*IN THE HIGH COURT OF DELHI AT NEW DELHI. % Date of decision: 15 th January, W.P.(C) No.3687/1995

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1 *IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 15 th January, W.P.(C) No.3687/1995 FEDERATION OF RESIDENTS WELFARE ASSOCIATIONS, VASANT KUNJ... Petitioner Through: Mr. Karan Singh Bhati, Adv. UNION OF INDIA & ORS Through: Versus CORAM:- HON BLE THE CHIEF JUSTICE HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J.... Respondents Mr. Rajiv Khosla, Adv. for Review Appicant. Mr. Ajay Digpaul, Standing Counsel for R-3/SDMC. Review Petition No.618/2015 &CM No.32464/2015 (for condonation of 84 days delay in filing the review petition) 1. This review petition filed by Shri Narender Malik, Shri Suresh and Shri Bishambher Dayal all claiming to be residents of village Masoodpur seeks review of the order dated 3 rd December, 2003 disposing of this petition with a direction to the Municipal Corporation of Delhi (MCD) to take possession of land at Kishangarh from Delhi Development Authority (DDA) and to make necessary arrangements to use as the crematorium and directing closure of the cremation ground at Masoodpur Village, Sector B, Vasant Kunj, New Delhi. W.P.(C) No.3687/1995 Page 1 of 14

2 Consequently, direction in the Review Petition is also sought to the respondents Union of India (UOI), DDA and MCD not to interfere or cause hindrance in the peaceful use of the cremation ground at Masoodpur village. 2. Even though review of the order dated 3 rd December, 2003 is sought after a period of more than 12 years but the application for condonation of delay filed along with the review petition seeks condonation of delay of 84 days only, contending that the review applicants had no knowledge of the order of which review is sought till the second week of August, Be that as it may, we have, without going into the said aspect heard the counsel for the review applicants. 3. The subject writ petition was filed by the Federation of Residents Welfare Associations of Vasant Kunj, impleading Secretary of Ministry of Urban Development, DDA and MCD only as respondents, and pleading, (i) that the writ petitioner Federation represents 23 Associations of the residents of approximately 20,000 flats in the colony of Vasant Kunj, New Delhi developed by the DDA in or about the year 1992 and management whereof had been handed over by the DDA to the MCD; (ii) that Masoodpur village where about 200 families were residing is situated in the midst of the said colony of Vasant Kunj; (iii) that certain mischievous elements had taken W.P.(C) No.3687/1995 Page 2 of 14

3 control over a certain portion of the land near the said village which land had been declared as a green area by the DDA and had started using the same for burning dead bodies; (iv) that the residents had complained of the same but no action was being taken; (v) that two major schools were situated just across the road from the said land and approximately 200 flats were at a stone s throw distance from the said land; (vi) that the use of the said land for burning dead bodies was causing nuisance to the residents of the colony; (vii) accordingly, directions were sought for prohibiting use of the said land as a cremation ground. 4. The writ petition was entertained and notice thereof issued. 5. DDA in its counter affidavit to with respect to the petition pleaded that the subject land was not notified for acquisition and had not been acquired and was not in possession and disposal of DDA. It was however admitted that the same was being used as a cremation ground albeit unauthorizedly. It was yet further pleaded that a piece of land measuring 1.5 acres at Kishangarh had been allotted to MCD for development of a cremation ground in the locality but MCD had not taken over possession of the said land. It was yet further pleaded that DDA had already directed the MCD to issue notification for closure of the said unauthorized cremation W.P.(C) No.3687/1995 Page 3 of 14

4 ground at Masoodpur and to develop the cremation ground at Kishangarh. 6. MCD in its counter affidavit in writ petition took the stand that the subject land was being used as cremation ground since prior to the coming up of the colony of Vasant Kunj; however owing to the residential colony of Vasant Kunj having come up, the said cremation ground was required to be shifted and, showing willingness to take up the land at Kishangarh and to develop the same as a cremation ground. 7. In the light of the aforesaid stand of the DDA and MCD, the writ petition was disposed of vide order dated 3 rd December, 2003 with a direction to the MCD to under Sections 390 and 391 of the Delhi Municipal Corporation (DMC) Act, 1957 take possession of the land offered by the DDA at Kishangarh and to make necessary arrangement for use thereof as crematorium and to complete the said exercise within a period of three months and within the said time also issue direction for closure of the subject cremation ground at Masoodpur. The said order attained finality. 8. In or about the year 2014, one Gram Vikas Samiti, Masoodpur, Vasant Kunj, New Delhi filed Review Petition No.240/2014 seeking review of the order dated 3 rd December, 2003 disposing of the writ petition. The said review petition was dismissed vide order dated 19 th January, 2015 inter W.P.(C) No.3687/1995 Page 4 of 14

5 alia recording/holding as under:- 9. Gram Vikas Simiti, Masoodpur seeks review, pleading: (a) that the subject cremation ground has been under its care and custody and it was a necessary and / or a proper party to the writ petition; (b) that it is affected and aggrieved by the portion of the order directing closure of the subject cremation ground; (c) that under Section 391 of the DMC Act, a decision for closure of the cremation ground can be taken only after conducting enquiry but no enquiry had been conducted; (d) that the residents of the colony of Vasant Kunj have also been using the subject cremation ground; (e) that the petitioner had wrongly pleaded that the subject land belonged to the DDA or was part of a green belt, when DDA itself denied having acquired the said land; (f) that the writ petitioner Federation had filed Contempt Petition No.114/2014 against the DDA and MCD for not complying with the order dated 3 rd December, 2003 and in pursuance whereto MCD had taken action for closure of the subject cremation ground. 10. The counsel for the review applicant during the hearing also contended that since the order inter alia for closure of the subject cremation ground under the management of the review applicant was made in the absence of the review applicant, the same is liable to be reviewed / recalled. Much emphasis was also placed on the fact that the subject land was not notified for acquisition and not acquired. It was contended that the DDA / MCD could not thus take over possession of the said land. It was further contended that the procedure prescribed in Section 391 DMC Act has not been undertaken for closure of the cremation / burning activities on the subject land. It is argued that no legal enquiry from the petitioner as required to be made under Section W.P.(C) No.3687/1995 Page 5 of 14

6 391 has been made and no opinion has been formed by the Commissioner that the burning or cremation activity being carried on the said land has become offensive or dangerous to the health of the persons residing in the neighbourhood. It is yet further contended that no sanction of the Standing Committee of the MCD has also been obtained. 11. The counsel for the writ petitioner Federation contended that the land was in fact acquired and the review applicant Society has no right thereto. Attention was also invited to the fact that the review applicant as per the documents filed along with the review application was registered under the Societies Registration Act, 1860 only in the year 1995 and it is argued that the review applicant cannot thus stake any claim to the cremation ground which, prior to the coming into being of the review applicant Society had vide letter dated 27 th December, 1990 of the DDA been directed to be closed. Reliance is placed on para 4 of Sahara India Real Estate Corporation Limited Vs. Securities and Exchange Board of India (2013) 2 SCC 730, paras 12 to 20 of Kamlesh Verma Vs. Mayawati (2013) 8 SCC 320 and paras 9 to 12 of Union of India Vs. Sandur Manganese and Iron Ores Limited (2013) 8 SCC 337 to contend that a nonparty cannot seek review. 12. We have considered the rival contentions. 13. Sections 389 to 392 of the DMC Act deal with burning and burial grounds. Section 389 empowers the Commissioner of MCD to require the owner or person in charge of any burning or burial ground to supply such information concerning the condition, management or position of such ground. Section 390 provides that no place which has not been used as a burning or a burial ground before the commencement of the DMC Act in the year 1957, shall be so used without the permission in writing of the Commissioner. Section 391 is as under: 391. Power to require closing of burning and burial grounds: (1) Where the Commissioner, after making or causing to be made local enquiry is of opinion that any burning or burial ground has become W.P.(C) No.3687/1995 Page 6 of 14

7 offensive to, or dangerous to the health of, persons residing in the neighbourhood, he may, with the previous sanction of the Standing Committee, by notice in writing, require the owner or person in charge of such ground to close the same from such date as may be specified in the notice. (2) No corpse shall be burnt or buried at the burning or burial ground in respect of which a notice has been issued under this section. Section 392 empowers the Commissioner to prescribe the routes by which alone corpses may be removed to burning or burial ground. 14. We, in this proceeding, are not required to return any finding whether the subject land was acquired or not. Though the counsel for the review applicant has contended that possession of the subject land is being taken over from it but we do not find any basis for the said argument, neither in the pleadings nor in the documents. This proceeding is concerned only with review of the order of the closure of the activity of cremation admittedly being carried out on the subject land. We clarify that if at any time the DDA or the MCD attempt to take over possession of the said land, without being entitled thereto and the review applicant has a cause of action to challenge the same, it would be entitled to do so inasmuch as neither the writ petition was nor these review proceedings are concerned with possession of the said land. 15. Qua the contention that the procedure under Section 391 had not been followed, we enquired from the counsel for the review applicant as to what was its locus to challenge the procedure undertaken by the MCD or closure of the burning / cremating activity on the said land. We put to the counsel for the review applicant that the writ petition itself had been filed by the Federation of the Residents Associations of the locality and which itself was indicative of the residents of the locality protesting the use of the said land for burning / cremating activities. We yet further enquired, whether not the enquiry W.P.(C) No.3687/1995 Page 7 of 14

8 under Section 391 supra was to be only from the persons residing in the neighbourhood and not from the person in management of the cremation ground, as the review applicant claimed to be. It was yet further enquired, as to how the irregularity, even if any on the part of the MCD in ordering the closure of the subject cremation ground, was of any avail, inasmuch as this Court itself has ordered the closure of the cremation ground. 16. The counsel for the review applicant sought to meet all the aforesaid queries put to him by contending that the members of the review applicant Society are also residing in the neighbourhood. 17. It is however not the pleading. The only pleading is of the review applicant managing the subject cremation ground. 18. We may also highlight that though the review applicant in its name has included the name of village Masoodpur but the true representative of the residents of the said village would be the Gram Sabha / Gaon Sabha, Masoodpur and not the review applicant. The review applicant is but a society formed by a few persons claiming to be residents of the said village. In fact, as per the documents filed by the review applicant itself, the review applicant is not even the owner of the said land which as per the said documents also vests in the Gaon Sabha of village Masoodpur. We repeat that the Gram Sabha / Gaon Sabha of village Masoodpur is not to be confused with the review applicant. The review applicant as per its own pleadings merely undertakes the act of cremation. In our opinion, the scope of the legal enquiry under Section 391 supra does not extend to taking into account the views or interest of the undertaker of the cremation ground. Also, there is in fact nothing to suggest that it is the review applicant which has been entrusted with such a task. Though the counsel for the review applicant contends that a large number of residents of the locality also are against the closure of the subject cremation ground but the said residents are not before us. On the contrary, the writ petitioner is a Federation / Apex Body of the Residents Associations of the locality. W.P.(C) No.3687/1995 Page 8 of 14

9 19. Rather, the order of which review is sought shows that this Court ordered the closure of the cremation ground on the subject land, after satisfying itself that the continuation thereof was offensive to or dangerous to the health of persons residing in the neighbourhood i.e. of the colony of Vasant Kunj which has come up around the said cremation ground. 20. The counsel for the review applicant then contended that the subject land is not even within the jurisdiction of MCD and therefore MCD has no right to order closure thereof. 21. Suffice it is to state that there is no pleading to the said effect. Rather, the said contention is contrary to the pleadings, where the review applicant itself has relied on Section 391 to contend that the procedure prescribed thereunder has not been followed. 22. We may however record that we do not find any merit in the contention of the writ petitioner Federation that the review applicant being a non-party to the writ petition has no right to seek review of the order therein. A non-party to the proceeding, if affected by an order in a proceeding has no option but to seek review of the said order inasmuch as no independent proceeding seeking an order in contravention of an order in another proceeding would be maintainable. Reference in this regard can be made to Shivdeo Singh Vs. State of Punjab AIR 1963 SC 1909 and Union Carbide Corporation Vs. Union of India (1991) 4 SCC For all the aforesaid reasons, we do not find the review applicant to have made out any ground for review. The review petition is accordingly dismissed. However no costs. 9. The Review Petitioners in this review petition contend (i) that they were not parties to the aforesaid writ petition and therefore could not get any opportunity to place their version before this Court; (ii) that the writ petitioners in the writ petition deliberately did not make the villagers or W.P.(C) No.3687/1995 Page 9 of 14

10 Director Panchayat as parties to the aforesaid petition; (iii) that since the village has been urbanised there is no Gaon Sabah in existence of the village; (iv) that the review petitioners are directly affected by the order of which review is sought; (v) that the order of which review is sought was obtained by the writ petitioners in collusion with the respondents to the petition; (vi) that the subject cremation ground is being used for several hundred years; (vii) that the review petitioners and their ancestors are the original settlers of village Masoodpur land whereof was acquired for development of the colony; (viii) that the new inhabitants of the said colony whose very houses are constructed on the acquired land cannot deprive the original settlers from the use of the existing cremation ground; (ix) that the very fact that inspite of acquisition the possession of the land underneath cremation ground was not taken is indicative of the layout plan of the area not disturbing the said cremation ground; (x) that the flats are more than 160 ft. away from the cremation ground; (xi) that now the Government itself has been spending money on the upkeep of the cremation ground; (xii) no pollution is caused from the said cremation ground; (xiii) that the original settlers of village Masoodpur believe and have the custom and tradition of cremating the bodies of their dead on the subject land; (xiv) that the new W.P.(C) No.3687/1995 Page 10 of 14

11 cremation ground at Kishangarh would be at a distance of about 4 to 5 km. for the original settlers of village Masoodpur; (xv) the development of a park on the land where the subject cremation ground exists will hurt the religious sentiments of the villagers; (xvi) that even in the Revenue Records the land is shown as a cremation ground; and, (xvii) that the land underneath the cremation ground has not been acquired. 10. It may also be mentioned that the review petitioners prior to filing this review application filed W.P.(C) No.9426/2015 but which when came up first on 7 th October, 2015, after some hearing was withdrawn with liberty to file a Public Interest Litigation (PIL). The counsel for the review petitioners states that on consideration it was realized that even a PIL would not be the appropriate remedy and this review petition is the appropriate remedy for the grievance of the review petitioners. Besides reiterating the contentions as are already recorded hereinabove, it is in addition stated that the three review petitioners and the other villagers of the Masoodpur are ready to, with their own monies install such facilities in the said cremation ground so as to not cause nuisances to the residents of the DDA flats in the vicinity of the cremation ground. W.P.(C) No.3687/1995 Page 11 of 14

12 11. In our view no ground for review is made out. The review petitioners admittedly do not claim any rights on the land underneath the cremation ground. Even if their arguments of the same being Gaon Sabha land is to be believed the same now vests in Government of National Capital Territory of Delhi (GNCTD). Else, as we have already observed in our order dated 19 th November, 2015 dismissing the earlier review petition, Sections 389 to 392 of the Delhi Municipal Corporation Act, 1957 deal with burning and burial grounds and it is for the concerned Municipality to determine where a cremation ground should be situated. The order of which review is sought, of closure of the subject cremation ground and for setting up of alternate cremation ground at Kishangarh which we are informed is already functional, has been passed after considering all the relevant aspect. 12. It cannot be lost sight of that in the hundreds of year since when the subject cremation ground is stated to have existed, the norms of planning and civilization have changed drastically and with the huge colony of Vasant Kunj having come up with residential flats, even according to the review petitioners at a distance of about 160 ft. from the cremation ground, no error requiring review can be found in the order passed in the writ petition, for closure of the subject cremation ground. Thousands residents of the flats in close vicinity of W.P.(C) No.3687/1995 Page 12 of 14

13 the cremation ground cannot be subjected to live with the smell of burning human flesh and which in our view prejudicially affects their right to live with dignity at their residences. On the contrary review petitioners have not shown any prejudice which may be suffered by them. Change is the only constant in life and none can resist the change particularly when it is in the interest and the want of larger public. 13. The counsel for the review applicants has then drawn attention to Jagpal Singh Vs. State of Punjab (2011) 11 SCC The reference thereto is entirely misconceived. All that the Supreme Court has held in the said judgment is that the common village land/community land cannot be permitted to be encroached upon. The same has no applicability to the present controversy. Moreover according to the review petitioners themselves, Masoodpur village was urbanized as far back as in Rather, a co-ordinate bench in Balwan Singh Vs. Settlement Officer MANU/DE/4070/2013 held that a decision to shift cremation ground does not amount to violation of fundamental rights to religion specially when it is not as if no cremation ground is available to the petitioners/applicants to cremate their dead according to religious rites. It was observed that mere shifting of cremation ground some distance away does not infringe any right. Similarly, W.P.(C) No.3687/1995 Page 13 of 14

14 Supreme Court also in Shakur Basti Shamshan Bhumi Sudhar Samiti (Regd.) Vs. The Lt. Governor, NCT of Delhi (2007) 13 SCC 53 refused to interfere with decision of DDA and MCD of shifting of cremation ground. 16. No case for entertaining the review petition is made out. Dismissed. We refrain from imposing costs. RAJIV SAHAI ENDLAW, J. JANUARY 15, 2016 pp CHIEF JUSTICE W.P.(C) No.3687/1995 Page 14 of 14