IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 10467 of 2008(U)


1. MRS.T.V.AMINA, AGED 48 YEARS, W/O.HAMSA,
                      ...  Petitioner
2. MRS. C.K.SUHARA AGED 35 YEARS,

                        Vs



1. THE KERALA STATE POLLUTION CONTROL BOARD
                       ...       Respondent

2. THE SENIOR ENVIRONMENT ENGINEE, KERELA

3. THE ENVIRONMENT ENGINEER, KERALA STATE

                For Petitioner  :SRI.N.SUBRAMANIAM

                For Respondent  :SRI.S.SUJIN,SC,CHAVAKKAD MUNICIPALITY

The Hon'ble MR. Justice ANTONY DOMINIC

 Dated :29/01/2010

 O R D E R
                        ANTONY DOMINIC, J.
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         W.P.(C) Nos.10467/08,13043/08 & 5579/09 &
                         RSA.No.602/04
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           Dated this the 29th day of January, 2010

                            J U D G M E N T

Issue raised in these writ petitions being connected, these writ petitions were heard together and are disposed of by common judgment.

2. First I shall deal with WP(c).No.5579/2009. Challenge in this writ petition is mainly against Ext.P22, an order passed by the first respondent. The controversy in this writ petition relates to the proposal of the 3rd respondent Municipality to establish a LPG powered burning ground in the property in Sy. No.360/3 and 360/4 of Manathala Village.

3. It would appear that way back in 1994, the 3rd respondent Municipality initiated steps for establishing a burning and burial ground in the plot in question, for which they had obtained clearance from the District Collector. At that stage some of the residents of the area filed a suit before the Munciff's Court, Chavakkad as O.S.No.136/1996. An Advocate Commissioner was appointed, his report was submitted and evidence was also recorded. Finally, by judgment dated 27.2.1999, the Munsiff's  WPC.No.10467/2009 & Ors.

Court dismissed O.S.No.136/1996 permitting the Municipality to proceed with the work, subject to the conditions mentioned in the judgment of which one was that it should only be a burning ground and not a burial ground. The plaintiffs carried the matter in appeal before the District Court, Trissur in A.S. NO. 233/1999, which was also dismissed by judgment dated 7.11.2003 and that judgment is called in question in R.S.A.No.602/2004 before this court.

4. Petitioners herein are also residents of Manathala Village in Chavakkad Municipality. They state that they live in close proximity to the site identified by the Municipality for establishing the burning ground, subject to the condition imposed by the civil court in the judgment referred to above. They also state that initially when they made complaint to the Revenue Divisional Officer, an enquiry was conducted thorough the Tahsildar, Chavakkad and Ext.P1 order was passed by the Revenue Divisional Officer, prohibiting construction activities. It is stated that the Municipality filed an appeal against Ext.P1 and during the pendency of the appeal, some of the residents of the area filed O.P.No.5938/99 before this Court and that Original Petition was disposed of by Ext.P5 judgment directing that the status quo  WPC.No.10467/2009 & Ors.

be maintained till the disposal of appeal against Ext.P1.

5. According to the petitioners, during the aforesaid period, Exts.P6 and P7 reports were submitted by the District Medical Officer, Trissur on 15.9.2001 and 1.6.2002, concluding that the site in question is not suitable for establishing a burning ground as proposed by the Municipality. At about that stage, the appeal filed by the Municipality against Ext.P1 was heard by the District Collector and by Ext.P8 order dated 7.6.2002, the District Collector set aside Ext.P1, but however clarified that the order will not confer any right on the Municipality to establish a burning ground contravening the provisions of CRZ notification and other statutory provisions.

6. Again another complaint was made by local people to the Government which lead to Ext.P10 order, by which the Government of Kerala stayed use of the area as a burning ground. While the matter was thus pending before the Government, complaints were made to the Science and Technology Department and Pollution Control Board. While so, by Ext.P14 order, without issuing notice, the Government allegedly vacated Ext.P10 order staying use of the area in question as a burning ground. That order was challenged before this court in  WPC.No.10467/2009 & Ors.

WP(c).No.34653/2003 in which Ext.P15 interim order was passed staying the operation of Ext.P14 order of the Government. The writ petition was finally disposed of by Ext.P16 judgment, setting aside Ext.P14 and directing reconsideration of the matter with notice to the parties.

7. In the meanwhile, the Municipality issued Ext.P17 tender notice inviting tenders for the construction of a compound wall and that lead to the filing of WP(c).No. 29848/2005 before this Court. That writ petition was also disposed of by Ext.P18 judgment, directing that in the absence of any sanction from the appropriate statutory authorities, the Municipality shall not proceed with the proposal what so ever to convert the land in question into a burning ground. In the meantime, by Ext.P20, the Pollution Control Board granted consent to the Municipality to establish a burning ground. That order is challenged by the petitioner in WP(c).No.10467/2008 and the permission granted by the Coastal Zone Management Authority was challenged in WP

(c).NO.13043/2008.

8. Pursuant to the directions of this court in Ext.P16 judgment, Government issued notice, heard all parties and finally passed Ext.P22 order dated 5.1.2009. By this order, the  WPC.No.10467/2009 & Ors.

Government overruled the objections raised by the petitioners against opening of a burning bed (gas fired crematorium) by the Chavakkad Municipality in the site in question. It is challenging this order that this writ petition is filed.

9. The contention raised by the counsel for the petitioners is mainly that, Ext.P22 order impugned in the writ petition does not reflect proper consideration of the objections raised by them. It is also their contention that several documents which were not produced either at the time of hearing or at any time with notice to them,have been relied on by the Government. Yet another contention raised is that in establishing of a crematorium, the Municipality has not complied with the requirements of Section 484 of the Municipalities Act.

10. I heard the arguments of the learned Government Pleader appearing for respondents 1 and 2 and the learned Sr. Counsel appearing for the 3rd respondent Municipality.

11. The first contention to be examined is whether there has been proper consideration of the points urged by the petitioners. The sustainability of this contention has to be judged in the light of the contents of Ext.P22 order and keeping in view the limited scope of examination in a proceedings for judicial  WPC.No.10467/2009 & Ors.

review. A reading of the above order shows that in paragraph 5 of the order, the Government have noticed 13 conditions which were urged by the petitioners. Proceeding further, each of these conditions have been dealt with by the Government in the following manner.

1. The Chavakkad Municipality proposes to open an LPG fired burning bed in the proposed site and not a burning and burial ground as alleged by the petitioner. It has been contended on behalf of the petitioners that the site in question is at a distance of 100 meters from the shore line which is declared as a prohibited area for any construction under the Environmental Protection Act. In this connection the Hon'ble Munsiff Court, Chavakkad in its judgment dated 27.2.1999 in O.S.No.136/96 has observed as follows.

"On going through the various provisions in this ACT 9 find that the proposed burial/burning ground cannot be brought in the category of the buildings that are restricted under the provisions of the environment(Protection) Act. Further the Chavakkad Municipality has obtained necessary CRS sanction from Government of Kerala in Science & Technology Department as per Order No.1587/A2/06/S&TD dated 28.12.2007."

2. The second contention that there are other unopposed sites for establishing a cremation ground. It is a fact that two other places were considered for a crematorium. But it was dropped for non receipt of NOC and site approval from DMO (H).

3. It is further contended that there other burning grounds adjacent to the Chavakkad Municipality  WPC.No.10467/2009 & Ors.

and that there is no further necessity to open a new crematorium. Petitioners have pointed out that there is a burial ground in the Guruvayoor Municipality which is only 5 kms away from the proposed crematorium and that there is another burial ground in the adjacent Kadapuram Panchayat which is only at a distance of 2.5 Kms from the proposed burial ground. It is also argued that there is no difficulty to anybody in disposing the dead bodies in the aforesaid burial grounds and therefore there is no necessity for a new crematorium.

4. Government have examined this aspect in detail. Petitioners admitted that Chavakkad Municipality has no burial ground. Taluk hospital is situated within the Municipality and postmortems are conducted there. It is the contention of the Municipality that unclaimed dead bodies were buried in the site proposed for the crematorium. It has also to be considered that rapid urbanization and further reduction of the extent of properties of individuals due to the division of joint families into independent and separate residences make it impossible to bury or cremate the bodies in the land adjacent to the houses Inconvenience to the neighbours will be high in Municipal areas than in remote Panchayats as the increased density of population and residential houses will be much more in such areas. Recently the electronic media as well as the prim media have reported instances in which poor downtrodden SC families were forced to bury the dead bodies of their family members within the house itself especially in the kitchen. This has created much uproar as it should not happen in a civilized society like ours. The Lok Ayukta as well as the state Human Rights Commission have initiated steps against the local bodies as well as the Government for this highly deplorable state of affairs. Such a situation has to be averted at any cost. Hence the opinion of  WPC.No.10467/2009 & Ors.

Government is that the Chavakkad Municipality should have a crematorium in its own.

5. The petitioners argued that the site in question is not at all suitable for establishing a crematorium. It has to be admitted that the DMO, Trissur as per letters No.C2-1602201 dated 15.9.2001 and 1.6.2002 has opined that the place in question is not suitable for a crematorium. This was mainly on the ground that there are dwelling houses within the distance limits fixed by the law. But in the earlier report given by the DMO, Trissur in 1994 it is stated that the nearest houses numbered XI/47 owned by Shri. Velayi, S/o.Raman, Kopra House is situated at a distance of 52 mts from the South Eastern boundary of the site. Further he has stated in unequivocal terms that the site in question is suitable from the public health point of view for establishing a public burning and burial ground. The Kerala Panchayat Raj(Burning and Burial Ground)Rules, 1998 laid down that the position as on the date of application for opening a burning/burial ground has to be taken. It has also been evidenced from the judgment of the Hon'ble Munsiff, Chavakkad in O.S.136/96 that the Municipality has set up a case that there are several authorized occupation of the houses and huts hear the proposed burial ground. The Municipality has also issued notices under the Municipalities Act to vacate the premises as unauthorized occupation. In the light of the aforesaid reason government is of the opinion that the position existed as on 1994 ie at the time of submitting the application is crucial. It is an admitted fact that there was neither dwelling nor sources of water within the prescribed distance limit ie. 50 mts. from the proposed site.

6. It is also contended that Municipal building rules lay down that orders regarding a burial grounds have to be issued by the District Collector. The  WPC.No.10467/2009 & Ors.

Kerala Municipalities Act governs the opening and maintaining process of the burning/burial grounds according to which NOC for the construction of the burning ground has to be issued by the District Collector where as the licence has to be issued by the Municipality itself. In the instant case necessary NOC has already been issued by the District Collector.

7. The contention regarding burning and burial ground Rules 1967 stipulates that there shall not be any dwelling house within 90 mts. of the boundary lines of the proposed burning ground is also devoid of merits. The Kerala Municipality Act 1994 alone is applicable in the case of Municipalities which stipulates that there shall not be any dwelling houses or water sources within 50 mts. of the proposed site. Therefore the above contention of the petitioners is also unsustainable.

8. The next contention is that no paper publication has been made. From the records produced it is seen that the contention of the petitioner is true. But it has to be pointed out that the Chavakkad Municipality has obtained all the necessary sanction from the concerned authorities.

9. The contention that opening and operating a burial ground will pollute the fresh water sources is also without merits. Kerala State Pollution Control Board has given consent to establish an LPG fired crematorium as per consent NO.

PCB/DO.TSR/CE/53/07 dated 7.7.2007. This consent was issued under Water(Prevention and Control of Pollution) Act 1974 and Air(Prevention and Control of Pollution)Act 1981.

10. It is evident that the Municipality has obtained statutory clearances from the Pollution Control Board and the Government in Science & Technology Department. These sanctions are  WPC.No.10467/2009 & Ors.

issued on stringent conditions ensuring that there will not be either air or water pollution a alleged by the petitioner. It is also clear that an LPG fired crematorium will not cause any air or water pollution if at all it is adjacent to the coast.

11. Regarding contention of the petitioner that the proposed site is adjacent to a Tourist spot is also baseless. On a perusal of the connected documents it is noticed that no evidence to substantiate this arguments has been produced at any stage. Sanction to construct a crematorium or Burning ground will be invariably on strict conditions such as (1) all sides of the burning/burial ground will be covered with walls and (2) there should be plant and trees within the proposed site. As a result a person standing outside the burning/ burial ground cannot have a view of the same. Further the Municipality has stated that they propose to develop a park in the portion which remains after construct a burning bed in the site in question.

12. Another objection raised by the petitioner is that District Medical Officer(H), Trissur has not inspected the site in question. In this context attention is invited to letter No.C2-19091 dated 21.10.1994 of the DMO(H) Trissur addressed to the District Collector, Trissur where it is stated that the Deputy District Medical Officer(H) North Zone Trissur has inspected the site in question. A Senior Officer of the stature of a DMO(H), who is heavily pre occupied cannot be expected to make inspections of all such places personally. He has to rely and depend on his subordinates on such tasks Therefore there is not much substance in the above contention.

13. It is alleged that the regulation regarding the distance has not been observed in this case. Kerala Municipality Act stipulates that there shall be no  WPC.No.10467/2009 & Ors.

dwelling houses or sources of water within a radius of 50 meters from the proposed site. The DMO(H) Trissur has pointed out as early as in 1994 that there is no residential houses or any other institutions situated within a radius of 50 meters from the periphery of the site. Further the Advocate Commissioner appointed by the Hon'ble Munsiff Court, Chavakkad has reported that there are o houses or huts in a distance within 97.4 meters from the burning bed. The Kerala Panchayat Raj Act 1998 laid down that the position as on the date of application for a burning/burial ground has to be considered in similar circumstances. From the evidence adduced it is clear that there was neither dwelling houses nor water sources while the Municipality initiated steps to open a burning ground in 1994.

14. Petitioners fear that there will be health hazards by opening of the burning ground. It is a proven fact that the rules and regulations connected with the opening of a burning ground have been observed in this case During 1994 itself the DMO(H), Trissur has pointed out that there are no dwelling houses within 50 mts. of the proposed site. The Pollution Control Board has also issued necessary certificate. It has also to be pointed out that the Municipality proposes to install an LPG fired crematorium which will not cause pollution as apprehended by the petitioners."

12. A reading of the above shows that each of the contentions raised by the petitioners have been dealt with by the Government in the light of the materials which were available before it. By no stretch of imagination can it be said that any relevant aspect has been omitted or that any irrelevant material  WPC.No.10467/2009 & Ors.

has entered into the consideration of the Government. In my view, all the contentions raised have been properly considered and the findings arrived at by the Government on each of issues, are perfectly consistent with the materials which were available before the Government. For that reason I am not prepared to accept the contention raised by the counsel for the petitioners.

13. It was further contended that many documents which were not produced either at the time of hearing or any any time with notice to the petitioners have been relied on by the Government in Ext.P22 order. According to the learned counsel for the petitioners, the judgment in .OS.136/96, the NOC issued by the District Collector, Commission Report in the suit, Consent order issued by the Pollution Control Board, sanction issued by the Science and Technology Department and Ext.P2 order of the District Medical Officer were not available before the Government at the time when the parties were heard. It is stated that the Government have without notice to them, accepted these documents and considered the documents and in that view of the matter, natural justice has been violated. In my view, violation of principles of natural justice by itself will not invalidate any executive action unless the person who complains of violation of  WPC.No.10467/2009 & Ors.

principles of natural justice is also able to satisfy the court that in the process, prejudice has been caused to him. In this case, petitioners have no case that, the documents mentioned above were not in existence nor do they have a case that the contents as noticed in Ext.P22 order are factually incorrect. If that be so, I wonder in what manner can be petitioners contend that any prejudice has been caused to them. Further prejudice is a question of fact, which should be pleaded and proved. In this case there is neither any pleading nor any proof in this respect. Therefore this court cannot find that any prejudice has been caused and consequently the plea of violation of principles of natural justice has to fail.

14. The third contention raised for consideration is whether the requirements of Section 484 are to be complied with when a Municipality establishes a burning ground. Section 484 of the Municipalities Act provide for licensing of places for disposal of the dead. This section provides that no new place for disposal of the dead, whether private or public, shall be opened, formed constructed or used except on a licence from the Municipality. Sub section (2) provides that an application for licence under Section (1) shall be accompanied by a plan of the place to be  WPC.No.10467/2009 & Ors.

registered showing the locality, boundary and extent thereof, the name of the owner or person or community interested therein, the system of management and such other particulars as the Municipality may require. Manner in which an application is to be dealt with is provided in sub Section(3), which was introduced in to the statute by Act 14 of 1999. This sub section provides that on receipt of the application the Secretary shall send the application to the Municipal Health Officer and in his absence to the District Medical Officer of the Health Department having jurisdiction over the area and the concerned District Collector for their opinion. It provides for issuance of a public notice inviting objections and suggestions, if any, regarding the application. Sub section (4) provides that once the aforesaid process is completed, Municipality may grant or refuse to grant license or postpone the grant of licence until objections are dealt with. Section 485 provides for setting up crematoria within or without Municipal area. Sub Section (1) provides that every municipality shall, where there is no necessary land or arrangement to be used as burial or burning ground or crematoria, arrange land to be used as burial or burning grounds or crematoria within or outside the limits of the Municipal area, by meeting the expenses from the  WPC.No.10467/2009 & Ors.

municipality fund in accordance with the provisions of Section 484 and may charge rent and fees for the use there from. The proviso to the section provides that in providing burial and burning grounds outside the limits of the Municipal area,, the opinion of the DMO shall be sought and the prior permission of the Local Self Government Institution, within the area of which it is intended to be provided, shall be obtained. Sub Section (3) provides that where municipality provides any such place, outside its limit, all the provisions of the Act and bye laws framed thereunder for the management of the places shall apply to such a place.

15. From the above provisions, it can therefore be seen that, if a burning ground is to be established there must be a licence obtained from the Municipality under Section 484 of the Municipalities Act. Question is whether a Municipality is required to obtain license, if it is establishing a burning ground. In my view, it need not except in a case where it is proposed to locate a burning ground, outside the area of the Municipality concerned. Otherwise, a Municipality will have to make application to itself, hear objections and by itself decide on the application by itself. Therefore, on a combined reading of the provisions of the Act, I  WPC.No.10467/2009 & Ors.

am of the view that if a Municipality is providing a burning ground within its own area, the question of licence as provided in Section 484 does not apply. At the same time, procedural formalities which are prescribed cannot be compromised, to ensure that public interest is safeguarded. If these requirements are not complied with, the Municipality will be free to establish a burial ground, without any regard to public health, suitability of the site etc. and the affected general public will have no forum to ventilate their objections in the matter. Such unrestricted freedom, affecting public interest cannot be conceded. Therefore, the requirement of getting clearance from the Health Officer, DMO or the District Collector as the case may be and issue of public notice or the distance factor specified in Section 485A cannot be dispensed with. In this case, Ext.P2 is the clearance issued by the District Medical Officer and the District Collector also has issued NOC which has been taken note of by the Government in Ext.P22. Similarly, the Municipality had obtained consent from the Pollution Control Board and it being an area covered by CRZ notification, has obtained sanction from the Science and Technology Department as well. Of the various requirements of Section 484 the only requirement which the  WPC.No.10467/2009 & Ors.

Municipality can be accused of having not complied with, is the requirement of Section 484(3)(b), which provides for a public notice inviting objections and suggestions, if any, regarding the application. The question is whether this has caused any prejudice to the petitioners herein. Here again, fact remains that petitioners were given an effective opportunity of hearing by the Government before issuing Ext.P22 order. In my view, that opportunity was more effective and sufficient than a routine hearing by Municipality for the reason that in an ordinary course if public notice is issued by the Municipality in pursuance to its own decision to establish a burning ground, hearing will also be by the Municipality only. On the other hand in this case petitioners were heard by the Government where they raised their objections and canvassed their respective positions before an impartial third party. Therefore, no prejudice has been caused to the petitioners, on account of the fact that there has not been a public notice in this particular case. Thus, in the peculiar facts of this case I am not persuaded to think that, absence of public notice has caused prejudice to the petitioners or that the petitioners were deprived of their opportunity to raise their objections regarding the site proposed by the Municipality.  WPC.No.10467/2009 & Ors.

Therefore, on an over all consideration of the aforesaid facts, I am not persuaded to think that there has not been any violation of the provisions under Section 484 of the Municipalities Act.

16. Counsel for the petitioner then contended that even if it is assumed that the petitioner had an opportunity of hearing, still fact remains that there are various other complainants who did not get an opportunity to be heard. In this context, the learned Senior Counsel for the respondents points out that in terms of section 485A of the Municipalities Act, no Municipality shall grant license under Section 484 for using any place as crematoria for burial or burning of dead bodies within a distance of 50 meters from the residential buildings or utilize for such purpose under Section 485. It is pointed out that the Commissioner appointed by the Civil Court has found that there wre no houses or huts within the 94.7 meters from the burning ground. It is pointed out that the statutorily prescribed distance being only 50 meters, if at all anybody is aggrieved by the establishment of the burning ground or if at all any person who has a legal right to object to the establishment of a burial ground, such person should be a resident within the prohibited distance of 50 meters from the site. It is stated that in view of the fact that, admittedly the nearest  WPC.No.10467/2009 & Ors.

resident is beyond 97.4 meters from the site, none can have a valid complaint of having not heard in the matter.

17. True as contended by the counsel for the respondents the statutorily prescribed distance from residential premises for establishing crematoria or burning or burial ground, is 50 meters. As is seen from paragraph 5 and 13 of Ext.P22 order of the Ist respondent, the Commissioner has found that there was no house or hut within a distance of 97.4 meters. In such a factual situation, the legal right of none can said to be affected by non- publication of the public notice in terms of Section 484(3)(b) of the Municipalities Act.

18. Learned Counsel for the petitioners submitted that while overruling their objections in Ext.P22 order, the Government have ignored Exts.P6 and P7 reports submitted by the District Medical Officer. Ext.P6 is a report submitted by the District Medical Officer on 15.9.2001. A reading of this report shows that according to the DMO, the site is objectionable for the reason that the area is one of the important tourist beach in Chavakkad Municipality, that visitors used drinking water from the neighboring wells in the locality and also are using the place as resting place and that on the western side is sea shore. It is also stated that during raining  WPC.No.10467/2009 & Ors.

season the water will accumulate in the area and the northern and eastern sides are thickly populated area. It is also stated that being a coastal area, the wind is blowing over all time and therefore during burning time, fumes will pass to the populated areas. In Ext.P7, the District Medical Officer has only enclose a copy of Ext.P6 and forwarded the same to the Additional District Magistrate, Trissur. The question is whether Ext.P6, would have affected the findings of the Government in Ext.P22. In my view, the answer has to be in the negative. This is for the reason that a reading of Ext.P6 gives the impression that the District Medical Officer was not considering the suitability of site for establishing a LPG gas fired crematorium. On the other hand it is evident that the District Medical Officer was considering the suitability of the site for a burial ground, emanating smoke, fume etc. which can be the case, if fire wood or such other materials are used. In any case, the burial ground being an LPG fired one, can have no impact either on air or water contrary to what is stated in Ext.P6 . Therefore, in my view, Exts.P6 an P7 will not improve the case of the petitioners in any manner.

19. Further the counsel also relied on Ext.P3, yet another report submitted by the Medical Officer in charge of Primary  WPC.No.10467/2009 & Ors.

Health Center to the District Medical Officer. This is dated 26.3.1996. Counsel contends that Ext.P3 talks about existence of several residential houses in the close proximity of the site identified by the Municipality. However, fact remains that pursuant to the order passed by the Civil Court Advocate Commissioner visited the place and submitted his report. The findings in Ext.P3 are irrelevant as the finding of the Advocate Commissioner was accepted by the Civil Court in O.S.No.136/1996. Therefore Ext.P3 cannot alter the situation.

20. Ext.P19 is yet another document relied on by the learned Counsel for the petitioners. This order is issued by the Local Self Government Department, requiring the Secretaries of the Local bodies to ensure that the instructions issued in this order are carried out scrupulously. This order shows that it was issued pursuant to an order passed by the Apex Court in WP(c). No.657/95 directing that there should be on immediate ban on burning of any material on the beaches. Accordingly, Ext.P19 was issued imposing a ban on burning any material, whether hazardous or non-hazardous, on the beaches in the State. The approved site plan attached to Ext.P20,, shows that, the site in question is not a part of the beach, but at best is close too the  WPC.No.10467/2009 & Ors.

beach. Further, in so far as this case is concerned, the petitioners have obtained clearance from both Science and Technology Department and also consent from the Pollution Control Board, at whose instance Ext.P19 has been issued. Therefore, Ext.P19 is of no relevance in so far as this case is concerned. For the aforesaid reasons, Ext.P22 deserves to be upheld and WP(c).No.5579/2009 has to fail.

21. As far as WP(c).No. 10467/2008 is concerned, what is under challenge is Ext.P23 therein , which is the consent issued by the Pollution Control Board. The only objection raised by the petitioners is that the said order was issued without notice to the petitioners. Similarly, in WP(c).No.13043/2008, what is under challenge is Ext.P16 therein, an order issued by the Science and Technology Department, Government of Kerala, granting licence to the Municipality to establish the burning ground. The objection raised is that, this too has been issued without notice to the petitioners.

22. First of all the petitioners have not pursued appellate remedy that is available to them against consent granted by the Pollution Control Board. They have also no case that the procedures prescribed for issuance of the order have not been  WPC.No.10467/2009 & Ors.

complied with. The other ground on which these orders are challenged is by relying on Ext.P19 circular referred to above. I have already held that Ext.P19 is of no relevance and that the concerned authorities themselves have considered the matter and granted permission. Therefore I do not find any reason to invalidate the impugned order. Therefore WP(c).Nos. 10467/2008 & 13043/2008 are dismissed.

23. In so far as RS.A.No.602/2004 is concerned, the only grievance highlighted is that both the trial court and the appellate court erred in its finding on the question of nuisance caused to the appellants. However, a reading of paragraph 28 of the trial court judgment shows that the ground on which the contention of the plaintiffs has been rejected is that their grievance is premature and apprehensive. Having regard to the fact that even as on date the burning ground has not been established, in my view the trial court was justified in its conclusion. Further the aforesaid finding is not conclusive and even in spite of the said finding, if any nuisance is caused, it is always open to the plaintiffs to seek redressal of their grievance before the appropriate court at the appropriate stage. In any case, the appellants have not succeeded in raising any substantial  WPC.No.10467/2009 & Ors.

question of law for entertaining the second appeal. Therefore RSA No.602/2004 is only to be dismissed and I do so.

In the result, the writ petitions and RSA are dismissed.

(ANTONY DOMINIC) JUDGE vi/