Full Judgment Text
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CASE NO.:
Appeal (civil) 5793 of 2007
PETITIONER:
Shakur Basti Shamshan Bhumi Sudhar Samiti (Regd.)
RESPONDENT:
The Lt. Governor, National Capital Territory of Delhi and others
DATE OF JUDGMENT: 11/12/2007
BENCH:
S.B. SINHA & HARJIT SINGH BEDI
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 5793 OF 2007
(Arising out of SLP (C) No. 15784 of 2004)
S.B. SINHA, J.
1. The present controversy relates to a cremation ground known as
’Shakur Basti Shamshan Bhumi’. It is located in a village known as
Shakur Basti in the town of Delhi.
2 Appellant herein is a society registered under the Societies
Registration Act, 1960. It is said to be managing the affairs of the
cremation ground being in charge and possession thereof. The
village in question as also the adjoining areas viz. Rani Bagh, Rishi
Nagar, Mohindra Park, Sant Nagar, Raja Park, Sri Nagar etc. are said
to be inhabited by the displaced persons from Pakistan. This site in
question was being used as cremation ground by the residents of the
village as also the adjoining areas.
3. A land acquisition proceedings was initiated for acquisition of
the said land on or about 26th December, 1964. An award was also
published. The possession of the vacant land was admittedly taken.
Despite acquisition of the said land unauthorized cremation of dead
bodies continued.
4. It is not in dispute that pursuant to or in furtherance of the land
acquisition proceedings a Notification was issued by the Delhi
Development Authority declaring the said area to be the residential
area. Some Group Housing Societies developed residential units
thereat. A few cooperative group housing societies filed writ petitions
before the Delhi High Court impleading inter alia the Delhi
Development Authority and the Municipal Corporation of Delhi as
parties-respondents therein praying inter alia for discontinuance of the
said site as cremation ground. By judgment and order of 8th May,
1996 a purported observation was made that cremation of dead bodies
was being made unauthorisedly on the land in question the relevant
part whereof reads :-
" Learned counsel for respondent No.1 submits that
it appears that on the land which has been placed at the
disposal of DDA, cremation of bodies has been
unauthorisedly started sometime in 1991. Even counsel
for respondent no.3 has not disputed that the land in
question on which bodies are being cremated is an
unauthorized cremation ground. We direct respondents
to ensue that till further orders the bodies are not
cremated upon the land in question. The SHO of Police
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Station, Saraswati Vihar is also directed to ensure
compliance of the order."
5. The said order of the High Court was challenged by way of
Special Leave Petitions before this Court and this Court on or about
17th June, 1996 passed the following order :-
"Issue notice in the special leave petitions.
Issue notice in the stay applications also.
In the meanwhile the direction of the High Court dated
8th May, 1996 restraining cremation of the dead bodies at
the site in question is stayed. It is, however, directed that
no construction, whether temporary or permanent, shall
be raised at the site by any party till further orders by this
Court."
6. By an order dated 13th January, 1997 the Special Leave
Petitions were dismissed observing :-
"Learned counsel for the contesting respondent submits
that the writ petition which was pending in the High
Court has since been disposed of and since these special
leave petitions were directed against the interim orders
made in that writ petition, these special leave petitions
have been rendered infructuous. Mr. Jaitley appearing
for the petitioners does not dispute this position. The
special leave petitions are dismissed as infructuous."
7. On or about June, 1998 the Municipal Corporation of Delhi
issued a Public Notice that the cremation ground near Harsh Vihar
had been closed with immediate effect and the new cremation ground
at Beri Wala Bagh was commissioned for Public use henceforth.
8. In or about June 1998 ’Aggarwal Samaj’, Shakur Pur filed a
writ petition raising objection against the opening of the abovesaid
cremation ground at Beri Wala.
9. Several other proceedings were also initiated wherein the
appellant herein was not impleaded as the party. An attempt made by
the appellant to intervene in some of the said proceedings did not
succeed.
10. A suit was filed by one Balvant Rai. It related to Khasra
No.181/2. A prayer was made therein that the said cremation ground
at Shakur Basti be retained.
11. A writ petition was also filed by Harsh Vihar Cooperative
House Building Society and others inter alia on the premise that the
decision taken for regularization of cremation ground at that place
despite allotment of a separate site for establishment of an alternative
cremation ground was invalid in law.
12. A representation was made by the appellant to the Lieutenant.
Governor of Delhi for allotment of the land in question in its favour.
The said representation was said to have been allowed in terms of the
order of the. Governor dated 7th September, 2001 , which reads :-
" Enclosed is a representation made before the Lt.
Governor by the Shakur Basi Shamshan Bhumi Sudhar
Samiti regarding retention of Shakur Basi Shamshan
Bhumi at its existing site. The details are reflected, in the
afore-mentioned representation. Lt. Governor has
desired that MCD should officially take over the
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cremation ground for which DDA would have to make a
formal allotment to the MCD. Thereafter as discussed
with Commissioner, MCD, Lt. Governor has desired that
an MoU could be entered with the Shakur Basti
Shamshan Bhumdi Sudhar Samiti for proper
management. Action on these lines may kindly be
taken."
13. Delhi Development Authority, pursuant to or in furtherance of
the said order of the Lieutenant Governor addressed a letter to the
Commissioner of Municipal Corporation of Delhi on 26th November,
2001 relevant part of which reads "-
"With reference to your letter dated xxxxxxx on the
subject noted above, I am directed to inform you that
under the provisions of DDA (Developed Nazul Land)
Rules, 1981 it is proposed to allot you on perpetual lease
hold basis a plot of land measuring 1700 sq. mtr. For the
purpose of Cremation Ground on the usual
terms/conditions as given in the approved format of
perpetual lease and the following conditions amongst
others."
14. The Lieutenant Governor of Delhi reviewed his order on 23rd
April, 2002 which was communicated to the appellant on 20th June,
2002.
15. However, after the aforesaid order of allotment was made, one
Smt. Jyotsna Kashap a resident of an adjoining Kailash Colony
approached the High Court by filing a writ petition which was
numbered as CWP No.3612 of 2001. By an order dated 22nd July,
2002 a learned Single Judge of the High Court disposed of the said
writ petition, the relevant part whereof reads as under :-
"It may be noted that certain representations were made
to the Lt. Governor for continuing the Shakur Basti Land
to be used as a cremation ground. It is now stated in the
Court that the said representation has been rejected by the
Lt. Governor and a copy of the communication dated
20.6.2002 is placed on record. In view of the aforesaid
position all the public authorities who are respondents
have agreed that the use of the land as a cremation
ground has to be stopped.
In view of the aforesaid it is directed that
respondent No.3 shall ensure that the land in question is
not used as a cremation ground and remove unauthroised
permanent or temporary structures constructed thereon.
Respondent No.2 shall render police assistance as and
when requisitioned by respondent No.3 to ensure the
compliance of the order. The needful be done within a
period of two months from today and compliance report
be filed in the Court. The writ petition stands disposed of
in the aforesaid terms."
Appellant, however, was not a party therein.
16. By an order dated 22nd July, 2002, a learned Single Judge of the
High Court having regard to the orders passed by the Delhi High
Court, some of which have been noticed by us hereinbefore,
directed:-
"In view of the decision now finally taken by the Lt.
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Governor that land at Shakur Basti is not to be used as a
cremation ground and in view of the directions issued by
this Court in CW 3612/2001 no further orders are called
for in this writ petition and the same stands disposed of."
16. An LPA was filed by the appellant herein against the said order
dated July 22, 2002 in CW No.591 of 2002 in which a Division Bench
of the High Court passed the following order on 27th August, 2002 :-
"Counsel for the appellant says that the grievance of the
appellant is that he had filed an application for
impleadment in Civil Writ Petition NO.591/2002 but
without taking any decision on his application, the writ
has been disposed of, which has adversely affected the
interest of the appellant. It is the appellant who had been
agitating about this land since 1991. He would like to
file review application or may file substantive writ
petition, therefore, prays that while disposing of this LPA
status quo order till Monday 2nd September, 2002 may be
ordered to be maintained. In view of the statement of the
counsel for the appellant, the appeal is dismissed as
withdrawn. However, till 2nd September, 2002 order of
status quo is ordered to be maintained."
17. We may also incidentally notice, although nothing much turns
out of it, that a resolution was purported to have been passed on 4th
October, 2002 by the Councillors to the effect that the Municipal
Corporation of Delhi would carry out improvement and development
of the Cremation Ground at its existing site only.
18. A separate writ petition was filed by the appellant wherein the
aforesaid Smt. Jyotsna Kashyap and others, some of the cooperative
group housing societies were impleaded as parties. It was marked as
CWP No. 5567 of 2002. A learned Single Judge disposed of the said
writ petition by an order dated 23rd October, 2002 which reads :-
" The grievance made in the present writ petition by
the petitioner is that the order dated 20.6.2002 passed by
the Lt. Governor allotting the site in question to the
M.C.D. which was contrary to the earlier order dated
7.9.2001 directing the memorandum of understanding to
be executed by the petitioner had been passed without
any intimation to the petitioner and without the petitioner
being heard.
Learned senior counsel for respondent No.3
D.D.A. states that the order was in fact passed on
23.4.2002 though D.D.A. communicated to the M.C.D.
on 20.6.2002.
In view of the fact that the order dated 23.4.2002
communicated on 20.6.2002 to the M.C.D. had
admittedly been passed without hearing the petitioner
which seeks to modify the earlier order dated 7.9.2001, it
is agreed by the respondents that the petitioner will be
given a personal hearing and a fresh order shall be passed
thereafter. The petitioner shall appear before the Lt.
Governor on 8.11.2002 at 3.00 P.M. It will be open to
the petitioners 5 to 10 can also appear before the Lt.
Governor. All the parties will be given a personal
hearing on the said date or any subsequent adjourned date
and a reasoned order shall be passed within a period of
two months thereafter. In view thereof the impugned
order dated 23.4.2002 and the letter dated 20.6.2002 shall
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not be given effect to. Needless to say that if any of the
parties are aggrieved by the order passed by the Lt.
Governor it will be open to them to impugn the same in
accordance with law."
19. On the aforementioned basis a detailed representation was filed
by the appellant before the Lieutenant Governor of Delhi wherein
inter alia the following prayers were made :-
" It is therefore prayed that Your goodself may be
pleased to :
a. first consider and decide the preliminary
issues/objections raised by the applicant in the present
application;
b. uphold that the order dated 7.9.2001 passed by your
goodself and further hold that no interference with the
said order is called for in view of the fact that no
power of review is conferred on Your goodself;
c. uphold that the order dated 7.9.2001 passed by Your
goodself and further hold that no interference with the
said order is called for in the facts and circumstances
of the present case;
d. make available to the applicant a copy of the
purported order of cancellation/revocation of the order
dated 7.9.2001;
e. grant opportunity to the applicant to bring additional
facts and evidences on record to justify that the order
dated 7.9.2001 passed by Your goodself is correct and
valid in the facts and circumstances of the present
case and calls for no interference.
f. Pass such other orders or directions as deemed fit in
the facts and circumstances of the present case."
20. Allegedly prayer (d) was made therein in the said representation
as the purported order of cancellation/revocation of the order dated 7th
September, 2001 by order dated 23rd April, 2002 had not been
received by the appellant.
21. The Lieutenant Governor heard all the concerned parties. In
terms of an order dated 27th June, 2003 it was opined :-
" I have considered the contentions of Shakur Basti
Shamshan Sudhar Samiti as well as the representation of
the various Group Housing Societies.
The Shakur Basti Shamshan Sudhar Samiti has
contended that the cremation ground has been in
existence since the year 1955, in support of which they
have submitted documents showing that cremations have
been held at that site since then. The representatives of
the Group Housing Societies have stated, on the other
hand, that the land where the cremation ground is
presently situated had been acquired by the Delhi
Administration vide award No.1755 dated 26.12.1964
and that its physical possession was taken on 6.4.1965.
The land was transferred to D.D.A. for development of
Pitampura Residential Complex on 3.1.1968. As per the
Zonal Development Plan of D.D.A the land use of the
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site in question is for setting up of a local shopping
centre, a primary school and residential group housing.
I have also gone through the judgments of the
court of Sub-Judge Ist Class, Delhi, ADJ, the High Court
and the Supreme Court on this matter. According to
judgments the use of the land should conform to the
zonal development plan and that the cremation ground
should not be allowed to function from there. The High
Court has further ordered that M.C.D. construct a
cremation ground at Beriwala Bagh, close to the Shakur
Basti site.
The aforementioned facts were not in my
knowledge when the representatives of the Shakur Basti
Shamshan Bhumi first met me with their petition to allow
the Shamshan Bhumi to function from the existing site.
On the basis of the earlier representation and the facts
then submitted, D.D.A. had been advised to make a
formal allotment of the cremation ground to the M.C.D.,
after which M.C.D. was to conclude a MoU with the
Samiti for proper management of the cremation ground.
This advise was conveyed to D.D.A. and M.C.D. by my
Secretary on 7th September, 2001. However, when the
facts of the case and the orders of the High Court were
put up on file, I had directed D.D.A. on 23rd April, 2002
to make immediate efforts to re site the Shamshan Bhumi
and to put to use the land so vacated as per the layout
plan."
22. A writ petition filed thereagainst which was marked as WP
No.6855 of 2004 has been dismissed in terms of an order dated 7th
May, 2004, the relevant part of which reads as under :-
" In compliance with these orders, another hearing
took place before the Hon’ble Lieutenant Governor in
which the petitioner was avowedly granted a hearing. By
order dated 27.6,2003, the Lieutenant Governor has
stated inter alia that "on hearing the contention of the two
parties and keeping in view the judicial Orders, I reiterate
my decision of 23rd April, 2002". Counsel for the
Petitioner contends that by reiterating the order dated 23rd
April, 2002 the situation has not been remedied as they
are not even aware of the wording of that Order.
In my view, too much emphasis has been laid on
the extracted words of the impugned order making a
reference to the orders dated 23.4.2002. Of course, it
would have been legally preferable not to needlessly
mention those orders. The impugned Order dated
27.6.2003 takes in contemplation the Award No.1755
dated 26.12.1964 and the transfer of the land to the
D.D.A. for setting up of a local shopping centre, a
primary school and a residential group housing. It also
notes the allotment of an alternate site at Beriwala Bagh,
close to the Shakur Basti site. If the entire order is read,
it will be evident that the Hon’ble Lieutenant Governor
had changed his earlier opinion in favour of the retention
of the Shamshan Bhumi at its present site, looking
towards the decisions given by this Court and the
allotment of an alternate site. It is wholly immaterial
whether the earlier order dated 23rd April, 2002 had been
conveyed to the Petitioner. The thought process and the
reasons for the decision of the Hon’ble Lieutenant
Governor are fully contained in his Order dated
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27.6.2003 which has been passed after the Petitioner was
granted a hearing."
23. A writ appeal preferred thereagainst has summarily been
dismissed by a Division Bench of the said Court by reason of the
impugned judgment.
24. Mr. U.U. Lalit, learned senior counsel appearing for the
appellant, would submit that ;
(i) in the absence of the order recalling order dated
7th February, 2001 passed by the Lieutenant
Governor having been made available, the
appellant’s right to make an effective
representation has been taken away.
(ii) If any reason had been assigned in the said order
of 23rd April, 2002, the appellant would have been
able to raise grounds assailing the same and as the
same has not been supplied the impugned order
must be held to be violative of principles of
natural justice.
(iii) By reason of the said order which was the subject
matter of the writ petition before the Delhi High
Court, the Lieutenant Governor merely reiterated
his earlier order, which is apparently bad in law.
(iv) The order dated 23.04.2002 being the primary
order, the Lt. Governor could not have reiterated
the same without considering the details of the
representation made by the appellant dated
22.11.2002.
(v) Following the earlier order mechanically was an
act of misdirection in law on the part of the Lt.
Governor.
(vi) When the learned Single Judge of the Delhi High
Court had directed the appellant to go to the Lt.
Governor, it was bound to give effect to the
judicial order upon consideration of the fact of the
matter judiciously.
25. Mr. Vishnu B. Saharya, learned counsel appearing on behalf of
the Delhi Development Authority (DDA), on the other hand, would
submit that the site in question is no longer in use as a cremation
ground. Drawing our attention to various orders passed by the Delhi
High Court in a writ petition filed by Brahman Sabha Shakur Basti
which was also claiming itself to be managing the affairs of the
cremation ground as also the writ petition filed by various cooperative
societies in whose favour allotment of land had been made by DDA,
the learned counsel would contend that apparently dead bodies were
being cremated at the said place unauthorisedly. The Lt. Governor
having passed the order after taking into consideration all the
contentions of the appellant, the High Court must be held to have been
correct in passing the impugned order.
26. The fact that there existed a cremation ground is not in dispute.
Furthermore the fact that the said land was acquired under the
provisions of the DDA Act is not in dispute. The land in question was
shown to be a residential area in the lay out plan. Why and how the
award made in the Land Acquisition Proceedings was not and could
not be taken to its logical conclusion has not been disclosed.
According to the Municipal Corporation of Delhi as also DDA, the
land was allotted for setting up of a local shopping centre, a primary
school and a resident group housing society. There was also a
direction to shift the cremation ground to Beri Wala Bagh, Shakurpur.
Acquisition of the land for the purpose of DDA is not in question. An
award was made, the effect whereof is that the land vested in the
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Government of National Capital Territory of Delhi.
27. We have noticed hereinbefore that in the first round of litigation
following the award made in the land acquisition proceedings, not
only various restraint orders but also a closure order of the cremation
ground was passed. Appellant might not have been impleaded as a
party therein but it is difficult to conceive that it was not aware
thereof. We have also noticed that another society presumably
claiming itself to be managing the affairs of the said cremation ground
had also filed a writ petition. The same was dismissed.
28. The second round of litigation started with challenging the
order of closure dated 3.06.1998 passed by the High Court but by the
appellant by filing a writ petition. The said writ petition was
dismissed. Leaving recourse to its remedies on the judicial side, the
appellant moved the Lt. Governor on administrative side. The land in
question was directed to be allotted and on the basis thereof only the
appellant had gone back to the High Court.
29. The learned Single Judge of the High Court who was a party to
the earlier orders passed in writ petition very graciously directed the
Lt. Governor to consider the matter afresh when it was brought to its
notice that the earlier order dated 7.09.2001 stood rescinded by an
order dated 23.04.2002.
30. The order directing allotment of land was not a judicial or a
quasi-judicial order. It was an executive order. If an executive order
had been passed in ignorance of various judicial orders passed by the
High Court, the same could be reviewed. In view of the fact that the
development plans have the force of a statute and the purpose for
which the area was earmarked by the development authority therein
we do not see any reason as to why the mistake committed by the
Lieutenant Governor could not be rectified.
31. The purported letter proposing allotment of land by the Lt.
Governor did not confer any legal right on the appellant. Only a
desire was expressed by the said authority that the Municipal
Corporation of Delhi should officially take over the cremation ground
for which DDA was to make a formal allotment to it whereafter only a
Memorandum of Understanding could be entered into by and between
the appellant and the Commissioner, MCD. Action pursuant to or in
furtherance of the said order was merely undertaken, but no final
order was passed conferring any legal right upon the appellant. Apart
from furnishing a copy of the said order of the Lt. Governor dated
7.09.2001 and a copy of the letter issued by the Competent Authority
of DDA to the Commissioner, MCD dated 26.11.2001, no document
was executed in its favour. For possessing a legal title, a deed was
required to be executed by the MCD in favour of the appellant. Even
such an allotment was carried into effect, the same would have been
illegal being contrary to the development plan. Without a valid order
for change in user, a site meant for a shopping complex, a school and
user thereof for residential purpose, it could not have been directed to
be used as a cremation ground. (See The Bihar Eastern Gangetic
Fishermen Cooperative Society Ltd. Vs. Sipahi Singh and Others
(1977) 4 SCC 145.
32. It is one thing to say that the cremation ground could be
directed to be continued at the old site but it is another thing to say
that the appellant acquired any legal right over the land.
33. Harsh Vihar Cooperative House Building Society and Mrs.
Jyotsna Kashyap also filed writ petitions before the Delhi High Court
whereupon directions to close the cremation ground was issued. It
may be that the matter was taken to the Appellate Court but the LPA
was also withdrawn. The said order attained finality.
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34. It is in the aforementioned situation when a writ petition was
filed by the appellant in the Delhi High Court, viz., Civil Writ Petition
No. 5567 of 2007, the order dated 23.10.2002 came to be passed. It
only provided for a relief of grant of an opportunity of being heard
before the Lt. Governor in favour of the appellant.
35. Appellant, as noticed hereinbefore, before the Lt. Governor as
also before us, raised a question in regard to his competence to review
his own order. The said contention proceeded on the premise that an
order of allotment was required to be reviewed. Apart from the fact
that the principle governing review of a judicial or statutory order has
no application in the matter of administrative orders, the Lt. Governor,
as noticed hereinbefore, in its order dated 7.09.2001 did not direct
allotment of the land in favour of the appellant. He merely expressed
his desire and directed the manner in which the same should be done.
36. The Lt. Governor acts as a statutory authority under the DDA
Act. We are not sure as to whether he has any role to play in regard to
the affairs of the Municipal Corporation of Delhi. If not, the said
order was per se illegal.
37. It may be that in the writ petitions filed by Harsh Vihar
Cooperative House Building Society and Mrs. Jyotsna Kashyap, the
appellant was not a party but we may notice that even in the writ
petition filed by the appellant questioning the order of the Lt.
Governor dated 22.04.2003 (communicated to the appellant on
27.06.2003) they were not impleaded as respondents, although they
were parties before the said authority.
38. The learned Subordinate Judge has also passed an order in a
suit filed by one Balvant Rai in 1991. What was the nature of the
decree passed by the Subordinate Judge has not been disclosed. The
only contention raised in the list of dates is that the same was a
collusive suit. With whom, the said Balvant Rai colluded or what was
the nature and purport of the decree had not been disclosed. Some
orders appear to have been passed also by the Additional District
Judge. We do not know whether the Additional District Judge has
passed the order in the same proceeding or in some other proceedings.
If the judgments directing user of the land in conformity with the
Zonal Development Plan and further directing that a cremation ground
should not be allowed to operate become final, an order passed in
ignorance thereof would be a nullity.
39. It appears from the order dated 22.04.2003 that group housing
societies were also heard by the Lt. Governor. They evidently
claimed their own rights thereupon. Even then, they were not
impleaded as parties in the writ application. In their absence, the writ
petition was not maintainable.
40. As a statutory authority, the Lt. Governor could not ignore the
development plan. As the earlier order passed by a statutory authority
was a nullity, an order recalling the same shall not be allowed to
operate only because certain formalities (assuming there were some)
in passing the same have not been complied with.
41. It is now well-known that a writ court in exercise of its
jurisdiction under Article 226 of the Constitution of India need not
quash an order if it gives rise to another illegal order or may quash
both the orders.
42. In this view of the matter we are of the opinion that no case has
been made out for interference with the impugned judgment.
43. For the reasons aforementioned, we do not see any infirmity in
the impugned judgment. The appeal is dismissed with costs payable
to D.D.A. Counsel’s fee assessed at Rs.25,000/-.