is sought to be claimed was never registered under the 1950 Act. The benefit of Rule 4(1) of 1967 Rules shall not be applicable. The benefit of Rule 4(1) of 1967 Rules shall not be applicable. The above judgment was delivered by the Division Bench not with regard to any area situated in Cochin, rather the said judgment was in relation to an area governed by Madras Village Panchayat Act, 1950. A specific rule was framed under the Madras Village Panchayat Act 1950 requiring compulsory registration, whereas for the purpose of the present case, neither any such rule has been referred to nor placed before us to indicate that prior to 1967 there was any statutory requirement for registration of burial or burning grounds. Thus due to the above distinction the said judgment is clearly distinguishable and is not applicable to the facts of the present case. 22. A Division Bench judgment has also been relied by learned counsel for the appellant reported in Kelu Nambiar v. Narayani Amma, 1974 KLT 483 . In the said case also a suit was filed seeking injunction by the plaintiffs restraining the defendants from interfering with the burial or burning of dead bodies in the plaint schedule property wherein it was claimed that the burial and burning ground shall be deemed to be registered under the 1967 Rules. Injunction was granted by learned District Judge which judgment was set aside by the learned Single Judge; against which the writ appeal was filed. The Division Bench had an occasion to consider Rule 4 of 1967 Rules. Following was laid in paragraphs 3 and 4 of the judgment as follows: "3. If we go by the ordinary meaning that is attributable to the words burial or burning grounds� there is nothing which necessitates burial or burning grounds being limited in its application only to public burial or burning grounds. The words normally must take within their ambit both public and private burial and burning grounds. S.129(2)(xxv) of the Act no doubt refers to burial and burning grounds and the licensing of private burial and burning grounds apart from other matters which are not material for our purpose. But we would emphasise the word provision" occurring before of burial and burning grounds� and licensing of private� occurring before burial and burning grounds� in order to understand why the word private� is used before burial and burning grounds� occurring a second time in clause (xxv of sub-s.(2) of S.129 of the Act. But we would emphasise the word provision" occurring before of burial and burning grounds� and licensing of private� occurring before burial and burning grounds� in order to understand why the word private� is used before burial and burning grounds� occurring a second time in clause (xxv of sub-s.(2) of S.129 of the Act. The Rules, in consonance with what is envisaged by this clause of sub-section (2) of S.129 have enacted that provision� can be made by the Panchayat, to be exact, the Panchayat shall make provision when there is no sufficient provision in existence for burial or burning grounds. This is seen from rule 3. For that purpose under sub-rule (2) of rule 3 the Panchayat has to seek permission of the Collector. For making provision under that rule it appears to us that no licensing is necessary though we notice that rule 6(1) states that 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�. The new place of which a licence is required under rule 6(1), we consider is different from the burial or burning grounds to be provided by the Panchayat under rule 3(1). Rule 7 makes a clean distinction between burial and burning grounds provided�, registered or licensed. We have already referred to rules 3 and 6 which provide respectively for provision and for licensing. The registration in certain cases is deemed under rule 4 and is required by rule 7. We shall read both these rules in extenso: "4. Existing burial and burning grounds to be deemed registered- (1) The burial or burning grounds existing at the commencement of these rules shall be deemed to have been registered under these rules. (2) If any dispute arises as to whether a burial or burning grounds is in existence at the commencement of these rules, such dispute shall be referred to the Collector, whose decision thereon shall be final. (3) If it appears to the Panchayat that there is no owner or person having the control of any existing burial or burning ground the Panchayat shall assume such control, and register such place, or with the permission of the Collector, close it."� "7. (3) If it appears to the Panchayat that there is no owner or person having the control of any existing burial or burning ground the Panchayat shall assume such control, and register such place, or with the permission of the Collector, close it."� "7. Registration of burial and burning grounds.- (1) A book shall be kept at the office of every Panchayat in which places provided, registered or licensed under rules 3, 4 and 6 and all such places provided, registered or licensed before the commencement of these rules, shall be recorded. (2) 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 rule(1) shall be affixed at some conspicuous place at or near the entrance of the burial or burning ground for which the place is used. (3) The book referred to in sub-rule(12) shall be periodically inspected by the Officer or Officers authorised to inspect and superintend the affairs of the Panchayat under the Act."� 4. If burial or burning grounds can take within its ambit, private burial or burning grounds as well, the burial and burning grounds scheduled to the plaint must by virtue of rule 4(1) be deemed to have been registered under the Rules. Sub-rule (3) of rule 4 gives an indication that the burial or burning grounds referred to in sub-rule (1) need not necessarily be public burial or burning grounds alone for it refers to an owner or person having any control of any existing burial or burning grounds. Further when the rules contemplate the licensing of private burial and burning grounds by the Collector as they do of permission being granted by the Collector to the Panchayats for establishing the burial and burning grounds, it appears difficult to limit the ambit of rule 4 as applicable only to one class of burial and burning grounds. In other words, we find no justification whatever for denying the benefit of the deeming provision in rule 4 to private burial and burning grounds that had been in existence at the commencement of the Act. Rule 10 which deals with closing of burial or burning grounds� uses the expression any burial ground except private burial ground. This gives a clear indication that burial ground will take in not only public burial ground but private burial ground as well. Rule 10 which deals with closing of burial or burning grounds� uses the expression any burial ground except private burial ground. This gives a clear indication that burial ground will take in not only public burial ground but private burial ground as well. As we indicated at the very beginning, burial and burning grounds must comprehend both types of burial and burning grounds, private and public. The nature of the use and the purposes are the same and there ought to be no classification based on the ownership or the limited use to which the ground is put in the case of private burial and burning grounds. With respect, we are unable to agree with the view taken by the learned Judge in the judgment under appeal. It appears to us with great respect that a far too restricted meaning had been given and attributed to the words burial and burning grounds� by the learned Judge. From all the other findings entered by the learned Judge in confirmation of the findings entered by the District Judge, it has to be held that the plaint burial or burning grounds must be treated as one registered under rule 4of the Rules. We hold so. Accordingly we allow this appeal and restore the decree for injunction passed by the District Judge. We direct the parties to bear their respective costs in this appeal."� 23. The Division Bench allowed the writ appeal and restored the decree of District Judge treating the burial and burning ground as having deemed registration. The said judgment fully support the case of the appellant. Another judgment of a learned Single Judge which has been relied by learned counsel for the appellant is Komalavally Amma v. President, Kerala Brahmana Sabha, 1987 (2) SN 50, Case No.72 in which following was stated: "Looking at the statutory scheme as a whole, the legislative object is that at any given point of time, the Municipal authorities can find out, with reference to its records, the details of the places used within its limits, for disposal of dead bodies, so that appropriate instructions can be given or steps taken for putting an end to nuisance, if there be, and for preserving the health and welfare of people living nearby. The requirement of registration is not so much to prohibit or prevent the disposal of dead bodies in its absence, as to regulate the control of the place used for the purpose. The circumstance that the Municipality failed in the performance of tis duties under S.323 in maintaining a register, or that it has not been strictly enforcing S.320(1), will not be a reason enough for this Court to interfere under Arti.226 of the Constitution and declare that until the Municipality performs such functions, the Community represented by the 1st respondent shall not have any place for disposal of the dead bodies within the Municipality. The provisions of the statute are designed to serve some purpose, and not to create impossible situations for a section of the people living within its limits."� 24. Learned counsel for the writ petitioners have placed reliance on Anil Kumar v. State of Kerala, 2003 (2) KLT 286 . The learned Single Judge had occasion to consider Section 483 of the Municipality Act, 1994. The learned Single Judge has interpreted Section 483 of the Act to the effect that even if the burial ground was in existence prior to the coming into force of the Act, registration is required. Section 483 provides that where such place is not already registered, which clearly means registered or deemed to be registered. The burning or burial ground, which shall be deemed to be registered, has also to be treated as registered. Hence there shall be no requirement of Section 483 nor the requirement of taking any fresh license in the facts of present case. The above view of learned Single Judge cannot be followed. We are thus of the considered opinion that Survey No.219/2, recorded in the settlement register as cremation ground, was the burial and burning ground in existence prior to enforcement of the Kerala Panchayats Act, 1960 and The Kerala Panchayats (Burial and Burning Grounds) Rules, 1967. By virtue of Rule 4(1) of the !967 Rules, the burial ground shall be deemed to be registered and the mere fact that the municipal authorities have not entered in their register, shall not act to the prejudice of the appellants. The building permit which was granted to 7th respondent was a permission only to construct a chimney. By virtue of Rule 4(1) of the !967 Rules, the burial ground shall be deemed to be registered and the mere fact that the municipal authorities have not entered in their register, shall not act to the prejudice of the appellants. The building permit which was granted to 7th respondent was a permission only to construct a chimney. Permission to construct a chimney for an existing crematorium is not grant of license by Corporation for a burial or burning ground so as to make applicable the distance rule as contained in 1994 Act. The view of the learned Single Judge that respondent/appellants have to make an application for grant of fresh license under the Municipality Act, 1994 is unwarranted and unnecessary. Under the 1994 Act registration is necessary for a new burial and burning ground, cremation ground which is running for last more than 100 years cannot be asked to make an application for grant of license. We thus conclude that learned Single Judge committed an error in setting aside the building permit Ext.P4, which was only permission to construct a 30 meter chimney in an existing burial ground. The construction of chimney in an existing burial ground was for the purpose that by burning of dead bodies no pollution is caused in the area. The learned Single Judge erred in not accepting the property as being deemed registered as burning and burial ground for the reasons as noted above. 25. The existing burial and burning ground is on a different footing from new burial and burning grounds. We, however, observe that if a burial and burning ground creates unabated pollution and nuisance, the authorities are not powerless to take action in that regard. In the present case the Kerala Pollution Control Board has already issued its consent after which the building permit was granted. 26. One of the submissions raised by learned counsel for the petitioners is that after the judgment dated 02.04.2004, they were not given any notice before granting building permit to 7th respondent. From the facts which have been brought on record by 6th and 7th respondents, it does not appear that any appeal as contemplated by the order of this Court dated 02.04.2004 was filed by 6th respondent. From the facts which have been brought on record by 6th and 7th respondents, it does not appear that any appeal as contemplated by the order of this Court dated 02.04.2004 was filed by 6th respondent. The case of the 6th respondent is that notice was issued to the respondents as well as to the petitioners and the proceedings in connection with stop memo issued to 6th respondent were dropped by the Corporation. The building permit for construction of chimney was granted to 7th respondent with reference to an application dated 13.01.2004 which have been clearly mentioned in the building permit dated 17.05.2007. Thus the grant of building permit for construction of chimney in the existing crematorium has nothing to do with the stop memo which was earlier issued by the Corporation with reference to which W.P.(C) No.29269 of 2003 was filed by the 6th respondent which was decided on 02.04.2004. We thus find no merit in the above submission of writ petitioners. 27. Learned counsel for the appellants has also contended that the learned Single Judge ought not have proceeded on merits and ought to have relegated the writ petitioners to avail statutory remedy of filing appeal against the building permit. But in view of the fact that parties have filed their affidavits, learned Single Judge had proceeded to consider the matter on merits, we are not inclined to entertain the above objection of the learned counsel for the appellant. In view of what has been stated above, the judgment of the learned Single Judge dated 10.12.2008 cannot be sustained and hereby set aside. The writ petitions filed by respondents/petitioners are dismissed. Both the appeals are allowed accordingly. Parties shall bear their own costs.