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

Citation: [2022] 13 S.C.R. 988 · Decided: 21-10-2022 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 13 S.C.R.
[2022] 13 S.C.R. 988
988
SOUTH DELHI MUNICIPAL CORPORATION
v.
FEDERATION OF RESIDENTS WELFARE ASSOCIATION,
VASANT KUNJ (REGD.) AND ORS.
(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
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
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
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
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
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
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the Act, 1957 came into force – The residential colonies in Vasant
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 –
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
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
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 –
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
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
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 th

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