Anil Kumar P.K. vs State of Kerala

R. Rajendra Babu, J.—The petitioner, a resident of Ward No. 18 of Muvattupuzha Municipality, filed this O.P. for directing respondents 2, 3 and 4 to take immediate steps to prevent respondents 6 and 7 from proceeding with the construction work of the cemetery in the six cents of property in Marady village for the Brotheren Assembly without obtaining the licence or sanction from the concerned authorities.

Heard the learned counsel for the petitioner, respondents 6 to 8 and the learned Govt. Pleader.

The Bretheren Assembly purchased 6 cents of property by Ext. R6(c) document dt. 11.3.1986 for the purpose of using it as a graveyard, from the C.S.I. East Kerala Maha Edavaka. the 6 cents of property covered by Ex.R6(c) was part of 1 acre 33 cents of land held by the C.S.I. Edavaka. The document would reveal that the property was being used as a graveyard for the last several years. When respondents 6 and 7 started construction of a graveyard consisting of concrete slabs and cells, the present petitioners filed this O.P. for directing the Municipality to take appropriate steps to prevent the construction of the graveyard without obtaining a licence.

The main contention put forward by respondents 6 and 7 was that the above land was being used as a graveyard for the last several years even prior to the coming into force of the Municipalities Act and hence no licence was necessary for burial of bodies in the premises and for construction of the graveyard. The learned counsel for the petitioner submitted that the brother of the petitioner approached this court by preferring O.P.3864/86 when the respondents started the construction of a burial ground and the same was disposed of by this court directing the authorities to consider the disputes in accordance with law. Accordingly the Commissioner of Municipality passed Ext. R6(c) order on 22.8.1992 holding that the burial ground was in existence for the last so many years and hence the brother of the petitioner was not entitled to any reliefs. Ext.R6(c) order would reveal that the Tahsildar had visited the place and filed a report and that the Municipal Commissioner made a local inspection before passing the order. The commissioner further held that the above property had been used as a burial ground even prior to the coming into force of the Municipalities Act and as such the objections raised by the brother of the present petitioner could not be sustained and those objections were overruled.

The learned counsel for the petitioner submitted that in view of Section 483 of the Municipality Act, the burial ground has to be registered. The Municipality Act, 1994 has come into force after the passing of Ext. R6(c) order by the Municipal Commissioner. Section 483 of the present Act (which corresponds to Section 320 of the Municipalities Act, 1960) says:

"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."

In view of Section 483 of the Act, even if the above burial ground was in existence even prior to the coming into force of the Act, it requires registration. So far as the new places for disposal of dead bodies are concerned, Section 484 mandate that a licence should be obtained from the municipality. The object of the above provisions are to regulate and control the disposal of dead bodies in such a manner that it should not cause nuisance to the nearby inhabitants. In view of Section 483 of the present Act, respondents 6 and 7 should obtain registration from the municipality for the use of the above areas for the disposal of the dead bodies.

The learned Govt. Pleader filed a memo with the report obtained from the District Medical Officer of Health. It is in evidence that respondents 6 and 7 are constructing a cemetery. The medical officer has visited the place and filed the above report which says that the respondents have already made a pit of 4.4 metres length, 2.75 metres width and 3 1/2 metres depth recently towards the middle of the six cents of property. The above pit was separated with three cross walls forming four separate cells and the pit was made of cement bricks plastered with cement concrete. There are eight concrete slabs thus made and the cells are covered with it. The report of the medical officer shows that from public health point of view, the above site is not suitable for burial ground and that any development or extension of the burial ground should be done only with the permission of the authorities concerned. The report of the environmental engineer of the State Pollution Control Board also was produced by the standing counsel for the Kerala State Pollution Control Board. The engineer also visited the place and reported that a pit was constructed with four compartments, each of about 3.5 metres depth and 75 centimetres width and 2 metres length and the compartments had their walls plastered, but the bottom was open and concrete slabs were made for covering the top. The petitioner''s house was nearly 40 metres away from the above site and within 100 metres of radius there were some other houses. The area was hilly with steep slopes. It was further noticed that being a rocky area, the depth of the soil was between one metre to two metres and if burial of dead bodies are done in the proposed site, there is chance of sweepage and consequent pollution of water in the well. In view of the report of the Health Officer and the Engineer of the Pollution Control Board, the municipality has to examine whether such a cemetery can be allowed to be constructed in that hilly area, which was likely to cause pollution to the water in the nearby wells. Being an old graveyard, it is true that a licence may not be required for using that place as a burial ground as it was used. But in the nature of the new constructions made by respondents 6 and 7, it is for the concerned municipality to ascertain whether the use of the above burial ground in the manner in which the respondents have now proposed to use would affect the health of the inhabitants by polluting the water. That is a matter which the municipality will have to consider and make suitable directions for avoiding the pollution. What steps the municipality has to take is a matter for them to decide in consultation with the concerned experts. Hence the construction of the cemetery as proposed will have to be regulated by the municipality. Regarding the use of tat area as a graveyard or a burial ground, licence from the municipality is not necessary and respondents 6 and 7 are entitled to use that area as a burial ground. But the manner in which the area has to be used should be as per the directions of the municipal authorities and it should not create any problems to the health of the nearby inhabitants by polluting the underground water.

In the result this O.P. is allowed in part. Respondents 6 and 7 shall get the above burial ground registered before the municipal authorities in accordance with Section 483 of the Municipality Act. Further, the construction of the cemetery shall be in accordance with the directions to be obtained from the municipal authorities. The construction of the cemetery shall not in any way cause pollution to the water of the nearby wells. The municipality shall examine the matter and issue appropriate directions in consultation with the health and the pollution control authorities.

The O.P. is disposed of as above.

APPENDIX

PETITIONER''S EXHIBITS -

P1 - TRUE COPY OF THE MASS REPRESENTATION DT.12.9.01 SUBMITTED BEFORE R2.

P2 - TRUE COPY OF THE ROUGH SKETCH SHOWING THE LOCATION OF THE LAND INTENDED TO BE USED AS CEMETERY AND THE ADJACENT RESIDENTIAL HOUSES AND SCHOOLS.

P3 (a) & (b) - TRUE COPY OF THE PHOTOGRAPH SHOWING THE NEW CONSTRUCTION GOING ON IN THE PROPERTY.

RESPONDENTS EXHIBITS -

R6 (a) - TRUE COPY OF THE JUDGMENT IN OP 3864/86 DT. 5.3.91.

R6(b) - TRUE COPY OF THE NOTICE ISSUED FROM THE MUNICIPALITY ON 9.7.91.

R6(c) - TRUE COPY OF THE ORDER DT. 22.8.92 OF MUVATTUPUZHA MUNICIPALITY.

R6(d) - TRUE COPY OF THE EXTRACT OF BURIAL REGISTER OF MUVATTUPUZHA PARISH OF CSI CHURCH FROM 1920.

R6(e) - TRUE COPY OF THE SALE DEED NO. 931/86.