SOUTH DELHI MUNICIPAL CORPORATION versus FEDERATION OF RESIDENTS WELFARE ASSOCIATION, VASANT KUNJ (REGD.) AND ORS. on 21 October 2022

988

SUPREME COURT REPORTS

[2022] 13 S.C.R.

ASOUTH DELHI MUNICIPAL CORPORATION

v.

FEDERATION OF RESIDENTS WELFARE ASSOCIATION,VASANT KUNJ (REGD.) AND ORS.

(Civil appeal No. 7614 of 2022)

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OCTOBER 21, 2022

[M. R. SHAH AND M. M. SUNDRESH, JJ.]

Municipalities: Cremation ground – Shifting of – Dispute iswith respect to the cremation ground at Masoodpur, New Delhi whichCas such is in existence since last more than 100 years – The originalwrit petitioner-Residents Welfare Association, Vasant Kunj filed writpetition before High Court for appropriate orders inter alia not topermit the use of land in question as cremation ground – Takinginto consideration communication dated 27.12.1990 by DDA callingDupon the Municipal Authorities to issue notification for closure ofcremation ground at Masoodpur Village and for shifting it to enlargecremation ground at Kishangarh Village and taking note of theprovisions of the Delhi Municipal Corporation Act, 1957, moreparticularly, ss.390 and 391 of the Act, 1957, and observing that itwas for the Standing Committee of the Municipal Corporation toEtake an appropriate decision, High Court while disposing of writpetition directed the Municipal Corporation to take an appropriatedecision under s.391 of the Act, 1957 – High Court also directedthat the Municipal Corporation to take possession of the land offeredat Kishangarh and make all necessary arrangements to use theFsame as a crematorium – Thereafter, pursuant to the directions issuedby the High Court in order dated 03.12.2003 in Writ Petition, theStanding Committee in exercise of powers under s.391 of the Act,1957 took a conscious decision not to close the crematorium atMasoodpur Village, by observing that it was not in public interestto close crematorium at Masoodpur Village and that the same wasGused since long – Municipal Corporation application before theHigh Court for modification of order dated 03.12.2003 passed inwrit petition – High Court dismissed the application – Hence instantappeal by Municipal Corporation – Held: The crematorium at VillageMasoodpur was used for the village people since long, much priorH

Conclusion

the Act, 1957 came into force – The residential colonies in VasantKunj came into existence in 1990 – Standing Committee had takenconscious decision not to close the crematorium on the groundsthat (i) Masoodpur cremation ground has not become offensive tothe health of persons residing in the neighbourhood; (ii) is runningsince long and (iii) its continuation is in the larger public interest –In view of conscious decision taken by the Standing Committee ofthe Municipal Corporation under s.391 of the Act, 1957 not to closethe crematorium at Village Masoodpur, High Court ought to havemodified its earlier order dated 03.12.2003 in writ petition by whichthe Municipal Corporation was directed to shift the crematorium toKishangarh – Under s.42(f) of the Act, 1957, it is the duty castupon the Municipal Corporation to make provision for regulationof places for the disposal of dead and the provision of maintenanceof said places is an obligatory function of Municipal Corporation– Therefore, until and unless the conditions as mentioned in s.391of the Act, 1957 are satisfied and it is specifically found that anyburning or burial ground has become offensive, or dangerous tothe health of the persons residing at neighbourhood, the burningand burial ground can be ordered to be closed with the previoussanction of the Standing Committee – High Court ought to havemodified its earlier order dated 03.12.2003, by which it was directedto shift the crematorium at Village Masoodpur to Kishangarh –Consequently, order dated 03.12.2003 is hereby modified/quashedand set aside in view of subsequent decision dated 31.03.2016 ofStanding Committee of the Municipal Corporation – However, atthe same time, the Municipal Corporation to take steps to modernisethe crematorium by shifting it to a modern electric crematorium whichshall be in the larger public interest of the village people as well asthe residents of the neighbourhood area – Delhi MunicipalCorporation Act, 1957 – s.391.

Allowing the appeal, the Court

HELD: 1. In the earlier round of litigation, the DivisionBench of the High Court directed the Municipal Corporation/Standing Committee of the Municipal Corporation to take anappropriate decision under Section 391 of the Act, 1957. Thatthereafter the Standing Committee of the Municipal Corporationhas taken a conscious decision not to close the crematorium atVillage Masoodpur. From the resolution of the Standing ABC

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ACommittee, it appears that the Standing Committee has taken aconscious decision not to close the crematorium on the groundsthat (i) Masoodpur cremation ground has not become offensiveto the health of persons residing in the neighbourhood; (ii) isrunning since long and (iii) its continuation is in the larger publicinterest. Therefore, when a conscious decision has been takenBby the Standing Committee of the Municipal Corporation underSection 391 of the Act, 1957 not to close the crematorium atVillage Masoodpur, the High Court ought to have modified itsearlier order dated 03.12.2003 in Writ Petition No. 3687/1995 bywhich the Municipal Corporation was directed to shift theCcrematorium to Kishangarh. [Para 5.2][994-C-F]

2. Under Section 42(f) of the Act, 1957 it is the duty castupon the Municipal Corporation to make provision for regulationof places for the disposal of dead and the provision of maintenanceof said places is an obligatory function of Municipal Corporation.

DTherefore, until and unless the conditions as mentioned in Section391 of the Act, 1957 are satisfied and it is specifically found thatany burning or burial ground has become offensive, or dangerousto the health of the persons residing at neighbourhood, theburning and burial ground can be ordered to be closed with theprevious sanction of the Standing Committee. A consciousEdecision has been taken by the Standing Committee not to closethe crematorium at Village Masoodpur looking to the publicinterest and in the interest of village people of Village Masoodpur.If the request made on behalf of respondent No. 1 is accepted inthat case on the settlement of the residents subsequently everyFcrematorium in the city/town will have to be shifted outside thetown/city, which shall not be in the interest of the residents of thevillage/city/town. Therefore, the High Court ought to havemodified its earlier order dated 03.12.2003, by which it wasdirected to shift the crematorium at Village Masoodpur to Kishangarh. However, at the same time taking into considerationGneed of the day the Municipal Corporation has to modernise thecrematorium and to shift it to a modern electric crematorium whichshall be in the larger public interest of the village people as wellas residents of the neighbourhood area. [Para 5.3][994-F-H; 995-A-C]H

3. The impugned order passed by the High Court refusingto modify its earlier order dated 03.12.2003 in Writ Petition No.3687/1995 directing to shift the crematorium at VillageMasoodpur to Kishangarh is hereby quashed and set aside.However, at the same time, the Municipal Corporation to takesteps to modernise the crematorium by shifting it to a modernelectric crematorium which shall be in the larger public interestof the village people as well as the residents of the neighbourhoodarea. [Para 6][995-D-F]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7614of 2022.

From the Judgment and Orders dated 06.12.2016 of the HighCourt of Delhi at New Delhi in C.M. No.34439 of 2016 in W.P. No.3687of 1995.

Ms. Vandana Sehgal, Adv. for the Appellant.

Vikramjit Banerjee, ASG, Gp. Capt. Karan Singh Bhati, Ms.Chitrangda Rastravara, Manvendra Singh, Ms. Gunjan Negi, DashrathSingh, Shiv Autar Singh Sengar, Abhijeet Singh, Aditya Pratap SinghChauhan, Aishwary Mishra, Shreekant Neelappa Terdal, Rajesh Kr.Singh, Merusagar Samantaray, Ms. Shruti Agarwal, Ms. Janhvi Prakash,Kartik Dey, T. S. Sabarish, Amrish Kumar, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 06.12.2016 passed by the High Court of Delhi at NewDelhi 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 applicationpreferred by the South Delhi Municipal Corporation (hereinafter referredto as the Municipal Corporation) and has refused to modify the earlierorder dated 03.12.2003 passed by the High Court in Writ Petition No.3687/1995, the Municipal Corporation has preferred the present appeal.

2. That the dispute is with respect to the cremation ground atMasoodpur, New Delhi which as such is in existence since last morethan 100 years and the same is for the benefit of village people of villageMasoodpur, New Delhi. That the original writ petitioner – Residents A

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AWelfare Association, Vasant Kunj approached the High Court by wayof Writ Petition No. 3687/1995for appropriate orders inter-alia not topermit the use of land in question as cremation ground. It was the caseon behalf of the original writ petitioner that Delhi Development Authority(DDA) has already provided cremation ground at other place in thesame area. Taking into consideration communication dated 27.12.1990Bby DDA calling upon the Municipal Authorities to issue notification forclosure of cremation ground at Masoodpur Village and for shifting it toenlarge cremation ground at Kishangarh Village and taking note of theprovisions of the Delhi Municipal Corporation Act, 1957 (hereinafterreferred to as the Act, 1957), more particularly, Sections 390 and 391 ofCthe Act, 1957, and observing that it was for the Standing Committee ofthe Municipal Corporation to take an appropriate decision, the High Courtwhile disposing of the aforesaid writ petition directed the MunicipalCorporation to take an appropriate decision under Section 391 of theAct, 1957. The Division Bench of the High Court also directed that theMunicipal Corporation shall take possession of the land offered atDKishangarh and shall make all necessary arrangements to use the sameas a crematorium. That thereafter, pursuant to the directions issued bythe High Court in order dated 03.12.2003 in Writ Petition No. 3687/1995, the Standing Committee in exercise of powers under Section 391of the Act, 1957 had taken a conscious decision not to close theEcrematorium at Masoodpur Village, by observing that it is not in thepublic interest to close the crematorium at Masoodpur Village and thatthe crematorium at Masoodpur Village is being used for the village sincelong. That thereafter, the Municipal Corporation filed the presentapplication before the High Court for modification of order dated03.12.2003 passed in Writ Petition No. 3687/1995. By the impugnedForder the High Court dismissed the said application hence, the presentappeal at the instance of the Municipal Corporation.

3. Ms. Vandana Sehgal, learned counsel appearing on behalf ofthe Municipal Corporation has vehemently submitted that pursuant toearlier order dated 03.12.2003 passed by the Division Bench of the HighGCourt in Writ Petition No. 3687/1995, the Standing Committee of theMunicipal Corporation has taken a conscious decision not to close thecrematorium at Village Masoodpur. It is submitted that the decision ofthe Standing Committee not to close the crematorium is in exercise ofpowers under Section 391 of the Act, 1957. It is submitted that havingHconsidered the fact that the crematorium at Village Masoodpur is in use since long, much prior the society at Vasant Kunj came into existenceand having considered that it is not in the public interest and/or in theinterest of the village people to close the crematorium at VillageMasoodpur, the High Court ought to have modified its earlier decisiondated 03.12.2003 in Writ Petition No. 3687/1995.

3.1 It is submitted that under Section 42 of the Act, 1957 it is theduty cast upon the Corporation to make provision for regulation of placesfor disposal of dead. It is submitted that therefore, the provision ofmaintenance of places for disposal of dead is an obligatory function ofMunicipal Corporation. It is submitted that merely because subsequentlythe society/residential colonies might have come into existence it cannotbe a ground to close the crematorium which is in use since long.

3.2 It is submitted that when a conscious decision has been takenby the Standing Committee of the Municipal Corporation not to close thecrematorium at Village Masoodpur the High Court ought to have modifiedits earlier order.

4. While opposing the present appeal Shri Karan Singh Bhati,learned counsel appearing on behalf of respondent No. 1 – Federationof Residents Welfare Association, Vasant Kunj has vehemently submittedthat the crematorium is nearer to the residential complexes of VasantKunj and therefore, it is not in the interest of residents of Vasant Kunj tocontinue the crematorium at Village Masoodpur.

4.1 It is vehemently submitted that as such the DDA has alreadyallotted and/or allowed a crematorium at Kishangarh to use the same ascrematorium, the crematorium at Village Masoodpur ought to have shiftedto Kishangarh which is just seven k.m. away.

4.2 It is submitted that therefore when earlier the High Courtdirected the Municipal Corporation to shift the crematorium at VillageMasoodpur to Kishangarh, the same is not rightly modified by the HighCourt by impugned order.

5. We have heard learned counsel appearing on behalf of theMunicipal Corporation as well as learned counsel appearing on behalf ofrespondent No. 1 – Residents Welfare Association, Vasant Kunj.

5.1 At the outset it is required to be noted that the dispute is withrespect to the crematorium at Village Masoodpur. The crematorium atVillage Masoodpur is being used for the village people since long and it A

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Aappears that the same is being used much prior the Act, 1957 came intoforce. The residential colonies in Vasant Kunj have come into existencein 1990. So, at the relevant time when the residential colonies at VasantKunj came into existence there was already a crematorium at VillageMasoodpur. The residential colonies came into existence subsequent tothe crematorium at Village Masoodpur. Therefore, when the residentsBof Vasant Kunj started residing on and after 1990, there was already acrematorium at Village Masoodpur. Merely because subsequently theresidents of Vasant Kunj/locality have started residing, it cannot be aground to shift the crematorium and/or not to use the crematorium atVillage Masoodpur.C

5.2 In the earlier round of litigation the Division Bench of theHigh Court directed the Municipal Corporation/Standing Committee ofthe Municipal Corporation to take an appropriate decision under Section391 of the Act, 1957. That thereafter the Standing Committee of theMunicipal Corporation has taken a conscious decision not to close theDcrematorium at Village Masoodpur. From the resolution of the StandingCommittee, it appears that the Standing Committee has taken a consciousdecision not to close the crematorium on the grounds that (i) Masoodpurcremation ground has not become offensive to the health of personsresiding in the neighbourhood; (ii) is running since long and (iii) itscontinuation is in the larger public interest. Therefore, when a consciousEdecision has been taken by the Standing Committee of the MunicipalCorporation under Section 391 of the Act, 1957 not to close thecrematorium at Village Masoodpur, the High Court ought to have modifiedits earlier order dated 03.12.2003 in Writ Petition No. 3687/1995 by whichthe Municipal Corporation was directed to shift the crematorium toFKishangarh.

5.3 At this stage it is required to be noted that as such underSection 42(f) of the Act, 1957 it is the duty cast upon the MunicipalCorporation to make provision for regulation of places for the disposalof dead and the provision of maintenance of said places is an obligatoryGfunction of Municipal Corporation. Therefore, until and unless theconditions as mentioned in Section 391 of the Act, 1957 are satisfied andit is specifically found that any burning or burial ground has becomeoffensive, or dangerous to the health of the persons residing atneighbourhood, the burning and burial ground can be ordered to be closedwith the previous sanction of the Standing Committee. A consciousH

decision has been taken by the Standing Committee not to close thecrematorium at Village Masoodpur looking to the public interest and inthe interest of village people of Village Masoodpur. If the request madeon behalf of respondent No. 1 is accepted in that case on the settlementof the residents subsequently every crematorium in the city/town willhave to be shifted outside the town/city, which shall not be in the interestof the residents of the village/city/town. Therefore, the High Court oughtto have modified its earlier order dated 03.12.2003, by which it wasdirected to shift the crematorium at Village Masoodpur to Kishangarh.However, at the same time taking into consideration need of the day theMunicipal Corporation has to modernise the crematorium and to shift itto a modern electric crematorium which shall be in the larger publicinterest of the village people as well as residents of the neighbourhoodarea.

6. In view of the above and for the reasons stated above thepresent appeal succeeds. The impugned order passed by the High Courtrefusing to modify its earlier order dated 03.12.2003 in Writ Petition No.3687/1995 directing to shift the crematorium at Village Masoodpur toKishangarh is hereby quashed and set aside. Consequently, order dated03.12.2003 passed in Writ Petition No. 3687/1995 directing to shift thecrematorium at Village Masoodpur to Kishangarh is hereby modified/quashed and set aside in view of subsequent decision dated 31.03.2016of Standing Committee of the Municipal Corporation. However, at thesame time we direct the Municipal Corporation to take steps to modernisethe crematorium by shifting it to a modern electric crematorium whichshall be in the larger public interest of the village people as well as theresidents of the neighbourhood area. The said exercise be completedwithin a period of twelve months from today. The present appeal isaccordingly allowed. No costs.

Devika Gujral

Appeal allowed.

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