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.
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W.P.(C).NO.22211 OF 2009
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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.