Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7614 OF 2022
South Delhi Municipal Corporation …Appellant(s)
Versus
Federation of Residents Welfare Association, …Respondent(s)
Vasant Kunj (Regd.) and Ors.
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 06.12.2016 passed by the High
Court of Delhi at New Delhi in C.M. No. 34439/2016 in
Writ Petition No. 3687/1995, by which, the Division Bench
of the High Court has dismissed the said application
preferred by the South Delhi Municipal Corporation
(hereinafter referred to as the Municipal Corporation) and
Signature Not Verified
has refused to modify the earlier order dated 03.12.2003
Digitally signed by
NIRMALA NEGI
Date: 2022.10.21
16:55:29 IST
Reason:
passed by the High Court in Writ Petition No. 3687/1995,
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the Municipal Corporation has preferred the present
appeal.
2. That the dispute is with respect to the cremation ground at
Masoodpur, New Delhi which as such is in existence since
last more than 100 years and the same is for the benefit of
village people of village Masoodpur, New Delhi. That the
original writ petitioner – Residents Welfare Association,
Vasant Kunj approached the High Court by way of Writ
Petition No. 3687/1995 for appropriate orders interalia
not to permit the use of land in question as cremation
ground. It was the case on behalf of the original writ
petitioner that Delhi Development Authority (DDA) has
already provided cremation ground at other place in the
same area. 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
(hereinafter referred to as the Act, 1957), more particularly,
Sections 390 and 391 of the Act, 1957, and observing that
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it was for the Standing Committee of the Municipal
Corporation to take an appropriate decision, the High
Court while disposing of the aforesaid writ petition directed
the Municipal Corporation to take an appropriate decision
under Section 391 of the Act, 1957. The Division Bench of
the High Court also directed that the Municipal
Corporation shall take possession of the land offered at
Kishangarh and shall make all necessary arrangements to
use the same as a crematorium. That thereafter, pursuant
to the directions issued by the High Court in order dated
03.12.2003 in Writ Petition No. 3687/1995, the Standing
Committee in exercise of powers under Section 391 of the
Act, 1957 had taken a conscious decision not to close the
crematorium at Masoodpur Village, by observing that it is
not in the public interest to close the crematorium at
Masoodpur Village and that the crematorium at Masoodpur
Village is being used for the village since long. That
thereafter, the Municipal Corporation filed the present
application before the High Court for modification of order
dated 03.12.2003 passed in Writ Petition No. 3687/1995.
By the impugned order the High Court dismissed the said
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application hence, the present appeal at the instance of the
Municipal Corporation.
3. Ms. Vandana Sehgal, learned counsel appearing on behalf
of the Municipal Corporation has vehemently submitted
that pursuant to earlier order dated 03.12.2003 passed by
the Division Bench of the High Court in Writ Petition No.
3687/1995, the Standing Committee of the Municipal
Corporation has taken a conscious decision not to close the
crematorium at Village Masoodpur. It is submitted that the
decision of the Standing Committee not to close the
crematorium is in exercise of powers under Section 391 of
the Act, 1957. It is submitted that having considered the
fact that the crematorium at Village Masoodpur is in use
since long, much prior the society at Vasant Kunj came
into existence and having considered that it is not in the
public interest and/or in the interest of the village people
to close the crematorium at Village Masoodpur, the High
Court ought to have modified its earlier decision dated
03.12.2003 in Writ Petition No. 3687/1995.
3.1 It is submitted that under Section 42 of the Act, 1957 it is
the duty cast upon the Corporation to make provision for
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regulation of places for disposal of dead. It is submitted
that therefore, the provision of maintenance of places for
disposal of dead is an obligatory function of Municipal
Corporation. It is submitted that merely because
subsequently the society/residential colonies might have
come into existence it cannot be a ground to close the
crematorium which is in use since long.
3.2 It is submitted that when a conscious decision has been
taken by the Standing Committee of the Municipal
Corporation not to close the crematorium at Village
Masoodpur the High Court ought to have modified its
earlier order.
4. While opposing the present appeal Shri Karan Singh Bhati,
learned counsel appearing on behalf of respondent No. 1 –
Federation of Residents Welfare Association, Vasant Kunj
has vehemently submitted that the crematorium is nearer
to the residential complexes of Vasant Kunj and therefore,
it is not in the interest of residents of Vasant Kunj to
continue the crematorium at Village Masoodpur.
4.1 It is vehemently submitted that as such the DDA has
already allotted and/or allowed a crematorium at
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Kishangarh to use the same as crematorium, the
crematorium at Village Masoodpur ought to have shifted to
Kishangarh which is just seven k.m. away.
4.2 It is submitted that therefore when earlier the High Court
directed the Municipal Corporation to shift the
crematorium at Village Masoodpur to Kishangarh, the
same is not rightly modified by the High Court by
impugned order.
5. We have heard learned counsel appearing on behalf of the
Municipal Corporation as well as learned counsel
appearing on behalf of respondent No. 1 – Residents
Welfare Association, Vasant Kunj.
5.1 At the outset it is required to be noted that the dispute is
with respect to the crematorium at Village Masoodpur. The
crematorium at Village Masoodpur is being used for the
village people since long and it appears that the same is
being used much prior the Act, 1957 came into force. The
residential colonies in Vasant Kunj have come into
existence in 1990. So, at the relevant time when the
residential colonies at Vasant Kunj came into existence
there was already a crematorium at Village Masoodpur.
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The residential colonies came into existence subsequent to
the crematorium at Village Masoodpur. Therefore, when
the residents of Vasant Kunj started residing on and after
1990, there was already a crematorium at Village
Masoodpur. Merely because subsequently the residents of
Vasant Kunj/locality have started residing, it cannot be a
ground to shift the crematorium and/or not to use the
crematorium at Village Masoodpur.
5.2 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
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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.
5.3 At this stage it is required to be noted that as such 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
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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.
6. In view of the above and for the reasons stated above the
present appeal succeeds. 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
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shift the crematorium at Village Masoodpur to Kishangarh
is hereby quashed and set aside. Consequently, order
dated 03.12.2003 passed in Writ Petition No. 3687/1995
directing to shift the crematorium at Village Masoodpur to
Kishangarh 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 we direct 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. The said exercise be completed
within a period of twelve months from today. The present
appeal is accordingly allowed. No costs.
………………………………….J.
[M.R. SHAH]
NEW DELHI; ………………………………….J.
OCTOBER 21, 2022 [M.M. SUNDRESH]
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