South Delhi Municipal Corporation vs Federation of Residents Welfare Association, Vasant Kunj (Regd.) and Others

South Delhi Municipal Corporation …Appellant(s)

Versus

Federation of Residents Welfare Association, …Respondent(s) Vasant Kunj (Regd.) and Ors.

JUDGMENT

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 Digitally signed by NIRMALA NEGI has refused to modify the earlier order dated 03.12.2003 Date: 2022.10.21 16:55:29 IST Reason:

passed by the High Court in Writ Petition No. 3687/1995,

1 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

2 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

3 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

4 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

5 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.

6 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

7 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

8 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

9 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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