Notwithstanding the conundrum in terms; a waiting shed in a cemetery is the bone of contention in the above case. The petitioner, a Municipality challenges Ext.P14 order of the Tribunal. A brief recital of the facts and the history of the litigation is necessary. The first respondent church had possession of a large extent of property in Sy. No.140/2 of Eloor Village in Paravoor Taluk in Ernakulam District, out of which licence was granted by Ext.P1 for opening and maintaining a burial ground in an extent of 50 cents. There is no dispute with respect to the cemetery so established and maintained. However, later on, Ext.P2 application was filed for building a waiting shed within the cemetery with the avowed object of protecting the bereaved and the 'corpse' brought for burial from natural elements. WPC.11784/13 : 2 :
2. In fact even before the building plan was submitted before the Municipality, the first respondent church, by an undertaking, Ext.P3, undertook that the construction of the waiting shed would be within the premises of the existing cemetery. Approval was granted as per Ext.P4 permit. Subsequently, when the locals objected to the said construction, the respondent church was before this Court seeking police protection. The Division Bench of this Court by Ext.P5 noticed the contention of the local authority, that the construction was attempted against the specific undertaking given by the Church. The Division Bench, hence, dismissed the application for police protection without prejudice to the rights of the respondent church to approach the local authority for redressal of their grievances, in accordance with law.
3. Thereupon, the first respondent church approached the Municipality with a letter dated 25.1.2012 and the Secretary of the Municipality obliged WPC.11784/13 : 3 : the respondent church by Ext.P7, which permitted the construction as per the approved plan and permit. Later on, again noticing that the construction was permitted as against the undertaking, the Secretary issued Ext.P8, hardly a month after Ext.P7 was issued. Ext.P8 again cancelled the permit. This was challenged by the respondent church before the Tribunal for Local Self Government Institutions. The Tribunal by order dated 11.9.2012 directed the Secretary to carry out the measurement of the property and directed sanction for construction to be accorded if such measurement revealed the waiting shed to be either outside or inside of the existing cemetery. This order of the Tribunal was challenged by the Municipality, and a learned Single Judge of this Court found that if the direction to issue a permit was to be complied; irrespective of the fact that the waiting shed is either within or outside the cemetery, then there would be no purpose in carrying out the measurement. It was also held that it would have been WPC.11784/13 : 4 : more appropriate for the Tribunal to have considered the legality of the orders which were challenged before the Tribunal. The order of the Tribunal dated 11.9.2012 was set aside and again the parties were relegated to the Tribunal. Ext.P14 order then, passed by the Tribunal is now challenged before this Court.
4. I have heard the learned counsel Sri. Abraham P. George appearing for the petitioner and the learned Senior Counsel Sri. S. Sreekumar for respondents 1and 2 and Sri. K.A Balan appearing for the 3rd respondent; who is impleaded as representing the local persons who had objected to the construction.
5. What comes to fore is that there was some mistake and omissions on the part of the respondent church as well as the Local Self Government Institution in applying for and also in the grant of building permit. Admittedly, even before the plan was approved, the respondent church had given an undertaking as per Ext.P3 that the construction would be carried on only WPC.11784/13 : 5 : within the premises of the existing cemetery. This undertaking was specifically noticed by the Division Bench and it was also held that the specific averments raised by the Municipality, in the counter affidavit filed before the Division Bench, have not been satisfactorily rebutted in the reply affidavit. The Court proceeded to uphold the undertaking given by the respondent church; going by the sequence of events, specifically noticing the dates on which the undertaking was given and the permit was granted. On the above findings the writ petition for police protection was dismissed.
6. True the question of legality of the building permit was not directly the subject matter of the above writ petition. All the same, it cannot at all be disputed that police protection itself was sought for on the basis of the building permit granted by the Municipality and the claim of the respondent church was sought to be sustained on the strength of the said building permit. This was refuted by the local authority based on the WPC.11784/13 : 6 : undertaking. On a consideration of the relevant material before it, the Division Bench found that the respondent Church could not resile from the undertaking . Ext.P5 has become final and neither of the parties can wriggle out of the binding judgment, passed inter-parties.
7. Despite, the Division Bench having sustained the undertaking on the premise of reservation of rights and liberties of the petitioners, the Church filed an application before the Municipality dated 25.1.2012 for permission to carry on the construction of the waiting shed. What assumes significance is that even at that point of time they flagrantly resiled from the undertaking given before the Municipality and sought construction of the waiting shed "in accordance with the approved plan outside the cemetery and within the 1.65 acres".(emphasis supplied) This was granted as a matter of course, as per Ext.P7, order of the Secretary.
8. Obviously, the undertaking was not looked into and neither was any effort made to identify whether the WPC.11784/13 : 7 : proposed waiting shed is to be constructed within the 50 cents in which the cemetery is situated or outside it. Noting the discrepancy; immediately thereafter the Secretary issued Ext.P8 cancelling Ext.P7. A stop memo under Section 406(1) of the Kerala Municipality Act, 1994 was also issued as per Ext.P9. Exts. P8 and P9 were challenged by the respondent Church before the Tribunal.
9. The Tribunal's earlier order dated 11.9.2012, is not relevant for consideration, since the same was already considered and set aside by Ext.P11 judgment. However, the learned Senior Counsel appearing for the first respondent church would take me through the findings recorded by the learned Single Judge to hold out that the same are binding and can no longer be disturbed. The learned Single Judge has in fact, found that a perusal of the approved plan would show that only a portion of the waiting shed, falls within the 50 cents of land, wherein the cemetery was established. It was also found that the approval was granted to construct a WPC.11784/13 : 8 : waiting shed beyond the limits of 50 cents, where the cemetery is located. Hence, it is contended that the grant of permit is no longer the subject of consideration, since, this Court is also bound by the earlier judgment of another learned Single Judge.
10. It is to be noticed that the learned Single Judge after noticing that the approved plan shows the proposed construction of the cemetery to be outside the 50 cents, however, set aside the direction of the Tribunal to the Secretary to grant a permit notwithstanding whether the construction is within the cemetery or outside it. If what was observed is to be taken as the findings of the learned Single Judge, then there was no reason why the Tribunal's order was disturbed. This Court finds that after noticing the above fact, as is disclosed from the approved plan, the learned Single Judge directed the Tribunal to consider the legality or otherwise of the orders impugned; ie., Exts.P8 and P9. Though observations were made with respect to the site plan and WPC.11784/13 : 9 : permit, whether the Church could rely on the same, in the teeth of the undertaking made by it, is the question to be looked into.
11. It is in this circumstance that, again, the undertaking made by the respondent Church assumes relevance and significance. It can also be not disputed that inter-parties a Division Bench of this Court held that the undertaking binds the respondent Church. The respondent Church could not now resile from it. Ext.P7 issued by the Secretary, purportedly, on an application filed in accordance with the direction of the Division Bench, was as against the specific undertaking. In fact, the Secretary failed to notice that the application itself was against the specific findings of the Division Bench judgment. In the records of the writ petition, the petitioner Municipality had also produced the survey plan, got prepared by the Secretary in accordance with the directions of the Tribunal. This, obviously, shows the proposed waiting shed to be outside the existing WPC.11784/13 : 10 : cemetery. In fact, it is admitted by both sides that the proposed waiting shed is outside the premises of the cemetery, but the assertion of the first respondent Church is that, that is what has been approved by the Municipality in Ext.P2(a) Plan and P4 permit. The difficulty in accepting such a proposition, is in the finding of the Division Bench, which the first respondent Church suffered at its own instance and which has become final inter-parties.
12. In this context, it has to be examined as to whether the directions now issued by the Tribunal could be sustained. The Tribunal has gone into the facts with reference to the measurement made by the Secretary and the measurement as disclosed from the original site plan. However, the Tribunal has missed the specific directions issued by this Court in so far as directing it to consider upon the legality of the orders impugned. This Court specifically by Ext.P11 judgment directed that the measurement of the property would be superfluous. WPC.11784/13 : 11 : Hence, what ought to have been considered by the Tribunal is the legality of the order, i.e, Ext.P9.
13. As was noticed, the approved plan definitely showed part of the proposed waiting shed as being outside the existing cemetery. The subsequent survey done at the behest of the Tribunal shows the waiting shed to be outside the cemetery. However, specific undertaking of the respondent Church was that the waiting shed would be constructed only within the existing cemetery. The approval granted as per Ext.P2(a) can then only be an obvious mistake which can be corrected by the Municipality. Such a correction, based on the undertaking, was approved by the Division Bench when the first respondent church moved this Court for police protection to carry on the construction. Hence, the first respondent Church can no more place any reliance on the approved site plan,(Ext.P2(a)). The Division Bench however, while dismissing the writ petition reserved the right of the first respondent church to approach the WPC.11784/13 : 12 : Municipality for redressal of their grievance. Without submitting a fresh plan for the construction of a waiting shed either within or outside the premises, what the first respondent attempted to do was to withdraw from its undertaking and demand approval of Ext.P4 permit so as to resume the construction as per Ext.P2(a) and Ext.P4. This definitely was not permissible and Ext.P7 order issued by the Secretary was rightly withdrawn by Ext.P8, noticing the obvious discrepancy and the blatant violation of the undertaking. It was then that Ext.P9 was issued.
14. Ext.P9 having been issued under Section 406(1) prohibiting the construction of the waiting shed, against the specific undertaking given by the first respondent Church, is legally sustainable in so far as the approved plan has no sanctity going by the undertaking and the binding judgment of this Court in Ext.P5. What the first respondent Church could have done, according to the Municipality, was to give a fresh application for construction of a waiting shed within the cemetery or WPC.11784/13 : 13 : outside the cemetery, which the Municipality could have considered in accordance with law. That, in fact, was not done and the revival of the rights flowing from an approved plan which stood extinguished by Ext.P5 judgment cannot at all be permitted.
15. The learned counsel appearing for the 3rd respondent would vehemently contend that the waiting shed could be constructed only within the cemetery as per the undertaking and no fresh application can be filed. The 3rd respondent, who is representing the locals of the area, would contend that the Church had purchased the property without disclosing that a cemetery was intended to be established therein and that the establishment of the cemetery itself had resulted in law and order problem in the area. Hence, the waiting shed also can be constructed only in accordance with the undertaking, is the contention.
16. The arguments with respect to the establishment of cemetery is no more available since the same was WPC.11784/13 : 14 : sanctioned by Ext.P1 as early as in the year 1998 and the cemetery was established and maintained from then onwards. The construction of the waiting shed and whether it should be inside or outside the cemetery has nothing to do with the actual maintenance of the cemetery itself. This Court consciously desists from making any further observation with respect to this aspect, since it would be for the local authority to consider any application filed by the Church, in accordance with law and after hearing the affected parties.
17. The legality of Ext.P9 having been upheld by this court, the order of the Tribunal Ext.P14 would stand set aside. The setting aside of the order of the Tribunal does not at all militate against the rights reserved to the first respondent Church by the Division Bench in Ext.P5 judgment. The first respondent Church can at any time move an application in accordance with law and the same ought to be considered by the Local Self Government WPC.11784/13 : 15 : Institution again, in accordance with law, and as directed herein above.
The writ petition stands allowed with the above observations. No costs.
Sd/-
(K. VINOD CHANDRAN, JUDGE) jma //true copy// P.Ato Judge