C.A. Vaidialingam, J.
1. In this writ petition, Mr. K. V. Surianarayana Iyer learned counsel for the petitioner, seeks the issue of a writ of mandamus, or any other writ, order, or direction, to respondents 1, 2 and 3, directing them to take adequate steps, under law, to prevent, the 4th respondent or any other person from burying any dead body in the properties taken in by Survey Nos. 290/2, 290/18, and 290/3 in the Vayalar Mekku Village.
2. Respondents 1, 2 and 3 to this writ petition, are the District Collector and Executive Magistrate, Alleppey, the District Superintendent of Police, Alleppey, and the Health Inspector and Taluk Health Officer, Shertallai, respectively. The 4th respondent was the Parish Priest of the Church, in question, at the time when the writ petition was filed in this Court; and there is no controversy that the Church in question is now represented by the 5th respondent, who is the Vicar of the particular Parish and who has been brought on record as an additional respondent in these proceedings.
3. in order to appreciate the stand taken by the various parties in these proceedings, it is necessary to briefly narrate the circumstances, under which the writ petition came to be filed. There is an unfortunate controversy that rages regarding the right that appears to have been claimed by respondents 4 and 5, to establish a cemetery adjacent to the Church in question, which right appears to be very strenuously controverted, hot only by the petitioner but by several other persons, as will be clear from the proceedings, to which I will make a reference immediately.
4. There is no controversy that as early as 23-6-1956, an order or communication was issued by the Tahsildar concerned, evidenced by Ext. P5, to the vicar of this particular Church. It is stated in the said communication that, under instructions from the District Collector Quilon, the Tahsildar informs the party concerned, that he should not use the premises, in question, as a cemetery till permission for the same is obtained from the Government. The Tahsildar also proceeds to state that it has also to be pointed o'ut to the party concerned that the request for using a place as a cemetery, will be considered only when it is made in the form prescribed by the rules. That was the position in 1956.
5. it will also be seen that the 4th respondent in these proceedings, made an application on 6-5-1963 to the Executive First Class Magistrate, Alleppey, wherein he has stated that he has got a right to establish a cemetery in the property, in question, attached to the St. Francis Assissi Church, and that on 5-5-1963, counter-petitioner No. 5 referred to in the said application, as well as certain other persons belonging to his party. prevented a funeral procession proceeding towards the Church in question. On this basis; the 4th respondent sought the assistance and protection of the Executive First Class Magistrate to effect burials in the particular place, in question. That application was fqrwaided, by the Executive First Class Magistrate immediately, for inquiry and report to the police authorities.
6. it will be seen that counter petitioner -No. 4 to the application filed by the 4th respondent referred to above, is the petitioner in the present writ petition. It will also be seen that on 9-5-1963, a mass petition appears to have been received by the Executive First Class Magistrate. The signatories to the said mass petition are counter-petitioner No. 5 to the application filed by the 4th respondent before the Executive First Class Magistrate, and several other persons. According to those persons, the 4th respondent hasabsolutely no right to use, the site in question, as a cemetery. They, in turn, asked for prohior-tion being issued against the 4th respondent from committing any illegal acts by way of burying dead bodies in the property in question. It is also seen that this mass petition was also immediately and straightaway forwarded to the police authorities for report, by the Executive First Class Magistrate.
'(7) it is also seen that both the reports in respect of the application and counter-application, so to say, filed by the 4th respondent, as well as counter-petitioner No. 5 to the said application. belqre the Executive First Class Magistrate, 'were received by the said Officer, from the Police authorities, on 15-5-1963, and the report itself is dated 14-5-1963. That report was by the Circle Inspector of Police, Shertallai and duly counter-signed by the Deputy Superintendent of Police, Alleppey. From the report it is seen that according to the police authorities, till 16-4-1963, the property in question was not used as a cemetery. It was also pointed out in the report that there was very strong objection by various persons to the attempt of the 4th respondent to bury dead bodies in the property in question. The report also states that if the property is allowed to be used as a cemetery, there will be serious breach of the peace; and therefore the report says that suitable action will have to be taken by the Executive First Class Magistrate.
8. On 15-5-1963, the Executive First Class Magistrate issues an order under Section 147(1) of the Code of Criminal Procedure, directing the parties concerned--which included the present writ petitioner, and the 4th respondent--to appear before him and put in written statements, regarding the right to bury dead bodies, which was claimed by the 4th respondent on the one hand and the disputing of that right by the writ petitioner, along with others. There is no controversy that this preliminary order, dated 15-5-1963, issued by the Executive First Class Magistrate under Section 147(1) of the Code of Criminal Procedure, was actually served on the 4th respondent on the same day. But it is seen that on the very same day, the Circle Inspector of Police, submitted another report to the Executive First Class Magistrate, copy of which is Ext. P4.
In the said report, the Circle Inspector states that in connection with the dispute regarding the cemetery attached to the Thycal Church, he is to report that it is reliably understood, that even in spite of the service of the proceedings in M.C. 16/63 under Section 147(1) of the Code of Criminal Procedure on Rev. Fr. Dennis, namely the 4th respondent in these proceedings, he is proposing to bury dead bodies in the cemetery. Therefore, the Circle Inspector states that necessary action may have to be taken to prevent an imminent breach of the peace, which is likely to occur, in case dead bodies are buried in the newly opened cemetery, before ascertaining the view of the Public Health authorities. This report, as I mentioned earlier, was submitted by the Circle Inspector of Police on 15-5-1963.
9. On receipt of this further report, from the Circle Inspector referred to above, the Executive First Class Magistrate states in Ext. P7, that he was satisfied, that unless urgent action is taken by him, there will be a breach of the peace; and therefore he issued a prohibitory order on 15-5-63 under Section 144 of the Code of Criminal Procedure, as well as under Section 147(1), prohibitingthe burial of dead bodies, in the property, in question,
10. in the meanwhile, the Public Health authorities also come into the picture. It will be seen that on 16-5-1963, the Director of Health Services, appears to have directed the Deputy Director of Health Services, to inspect the property in question and send up a report. In accordance with these instructions, it is seen that the Deputy Director of Health Services made an inspection of the area in question on 17-5-1963 along with the Assistant District Medical Officer of Health, Alieppey. The said officer also sent a report, to the Director of Health Services, dated 20-5-1963, a copy of which is furnished in these proceedings, as Ext. PI. In the said report, the Deputy Director of Health Services proceeds to state that along with the report he has also annexed a plan showing the proposed cemetery, as well as the distances from the cemetery to the existing dwelling houses and the. water sources. In the report Ext. P1, the Deputy Director has stated that he met the District Collector, Alieppey, on the morning of 18-5-1963 and had discussions with him on the subject.' Then he refers to the sketch or plan annexed to Ext. P1, and refers to 5 dwelling houses marked as 1, 2, 5, 6 and 7. According to the officer, these houses are within a distance of 300 feet from the proposed cemetery. It is also the view of the officer that 4 of these houses are within 200 feet; in particular the officer says such houses are marked as 1, 2, 5 and 6.
11. The Deputy Director then refers to at.
least five sources of water supply in the vicinity of the cemetery. According to him, the particular tank in question, which was the source of water supply to the writ petitioner, who was living in house marked 1, is said to be A in the sketch, and that the said tank is situated at a distance of 45 feet from the cemetery. He also gives the distance of the other sources of water supply from the cemetery. But it is not really necessary for me to consider that aspect for the present purpose.
12. The. Deputy Director then proceeds to state that the location of a cemetery is important from the public health point of view, and it is to be considered from two aspects, namely the (1) the possibility of pollution of water source nearby, and (2) as becoming a nuisance to the dwelling houses in the vicinity. Then the officer takes up the question of possibility of pollution of water supply. In this connection, the officer expresses the view that normally pollution of water supply does not take place from any source beyond 50 feet if the soil is compact and hamaglu-ous. And, that the soil in the particular area is sandy, it is unlikely that there is pollution of water source beyond 50 feet He also specifically states tha.t the only tank that is pollutable because of its nearness to the cemetery, is the one marked A, at a distance of 45 feet from the cemetery. I have already indicated that the tank marked A, is the source of water supply, at the material time, so far as the writ petitioner is concerned.
13. Then the Deputy Director considers the apprehension of the writ petitioner, who was in occupation of house No. 1 marked in the plan. He takes note of the grievance of the writ petitioner that about two weeks prior to inspection the tank was wantonly spoiled, by throwing foecus and that the tank is her nearest source of water supply. Whatever it is, the officer seems to be impressed with the grievance as being a genuineone, because he says that there is no reason to disbelieve her statement.
14. Then the Deputy Director considers the question of location of the cemetery from the point of view of its nearness to the dwelling houses. In that connection, the officer no doubt takes note of certain instructions issued by the Government on 21-6-1949 regulating the distance between a cemetery or crematorium and dwelling houses. The Officer also refers no doubt to draft Public Health Rules, 1959, the Kerala Public Health Act --Section 194 -- and also the draft Public Health Bill. Ultimately the Deputy Director is of the view that the proposed cemetery attached to the Parish Church, is within pollutable distance from water source A and within a distance of 300 feet from five residential dwellings, as will be seen from the plan appended by him to the report. The officer winds up Ext. P 1 by expressing his opinion that the location of the cemetery in the present site is objectionable from the public health point of view.
15. On the basis of (he report Ext. P I, the Director of Health Services, issues the communication dated 25-5-1963, evidenced by Ext. P 2, to the Assistant District Medical Officer of Health, Allep-pey. After referring to the subject as 'Establishment of a cemetery in Thycal, attached to Parish Church', the Director of Health Services states that a copy of the inspection report of the Deputy Director of Health Services regarding the location of a cemetery in Thycal is forwarded to the Assistant District Medical Officer of Health, Alleppey, and that the latter officer is requested to issue prohibition notice to the party.
16. On the basis, again, of this communication Ext p 2, it will be seen that the 3rd respondent, namely the Health Inspector and Taluk Health Officer, Shertallai issues the order Ext. P 3. The substance of this order, which is dated 30-5-1963, is to prohibit the 4th respondent, in these proceedings, from using the property in question, as a cemetery, except in accordance with the directions given therein. As I mentioned earlier, this notice Ext. P 3, was issued by the 3rd respondent on 30-5-1963.
17. According to the petitioner, the notice Ext. P 3 has been issued by the 3rd respondent by virtue of the powers conferred on him under the provisions of the Travancore-Cochin Public Health Act, 1955 (Act XVI of 1955). No doubt, a feeble attempt was made by Mr. K. T. Thomas, learned counsel appearing for the 4th respondent, that the notice, Ext. P3, must be considered to have been issued Under the provisions of the Travancore Public Health Act, 1121 (Act No. III of 1121), which has been repealed, on the material date, by Section 162 of the Travancore-Cochin Public Health Act, 1955. But I do not think I need go into this aspect, in the present writ petition, because it is seen that even according to the 4th respondent, who has filed a counter affidavit in these proceedings, the stand that he has taken in paragraph 6 of .the counter affidavit, is to the effect that on 30-5-1963 the Health Inspector and the Taluk Health Officer issued to him an order purporting to be under the Travancore-Cochin Public Health Act, stating that on his personal inspection of the site in question the 4th respondent had committed the offences of creating a cemetery at a distance of 45 feet from the water source and of burying dead bodies within 300 feet of the five dwelling houses. The reference to the notice issued by the 3rd respondent is Ext. P 3; and, even according to the 4th respondent, it has been issued under the Travancore-Cochin Public Health Act, 1955. Therefore, it is not really necessary for me to consider whether Ext. P 3 purports to be issued under the Travaneore Act III of 1121, as is now claimed by the 4th respondent.
Even assuming that the notice issued under Ext. P3, is not under the Travancore-Cochin Publics Health Act, 1955, but is really under the Travan-core Public Health Act, 1121, as claimed by the 4th respondent, his position will not be improved, because of the Division Bench decision of this Court reported in Lekhraj Sathramdas v. Mathu, 1961 Ker LJ 382 : (AIR 1962 Ker 152), wherein . It has been categorically laid down that if there is otherwise power and jurisdiction vested in an authority to passi the particular order, the fact that in the said order a wrong statute or a wrong . provision of a statute is given, will not by itself make the order illegal, invalid or void. That deci-sion is really based upon the decision of the Supreme Court reported in Hazari Mal v. Income-tax Officer, AIR 1961 SC 200.
In that Supreme Court case, the Commissioner of Income-tax, Punjab, purporting to act under Section 5 of the Indian Income-tax Act, transferred certain assessment proceedings from Officer A. to Officer B. Objection was taken regarding the jurisdiction of Officer B, on the ground that the Commissioner of Income-tax Act, should have passed an order of transfer, not under Section 5 of the Indian Income-tax Act, but under the relevant provisions of the Patiala Income-tax Act, which were in force. The Supreme-Court held that as the Commissioner has jurisdiction to transfer cases under the Patiala Act, the order is legal and valid, though it purported to be issued under the Indian Income-tax Act. At page 202, their Lordships state the legal position thus :
'.....because the exercise of a power will be referable to a jurisdiction which confers validity upon it and not to a jurisdiction under which it will be nugatory. This principle is well settled. See Pitamber Vajirshet v. Dhondu Navapa, I. L. R. 12 Bom 486 at p. 489.'
Therefore, ultimately, the question when it arises as to whether the order Ext. P 3 is or is not one passed within the jurisdiction of the authori-ties concerned, will have to be considered in the-light of the provisions contained in the Travan-core-Cochin Public Health Act, 1955. In fact, the 3rd respondent, in his counter affidavit, has stated that the 4th respondent hsas been notified by him that the prohibitory order, Ext. P 3, was issued1 under the Travancore-Cochin Public Health Act. 1955.
18. it will be seen that the 4th respondent, on 7-6-1963, moved the Executive First Class Magistrate, under Sections 144(4) and 144(5) of the Code of Criminal Procedure, to rescind or cancel the prohibitory orders that had been issued by the said Officer, on 15-5-1963. But it is seen that the writ petitioner, as well as the counter petitioners before the Executive First Class Magistrate, filed a statement of 7-6-1963, particularly mentioning the order passed by the Public Health authorities, evidenced by Ext P 3 dated 30-5-1963. The Executive First Class Magistrate takes up both the proceedings, namely the proceedings initiated under Section. 144, as well as the proceedings, under Section 147(1) of the Code of Criminal Procedure; and, after .hearing all the parties, on 11-6-1963, passed orders on both these matters on19-9-1963. The order cancelling or rescinding the proceedings initiated under Section 144, is evidenced by Ext. P 7 dated 19-6-1963. Again, the order cancelling or rescinding the proceedings under Section 147(1), is evidenced by the order of the same Magistrate dated 19-6-1963, Ext. P6. In fact, the various matters that I have adverted to above, are all to be gathered also from the detailed order that has been passed by the Executive First Class Magistrate, under Ext. P 7.
19. it will also be seen that on the date when the order Ext. P 7 was passed i. e.; on 19-6-1963, the Circle Inspector of Police appears to have filed a report to the effect that the Church authorities evidently meaning the Church represented by respondents 4 and 5 in these proceedings have undertaken not to bury dead bodies at the site in question before getting permission from the competent authorities, or do any act that will lead to a breach of the peace in the locality concerned. The Circle Inspector also appears to have stated in the report that in view of this there is no Likelihood of an imminent breach of the peace.
What is material to be noted in this connection is that the Executive First Class Magistrate cancels the, orders, under Sections 144 and 147(1) of the Code of Criminal Procedure, on two grounds, (1) in view of the undertaking stated to have been given on behalf of the Church authorities not to bury any dead bodies at the spot in question before getting permission from the competent authorities or do any act that will lead to a breach of the peace in the locality, and (2) in view of the circumstance that the public Health authorities have already issued a notice on 30-5-1963 (Ext. P 3) under the T. C. Public Health Act to the 4th respondent prohibiting him from using the site in question as a cemetery. It is really on these two grounds that the Executive First Class Magistrate, as will be seen from the orders Exts. P 6 and P 7. cancelled the orders passed under Sections 144 and 147(1) of the Code of Criminal Procedure.
20. Pausing here for a minute, I am to state that I am well aware of the contention of Mr. K. T. Thomas, learned counsel appearing tor the 4th respondent, that the statement in the two orders, Exts. P-6 and P-7, to the effect that his client gave an undertaking to the Circle Inspector of Police, in the manner referred to therein, is absolutely erroneous. No doubt, the learned counsel also pointed out that admittedly no such undertaking had been given by his client or the 5th respondent to the Court, namely the Executive First Class Magistrate; and the learned counsel was prepared to challenge the report of the Circle Inspector regarding the giving of the alleged undertaking by the Church authorities.
But I do not think it necessary, for the purpose of disposing of this writ petition, to go into these aspects because if I am disposing of a criminal revision on merits or if the conduct of this party is in question, the position may be slightly different; and in that connection I may have to consider the contention that has been raised on behalf of the 4th respondent regarding the undertaking that is stated to have been given to the authorities concerned.
But the more important aspect that has to be noted in the orders Exts. P 6 and P 7, to which: admittedly the 4th respondent, who was then representing the Church, was a party, is the fact that the Magistrate specifically gives as one of the important reasons for cancelling the orders inquestion, and that is because the Public Health authorities have stepped into the picture and issued an order prohibiting the 4th respondent from effecting burials in the locality in question, and) that order referred to there is no controversy, is the order dated 30-5-1963, evidenced by Ext. P3.
21. This writ petition was filed on 19-6-1963, and came up for admission on 20-61-1963. Even, at the time of admission, learned counsel appearing for the 4th respondent took notice. Along with the writ petition, application C. M. P. No. 3733 of 1963, was also filed by the petitioner, requesting directions for restraining the 4th respondent from burying any dead body in the come-tery in question. That application also came up on 20-6-1963, and notice was taken then itself by the learned counsel for the 4th respondent; and at the specific request of the said learned counsel, the application stood posted to 21-6-1963 for filing counter affidavit. On 21-6-1963, the petitioner filed a supplementary affidavit to the effect that on 26-6-63, at about 10 A. M., a large number of policemen, under the 1st and 2nd respondents, namely the District Collector and the District Superintendent of Police, came to her house, and under their protection the tank mentioned as A in the report of the Deputy Director of Health Services Ext. P1, was filed up by some people. '
It is also, no doubt, mentioned in the said supplementary affidavit that when the petitioner objected, she was bodily removed by the police who forced her, under threat, to put her signature on a blank paper. No doubt these statements are very strenuously controverted by the 1st respondent District Collector, who has filed a counter affidavit in these proceedings wherein he has also referred to the circumstances under which he, along with the 2nd respondent, namely the 'District Superintendent of Police, was present at the site in question on 20-6-1963.
The petitioner, in the supplementary affidavit, also states that after the passing of the prohibitory order Ext. P 3 dated 30-5-1963 by the 3rd respondent, no authorities of the Public Health Department have inspected the spot and that the Public nuisance, mentioned in Ext. P 1 report and in. the order Ext. P 3 of the 3rd respondent dated 30-5-1963, continues to be in full force. The peti-tioner has also stated that unless the Public Health authorities inspect the place and certify that burial of dead bodies in the cemetery will not be a public nuisance and will not endanger public health, the 4th respondent should be prevented from burying any dead body there.
22. The answers to these matters are to be found in the counter affidavit filed, very promptly, no doubt, on 21-6-1963, by the 4th respondent. The 4th respondent states that after the cancellation of the orders issued under Sections 144 and 147(1) of the Code of Criminal Procedure by the Executive First Class Magistrate on 19-6-63, the tank referred to as item A in the report Ext. (P 1, has been closed by him on 20-6-1963. The 4th respondent is also prepared to take up the position, in paragraph 3 of the counter affidavit, that no question of pollution of water source can arise in the present case, now that there is no tank on the site as the one that existed thereon has been filled up by the Church 'in response to the suggestions of the Home Minister and some officers'. It is also stated by the 4th respondent that a new tank at a distance of more than 100 feet from the cemetery has been dug for the use of the petitioner.
As to whether the claim made by the 4th respondent and referred to above, that the tank inquestion was really closed by him on the suggestion of the Home Minister, is not a matter for me to consider in these proceedings, because neither the Home Minister nor the State, as such, are parties to these proceedings. The 4th respondent has also stated in paragraph 5 of the counter affidavit that he actually buried the dead bodies of two parishioners who died during the pendency of the proceedings, in the said cemetery on the morning of 20-6-1963. The 4th respondent also claims that the Executive First Class Magistrate, who passed the orders Exts. P 6 and P 7 on 19-6-1963, was himself present at the place, along with the District Collector (1st respondent) and the District Superintendent of Police (2nd respondent), it is also claimed by the 4th respondent that those officers were present at the spot, with a posse of police, to see that the burial is in no way obstructed by anybody.
23. Fortunately, the petitioner has not made any such averment in the supplemental affidavit dated 21 -6-63 that the 1st respondent District Collector and the 2nd respondent the District Superintendent of Police had come to the premises, in question, on 20-6-1963 to actively give assistance to the 4th respondent in the matter of bury-ing the dead bodies in that place. If that is so, the position would be rather very serious and will Slave to be considered carefully. In the absence of any such averments by the petitioner herself, the District Collector has explained the circumstan-ces under which he, along with the 2nd respondent, was present at the place on 20-6-1963.
Therefore, it is not necessary for me to consi-der the very tall claim made by the 4th respondent that distinguished officials of the District, namely the Collector and the District Superinten-
dent of Police, had come to the place on 20-6--1963 practically to assist and protect him in effecting the burials in the place, notwithstanding the fact that another responsible public - officer, functioning under the Travancore-Cochin Public Health Act. has issued an order, evidenced by Ext. P 3, which was and continues to be, in force, prohibiting the 4th respondent from effecting burials in the place in question. But as the petitioner docs not make any such allegation, it is really not necessary for me to consider this aspect any further.
24. No doubt, the 4th respondent makes a claim that he is entitled to bury dead bodies in the property; and he also takes up the position that the order issued by the 3rd respondent, namely Ext. P 3, cannot be considered to be legai. In particular the 4th respondent takes up the posi-tion that the provisions of the Travancore Cochin Public Health Act, 1955, under which the notice Ext. P 3 was issued, do not give any such juris-diction to the officer concerned. The 4th respondent also takes up the position that Section 43 of the Travancore Cochin Public Health Act does not empower the Health Officer namely the 3rd respondent, even to abate a public nuisance. That is, in short, according to the 4th respondent, the order Ext P 3 issued by the 3rd respondent, is illegal and void; and therefore it is an order which cannot certainly be given effect to and this Court should not give any directions either to the 1st respondent or to the 2nd respondent, or even to the 3rd respondent, to give effect to that order.
The 4th respondent also takes up the stand that if the authorities are so inclined, it is open to them to take necessary action; in which case the 4th respondent, according to his learned counsel, will be entitled to raise all grounds of objectionthat may be available to him in the matter of issue of the notice Ext. P3. In this connection, Mr. K. T. Thomas, learned counsel for the 4th respondent, has also drawn my attention to the fact that his client has communicated to the 3rd respondent, by letter dated 17-6-1963, challenging the jurisdiction of the said Officer.
But it is also seen, from the counter affidavit filed by the 3rd respondent that the particular provision of the statute, under which Ext. P3 was issued, has also been intimated to the 4th respondent This is an aspect which will have to be considered later. As to what exactly is the attitude to bo adopted by the 4th respondent in respect of the notice issued by the authority purporting to act under the Travancore-Cochin Public Health Act, is a totally different matter from what exactly the Collector and the District Superintendent of the Police concerned have to do order such circumstances. Therefore, in my view, the attitude as evidenced in these proceedings, taken by the 1st and 2nd respondents, namely the District Collector and the District Superintendent of Police, will have to be separately dealt with apart from the attitude that is being adopted, no doubt by the 4th respondent, in these proceedings.
25. As to how far the 4th respondent will be justified in ignoring the order Ext. P3 and face any consequence that he may have to, if he violates the order, is entirely a different matter altogether. But now the question does arise as to whether the grievance of the petitioner, placed before this Court, namely that in the face of the order Ext. P3 issued by the 3rd respondent in these proceedings, prohibiting the 4th respondent and 5th respondent, representing the Church, from effecting burials in the place, whether these respondents should have been prevented by the authorities constituted to maintain law and order in the District, namely the 1st respondent the District Collector, and the 2nd respondent the District Superintendent of Police, is justified or not.
26. Both these officers have filed counter affidavits in these proceedings. It is also seen that the 2nd respondent, the District Superintendent of Police, in his counter affidavit, has stated that he lias read and understood, not only the original affidavit of the petitioner but also her supplementary affidavit. The 2nd respondent then states that he has perused also a copy of the counter affidavit filed by the 1st respondent District Collector and that he accepts the counter affidavit filed by the 1st respondent and has nothing more to add. Therefore it is clear that whatever attitude the 1st respondent has taken in these proceedings is, in toto and without any reservation adopted by the 2nd respondent also.
27.1 Now it is necessary to consider the stand taken by the District Collector, who is the 1st respondent in these proceedings. After referring to the fact that he has read and understood the original affidavit, as well as the supplementary affidavit filed by the petitioner, in support of the writ petition, the Collector states that it is not correct to say that the Collector of Quilon has issued any order prohibiting the authorities in charge of the chapel from burying dead bodies in the property in question. That probably related to the order that was issued by the Tahsildar in 1956, evidenced by Ext. P5.
No doubt the Collector is prepared to accept the position that the then Collector had only ordered the Tahsildar, Shertallai, to direct the parties not to use the place as a cemetery till permission was obtained from the Government. Therefore, the present Collector is well aware of the fact that his predecessor in office had asked the Tahsildar concerned even in 1956, to issue a notice of order to the authorities of the Church, represented by respondents 4 and 5, prohibiting burials till permission was granted. That direction, was given, as I mentioned earlier, as early as 23-6-1956, evidenced by Ext. P5.
28. The Collector then specifically refers as correct the statements made in paragraphs 7 and 8 of the main affidavit of the petitioner, which relate to the inspection of the property by the Deputy Director of Health Services, as well as the report submitted by him to the Director of Health Services, Ext. P1 and the passing of the order Ex. P3. Referring to these aspects, the Collector states that he does not find any legal authority or sanction for the Taluk Health Officer, to issue a notice to the 4th respondent not to use the cemetery in question for burial of the dead. The Collector then refers to the allegations made by the petitioner in paragraph 12 of her main affidavit.
In the said paragraph 12, it will be seen, the petitioner has stated that respondents 1 and 2 have a duty to prevent open violation of the orders issued by the 3rd respondent and that the 3rd respondent has a duty, under Section 42 of the Travan-core-Cochin Public Health Act, to prevent the 4th respondent from burying dead bodies in the cemetery attached to the Thycal Chapel. These are the main allegations made by the petitioner in paragraph 12 of her main affidavit. Thai is, the petitioner's grievance is that there is a public duty on the part of respondents 1 and 2 to see that there is no open violation of the orders of the 3rd respondent issued in exercise of the powers vested in him under the Public Health Act. Regarding this aspect, the District Collector states
'my duty to prevent open violation of the orders of the 3rd respondent is only if I feel convinced that the order is valid and proper, and not when I am satisfied that the order cannot have any legal sanction or validity'.
Then the Collector expresses the view that under Section 42 of the Travancore-Cochin Public Health Act, so far as he could see, no notice could be issued 'directing the stoppage of burial of dead bodies. And as to what exactly should be or could be done is also stated by the Collector, namely that the only notice contemplated by the statute, in question, is to abate a nuisance.
In this particular case, according to the Collector, the notice Ext. P3 issued by the 3rd respondent, purports to have been issued under the rules under the Travancore-Cochin Public Health Act, and it further proceeds on the assumption that burial within 45 feet of a source of drinking water supply and within 300 feet of a dwelling house would be injurious under the Public Health Act. The Collector also states that these distances have not been mentioned in any rules properly and validly promulgated. The District Collector also says that the draft rules under the Travancore-Cnchin Public Health Act, have not been issued as required by the Act.
29. Then the Collector refers to the circumstances, under which he along with the 2nd respondent and a large number of police constables, was present at the place in question on 20-6-1963 at 10 A.M. The Collector states that he is well awaro of the cancellation by the Executive First Class Magistrate of the orders passed under Sections 144 and 147(1) of the Code of Criminal Procedure, and that the cancellation was on 19-6-1963. The Collector states that on the same day, he received a letter from the Church Vicar, to the effect that he proposed to dig a new pond sufficiently away from the cemetery and that his efforts were likely to be resented by Dasan and some others who bad been opposing the continuance of the cemetery.
The Collector states that the said letter requested him to give at least protection to the workers, who would be engaged on 20-6-1963 in the task of digging the new pond. The 1st respondent is then emphatic that being aware of the proceedings under Section 144 of the Code of Criminal Procedure and the dispute in regard to the burial in the cemetery, he decided that it was necessary to be present at the place on 20-6-1963, with the 2nd respondent, only as a precaution against the possibility of the parties taking the law into their own hands and coming to clash with each other. The Collector then states:
'I was satisfied for reasons noticed earlier that the notice had no legal sanction and could not be supported under the provisions of any law or statute.'
The Collector also states that he was of the view that if the possibility of pollution of the tank situated within 50 feet of where the burial was taking place, is eliminated, there could possibly be no question of any nuisance arising or being. committed by reason of the burial of dead bodies, and that he was further of the view that if any inconvenience, such as by way of deprivation of the source of water supply to the petitioner, living in the neighbourhood, could be made up by providing any alternative source of supply, there could be no ground for any grievance by the petitioner either. These are the circumstances, which, ac-cording to the 1st respondent, necessitated his presence on 20-6-1963 at the place in question.
30. Ultimately the District Collector winds up the counter affidavit by stating that while it is true that since 30th May 1963 no authorities of the Public Health Department had inspected the spot in question as already indicated by him, the legality of the order of the 3rd respondent dated 30-5-1963 is itself open to question, and 'I am personally convinced that the order has no legal force'.
31. Quite naturally, these opinions expressed by the District Collector, who is charged with the executive administration of the District and adopted by the Superintendent of Police, the 2nd Respondent, have been very strenuously controverted and attacked by Mr. K. V. Surianaxayana Iyer learned counsel for the writ petitioner. No doubt one can understand the attitude of the Collector in having been present at the spot on 20-6-1963 to assist or give protection to the owner of a property, who wanted to dig a tank in his own property and who apprehended danger from outsiders in that attempt. But the question does arise whether the District Collector, who is a public servant, was entitled to consider the validity or legality of the order passed by another public servant, functioning under the provisions of a statute, namely the Travancore-Cochin Public Health Act. As to why exactly the Collector felt that the order Ext. P3, issued by the 3rd respondent, is illegal the Collector dnes no doubt state in his counter-affidavit.
But whatever it is, he expresses the view that according to him. no such notice could have been issued by the 3rd respondent officer, and that he (the Collector) has a duty to prevent open violation of the orders of the 3rd respondent, only if ho feels satisfied that the order is valid and proper and that it has been passed by a proper authority and that according to law. If the District Collector or the District Superintendent of Police have, under such circumstances, jurisdiction, as claimed by them, to decide for themselves the validity of orders passed by other public officers, then I would have considered the matter further and expressed an opinion as to whether the reasons given by the Collector are good or bad. But 1 will show presently that the Collector or the Superintendent of Police has no such power and therefore the question whether the reasons given by the Collector are good or bad, is not being dealt with.
It may be that the District Collector or the Superintendent of Police, if they are functioning under the Travanco re-Cochin Public Health Act, would not have issued an order like Ext. P3. It may even be, that if they are either appellate or revisional authorities under that Act, they may, in exercise of that power, reverse the order Ext. P3. That is not the position here.
32. it is impossible for me to subscribe to the attitude taken by the District Collector in these proceedings. No doubt, the learned Advocate General also attempted to support the view that the Collector was also satisfied that the proceedings initiated by the 3rd respondent are without jurisdiction and that is why the. Collector felt that he is not bound to give any assistance to enforce the said order. I have no hesitation in rejecting this contention of the learned Advocate General, no doubt. advanced on behalf of the District Collector and the District Superintendent of Police.
It is not the case of the Collector that he is an appellate or Revisional authority constituted under the T. C. Public Health Act, to consider the validity or legality or correctness of the order Ext P3. If that is so, the position would be entirely different. On the other hand, an order has been passed by the 3rd respondent under the provisions of the Travancore-Cochin Public Health Act, prohibiting the 4th respondent in these proceedings from effecting any burials in the property in question. If the 4th respondent was aggrieved by those proceedings, or felt hurt by that order, on the ground that it is an illegal order, or an order passed without jurisdiction, or an order which would not have been issued by that authority under the provisions of the statute, it was perfectly open to the 4th respondent to approach either that officer to modify or cancel that order, or it was also open to the 4th respondent to straightaway challenge that order by adopting any proceedings known to law.
33. Admittedly, on the material date or even upto now the 4th respondent, excepting sending a communication to the 3rd respondent stating that the order issued by him is not legal, has done nothing further either to get that order cancelled by the same authority or to get it set aside by some other authority. Therefore, under these circumstances, the question does arise whether it was open to the Collector, who is the head of the executive administration of the District concerned, and to the District Superintendent of Police, who is the head of the police affairs of the District, to take the attitude that is evidenced by the various averments made in the counter affidavit filed by the Collector. I have already indicated that tho averments made by the District Collector in his counter affidavit have been fully adopted by the District Simerin ten dent of Police, the 2nd respon-dent, also
If this stand taken bv the 1st respondent Collector, and adopted by the 2nd respondent, is accepted by this Court, the position will certainly become very anomalous and even dangerous. The result will be that if an order passed by another statutory authority is sought to be put into force with the assistance of the Collector, who is in charge of the executive administration of the District concerned, and with the assistance of the police. namely the District Superintendent; and when such assistance is asked of them, those officers can scrutinise the validity of the order and decide to give such assistance only if they are satisfied that the order is valid and proper. In my view, the acceptance of such an attitude, by this Court, will destroy the very basis of the rule of law, and strike at the very root of orderly administration of law.
Further, it will be destructive of the basic principle of the rule of law. Therefore, I have absolutely no hesitation in characterising such an altitude as fallacious, erroneous, and having no foundation in law. In this case the Collector and the District Superintendent of Police have thoroughly misconceived and misunderstood their jurisdiction, when their asisstance is sought to enforce orders passed by other public authorities under other statutes. The claim made by the District Collector, that before he decides to give assistance to prevent violation of such orders, he should be satisfied that the said order is legal and valid, is one, in my opinion, that cannot be sustained an any known principle of law.
It is also interesting to note that the 3rd respondent, who has passed the order Ext P3, and for whom also the learned Advocate General appears, has also filed a counter affidavit; and that respondent does not state thai the proceedings issued by him to the 4th respondent are without jurisdiction: nor does he say that he has no jurisdiction to issue the order in question under the Tra-vancore-Cochin Public Health Act. The averments in his affidavit proceed on the basis that his order is valid and legal. In that affidavit, the 3rd respondent also refers to the circumstances under which the Public Health authorities intervened.
34. As to whether the order Ext. P3 issued by the 3rd respondent, is valid or not, as I will presently, indicate, is not a matter that arises for consideration at the present stage. I will assume for purposes of argument, that the order Ext. P3 is open to challenge. Then the proper course for persons, like the 4th respondent, who may feel aggrieved by such an order, is to take steps, legally to have it set aside. That has not been done. When it has not been done even by the 4th respondent, it is not within the competence of either the Collector or the District Superintendent of Police, who are charged with the duty of maintaining law and order, to consider whether orders passed by other public authorities are legal, when asked to give protection and shirk their responsibility, by stating that because they are not satisfied regarding the legality or correctness of the orders, no assistance whatsoever can be given.
No doubt, i.t was perfectly open to the Collector or the 2nd respondent to take up the attitude that no assistance was asked for by the petitioner or by anybody else, either at his hands or at the hands of the 2nd respondent, and therefore the petitioner is not entitled to ask this Court to issue any directions in the manner asked for by the petitioner. But that is not the stand, as rightly pointed out by Mr. Surianarayana Tver, learned counsel for the petitioner, that has been taken either bv the Collector or the District Superintendent of Police. So far as I could see, neither thelearned Advocate General, appearing for respondents 1 to 3, nor Mr. K. T. Thomas, learned) counsel appearing for the 4th respondent, have been able to place before me any authorities, wherein a jurisdiction like the one claimed on behalf of the Collector, has been recognised by any High Court or (he Supreme Court.
In fact, as to whether the order Ext. P3 is legal or not, is a point that has to be agitated by the party aggrieved. The proper attitude that should have been adopted by the Collector and the Superintendent of Police, in the circumstances of this case, when their assistance was invoked by any party, was to assist him in enforcing the order already passed and which has not been challenged so far in this case, more so, when the report, Ext. P1, of the Deputy Director of Health Services, clearly shows chat the establishment of a cemetery in the place in question is detrimental to public health.
In such circumstances, there was a public duty and obligation on the part of both these authorities, namely respondents 1 and 2, to give assistance and to see that there is no flagrant and open violation by anybody of the orders of the 3rd respondent. Even at the risk of repetition, I must state that as to whether the order Ex. P3 is legal or not, or whether that order can be sustained under the provisions of the particular statute, are All matters which do not come within the purview and ambit of the jurisdiction of respondents 1 and 2, when their public duty is only to give assistance to enforce the order and to see that there is no violation of that order by anybody so long as that order is in force.
35. it is rather regrettable that the 1st respondent should have taken the view that unless he is satisfied that the order Ext. P3 is legal or valid, there is absolutely no duty on his part to prevent an open violation of the order Ext. P3.
I have already held that this view is fallacious and erroneous. I have already stated that the presence of the 1st and 2nd respondents at the site is established on 20-6-1963. If really the first respondent had also stated that he was present there to assist the 4th respondent to effect burial in the property in question, the question would have certainly assumed a different shape. But it is not necessary for me to consider this aspect in these proceedings. But this Court must certainly indicate its strong disapproval of the attitude adopted by the 1st and 2nd respondents in this case, and the directions given herein will certainly be borne in mind by such authorities.
36. Then the question is whether the plea of the 4th respondent that the order Ext. P3 is one issued without jurisdiction by the 3rd respondent in this case is well founded. No doubt, Mr. K. T. Thomas, learned counsel for the 4th respondent referred me to the provisions of the Travancore-Cochin Public Health Act, and the absence of any Rules. Mr. K. V. Surianarayana Iyer, learned counsel for the petitioner, on the other hand, re-ferred me to the definition of the expression 'nuisance' occurring in Section 2 Sub-section (27) of the statute, and also referred me to the particular provisions on the basis of which action, similar to the one that has been taken under Ext. P3, could be taken. The learned counsel, in particular, referred me to Sections 42, 43, etc., of the statute.
If this Court is to adjudicate upon the legality, correctness or validity of the order Ext. P3, I would have certainly considered these aspects ingreater detail. But I am not inclined to embark upon an inquiry into these aspects, because the Public Health Authorities, who have passed the order in question, as against the 4th respondent, must be given an opportunity, when their jurisdiction is properly invoked, for reconsidering the said order, if that becomes necessary.
37. The main contention of Mr. K. T. Thomas in this regard appears to be that the distances referred to in the report, Ext PI, appear to have been taken from various ancient orders of the Government or particular rules, and they cannot certainly be invoked for the purpose of this case, more especially when no rules regarding those matters have been framed under the Travancore-Cochin Public Health Act, 1955. No doubt, Mr. K. V. Surianarayana Iyer, learned counsel for the petitioner, drew my attention to the Division Bench judgment of the Madras High Court, reported in M. and S. M. Ry. Co. Ltd. v. Municipal Council, Bezwada, ILR (1941) Mad 897 : (AIR 1941 Mad 641), and the particular observation occurring at p. 921 (of ILR Mad) : (at p. 649 of AIR), wherein it has been stated that the fact that no rules. as such have been framed cannot take away the right of the Municipal Council to levy the tax in question. I am only adverting to this stand taken by the learned counsel for the petitioner, as well as the learned counsel for the contesting 4th respondent, to show that those are all matters which may have to be considered when an occasion directly arises to adjudicate upon the correctness or otherwise of the order that has been passed by the authority, evidenced by Ext. P3.
38. Mr. K. T. Thomas, learned counsel for the petitioner, no doubt, urged that it is not necessary for this Court to give any directions either to respondents 1 and 2, or to respondent 3 who passed the order Ext. P3, in respect of the action that they have to take. The learned counsel also urged that it is clear from these proceedings that when the authorities concerned apprehended any breach of the peace, they did take action under Sections 144 and 147(1) of the Code of Criminal Procedure; and because those authorities felt that the continuance of those orders were no longer necessary those proceedings were dropped; Therefore, the learned counsel urged that this Court may leave the matter at that and allow the authorities on the spot to take any action that will be necesssary as and when necessity arises. I am not inclined to accept this contention of the learned counsel for the 4th respondent. It is well borne out by the records, about the result of the orders passed under Sections 144 and 147(1) which were initiated in the first instance and subsequently terminated because of the reason that the Public Health authorities have stepped into the scene and what was done on 20-6-1963.
39. Therefore, the proper directions that are to be given will be to ask the District Collector, namely the 1st respondent, and the District Superintendent of Police, namely the 2nd respondent, to discharge their public duty of seeing that there is no open violation of the order Ext. P3, either by the 4th or 5th respondent or by any other person, so long as the order Ext. P3 continues to be in force. Quite naturally, if that order is validly modified or set aside by any other authority and the prohibition ceases to be in force, this direction given to respondents 1 and 2 to give protection to enforce that order, will have no further effect So far as the 3rd respondent is concerned, the direction that is to be given, will be that inasmuch as he has initiated proceedings underExt. P3, and as those proceedings stand, it is obligatory on his part to take further proceedings in accordance with the powers conferred on him under the provisions of the statute, if he feels that there is any breach of the directions given by him.
So far as respondents 4 and 5 are concerned, I have already indicated that I am not inclined to go into the question, no doubt, raised by Mr. K. T. Thomas, learned counsel appearing for them, regarding the legality of the order Ext. P3. It is a matter entirely for respondents 4 and 5 to take any action, under law, that they may choose, to challenge the order Ext P3. But so long as the order Ext P3 stands, and is not modified or cancelled by the 3rd respondent or any other appropriate authority, the directions given to respondents 1, 2 and 3 will continue to have full force; and respondents 4 and 5 will also be bound to obey the same,
40. Therefore, the writ petition is allowed inthe manner indicated above. Respondents 4 and 5will pay the costs of the petitioner in these proceedings.