1. The Writ Appeal has been referred to a Full Bench by Reference Order dated 7-12-94 by Pareed Pillay, Ag.C.J. (as he then was) and T. V. Ramakrishnan. J. In the Reference Order the Division Bench expressed the view that the Division Bench in Narayanan Thampi v. District Collector, (1988) 2 Ker LT 48, requires reconsideration with regard to the dicta therein that time limit under Sub-Rule 8 of Rule 6 of the Kerala Panchayats (Burial and Burning Grounds) Rules, 1967 (hereinafter called the 'Rules') is only directory and not mandatory.
2. The appellants before us are the petitioners in the Original Petition. They challenge Ext. P4 order passed by the District Collector, Trichur under Rule 6 of Clause 8 of the Rules granting a licence to the 5th respondent for the construction of a cell model burial ground in Sy. No. 183/1 of Edathuruthy village of Kodungallur Taluk on certain conditions. The case of the petitioners-appellants Is as follows :--
The appellants are the residents of Edathuruthy Panchayat. 'Our Lady Mount Carmel Church, Edathuruthy' is situated 21/2 kilometres away from their residential area. The Church is having a branch at Edathuruthy West namely, Christ King Church, Edamuttam, which is not having any independent existence. The appellants are residing in the north and north eastern portion of the Christ King Church, Edamuttam. At the time when the first appellant started residing in that area, there was only a small Chappel in the place of the present Church. The second appellant purchased the property for constructing a house in November, 1990 and completed the construction of residential house in January, 1991. The appellants submit that the 5th respondent Church attempted to construct a burial ground In February, 1990. Comingto know of this, the residents of the localities filed a mass petition before the third respondent with a copy to the local M.L.A. Health Inspector, D.M.O.' and the 4th respondent. The appellants herein are signatories to the above petition. Even before filing the mass petition, the second appellant filed a specific complaint before the 4th respondent bringing to his notice the fact that the construction of the burial ground in the spot will have the effect of polluting the water in the well used by the second appellant for consumption. Pursuant to that petition, the Revenue Inspector, Mathilakam inspected the site on 14-11-91. After the Inspection the Revenue Inspector opined that it is not feasible to construct a burial ground attached to the Church and the residents of the locality were given the assurance that sanction will not be granted for constructing a burial ground because of the existence of so many wells and residential houses around the Church. But in February, 1994, the residents of the locality noted that the 5th respondent was unloading Granite stones and other materials for making some construction works in the Church premises. When the residents enquired with the 5th respondent, they were informed that those articles were unloaded only for the purpose of constructing a Kurisupally attached to the Church. But subsequently they came to know that the above information given by the 5th respondent was only a false one and thereafter they found that the Church authorities have created a big pit having 22 feet length and 9 feet and 6 inches depth. Since according to appellants this created a law and order problem and also it was a health hazard, they filed a petition before the 4th respondent. The second appellant filed O.S. 137/94 before the Sub Court, Irinjalakuda for a permanent injunction restraining the 5th respondent from proceeding with the construction of the burial ground in the Church premises and an Interim injunction was granted by the Sub Court. According to appellants, neither the appellants nor any other residents in the locality were heard by the District Collector before passing Ext. P4 order. The appellants therefore are prejudiced by Ext.P4 order and they are praying for setting aside Ext.P4 order. In the O. P. the main ground raised is that since in this case the Collector did not pass the order within six months from the date of submission of the application, he cannot pass any order after the lapse of six months. A counter affidavit was filed on behalf of respondents 1 and 5. The learned single Judge after hearing the parties dismissed the Original Petition. The learned single Judge took the view that Ext. P4 is appealable before the Government and the delay in filing the petition can be condoned. It is challenging the above order that this appeal is filed.
3. Before we deal with the various aspects in this case, we shall state the material facts. The 5th respondent in the O.P. is the Christ King Church, Edamuttam. It made an application for licence to open a cell model burial ground in Edathuruthy Panchayat area in Form No. I which is dated 8-2-90. The proposed site is in Survey No. 183/1 of Edathuruthy village. The Panchayat namely, Edathuruthy Panchayat by Resolution dated 15-2-90 held that it had no objection in constructing a burial ground as stated by the 5th respondent. Thereafter the D.M.O. approved the site on 26-6-91. He forwarded the application to the District Collector. On 31-7-91 the ADM calls for the report of the Tahsildar, Kodungallur. The Tahsildar sent a letter on 25-9-91 saying that there was no objection from anyone. The ADM visited the site on 21-12-92. Eventhough he finds new construction, he does not report that there is any objection. Orders were passed to invite objection in the Dally issue of the Express on 7-1 -93. After that it was published on 18-1 -93. No objections were received. Hence the Collector passed the order on 11-11-93.
4. The appellants in this case who are the petitioners in the O.P. purchased the property near the site of the burial ground and constructed the building. This, according to Revenue Inspector as Special Tahsildar, will come within the 25 metres of the cemetry. Eventhough the appellants had filed an objection before the Notification was made, that was not considered by the 5th respondent. The appellants' case is that their representations have to be heard by the Panchayat. According to them, the new burial ground can be opened only under the Kerala Panchayats (Burial and Burning Grounds) Rules 1967. Sub-Rule (2) of Rule 6 of the Rules reads as follows :--
'An application for a licence under this rule shall be in Form I and shall be submitted to the Executive Officer of the Panchayat concerned.'
Sub-rule (3) states that an application underSub-Rule (2) shall be accompanied by a plan of the place to be licenced and shall specify the locality, boundary and extent thereof, the name of the owner or person or community interested therein. As per Sub-Rule (4) the Panchayat shall consider the application and forward the same with its recommendations to the Collector through the Health Officer within a period of one month from the date of its receipt in the Panchayat Office. UnderSub-Rule (5), the Health Officer shall conduct such enquiries as he may deem necessary and forward the application with his specific remark to the Collector within a period of one month from the date of its receipt in his office. Sub-Rule (6) of Rule 6 states that the Collector shall on receipt of the application, cause the same to be published in a local Daily newspaper having wide circulation in the area and Sub-Rule (7) states that the Collector shall consider the objections, if any, received, in pursuance of the notice under Sub-Rule (6) and grant a licence. Sub-Rule (8) of Rule 6 states that the Collector shall in every case pass an order underSub-Rule (7) within a period of six months from the date of submission of the application to the Panchayat.
5. The case of the appellants is that they did not know as to when the 5th respondent filed the application. According to them, there was no restraint or restriction when they purchased the site nearby and started construction of their house. Further the date of the application filed by the 5th respondent is 8-2-90. Within one month the Panchayat has to pass a Resolution and within six months the Collector has to pass orders allowing or rejecting the application. Thus by the end of 1990 itself the Collector should have passed orders whereas in this case the Collector invites objection only on 7-1-93 and the orders were passed on 11-11-93 i.e. more than three years after the application was received. Learned counsel for the appellants further submits that on an inspection made by the authorities it is found that the building constructed by them is lying within 25 metres of cemetry. According to counsel, even if the appellants file an appeal before the Government, they will not succeed because under Explanation to Rule 5 of the Rules, the date of application for licence is taken as a crucial date and not the date of sanction i.e. crucial date regarding the location of the building. Here in this case If the Explanation is taken into consideration, the appellants' case will not be considered by the Government. The counsel further submits that if the date of application is the crucial date for finding out whether there is any human habitation, then the Collector also has to follow the time schedule prescribed under Rule 6 for which the Panchayat has to consider the application and with its recommendations to the Collector through the Health Officer within a period of one month and the Collector has to pass an order within six months. The contention of the appellants is that since the Collector sanctioned the licence only after three years, it is in violation of Sub-Rule (8) of Rule 6. According to counsel, the time mentioned in Sub-Rule (8) is mandatory and not directory.
6. Learned counsel for the 5th respondent submitted that so far as the 5th respondent is concerned, he did whatever he could do. Within one month of the application the Panchayat passed a resolution. The D.M.O. approved it only on 26-6-91 and the publication was made only on 18-1 -93. According to counsel, so far as the Collector is concerned, he is a person having multifarious duties and one cannot expect the Collector to pass orders within six months. Learned Government pleader submitted that because of the pressure of work in the Collectorate no one could foresee that the time prescribed in Sub-Rule (8) of Rule 6 is mandatory.
7. In Narayanan Thampi v. District Collector, (1988) 2 Ker LT 48 a Division Bench of this Court considered the validity of Rule 6 (8) of the Rules in as much as that Rule states that within six months from the date of submission of the application to the Panchayat if no order is passed by the Collector, the licence 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. In finding out whether on the expiry of six months the licence is deemed to have been granted valid or not, the Division Bench had occasioned to quote the above Rules. In paragraph 7 of the judgment, the Division Bench observed thus :--
The requirement of Sub-Rule (8) of Rule 6 for the Collector to pass an order within a period of six months from the date of the submission of the application to the Panchayat, if construed as a mandatory provision, would render the Sub-Rule itself invalid as grossly unreasonable...................
In a case like this where the Collector receives the application forwarded to him by the Health Officer who, in his turn, gets the same forwarded by the Panchayat, the time limit fixed for the Collector to dispose of the application cannot be construed as mandatory. Under these circumstances, the expression 'shall' in Sub-Rule (8) cannot be construed as a mandatory provision requiring the Collector to pass orders within the six months time specified therein. The expression 'shall' will have only the same meaning as 'may' in the Sub-Rule and the provision is only directory. The latter part of the Sub-Rule deeming the licence as having been granted on the expiry of the period of six months and authorising the applicant to proceed to use the site for the purpose of disposal of the dead is invalid as it is unreasonable and opposed to the legislative intent expressed in S. 57 (2) of the Panchayats Act.'
It is the above finding of the Division Bench that the time limit prescribed in Sub-Rule (8) is directory that is challenged before us. Learned counsel submits that the Division Bench was not correct in stating that because the Collector has to get report from various sources and the Panchayat has to forward the application to the Collector, the time limit fixed to dispose of the application within six months cannot be said to be mandatory. According to counsel, the Division Bench failed to refer the question regarding the crucial date for considering whether there is any human habitation. According to counsel if the crucial date for considering the human habitation as the date of application is mandatory, then the time limit given to the Collector for passing the order is also mandatory. Counsel submitted that otherwise it will create drastic results. If the Collector passed the order after a lapse of one or two years from the date of application, many persons who could have purchased the property In the meanwhile would be put into difficulties. There is nothing to show that a publication or notification is made as soon as the application is filed informing the public that such an application has been filed. If the time between the date of application and the date of publication is large, then the section will work out injustice to the general public.
8. Learned counsel for the respondents submitted that in this case the appellants purchased the property when the application was pending before the Collector and hence the appellants cannot be given any benefit. Further it was submitted that Sub-Rule (8) cannot be mandatory or directory.
9. The question whether a particular Rule is mandatory or directory depends upon the question as to for what purpose that Rule was introduced. Admittedly the opening of a cemetery or a burial ground has to be done only taking into account the publichealth. The Rule itself mentions the minimum distance for the existence of residential building. It is a well-known proposition that if a power is given to be exercised in the particular way, it has to be exercised in that way. If we read the Rules closely, it can be seen that an application for opening a new burial or burning ground has to be made in Form No. I. The application has to be accompanied by a plan of the place to be licensed and shall specify the locality, boundary etc. The Panchayat has to consider the application and forward the same with Its recommendations to the Collector within a period of one month from the date of its receipt in the Panchayat Office. The Panchayat has to forward the application through the District Medical Officer, who has also given his remarks regarding the application. Thereafter the Collector has to cause a public notice through local newspaper for the grant of licence. The Collector has to consider the objections within a period of six months from the date of submission of the application to the Panchayat. If we examine the purpose on the basis of which the time limit is imposed, it cannot be said that it was only directory. If the application for opening a burial ground is not disposed of quickly, it will affect seriously the applicant. The purpose is for burying the dead. The Collector cannot keep the application pending for large number of years on the ground that he has got various responsibilities. Secondly, for the purpose of taking into consideration the human habitation, the date of application is considered to be the crucial date i.e. any construction or obstruction at the site of the cemetry made after the date of the application will not be considered as genuine or bona fide. At the same time it cannot be contended that a person should not exercise his usual acts of possession over a property merely on the ground that an application has been filed for the purpose of opening a cemetry. That will unduly delay the matter and put the ordinary man into very great difficulties. Till the application is disposed of, the owners of property will not be able to do any work in the property. Merely because the fact that no penalty is imposed for the violation of the Rule, it cannot be Inferred that it is not mandatory.
10. The Supreme Court in State of U.P. v. Manbodhan Lal Shrivastava, AIR 1957 SC 912 observed thus :--
'The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other.'
If a provision is mandatory an act done in breach thereof will be invalid, but if it is directory the act will be valid although the non-compliance may give rise to some other penalty If provided by statute. See in Drigraj Kuer (Rani) v. Amar Krishna Naraln Singh, AIR 1960 SC 444. The use of word 'shall' raises a presumption that the particular provision is Imperative; but this prima facie Inference may be rebutted by other considerations such as object and scope of the enactment and the consequences flowing from such construction. Hidayatullah, J. in Sainik Motors v. State of Rajasthan, AIR 1961 SC 1480 observed that the word 'shall' is ordinarily mandatory but it is sometimes not so interpreted if the context or the intention otherwise demands. Further whereas a statute Imposes a public duty and lays down the manner in which and the time within which the duty shall be performed, injustice or inconvenience resulting from a rigid adherence to the statutory prescriptions may be a relevant factor In holding such prescriptions only directory.
11. In Balasinor Nagrik Co-operative Bank Ltd. v. Babubhai Shankerlal Pandya, AIR 1987 SC 849 the Supreme Court was Interpreting Section 36 of the Gujarat Cooperative Societies Act, which is as follows:-
Expulsion of members -- (1) A society may, by resolution passed by three-fourths majority of all the members present and voting at a general meeting of members held for the purpose, expel a member for acts which are detrimental to the proper working of the society :
Provided that, no resolution shall be valid, unless the member concerned is given an opportunity of representing his case to the general body, and no resolution shall be effective unless it is submitted to the Registrar for his approval and approved by him :
Provided further, that the approval or disapproval of the Registrar shall be communicated to the society within a period of three months from the date of such submission, and in the absence of such communication the resolution shall be effective.'
The Supreme Court held that the Registrar becomes function officio after the period is over.
12. As already stated In the present case the fixation of time limit is very important. The Panchayat is directed to transmit the Resolution with its remarks and that of the D.M.O. within one month. The Collector is directed to dispose of the matter within six months from the date of filing of the application. Under Explanation to Rule 5 of the Rules, the date of application for licence is taken as a crucial date regarding the location of the buildings etc. The above entire provision read together will show that time factor has been introduced in order to see that it is complied with mandatorily; otherwise it may lead to very difficult situation especially with regard to persons who had purchased the property or constructed buildings after six months' period is over because their objections will not be taken into consideration. Hence we hold that the direction to dispose of the matter within six months, to the Collector is mandatory and after that he becomes function offlcio.
13. Sri Abdul Azeez, learned counsel for the contesting respondent contended that the Division Bench decision of this Court in Narayanan Thampi v. District Collector, (1988) 2 Ker LT 48 striking down the provision that If the Collector does not pass an order within six months, the application shall be deemed to have been granted should also be reviewed. We do not find any reason to review this because we are satisfied with the reasons given by the Division Bench.
14. Hence we are of the view that Sub-Rule (8) of Rule 6 of the Rules fixing the time limit is mandatory and the Collector has to pass order within the time. Since in the present case the time limit has not been complied with, we set aside the judgment of the learned single Judge and quash Ext. P4. The 5th respondent is free to file further applications for opening the cemetery in accordance with law.
The Writ Appeal is disposed of as above.