JUDGMENT
The regular second appeal arises out of the concurrent findings of the Munsiff Court, Thodupuzha, in O.S.No.184/2012 as confirmed in A.S.No.32/2014 by the III Additional District Court, Thodupuzha.
2. The suit initially was framed for an injunction simplicitor restraining the defendant - Thodupuzha Municipality from establishing a crematorium in the locality in violation to Section 485A of the Kerala Muncipality Act, 1994, on the apprehension that the Muncipality would establish the crematorium violating the distance, which was 50 metres at that point of time. During the pendency of the suit, by Act 9 of 2014, an amendment was brought in to the proviso to Section 485A with effect from 05.10.2013, wherein the distance was reduced by the State Government from 50 metres to 25 metres in respect of concrete vault and gas crematorium. In the light of the aforesaid amendment, the suit was amended and a relief in the form of mandatory injunction was also sought for to remove the crematorium established by the
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Muncipality.
3. The Munsiff Court, Thodupuzha, by judgment dated 31.01.2014 dismissed the suit finding that the crematorium has been established within the framework of the statute and that if the defendant is not complying with the conditions laid down by the authority, it up to the plaintiffs to redress its grievances in appropriate proceedings. Aggrieved, the plaintiffs 1, 3 and 4 filed A.S.No.32/2014, which was also dismissed by the Additional District Court, Thodupuzha, on 19.01.2016. Aggrieved by the dismissal of the appeal, the present appeal is preferred raising the following substantial questions of law raised in the memorandum of appeal:
1. Whether the courts below were right in law in holding that statutory distance has to be taken from the actual place of cremation and not from the boundary of the crematorium?
2. Whether the courts below are right in law in applying the amended proviso which runs contrary to the main statutory provision, namely section 485 A of the Municipalities Act?
3. Whether on the facts and in the circumstances of the case, the courts below were right in law in dismissing the suit concluding that the crematorium is established beyond the prohibited distance prescribed under the Act?
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4. Whether the appellate court was right in law in dismissing the suit relying on the commission report obtained at the appellate state without remitting or setting aside the reports already on record?
4. Heard, Sri.S.Ananthakrishnan - learned counsel appearing for the appellants and Sri.Unnikrishnan V. Alapatt - learned Standing Counsel for the Thodupuzha Muncipality.
5. The learned counsel appearing for the appellants submitted that the proviso to Section 485A of the Kerala Muncipality Act, 1994, as amended would run contrary to the main provisions i.e.Section 485A. That be so, even notwithstanding the amendment brought, the Muncipality is liable to be visited with a mandatory injunction directing them to remove the crematorium which has been established.
6. Per contra, the learned Standing Counsel for the Municipality would oppose the plea of the appellants on the gound that the civil court cannot consider the validity of the statutory provisions under the Kerala Municipality Act. So long as the proviso to Section 485A stands, the establishment of the crematorium is within the statutory framework and therefore, the mandatory injunction prayed for cannot be granted.
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7. On a consideration of the rival submissions raised across the Bar, this Court finds that there is no substantial question of law arising for consideration in the appeal. Although the argument of the learned counsel for the appellants that, the proviso to Section 485A of the Municipality Act runs contrary to the main statute may appear at first blush to be appealing, the fact remains that in a civil proceedings, the validity of a statute cannot be gone into. Admittedly, the appellants have not challenged the amendment brought into Section 485A through insertion of the proviso. Since the civil courts cannot consider the constitutional validity of the statute and that the constitutional validity can only be gone into in exercise of the powers under Article 226 of the Constitution of India, this Court finds that in the present regular second appeal, the said question cannot be agitated. Viewed in the above perspective, this Court is of the considered view that the judgments rendered by the courts below are perfectly legal and does not call for any interference. Accordingly, finding that no substantial question of law arises for consideration, the appeal is dismissed. No costs. Sd/-
EASWARAN S.
JUDGE
ACR