Municipalities: Cremation ground – Shifting of – Dispute is with respect to the cremation ground at Masoodpur, New Delhi which as such is in existence since last more than 100 years – The original writ petitioner-Residents Welfare Association, Vasant Kunj filed writ petition before High Court for appropriate orders inter alia not to permit the use of land in question as cremation ground – Taking into consideration communication dated 27.12.1990 by DDA calling upon the Municipal Authorities to issue notification for closure of cremation ground at Masoodpur Village and for shifting it to enlarge cremation ground at Kishangarh Village and taking note of the provisions of the Delhi Municipal Corporation Act, 1957, more particularly, ss.390 and 391 of the Act, 1957, and observing that it was for the Standing Committee of the Municipal Corporation to take an appropriate decision, High Court while disposing of writ petition directed the Municipal Corporation to take an appropriate decision under s.391 of the Act, 1957 – High Court also directed that the Municipal Corporation to take possession of the land offered at Kishangarh and make all necessary arrangements to use the same as a crematorium – Thereafter, pursuant to the directions issued by the High Court in order dated 03.12.2003 in Writ Petition, the Standing Committee in exercise of powers under s.391 of the Act, 1957 took a conscious decision not to close the crematorium at Masoodpur Village, by observing that it was not in public interest to close crematorium at Masoodpur Village and that the same was used since long – Municipal Corporation application before the High Court for modification of order dated 03.12.2003 passed in writ petition – High Court dismissed the application – Hence instant appeal by Municipal Corporation – Held: The crematorium at Village Masoodpur was used for the village people since long, much prior the Act, 1957 came into force – The residential colonies in Vasant Kunj came into existence in 1990 – Standing Committee had taken conscious decision not to close the crematorium on the grounds that (i) Masoodpur cremation ground has not become offensive to the health of persons residing in the neighbourhood; (ii) is running since long and (iii) its continuation is in the larger public interest – In view of conscious decision taken by the Standing Committee of the Municipal Corporation under s.391 of the Act, 1957 not to close the crematorium at Village Masoodpur, High Court ought to have modified its earlier order dated 03.12.2003 in writ petition by which the Municipal Corporation was directed to shift the crematorium to Kishangarh – Under s.42(f) of the Act, 1957, it is the duty cast upon the Municipal Corporation to make provision for regulation of places for the disposal of dead and the provision of maintenance of said places is an obligatory function of Municipal Corporation – Therefore, until and unless the conditions as mentioned in s.391 of the Act, 1957 are satisfied and it is specifically found that any burning or burial ground has become offensive, or dangerous to the health of the persons residing at neighbourhood, the burning and burial ground can be ordered to be closed with the previous sanction of the Standing Committee – High Court ought to have modified its earlier order dated 03.12.2003, by which it was directed to shift the crematorium at Village Masoodpur to Kishangarh – Consequently, order dated 03.12.2003 is hereby modified/quashed and set aside in view of subsequent decision dated 31.03.2016 of Standing Committee of the Municipal Corporation – However, at the same time, the Municipal Corporation to take steps to modernise the crematorium by shifting it to a modern electric crematorium which shall be in the larger public interest of the village people as well as the residents of the neighbourhood area – Delhi Municipal Corporation Act, 1957 – s.391.
Allowing the appeal, the Court
HELD: 1. In the earlier round of litigation, the Division Bench of the High Court directed the Municipal Corporation/Standing Committee of the Municipal Corporation to take an appropriate decision under Section 391 of the Act, 1957. That thereafter the Standing Committee of the Municipal Corporation has taken a conscious decision not to close the crematorium at Village Masoodpur. From the resolution of the Standing Committee, it appears that the Standing Committee has taken a conscious decision not to close the crematorium on the grounds that (i) Masoodpur cremation ground has not become offensive to the health of persons residing in the neighbourhood; (ii) is running since long and (iii) its continuation is in the larger public interest. Therefore, when a conscious decision has been taken by the Standing Committee of the Municipal Corporation under Section 391 of the Act, 1957 not to close the crematorium at Village Masoodpur, the High Court ought to have modified its earlier order dated 03.12.2003 in Writ Petition No. 3687/1995 by which the Municipal Corporation was directed to shift the crematorium to Kishangarh. [Para 5.2][994-C-F]
2. Under Section 42(f) of the Act, 1957 it is the duty cast upon the Municipal Corporation to make provision for regulation of places for the disposal of dead and the provision of maintenance of said places is an obligatory function of Municipal Corporation. Therefore, until and unless the conditions as mentioned in Section
391 of the Act, 1957 are satisfied and it is specifically found that any burning or burial ground has become offensive, or dangerous to the health of the persons residing at neighbourhood, the burning and burial ground can be ordered to be closed with the previous sanction of the Standing Committee. A conscious decision has been taken by the Standing Committee not to close the crematorium at Village Masoodpur looking to the public interest and in the interest of village people of Village Masoodpur. If the request made on behalf of respondent No. 1 is accepted in that case on the settlement of the residents subsequently every crematorium in the city/town will have to be shifted outside the town/city, which shall not be in the interest of the residents of the village/city/town. Therefore, the High Court ought to have modified its earlier order dated 03.12.2003, by which it was directed to shift the crematorium at Village Masoodpur to Kishangarh. However, at the same time taking into consideration need of the day the Municipal Corporation has to modernise the crematorium and to shift it to a modern electric crematorium which shall be in the larger public interest of the village people as well as residents of the neighbourhood area. [Para 5.3][994-F-H; 995A-C]
3. The impugned order passed by the High Court refusing to modify its earlier order dated 03.12.2003 in Writ Petition No. 3687/1995 directing to shift the crematorium at Village Masoodpur to Kishangarh is hereby quashed and set aside. However, at the same time, the Municipal Corporation to take steps to modernise the crematorium by shifting it to a modern electric crematorium which shall be in the larger public interest of the village people as well as the residents of the neighbourhood area. [Para 6][995-D-F]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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