JUDGMENT
Usha, J.
1. The question that arises for consideration in this appeal relates to interpretation of Sub-rule (9) of Rule 6 of Kerala Panchayath Raj (Burial and Burning Ground) Rules, 1998 (hereinafter referred to as ‘1998 Rules’).
2. Petitioner in O. P. 10593/2000 is the appellant. 1st respondent made Ext. R1(a) application dt. 6-7-1999 for permission to have a place for burying the dead in 10 Cents of land referred therein addressed to the Secretary Kadambanad Grama Panchayath. Eventhough by that time 1998 Rules have come into force, the application was seen filed under Sub-rule (3) of Rule 6 of Kerala Panchayats (Burial and Burning Grounds) Rules, 1967 (hereinafter referred to as ‘1967 Rules’). The Panchayat processed the application as one under 1998 Rules and, on 8-9-1999, passed Ext. Rl(b) resolution recommending the application to the District Medical Officer as well as the District Collector. The resolution was forwarded to the District Medical Officer under Ext. R1(C) communication dt. 8-9-1999. The District Medical Officer sent his report Ext. R1(e) dt. 16-10-1999 informing the Panchayat that on inspection, the site was found suitable from the public health point of view and that the application could be allowed subject to the conditions referred therein. Tahsildar, Adoor also submitted a report dt. 25-11-1999 to the District Collector recommending the application. While the application was pending consideration before the District Collector, petitioner filed O.P. 10593/2000 on 3-4-2000, challenging the proceeding pending before the District Collector.
3. Apart from the contentions taken on the merits of the case, appellant raised an objection in the District Collector passing any order on the application of the 1st respondent relying on the dictum laid down by a Full Bench of this Court in Surendran v. District Collector, (1999) 2 Ker LJ 355 : (AIR 2000 Kerala 103). According to the appellant, six months have lapsed since the date of Ext. Rl(a) application. The fact that the District Collector had posted the application for hearing the objection of the appellant on 7-4-2000 under Ext. P3 would show that he had not passed final order within six months from 6-7-1999. If that be so, appellant would contend that the District Collector has become functus officio and no order can be passed by him on the application Ext. Rl(a) in the light of the above-mentioned decision of this Court.
4. Learned single Judge dismissed the original petition taking the view that the Full Bench decision of this Court in (1999) 2 Ker LJ 355 : (AIR 2000 Kerala 103) has no application in the present case since the Full Bench considered the provisions contained under Sub-rule (8) of Rule 6 of the 1967 Rules and Ext. Rl(a) application is to be processed under the 1998 Rules. According to the learned single Judge, since Sub-rule (9) of Rule 6 of the 1998 Rule does not provide for a deeming provision to grant an application after the expiry of the period of six months from the date of receipt of the application as in Sub-rule (8) of Rule 6 of the 1967 Rules, considerations are different in the present case. Learned single Judge also held that even if the provisions under Sub-rule (9) of Rule 6 of the 1998 Rules are mandatory, the consequence is that the petition shall stand allowed and not dismissed. Therefore, the petitioner wilt not be benefited by accepting the argument that the provisions contained under Sub-rule (9) are mandatory. Certain observations are made by the learned Judge on the merits of the case and ultimately, it was held that no grounds are made out to interfere with the order of the District Collector. The original petition was thus dismissed.
5. There is some merit in the contention raised by the learned Counsel for the appellant that learned single Judge has committed an error in assuming that the District Collector has already passed an order. There is also merit in the contention that the absence of the deeming provision in Sub-rule (9) of Rule 6 of 1988 Rules would not make it any the less mandatory than Sub-rule (8) of Rule 6 of 1967 Rules as interpreted by the Full Bench.
6. We heard the learned Counsel for the appellant elaborately. Copy of the writ appeal is seen served on the learned Counsel for the 1st respondent and the learned Govt. Pleader. We are not issuing notice to the respondents since we are taking the view that the appeal is only to be dismissed affirming the judgment of the learned Judge, even though for different reasons.
7. Sub-rule (8) of Rule 6 of 1967 Rules read as follows :
“The Collector shall, in every case, pass an order under Sub-rule (7) within a period of six months from the date of submission of the application to the Panchayat and if no such order is passed by the Collector within the said period, the licence applied for shall be deemed to have been granted and the applicant may proceed to use the site for the purpose of disposal of the dead but not so as to contravene any of the provisions of these rules or the bye-laws made under the Act.”
8. In Narayanan Thambi v. District Collector, (1988) 2 Ker LT 48, a Bench of this Court had occasion to consider the scope of Sub-rule (8) of Rule 6 of 1967 Rules. It was held that the prescription of six months time is not mandatory but only directory and the deeming provision was arbitrary and unconstitutional. The learned Counsel for the appellant submits that the Full Bench considered the scope of Sub-rule (8) without the deeming provision as it was invalidated by (1988) 2 Ker LT 48 decision. The Full Bench agreed with that portion of the judgment in (1988) 2 Ker LT 48. But the Full Bench took the view that the six months period provided under Sub-rule (8) was mandatory and after six months, the District Collector would become functus officio. To that extent, (1988) 2 Ker LT 48 was overruled.
9. Learned Counsel is perfectly justified in his submission that it was not on the basis of the deeming provision which was invalidated as early as in 1988. the Full Bench took the view that the provision prescribing six months’ period in Sub-rule (8) is mandatory and not directory and that after six months, the District Collector would become functus officio.
10. The relevant provision in Sub-rule (9) of Rule 6 of 1988 Rules reads as follows :
“(Vernacular matter omitted……Ed.)”
(The District Collector, within six months of receipt of the application, shall pass an order as provided under Sub-rule (8) and inform the Panchayat accordingly).”
11. By applying the dictum laid down by the Full Bench, it has to be taken that the provision contained in Sub-rule (9) prescribing 6 months’ time for the District Collector to pass an order is also a mandatory provision. But, we find there are certain other differences between the provisions contained in Sub-rule (8) of Rule 6 of the 1967 Rules and Sub-rule (9) of Rule 6 of 1998 Rules. In 1967 Rules, the Collector has to pass an order within six months from the date of submission of the application to the Panchayat, whereas in 1998 Rules, the Collector has to pass the order within six months of his receiving the application. Sub-rule (6) of Rule 6 provides that the District Medical Officer on receipt of the application from the Panchayat, shall submit the same before the District Collector within thirty days of his receipt of application along with his recommendation after due enquiry. Sub-rule (7) provides that the District Collector, on receipt of the application, shall cause to publish the same in news paper, Panchayat Board etc., inviting objections or opinions on the application within thirty days. Sub-rule (8) provides that District Collector shall, on receipt of the application and if no objections are received after making necessary enquiries, grant licence or refuse to grant licence. The above provisions would make it clear that the period of six months would start running only from the date of receipt of the application by the District Collector from the District Medical Officer and not from the date of receipt of the application by the Panchayat.
12. Appellant has no contention before us that six months’ period is over from the date of receipt of the application by the District Collector. The contention raised is that six months’s period is already over from the date of receipt of application by the Panchayat and therefore the District Collector may not be permitted to proceed with the processing of the application. In view of the difference in the provisions contained under Sub-rule (9) of Rule 6, the above contention raised by the appellant on the basis of the Full Bench decision cannot be accepted. Therefore, there is no merit in the prayer made by the appellant that the Collector may not be permitted to pass orders. It is seen that the appellant had obtained an order to maintain status quo during the pendency of the original petition.
In view of the above, we affirm the dismissal of the original petition. But, the observations made by the learned single Judge on the merits of the case are vacated as the District Collector has yet to pass orders. In the result, the appeal stands dismissed.