Whether residential society can force the municipality to shift the crematorium area annexed to the society ?

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Villagers of place A using an area as a crematorium for 100 years. After establishment of residential society therein, society members filed complaint to the municipality for shifting of crematorium. The Hon’ble High court in writ petition directed the standing committee of municipality to take this decision. The Division Bench however directed the Municipality to take possession of alternate place available for shifting of crematorium. The Hon’ble Supreme Court while setting aside the Division Bench directions held that merely because society members are residing around crematorium area cannot mean that they can ask for shifting of crematorium. Allowing such pleas would lead to a situation wherein every society in the country may ask for shift of crematorium.[i]

(I)                   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.  

 

(II)                 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.

 

(III)              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.

 

(IV)               when a conscious decision has been taken   by   the   Standing   Committee   of   the   Municipal Corporation   not   to   close   the   crematorium, the High   Court   ought   to   have   modified   its earlier order.

Shubham Budhiraja
[LLB,ACS, BCOM(H)]
Advocate, Delhi High Court
M: 9654055315
E: Budhirajalawchambers@gmail.com

[i] South Delhi Municipal Corp. v. Federation of Residents welfare association, Civil Appeal No. 7614 of 2022, Supreme Court of India

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