High Court Kerala High Court

Mavelikara Brethren Assembly vs The Mavelikara Municipality on 9 November, 2009

Kerala High Court
Mavelikara Brethren Assembly vs The Mavelikara Municipality on 9 November, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 22211 of 2009(V)


1. MAVELIKARA BRETHREN ASSEMBLY,THAZHAKKARA
                      ...  Petitioner

                        Vs



1. THE MAVELIKARA MUNICIPALITY,
                       ...       Respondent

2. MUNICIPAL COUNCIL OF MAVELIKARA

3. THE SECRETARY,

4. THE KERALA STATE PULLUTION CONTROL BOARD

5. SARASWATHY GOPI, WIFE OF GOPI,

6. JOHN SAMUEL

                For Petitioner  :SRI.K.MOHANAKANNAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN

 Dated :09/11/2009

 O R D E R
              THOTTATHIL B. RADHAKRISHNAN,J.
                ---------------------------
                  W.P.(C).NO.22211 OF 2009
                 ---------------------------
             DATED THIS THE 9TH DAY OF NOVEMBER, 2009

                             JUDGMENT

Petitioner is a christian denomination. According to it,

it has a very old cemetery. After the coming into force of the

relevant laws, cemetery has to be registered with the

Municipality. Petitioner applied for it. The matter had to be

decided by the Council, which took up the matter and issued

Ext.P8 merely recording the claims and objections of the rival

parties and also the opinion of the individual members of the

Council. Ultimately, the Council passed a one line order

” , ”

meaning hereby that it has been decided to issue licence only in

accordance with law. Following that decision, the Municipal

Secretary decided the matter by taking the view that the

petitioner’s cemetery cannot be registered. As the decision of the

Council is apparently in its favour, the petitioner challenged the

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Municipal Secretary’s order before the Tribunal for Local Self

Government Institutions (LSGIs). The Tribunal took the view

that without challenging the decision of the Council, the

petitioner’s challenge against the Secretary’s decision fails.

Hence, this writ petition.

2. The Pollution Control Board had cleared the

petitioner’s request for consent and as of now, there is an

application pending for renewal.

3. It is not in dispute that the power to decide on the

request of the petitioner is with the Council. It is not with the

Secretary. If that be so, the Council had to independently and

completely decide on the request and issue an order as to whether

the registration is to be granted. It ought not to have merely

recorded the submissions of the parties and the views of the

individual members of the Council and then, pass on the file to

the Secretary to decide the matter. The Council, in spite of

showing that it has been decided to grant registration in

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accordance with law, it ought to have held specifically as to

whether registration is to be granted. If it is in the affirmative, it

ought to have directed the Secretary to issue the registration

certificate. Secretary has to give effect to that decision of the

Council.

4. While taking any decision in that regard, if the

Council is of the opinion that it needs the assistance of the

Secretary or any other officer of the Municipality, to place the

proper and relevant materials before the Council. But it cannot

relegate its authority to take a decision finally.

For the aforesaid reasons, Exts.P8, P9 and P10 are

quashed and the 2nd respondent Council of the lst respondent

Municipality is directed to take up the request of the petitioner

denovo and look into any material and opinion that the Secretary

may provide, hear the parties on the basis of the entire files and

records and decide finally whether the registration shall be

granted or not. This shall be done within a period of two months

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from the date of receipt of a copy of this judgment. The Secretary

shall thereafter issue formal orders incorporating the decision of

the Council and, if the Council so decides, issue certificate of

registration within a period of three weeks of the Council’s

decision in terms of what is stated above. All issues on merits are

left open.

Writ Petition is ordered as above.

THOTTATHIL B. RADHAKRISHNAN,
JUDGE.

kcv.