Judgment : 1. A decent burial whether a right, fundamental or not, an attempt to establish a burial or a burning ground or a crematorium quite frequently leads to confrontation, at different levels unmindful of the God's honest truth that it is the last destination for all. The reason for the resistance against the setting up of a crematorium and its tenability beckon a befitting, deeper consideration in this case in view of the involvement of certain significant questions. The issues herein originated from the decision and the follow up steps taken for setting up a crematorium in Ward No.10 by the third respondent-Chottanikkara Grama Panchayat. Whether publication of the application for issuance of licence for a burial or burning ground, including a crematorium, and also a notice inviting objections, complaints or suggestions in a daily newspaper in the regional language of the locality in question having wide circulation is mandatory and if its answer is in the affirmative, then what exactly is the stage at which such publication is to be effected? These and other allied questions posed for consideration in the following factual matrix:- The third respondent Panchayat passed Ext.P1 resolution dated 8.2.2006 to request the District Collector, Ernakulam, the second respondent herein, to initiate proceedings to acquire 5.98 Ares of land comprised in Survey No.307/3 of Kanayannur Village for the purpose of constructing a burial ground. Subsequently, in and vide Ext.P2 resolution the said decision was cancelled and it was resolved by the Panchayat to make a request to the second respondent to initiate proceedings to acquire 4.05 Ares of land comprised in Survey No.37/3 of Kanayannur Village for the very same purpose. Evidently, a further resolution was also passed to acquire more extent and ultimately, as can be seen from Exts.R4(a) and R4(b), a total extent of 7.70 Ares of land was acquired by the third respondent Panchayat. Thereupon, the Panchayat applied to the 2nd respondent for licence to construct, open and use a burning ground in the acquired property. However, the 2nd respondent-District Collector rejected the request for issuance of licence under Rule 6(8)(b) of the Kerala Panchayat Raj (Burial and Burning Grounds) Rules 1998 (for short "the Rules') mainly based on Ext.P4 report of the District Police Chief, Rural, Aluva regarding a possible law and order situation in the event of such an attempt. However, the 2nd respondent-District Collector rejected the request for issuance of licence under Rule 6(8)(b) of the Kerala Panchayat Raj (Burial and Burning Grounds) Rules 1998 (for short "the Rules') mainly based on Ext.P4 report of the District Police Chief, Rural, Aluva regarding a possible law and order situation in the event of such an attempt. The Panchayat took up the matter in appeal before the Government and thereupon the first respondent directed the 2nd respondent to consider the application and take appropriate steps thereon after discussion with all concerned. Ultimately, Ext.P7 order was passed by the 2nd respondent granting licence to set up a burning ground in the aforementioned land. It is also ordered therein that for obtaining the licence in Form No.II the applicant has to submit completion certificate from the District Medical Officer (Health). Feeling aggrieved by Ext.P7 order the petitioner herein preferred Ext.P8 appeal before the Government as the Convenor of the people's action committee. Aggrieved by the delay in the matter of its consideration the petitioner approached this Court by filing W.P.(C)No.8869 of 2012 and the same was disposed of as per Ext.P9 judgment with a direction to the first respondent to consider and pass appropriate orders on the appeal after affording an opportunity of being beard to all parties concerned. Subsequently, in compliance with the directions in Ext.P9 judgment Ext.P10 order was passed by the Government invoking the power under Rule 6(11) of the Rules directing the second respondent to take a decision in terms of the relevant sub-rules under Rule 6 of the Rules. The impugned Ext.P15 order was issued by the second respondent in purported compliance with the directions in Ext.P10. Though originally the prayer was to complete the enquiry as directed in Ext.P10 subsequent to the passing of Ext.P15 the petitioner amended the writ petition to bring in challenge against Exts.P7, P10 and P15 and also for consequential reliefs. 2. I have heard the learned counsel for the petitioner, the learned Senior Counsel appearing for respondents 3 and 4, the learned counsel appearing for respondents 5 and 6 and also the learned Government Pleader. 3. Manifold contentions have been raised by the petitioner to challenge Exts.P7, P10 and P15 orders. Indubitably, prayer Nos.(a) and (b) have become infructuous after the issuance of Ext.P15 order. Now, I will consider the tenability of the challenge against Exts.P7, P10 and P15. 3. Manifold contentions have been raised by the petitioner to challenge Exts.P7, P10 and P15 orders. Indubitably, prayer Nos.(a) and (b) have become infructuous after the issuance of Ext.P15 order. Now, I will consider the tenability of the challenge against Exts.P7, P10 and P15. Evidently, Ext.P7 order was taken up in appeal by the petitioner through Ext.P8 and it culminated in Ext.P10 order. As per Ext.P10, the first respondent issued a direction to the second respondent to consider the issue afresh and pass appropriate orders on the application submitted by the 3rd respondent in accordance with the provisions under Rule 6 of the Rules and it was thereafter that the second respondent passed Ext.P15 order under Rule 6(8)(a) of the Rules. There is absolutely no need for mounting any challenge against Ext.P7 order after Ext.P10 order and the consequential Ext.P15 order as Ext.P7 order lost its existence in the circumstances. The scope of consideration is thus confined to the challenge against Exts.P10 and P15. Though the petitioner assails the said orders on the ground of being tainted with malafides it behoves if that ground is considered a little later, that too, in case of necessity after considering the challenge mounted against them based on alleged violation of Rules 6(6) and 6(7) of the Rules. 4. One of the grounds of specific attack is that the District Medical Officer had neither conducted any enquiry nor made any recommendation as enjoined under Rule 6(6) of the Rules. The impugned order itself speaks of the recommendation of the District Medical Officer on the application received from respondents 3 and 4 for the aforesaid purpose. In view of the position obtained from the records that the District Medical Officer had forwarded the application submitted by respondents 3 and 4 along with his recommendations after conducting an enquiry the contention of the petitioner based on Rule 6(6) has to fail. 5. Serious contentions have been made by both sides based on the provisions under Rule 6(7) of the Rules. The learned counsel appearing for the petitioner submitted that publication of the application with a view to invite objections, complaints or suggestions with regard to the issue of licence was not effected by the second respondent in accordance with the mandates under Rule 6 (7) of the Rules. The learned counsel appearing for the petitioner submitted that publication of the application with a view to invite objections, complaints or suggestions with regard to the issue of licence was not effected by the second respondent in accordance with the mandates under Rule 6 (7) of the Rules. It is contended that the publication of the application for the aforesaid purpose in a daily newspaper in the regional language of the locality in question having wide circulation besides placing the same in the notice board of the Panchayat, notice board of Village and other public places specified by the Government inviting objections, complaints or suggestions is required immediately on receiving the application and no construction could be effected without following such procedures and without obtaining such a licence under Rule 6(8) of the Rules. The learned counsel further submitted that a bare perusal of Rule 6(1) of the Rules would reveal that carrying out construction is impermissible before issuance of a licence and therefore, the contentions on behalf of respondents that it requires to be complied with only at the stage of issuance of licence and it is not required for the purpose of carrying out the construction are unsustainable. The learned counsel for the petitioner further submitted that a ground based on the failure to comply with the procedures under Rule 6(7) of the Rules was specifically raised in the appeal and that fact is evident from Ext.P10. However, the first respondent did not go into that question and at the same time, directed the 2nd respondent to consider the application and to take a decision in terms of the relevant sub-rules under Rule 6 of the Rules. Nonetheless the second respondent did not consider the requirement regarding the compliance with the procedures prescribed under Rule 6(7) while passing Ext.P15 order. According to the petitioner, Exts.P10 and P15 call for interference in the said circumstances. 6. Nonetheless the second respondent did not consider the requirement regarding the compliance with the procedures prescribed under Rule 6(7) while passing Ext.P15 order. According to the petitioner, Exts.P10 and P15 call for interference in the said circumstances. 6. The learned Senior Counsel appearing for respondents 3 and 4 and the learned counsel appearing for respondents 5 and 6 contended that as per Ext.P10 the Government issued directions to the second respondent to consider the application in accordance with the provisions under Rule 6(8) of the Rules and as per Ext.P15 the second respondent accorded sanction only to set out the construction works of the public crematorium at the proposed site in Survey No.37/5 of Kanayannoor Village by adhering to the conditions stipulated by the District Medical Officer (Health) Ernakulam and deferred issuance of licence in form II till the applicant produces completion certificate from the District Medical Officer (Health), Ernakulam. It is further contended that thus, it is obvious that what is accorded by the second respondent is only a sanction to construct the public crematorium in the proposed site and for passing such an order the procedures prescribed under Rule 6 of the Rules need not be followed. According to them, it is only after completing the construction and after submission of the application for licence the procedures prescribed thereunder need be followed. The learned Senior Counsel further submitted that the attending circumstances evidenced from records would undoubtedly reveal that the purpose of publication of notice in a daily newspaper in the regional language of the locality having wide circulation in terms of Rule 6(7) of the Rules was substantially complied with in this case and since its avowed purpose is achieved the mere failure to publish the application for licence and notice inviting objections, complaints or suggestions, if any, in a daily newspaper in the regional language of the locality having wide circulation is of little consequence and at any rate, it cannot be taken as a reason to hold that Ext.P10 and P15 are vitiated. The learned counsel for respondents 5 and 6 as also the learned Government Pleader would endorse the said contentions. For a proper and profitable understanding of the factual position and also to decide the issues involved it is only appropriate to extract the relevant provisions under Rule 6 of the Rules. "6. The learned counsel for respondents 5 and 6 as also the learned Government Pleader would endorse the said contentions. For a proper and profitable understanding of the factual position and also to decide the issues involved it is only appropriate to extract the relevant provisions under Rule 6 of the Rules. "6. Issue of licence to burial or burning grounds.-(1) No new burial or burning ground, whether public or private, shall be opened, constructed or used without a licence from the concerned District Collector. xx xx xx (6) The District Medical Officer shall conduct such enquiries as he may deem necessary on the application received from the Panchayats and shall forward the application with his specific recommendations to the District Collector within thirty days of its receipt. (7) The District Collector, shall, on receipt of the application, publish the same in a daily newspaper in the regional language of the locality having wide circulation, in the notice board of the Panchayat, notice board of village and other public places specified by the Government, a notice inviting objections, complaints or suggestion, if any, with regard to the issue of licence, in writing within thirty days at the cost of the applicant. “MALAYALAM” (a) grant licence in Form No.II; or (b) refuse to grant licence; or (c) postpone the grant of a licence until objections regarding the ground have been removed or any particulars called for by him have been furnished." Though it is not relevant for the purpose of disposal of this writ petition it will not be inapposite if a reference is made about the incompatibility occurred in the matter of incorporation of different sub-rules under Rule 6 of the Rules. A perusal of Rule 6 would reveal that it is a creole. Some sub rules thereunder are in English and some others are in Malayalam and in short, Rule 6 as such is a blending of two languages namely, English and Malayalam. 7. As noticed hereinbefore, the main contention of the respondents is to the effect that the stage of publication of the application and simultaneous invitation of objections, complaints or suggestion, if any, through a daily newspaper in the regional language of the locality having wide circulation is the stage at which an application is taken up consideration for issuance of licence. As noticed hereinbefore, the main contention of the respondents is to the effect that the stage of publication of the application and simultaneous invitation of objections, complaints or suggestion, if any, through a daily newspaper in the regional language of the locality having wide circulation is the stage at which an application is taken up consideration for issuance of licence. In other words, according to them, for the purpose of according sanction to construct a public crematorium at the proposed site in Survey No.37/5 of Kanayannoor Village adherence to Rule 6(7) and publication of the application and invitation of objections, complaints or suggestion, if any, through a daily newspaper is absolutely unwarranted. It is their further contention that since that stage is yet to reach the petitioner cannot have a legally sustainable cause of action or justiciable grievance based on non- publication of such a notice in a daily newspaper in the regional language. In this context, it is to be noted that the recital in Ext.P10 order more particularly, in paragraph 4(v), would reveal that the petitioner has taken up a specific contention regarding the failure to adhere to the provisions under Rule 6(7) in Ext.P8 and it was pressed into service at the stage of hearing. However, a scanning of Ext.P10 would reveal that after referring to the said point of argument raised on behalf of the petitioner no finding was returned by the first respondent as against that point. It may be contended that on that sole score Ext.P10 invites no interference as in and vide the same the 2nd respondent was directed to consider and take a decision in terms of the relevant sub- rules under Rule 6 of the Rules. Then, the question is whether the second respondent had considered all such aspects while passing Ext.P15 order in compliance with the directions in Ext.P10. A perusal of Ext.P15, on the other hand, would reveal absolute absence of any such consideration and it would make it clear that the second respondent was mainly concerned only with one question as to whether an attempt to set up crematorium would lead to a law and order situation. The 2nd respondent cannot be faulted for such a consideration as he was directed only for such a consideration, as can be seen from Ext.P10. The 2nd respondent cannot be faulted for such a consideration as he was directed only for such a consideration, as can be seen from Ext.P10. In such circumstances, normally this Court would remit the matter for fresh consideration by the appellate authority, or by the 2nd respondent on that point. However, taking note of the contentions by the counsel on all sides and the fact that question emerges for consideration is whether such a publication is mandatory and if mandatory what exactly is the stage at which such a publication in a daily newspaper in tune with the provisions under Rule 6 (7) has to be taken out I am of the view that it is only proper for this Court to consider the said issues in this proceedings itself. As a prelude to such consideration it will only be apposite to note that as per Ext.P15 order passed in compliance with Ext.P10 the second respondent accorded sanction to set out construction works of the public crematorium at the proposed site in Survey No.37/5 of Kanayannoor Village and specifically deferred the grant of licence in form No.II till production of completion certificate by the applicant from the District Medical Officer (Health), Ernakulam. 8. In view of the rival submissions I may, firstly, consider the question as to what exactly the stage at which the publication of an application on its receipt and simultaneous invitation of objections, complaints or suggestion, if any, in a newspaper in tune with the provisions under Rule 6(7) is to be taken out. An allied question to be decided is whether prior to the compliance with the same is it permissible to accord sanction to set out for construction of the crematorium in question as has been done by the second respondent as per Ext.P15. As noticed hereinbefore, the specific contention of the respondents is that if at all it is mandatory the publication is to be made only prior to the taking of decision as to whether licence is to be issued or not. At the risk of repetition I may refer to Rule 6(1):- "6. Issue of licence to burial or burning grounds. As noticed hereinbefore, the specific contention of the respondents is that if at all it is mandatory the publication is to be made only prior to the taking of decision as to whether licence is to be issued or not. At the risk of repetition I may refer to Rule 6(1):- "6. Issue of licence to burial or burning grounds. - (1) No new burial or burning ground, whether public or private, shall be opened, constructed or used without a licence from the concerned District Collector." (emphasis added) Thus, a perusal of Rule 6(1) would reveal that in an unambiguous terms the position has been made clear to the effect that no new burial or burning ground whether public or private shall be constructed without a licence from the concerned District Collector. It is thus evident from the rule that without a licence no new burial or burning ground in public or private sector could be opened, could be constructed and could be used. When the rule is very specific and leaves no room for any doubt regarding its mandate that a new burial or burning ground shall not be constructed without a licence from the concerned District Collector there is absolutely no need to entertain any doubt in that regard. Hence, I have no hesitation to hold that the contention of the respondents that to set out for construction of a public crematorium which fall under the expression "burning ground' a licence is not required cannot be upheld. According to me, a contra construction would definitely violate the provisions under Rule 6(1) of the Rules. When the law ordains that no new burial or burning ground shall be constructed without a licence from the concerned District Collector, the 2nd respondent is not justified and in fact, went wrong in according sanction to construct it without a licence. In such circumstances, the order in Ext.P15 of the second respondent according sanction to set out the construction works of the public crematorium at the proposed site in Survey No.37/5 of Kanayannoor Village after deferring the grant of licence in Form No.II till the production of completion certificate from the District Medical Officer (Health), Ernakulam is to be held as one passed in blatant violation of the provisions under Rules 6(1) and 6(7) of the Rules. The action on the part of the second respondent is ultra vires the said provisions in the Rules. In short, a conjoint reading of Rules 6 (1) and 6(7) of the Rules would reveal that construction, opening and using of a new burial or burning ground, including crematorium shall only be after obtaining a licence from the concerned District Collector. On the aforesaid sole ground Ext.P15 is liable to be set aside. In this context, it is also to be noted that a perusal of Ext.P10 order would reveal that the specific direction of the first respondent to the second respondent was to take a decision on the application submitted by the third respondent in terms of relevant sub-rules under Rule 6 and not in derogation of the sub-rules in Rule 6. 9. I may now consider the question whether the prescription for publication of the application on its receipt and simultaneous issuance of notice inviting objections, suggestions etc. in a daily newspaper in the regional language of the locality having wide circulation is mandatory or directory in nature. A perusal of Rule 6(7) of the Rules would reveal that the very purpose of taking out a publication in terms of Rule 6(7) is to invite objections, complaints or suggestions, if any, with regard to the issuance of licence. Rule 6(8) would reveal that licence could be granted or refused after considering the objections, complaints or suggestions, if any, received. It would also reveal that even after considering such objections, complaints or suggestions received it will be open to the District Collector to obtain a report from the District level officer of the Pollution Control Board for deciding whether to grant or to refuse the licence. I have already found that the construction is possible and permissible only after obtaining a licence from the District Collector concerned and when consideration of such objections, complaints or suggestions is to be made before taking a decision to grant licence or to refuse licence and that the construction could start only after obtaining a licence the provision for raising objections, complaints or suggestions in the matter to set out of a burning ground or a burial ground cannot be said to be a mere formality. In fact, a conjoint reading of Sub Rules (1), (7) and (8) of Rule 6 would reveal that the outcome of consideration of such objections, complaints or suggestions would decide the fate of the application inasmuch as, it is the consideration which would lead to the decision as to whether the licence is to be granted or whether it is to be refused. The contention of the respondents that construction could commence and complete prior to the consideration of the question of issuance of licence cannot be accepted for another reason, as well. If, ultimately after considering the objections, complaints or suggestions a decision is taken to refuse to grant the licence the entire exercise and efforts would become futile and the building in question could not be used as a burial ground viz., crematorium after such a decision. Such a situation would result in unnecessary incurrence of expenditure and such eventuality would go against public interest. When in a statute there is a requirement of publication in a daily newspaper, with a view to afford opportunities to the persons likely to be affected to raise objections or complaints the question whether such a provision should be construed as mandatory or directory came up for consideration before the Hon'ble Apex Court in V.K.M. Kattha Industries Private Limited v. State of Haryana and Others (2013) 9 SCC 338 ). True that, that was a case under the Land Acquisition Act, 1894. The Hon'ble Apex Court considered the question whether publication of preliminary notification in two daily newspapers having circulation in the locality concerned as prescribed under Section 4(1) of the Land Acquisition Act is mandatory or not. It was held that it is mandatory and any acquisition proceedings without compliance with the said mandatory provision is liable to be quashed. Consideration of objections, complaints or suggestions would decide the fate of the application viz., its grant or rejection. In view of the above discussion and in the light of the decision in V.K.M. Kattha Industries Private Limited's case (supra) I am of the considered view that the provisions under Rule 6(7) of the Rules requiring such publication cannot be said to be directory in nature and they are mandatory. In view of the above discussion and in the light of the decision in V.K.M. Kattha Industries Private Limited's case (supra) I am of the considered view that the provisions under Rule 6(7) of the Rules requiring such publication cannot be said to be directory in nature and they are mandatory. When the position is that a consideration of such objections, complaints or suggestions would result either in granting of licence or refusal of licence and that without a valid licence construction of a burial ground, for that reason, a crematorium also, is not permissible in terms of Rule 6(1) I have no hesitation to hold that the provisions for publication in terms of Rule 6(7) in a daily newspaper is mandatory in nature. In this case admittedly this mandatory procedure under Rule 6(7) for publication in a daily newspaper was not complied with. In such circumstances, Ext.P15 order whereby the second respondent accorded sanction for setting out construction of the public crematorium at the proposed site after deferring the question of issuance of licence in Form No.II cannot be sustained in law. In the result, Ext.P15 is set aside. Ext.P10 to the extent it orders consideration of the application based solely on the point of view of law and order situation is also set aside. In other words, Ext.P10 shall be construed as a direction for consideration of the application strictly adhering to the relevant provisions under Rule 6 without confining the consideration solely to the law and order situation. Consequently, the second respondent is directed to consider the application strictly in accordance with the provisions under the Rules particularly under Rule 6 in its entirety and pass appropriate orders after considering the objections, complaints or suggestions, if any, received in accordance with law. Taking into account the urgency of the issue such a decision shall be taken as expeditiously as possible.