SOUTH DELHI MUNICIPAL CORPORATIONversusFEDERATION OF RESIDENTS WELFARE ASSOCIATION, VASANT KUNJ (REGD.) AND ORS.

988                      [2022]REPORTS
               SUPREME COURT   13 S.C.R. 988               [2022] 13 S.C.R.


A              SOUTH DELHI MUNICIPAL CORPORATION
                                       v.
         FEDERATION OF RESIDENTS WELFARE ASSOCIATION,
                 VASANT KUNJ (REGD.) AND ORS.
B                        (Civil appeal No. 7614 of 2022)
                              OCTOBER 21, 2022
                [M. R. SHAH AND M. M. SUNDRESH, JJ.]
             Municipalities: Cremation ground – Shifting of – Dispute is
      with respect to the cremation ground at Masoodpur, New Delhi which
C
      as such is in existence since last more than 100 years – The original
      writ petitioner-Residents Welfare Association, Vasant Kunj filed writ
      petition before High Court for appropriate orders inter alia not to
      permit the use of land in question as cremation ground – Taking
      into consideration communication dated 27.12.1990 by DDA calling
D     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, ss.390 and 391 of the Act, 1957, and observing that it
      was for the Standing Committee of the Municipal Corporation to
E
      take an appropriate decision, High Court while disposing of writ
      petition directed the Municipal Corporation to take an appropriate
      decision under s.391 of the Act, 1957 – High Court also directed
      that the Municipal Corporation to take possession of the land offered
      at Kishangarh and make all necessary arrangements to use the
F     same as a crematorium – Thereafter, pursuant to the directions issued
      by the High Court in order dated 03.12.2003 in Writ Petition, the
      Standing Committee in exercise of powers under s.391 of the Act,
      1957 took a conscious decision not to close the crematorium at
      Masoodpur Village, by observing that it was not in public interest
      to close crematorium at Masoodpur Village and that the same was
G
      used since long – Municipal Corporation application before the
      High Court for modification of order dated 03.12.2003 passed in
      writ petition – High Court dismissed the application – Hence instant
      appeal by Municipal Corporation – Held: The crematorium at Village
      Masoodpur was used for the village people since long, much prior
H
                                      988
     S.D.M.C. v. FEDERATION OF RESIDENTS WELFARE                           989
           ASSOCIATION, VASANT KUNJ (REGD.)

the Act, 1957 came into force – The residential colonies in Vasant         A
Kunj came into existence in 1990 – Standing Committee had taken
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 interest –
                                                                           B
In view of conscious decision taken by the Standing Committee of
the Municipal Corporation under s.391 of the Act, 1957 not to close
the crematorium at Village Masoodpur, High Court ought to have
modified its earlier order dated 03.12.2003 in writ petition by which
the Municipal Corporation was directed to shift the crematorium to
Kishangarh – Under s.42(f) of the Act, 1957, it is the duty cast           C
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 s.391
of the Act, 1957 are satisfied and it is specifically found that any
burning or burial ground has become offensive, or dangerous to             D
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 – 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 –              E
Consequently, order dated 03.12.2003 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, 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    F
the residents of the neighbourhood area – Delhi Municipal
Corporation Act, 1957 – s.391.
      Allowing the appeal, the Court
      HELD: 1. In the earlier round of litigation, the Division
                                                                           G
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                     H
990            SUPREME COURT REPORTS                     [2022] 13 S.C.R.


A     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
      interest. Therefore, when a conscious decision has been taken
B
      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
C     crematorium to Kishangarh. [Para 5.2][994-C-F]
            2. 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.
D     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
E     decision has been taken by the Standing 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
F     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
G     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. [Para 5.3][994-F-H; 995-
      A-C]
H
     S.D.M.C. v. FEDERATION OF RESIDENTS WELFARE                              991
           ASSOCIATION, VASANT KUNJ (REGD.)

       3. The impugned order passed by the High Court refusing                A
to modify its earlier order dated 03.12.2003 in Writ Petition No.
3687/1995 directing to shift the crematorium at Village
Masoodpur to Kishangarh is hereby quashed and set aside.
However, at the same time, the Municipal Corporation to take
steps to modernise the crematorium by shifting it to a modern
                                                                              B
electric crematorium which shall be in the larger public interest
of the village people as well as the residents of the neighbourhood
area. [Para 6][995-D-F]
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7614
of 2022.
                                                                              C
      From the Judgment and Orders dated 06.12.2016 of the High
Court of Delhi at New Delhi in C.M. No.34439 of 2016 in W.P. No.3687
of 1995.
      Ms. Vandana Sehgal, Adv. for the Appellant.
      Vikramjit Banerjee, ASG, Gp. Capt. Karan Singh Bhati, Ms.               D
Chitrangda Rastravara, Manvendra Singh, Ms. Gunjan Negi, Dashrath
Singh, Shiv Autar Singh Sengar, Abhijeet Singh, Aditya Pratap Singh
Chauhan, 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.          E
      The Judgment of the Court was delivered by
      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
                                                                              F
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 has refused to modify the earlier
order dated 03.12.2003 passed by the High Court in Writ Petition No.
3687/1995, the Municipal Corporation has preferred the present appeal.        G
      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
                                                                              H
992            SUPREME COURT REPORTS                         [2022] 13 S.C.R.


A     Welfare Association, Vasant Kunj approached the High Court by way
      of Writ Petition No. 3687/1995for 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) has already provided cremation ground at other place in the
      same area. Taking into consideration communication dated 27.12.1990
B
      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
C     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
D
      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
E     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
F
      order the High Court dismissed the said 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
G     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
H     considered the fact that the crematorium at Village Masoodpur is in use
    S.D.M.C. v. FEDERATION OF RESIDENTS WELFARE                                993
   ASSOCIATION, VASANT KUNJ (REGD.) [M. R. SHAH, J.]

since long, much prior the society at Vasant Kunj came into existence          A
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    B
duty cast upon the Corporation to make provision for 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.               C

        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.
                                                                               D
       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.                                 E

       4.1 It is vehemently submitted that as such the DDA has already
allotted and/or allowed a crematorium at 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.
                                                                               F
       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
                                                                               G
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
                                                                               H
994            SUPREME COURT REPORTS                         [2022] 13 S.C.R.


A     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. The residential colonies came into existence subsequent to
      the crematorium at Village Masoodpur. Therefore, when the residents
B
      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.
C
              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
D     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 interest. Therefore, when a conscious
E
      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
F     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
G     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
H
    S.D.M.C. v. FEDERATION OF RESIDENTS WELFARE                                 995
   ASSOCIATION, VASANT KUNJ (REGD.) [M. R. SHAH, J.]

decision has been taken by the Standing Committee not to close the              A
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
                                                                                B
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            C
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.      D
3687/1995 directing to 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             E
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              F
accordingly allowed. No costs.

Devika Gujral                                                 Appeal allowed.


                                                                                G




                                                                                H