In CIVIL APPEAL NO.7614 OF 2022-SC- If conditions mentioned in Sec.391 of Delhi Municipal Corporation Act, 1957 are satisfied and it is specifically found that any burning or burial ground has become offensive or dangerous to health of persons residing nearby, then such ground can be ordered to be closed: SC
Justices M.R. Shah & M.M. Sundresh [21-10-2022]

Read Judgment: SOUTH DELHI MUNICIPAL CORPORATION V. FEDERATION OF RESIDENTS WELFARE ASSOCIATION, VASANT KUNJ (REGD.) AND ORS 

Mansimran Kaur

New Delhi, October 25, 2022:  Under Section 42(f) of the Delhi Municipal Corporation 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, the Supreme Court has held.

The Division bench of Justice M.R. Shah and M. M.  Sunderesh allowed the appeal instituted by the appellant by stating that while taking into consideration the fact that the Municipal Corporation needs to modernize 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 neighborhood area.

Feeling aggrieved and dissatisfied with the impugned judgment passed by the High Court of Delhi by which, the Division Bench dismissed the said application preferred by the South Delhi Municipal Corporation and refused to modify the earlier order dated December 3, 2003 passed by the High Court in Writ Petition of 1995, the Municipal Corporation preferred the present appeal. 

The dispute in the present case was with respect to the cremation ground at Masoodpur, New Delhi which as such was in existence for more than 100 years and the same was for the benefit of village people of village Masoodpur, New Delhi. 

The original writ petitioner – Residents Welfare Association, Vasant Kunj approached the High Court by way of Writ Petition of 1995 for appropriate orders inter-alia 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) had already provided cremation ground at another place in the same area.

Taking into consideration communication dated December 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, Sections 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, 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. 

Pursuant to the directions issued by the High Court in order dated December 3, 2003 in Writ Petition of 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. 

 The Municipal Corporation filed the present application before the High Court for modification of order dated December 3, 2003 passed in Writ Petition of 1995. By the impugned order the High Court dismissed the said application hence; the present appeal was instituted at the instance of the Municipal Corporation.

After hearing the submissions from both the sides, the Court noted that the dispute was with respect to the crematorium at Village Masoodpur. The crematorium at Village Masoodpur was used for the village people for a long time and it appeared that the same was being used much prior to the Act, 1957 came into force. It was further stated by the Court that 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.

“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 neighborhood, the burning and burial ground can be ordered to be closed with the previous sanction of the Standing Committee”, the Court observed. 

In furtherance of the same, the Court noted that if request made on behalf of first respondent was 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 December 3, 2003 by which it was directed to shift the crematorium at Village Masoodpur to Kishangarh.

 However, at the same time taking into consideration the need of the day, the Municipal Corporation has to modernize 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 neighborhood area,the Bench held while allowing the appeal.