JUDGMENT
R. Rajendra Babu, J.
1. 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.
2. Heard the learned counsel for the petitioner,
respondents 6 to 8 and the learned Govt. Pleader.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.