Achuthan and Others vs State of Kerala and Others

Velu Pillai, J.—This petition challenges the validity of an order, Ext. A, passed by the first respondent, the State of Kerala on August 25,

1958, cancelling a resolution passed by the second respondent, the Kozhikode Municipal Council, or simply the Council, on August 30, 1954, by

which, the latter refused an application, to register certain lands as burial grounds, made by the third respondent, who is now the President of

Karaparamba Juma Mosque committee, the fourth respondent being now its Secretary. To appreciate the points in controversy, it is necessary to

set out a few facts as disclosed by the affidavits of the parties and by the file of papers placed in my hands, by the learned counsel who appeared

for respondents 1 and 2. The petitioners, seven in number, claim to be residents in the vicinity of the mosque. Some of them and others presented

to the Collector, Malabar, a petition on March 9, 1953, which was marked by me as Ext. R 1(a), and which referred to earlier petitions of the

years 1950 and 1952, on the subject addressed to the Collector, to the Municipal Health Officer, and to the Municipal Commissioner, Kozhikode,

objecting to the move for registration u/s 278 (1) of the Madras District Municipalities Act, 1920, hereinafter referred to as the Act, of the

compound attached to the aforesaid mosque, as a burial ground. It was forwarded by the Collector to the Municipal Commissioner, Kozhikode,

for a consideration of the objections to registration. The third respondent, who at the time was the Secretary of the mosque committee, applied on

March 23, 1953, to the Municipal Commissioner, Kozhikode, for the registration of the land set out by him in a schedule but without specifying its

survey numbers, as burial ground. Later, when called upon, he specified them by Ext. R 4 dated July 6, 1954 as survey number 384/7, being land

which was described as the seat of the mosque and covered by a wakf more than 100 years ago, and as survey number 385, being land which had

been obtained by the mosque by deed, number 992 of the year 1952. A third plot of land which is also involved in this controversy, bearing survey

number 384/4 was not specified or referred to in Ext. R 4. The Council thereupon constituted a special committee, which, after inspecting the

lands, hearing the parties or their lawyers, and perusing the documents produced, reported to the Council against registration of any of the lands

bearing survey numbers 384/7, 385 and 384/4; it may be mentioned, that a claim for registration of land bearing survey number 384/4 also had

been made before the special committee, producing a title deed for it, of the year 1947. On August 30, 1954, after perusing the file of papers, and

the reports of the special committee and of the Municipal Health Officer against registration, and on taking legal advice, the Council passed

proceedings marked Ext. R 7, adopting the report of the special committee and declining registration. Later, there was a representation to the

Collector, Malabar, by some of the Muslims for reconsideration, which was forwarded by him to the Council. It is seen from Ext. R 8, that the

prayer then made was, that if another suitable burial ground could not be provided, the Muslim residents of the locality may be allowed to bury the

dead at least in the land bearing survey number 384/7. After further consideration, the Council confirmed its previous resolution by Ext. R 8 dated

November 30,. 1954. On August 26, 1955, a representation was made to the Madras Government on behalf of some of the Muslim inhabitants,

requesting that the lands bearing survey numbers 384/7 and 385 at least, may be registered as burial ground, or that, if that was not possible,

another place may be made available. By Ext. R 9 dated December 27, 1955, the Government of Madras ordered, that they saw no reason to

interfere with the resolution of the Council.

Nothing transpired till July, 1958, when a memorandum was presented by the third respondent to the Government of Kerala, after the formation

of the Kerala State, requesting Government to intervene and secure the registration of the lands, or to provide other suitable burial ground. The

Municipal Commissioner, Kozhikode, as directed, furnished his remarks thereon which were adverse to the claim for the registration of the lands.

Government then decided to convene a conference of the Chairman, and the Commissioner of the Council, the leaders of the parties in the

Council, and the President and the Secretary of the mosque committee, on August 18, 1958, and a memorandum therefor was issued to the

Chairman and the Commissioner of the Council, and to the others inviting them to be present. A conference was held on the appointed date,

although, as was stated, the leaders of one of the parties did not attend. Thereafter, the order impugned, Ext. A was passed on August 25, 1958,

which stated that ""Government find that Karaparamba Juma Mosque and the burial ground attached to it were in existence for nearly a century

now""; the reason in support of the order was stated to be, that u/s 278 of the Act, when an application is made for the registration of a land, which

was being used as a burial ground on the date the Act came into force, the Council had no option but to register it, and to refuse to do so, was a

contravention of Section 278, and therefore an illegality. Accordingly, by Ext. A, the resolution of the Council, Ext. R7 was cancelled and the

Council was directed to ""sanction registration of the Karaparamba burial ground forthwith""; Government also ordered the refund of fines realised

for the alleged violation of orders of the Council prohibiting the use of the burial ground, and the withdrawal of prosecutions pending, if any,

launched for such violation"".

The petitioners'' contentions are, that as residents of Karaparamba and; as neighbours of the lands in question they are specially affected by the

registration of the lands as burial grounds, that Ext. A was passed in contravention of Section 36 of the Act, without affording the Council or the

petitioners an opportunity for explaining their point of view, that the Council is not bound, as supposed by Government, to register any application

that may be made u/s 278 of the Act, but has a discretion to refuse it on appropriate grounds, and that if Ext. A applied to the whole land denoted

by the three survey numbers, it is vitiated by a patent error, in that the lands bearing survey numbers 384/4 and 385 were not being used as burial

grounds, at the date of the commencement of the Act, having come into the possession of the mosque itself only in the years 1947 and 1952 under

the two deeds referred to above. The learned counsel, who appeared for the Council, also supported the stand taken by the petitioners and filed a

counter affidavit. It was represented that on a preliminary objection being taken by the learned counsel for the first respondent, before Mr. M. S.

Menon J., when the case came on before him on a previous occasion, an opportunity was granted by him to the Council, to file either an

independent original petition under Article 226, or a counter-affidavit elucidating and clarifying the matter covered by the earlier affidavit. The

Council chose to adopt the latter course and filed a supplementary counter-affidavit, but no copy of it having been served on respondents 3 and 4

who are also contesting parties in this petition, I do not propose to make use of it for the disposal of this petition. The learned counsel for the first

respondent contended, that the petitioners have no personal interest in the subject-matter to entitle them to move this court under Article 226, that

they could not do so, as the Council has not taken steps to challenge Ext. A, that Ext. A was validly passed after the issue of notice to the

Authority"" concerned as prescribed by Section 36 of the Act, and that there are no errors in Ext. A of fact or law, as would attract the jurisdiction

of this court.

The petitioners'' contention based on Section 36 of the Act may be disposed off first. The material parts of this provision are extracted below :

36(1) ""The State Government may, by order in writing-

(i) ""suspend or cancel any resolution passed...in pursuance or under colour of this Act, if, in their opinion,

(a) ""such resolution...has not been legally passed...

(b)...

(c)...

Provided that the State Government shall before taking action under this section on any of the grounds referred to in clauses (a) and (b) give the

authority or person concerned an opportunity for explanation

It was faintly urged by the learned counsel for the petitioners that the word ""or"" in the expression ""authority or person"" in the proviso must be read

as meaning ""and"", and that so interpreted, not only the Council, but also the petitioners, ought to have been given an opportunity for explanation. I

am aware that a departure from the natural and plain meaning of this word can be made, whenever the context justifies it or makes it necessary so

to do; but I also feel, that the departure ought not to be made, except for good and sufficient reasons, which I am unable to find, in the present

case. If so, it was sufficient, if either the ""authority"" meaning the ""council"" which passed the resolution which was cancelled, or the petitioners, had

in fact the requisite opportunity; a hearing, with all its formalities is not contemplated. But then, where an ""authority"" is concerned, the opportunity

must be that of the ""authority"" as such; a statutory authority can speak or act, only in the manner prescribed by the statute. Section 19 of the Act

has provided that the municipal administration shall vest in the Council, which shall not be entitled to exercise the functions expressly assigned by

the Act or any other law to the Chairman or the executive authority who is the Commissioner; the functions so assigned are specified by Section

13, in the case of the Chairman, and by Section 13 A in the case of the Commissioner. It was not contended, that the power to register a burial

ground is one of those assigned to either of them; on the contrary, Section 278 assigns it to the Council. Neither the Chairman nor the

Commissioner, much less the leader of any of the parties in the Council, can speak or act on behalf of the Council, unless specially authorised by its

resolution to do so. The memorandum for convening the conference having been issued to the Chairman and the Commissioner, some reliance was

placed on Section 327 of the Act which provides that ""every...summons or other document which is required by this Act... to bear the signature of

the Chairman or executive authority...shall be deemed to be properly signed, if it bears a facsimile of the signature of the Chairman or executive

authority.............as the case may be, stamped thereon""; this has nothing to do with the competency of the Chairman or the Commissioner to

represent the Council u/s 36. The file does not show, that the Council held any deliberation over the matter, or that it passed any further resolution

concerning it. No doubt, the report of the Commissioner happened to be in complete accord with the resolution of the Council. This, however, is

different from the Council as such being given an opportunity to explain itself. It is true, that the Council could speak only through resolutions; even

so, it cannot be predicted what form they might take or what reasons they might embody. The Council might even depute someone to explain its

point of view orally to the Government. Further, between the purpose or object of holding a conference, such as was convened, and that of

exercising the jurisdiction vested u/s 36 of the Act; is all the difference between a purely executive and a quasi-judicial exercise of power. It is

conceivable that the object of the conference might well have been to discover an agreed formula, or if that was not possible, at least a formula

which would reflect the greatest common measure of agreement between the opposing interests. If complete unanimity was secured, the court

would no more be bothered about it, but where it was not, the jurisdiction u/s 36 was attracted and ought to have been properly exercised as

prescribed. I am not prepared to hold, that convening a conference in which the Chairman and the Commissioner of the Council, and also perhaps

the leaders of the parties in the Council took part, was the exercise of a function in terms of section 36 and constituted sufficient compliance with

the prescription, of an ""opportunity"" for explanation for the concerned ""authority or person"", in the proviso to it. Though the plea that the Council

was not given an opportunity to explain, does not find a place in so many words in the first counter-affidavit filed on behalf of the Council, I am

satisfied, that the necessary averments of facts have been set out with particularity, in paragraphs 3 to 5 thereof, leading to the necessary inference,

that the Council had not the requisite opportunity. I attach no importance whatever to the argument, that the counter-affidavit on behalf of the

Council having been filed by the Commissioner, it is not open to the Council to plead want of representation by the Commissioner in the

proceedings before Government. I hold that Ext. A was passed in disregard of Section 36 of the Act.

In passing Ext. A, the first respondent has held, that when an application was made u/s 278(1) for registration of a burial ground the Council had

no option but to allow registration and that its refusal amounted to an illegality. Section 278(1) and (2) may now be reproduced:-

278(1) ""Every owner or person having the control of any place used at the date of the coming into operation of this Act as a place for burying,

burning, or sic burial within its area. Even the learned Government Pleader did not contend for the extreme position taken in Ext. A, but was wilting

to concede, that when an application is based on untrue statements of fact., say that the land was being used as a burial ground when the Act came

into force, when it was not so used, the Council is not bound to register. It may be recalled, that the contention of the Council and of the petitioners

has always been that at least, the lands bearing survey numbers 384/4 and 385 were not used as burial grounds, at the relevant date and came into

the possession of the mosque itself only in the years 1947 and 1952, and that the present case of respondents 3 and 4 set out in their counter as to

an anterior title of the mosque stands contradicted by Ext. R. 4. According to the petitioners, these constituted errors apparent on the face of the

record, but it is unnecessary to dwell on this aspect once it is found, that the Council was not given an opportunity for explanation within the

meaning of the proviso to Section 36; The merits of the controversy, therefore, do not arise.

Next, it was contended, that the petitioners have another remedy u/s 283(1) of the Act and that therefore this court need not now interfere.

Section 283(1) provides :-

283(1) ""If the council is satisfied..............

(a) ""that any registered or licenced place for the disposal of the dead is in such state or situation as to be, or to be likely to become, dangerous to

the health of persons, living in the neighbourhood thereof, or (b) "" ""that any burial ground is overcrowded with graves, and if in the case of a public

burial or burning ground or other place as aforesaid, another convenient place duly authorised for the disposal of the dead exists or has been

provided for the persons who would ordinarily make use of such place, it may with the previous sanction of the State Government give notice that

it shall not be lawful after a period to be named in such notice to bury, burn or otherwise dispose off any corpse at such place.

It will be noted, that for obtaining relief under clause (a), a place wrongly registered u/s 278(1) has to be proved, to be in such a state or situation,

as to be or to be likely to become dangerous to the health of persons living in the neighbourhood, and for obtaining relief under clause (b), the

place must be overcrowded with graves; there are other conditions too, which need not be considered. Suffice it to note that registrability of the

land as a burial ground, is not a live issue u/s 283(1). The contention as to the existence of an adequate remedy, therefore, fails.

It remains to dispose off the objection to the petitioners'' locus standi sic petitioners can be granted any relief under Article 226 in these

circumstances. ""As a general rule, certiorari, will not issue at the instance of one, not named as a party to the proceeding, in which, the judgment or

order sought to be reviewed was entered........ It is not necessary that he be a party to the record, but only that he be interested in the subject-

matter upon which the record acts""-Ferris on Extraordinary Legal Remedies, 1926 Edition, page 199, paragraph 174. This principle has been

accepted in India, in Damodar v Narayan, AIR 1955 Assam 163. It is not therefore an insuperable objection, that the petitioners are not to nomine

parties to Ext. A, and that tie Council has not applied under Article 226.

The Supreme Court has ruled in The State of Orissa Vs. Madan Gopal Rungta, , that the existence of a right is the foundation for the exercise of

the jurisdiction. under Article 226. The principles on which certiorari may issue in England, are summarised in a book, entitled ""Judicial Review of

Administrative Action"" by S. A. de Smith, recently published. At page 313 the learned author says:-

The position may be summarised thus:-In strict law any member of the, public may apply for certiorari to quash an order; in practice no application

is likely to succeed except one made by a person aggrieved; the meaning of a person aggrieved is for this purpose much wider than in most other

branches of the law; but an applicant''s personal interest in the subject-matter of an impugned order may be too slight Or too remote for him to be

treated as a person aggrieved by it.

Relying on R v Nicholson. (1899) 2 Q. B. 455 at 471, persons aggrieved may be defined, as those who ""have a peculiar grievance of their own,

beyond some grievance suffered by them in common with the rest of the public."" In Rex v Taunton, St. Mary, (1815) 3 M & S 465, the question

arose, whether the residents of a locality who were inconvenienced on account of an adjoining highway being kept in a state of disrepair, were

persons aggrieved for the purpose of certiorari, and it was ruled, that by ""living in the neighbourhood and having been in the constant habit of

passing to and fro on this highway, they have been obliged to abandon it, and take a more circuitous route........which is a peculiar personal

grievance beyond that which affects the public at large."" S.A. de Smith remarks at page 312 of his book that ""the category of persons aggrieved

has been drawn widely"" and quotes instances from decided cases to illustrate this, and as a result, observes, that the definition of persons aggrieved

in Rex v Nicholson ""must be broadened to include members of a local community who have a special grievance of their own by virtue of their

membership of that community,"" and relies on the authority of Rex v Taunton, St. Mary. The learned counsel for the first respondent had a

contention, for which I am unable to see adequate foundation, that the principles on which Courts in India grant certiorari, are different. The cases

cited by him, were decided as to the nature of the interest in the applicant to sic a writ; on the contrary, I find, that the same principles have been

sic substantially in Damodar v Narayan cited above, in which a voter in a sic insistency was held entitled to challenge the order of the election

tribunal, declaring an election to be void, although the elected candidate himself had not chosen to impugn the order. In P. K. N. Abdul Mazid v

State of sic AIR 1957 Madras 55, the petitioner, who operated a rice mill, objected to the grant of a licence to a rival for opening another rice mill

in the same locality; it was held, that he was a ""party aggrieved"" within the meaning of the rule, his interest being different from that of the public, in

seeing that the law as to the issue of licences is properly administered. Very strong reliance was placed on behalf of the first respondent on In re

Ramamoorthi, AIR 1953 Madras 94, in which the petitioner who challenged the nomination of Shri. Rajagopalachari to the Madras Legislative

Council, was held to be not a party aggrieved, having no personal right which could be said to have been infringed, even indirectly, by the

nomination, Ramappa v Secretary, Revenue Department, AIR 1959 Andhra Pradesh 318, cited, was a case in which the question arose at the

instance of one of the villagers, over the propriety of the assignment of a ""poramboke"" land; the petitioner did not succeed in establishing any

special right in himself. In P. Sathyanarayan v State of Andhra Pradesh, AIR 1959 Andhra Pradesh 429, the petitioner had sustained no violation

of his personal rights as the order of the Regional Transport Authority changing the timings of other buses, did not affect him. On the principles

discussed above, I am of the view, that as residents in the immediate neighbourhood, the petitioners have a special interest of their own, apart from

their interest as members of the public, in challenging an order which was passed in contravention of Section 36 of the Act, as held by me, and also

of Section 278 (1) of the Act, as alleged by them, and as found by the Council. The operative part of Ext. A directing the Council to register the

land is hereby quashed, on the ground, that no ""opportunity for explanation"" was allowed to the Council or the petitioners as prescribed by the

proviso to Section 36. No costs.