SHAKUR BASTI SHAMSHAN BHUMI SUDHAR SAMITI (REGD.) v. THE LT. GOVERNOR, NATIONAL CAPITAL TERRITORY OF DELHI AND OTHERS

Citation: [2007] 13 S.C.R. 145

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

SHAKUR BASTI SHAMSHAN BHUMI SUDHAR SAMITI (REGD.) v. THE LT. GOVERNOR, NATIONAL CAPITAL TERRITORY OF DELHI AND OTHERS.pdf

Judgment text

SHAKUR BAST! SHAMSHAN BHUMI SUDHAR SAMIT! (REGD. ) v. THE LT. GOVERNOR, NATIONAL CAPITAL TERRITORY OF DELHI AND OTHERS DECEMBER 11, 2007 ~I [S. B. SINHA AND HARJIT SINGH BEDI, JJ. ] I Urban Development: I Acquisition ofland being used as cremation ground - State Authority allotting the land to Housing Societies after declaring it as residential area - Cremaiion of dead bodies on the land continued- Challenged by Housing Societies - High Court directing the authorities to stop cremation on the land - Issuance ofNotice by Municipal Corporation closing the cremation ground and commissioning a new cremation ground in nearby area -Appellant, a Cremation Ground Welfare Society, filing a representation before Lieutenant Governor for allotment of the land in its favour for proper management - L.

G directing MCD to take over the land and Delhi Development Authority to make formal allotment of the Land to MCD- Challenged by a resident- High Court directing the authority to ensure that the Land not to be used as cremation ground -Appellantfiling a petition before High Court for direction to L. G for fresh order - High Court directing L. G to pass fresh order - Admitting that the facts regarding allotment of the Land to Housing Society not brought to his knowledge earlier, L. directed the authorities to re site cremation ground - Writ petition filed thereagainst by appellant dismissed by High Court - Writ appealfiledalso dismissed by High Court- On appeal, Held, Order for closure of the cremation ground was passed by the authority j - Though appellant society not impleaded as a party but it cannot be believed that it was not aware of such developments - Order passed by L. G directing the authorities to. take over the land in 146 SUPREME COURT REPORfS [2007] 13 (Addi. ) S. C. R.

question for the purpose ofcremation ground was in ignorance ol iudicial orders, thus, could be reviewed - Jn terms olorder ofLG no legal right conferred on the appellant society -Also L. G as a Statutory authority could not ignore the development plan -- The land in question earmarked by the Authority for development in terms ofStatute -- Order passed by High Court directing closure ofthe cremation ground though challenged by appellant by filing LPA but the same was withdrawn, iherefore, the order attained finality - Administrative Order - Review. Constitution of India, 1950; Article 226: Quashing of order passed by executive - Jurisdiction of a writ court - Held: A Writ Court in exercise of its jurisdiction under Article 226 ofthe Constitution need not quash the order if it gives rise to another illegal order or may quash both the orders - Administrative order - Quashing of Appellant, a registered society was managing the affairs of a cremation ground on the disputed land.

Land acquisition proceedings were initiated by the Delhi Development Authority for acquisition of the said land and an award was also made. Despite acquisition of the land, unauthorized cremation of dead bodies continued on it. Later, a Notification was issued by the Delhi Development Authority declaring the said area to be residential area and allotted the land to Group Housing Societies. They filed writ petitions before the Delhi High Court praying for discontinuance of the site as cremation ground. The High Court directed respondents-authorities to stop cremation on the land in question. The order of the High Court was challenged by the appellant-Cremation Ground Welfare Society by filing Special Ci Leave Petitions before the Supreme Court. The petition was dismissed. Later, the Municipal Corporation of Delhi issued a Public Notice informing about closure of the cremation ground and commissioning of the new cremation ground in nearby area.

A writ petition was filed by the respondents raising objection I-I ~, ~ SHAKUR BASTl SHAMSHAN BHUMI S. S. (REGD. ) v. 147 THE LT. GOVERNOR, N. C. T OF DELHI & ORS. f against the opening of the cremation ground at the new site and a suit was filed by another respondent praying for retaining the cremation ground. In the meantime, a representation was made by the appellant-Society to the Lieutenant. Governor of Delhi for allotment of the land in question in its favour. The representation was allowed by the Lt. Governor directing MCD to officially __. ; take over the cremation ground for which DDA would have to make a formal allotment to the MCD and to enter into an MoU with the appellant for proper management of the cremation ground. Delhi Development Authority re-allotted the land to MCD for the purpose of cremation ground. A resident of the adjoining area filed a writ petition thereagainst.

High Court directed DDA to ensure that the land in question is not to be used as a cremation ground. An LPA filed thereagainst by the appellant-Society was dismissed by the High Court as withdrawn. A separate writ petition was filed by the appellant on the ground that Lt. Governor has passed another order allotting the site in question to the M. C. D. without consulting it which was contrary to the earlier order. The petition was disposed of by the High Court directing the Lt. Governor to pass fresh order after hearing both the parties. The appellant filed a detailed representation before the Governor, the Governor after hearing both the parties issued instructions to MCD and DDA to re site the cremation ground and to put to use the land so vacated as per the development plan. A writ petition filed thereagainst by the appellant was dismissed by High Court. The writ appeal was dismissed by a Division Bench of the High Court. Hence, the present appeal.

Dismissing the appeal, the Court J. HELD: 1. 1. In the first round of litigation following the award made in the land acquisition proceedings, not only various restraint orders but also an order for closure of the cremation r• ground was passed. Appellant might not have been impleaded as a party therein but it is difficult to conceive that it was not aware thereof. [Para 27) [161-A-B] 1. 2. The order of the Lt. Governor directing allotment of land was neither a judicial nor a quasi-judicial order. It was an executive order. If an executive order. had been passed in ignorance of various judicial orders passed by the High Court, the same could be reviewed. In view of the fact that the development plans have the force of a statute and the purpose for which the area was earmarked by thedevelopment authority therein there exists no reason as to why the mistake committed by the Lieutenant Governor could not be rectified. [Para 30) [161-F-G) 1. 3.

The purported letter proposing allotment of land by the Lt. Governor did not confer any legal right on the appellant. Only a desire was expressed by the authority that the Municipal Corporation of Delhi should officially take over the cremation ground for which DDA was to make a formal allotment to it whereafter only a Memorandum of Understanding could be entered into by and between the appellant and the Commissioner, MCD. Action pursuant to or in furtherance of the said order was merely undertaken, but no final order was passed conferring any legal right upon the appellant. Apart from furnishing a copy of the order of the Lt. Governor and a copy of the letter issued by the Competent Authority ofDDAto the Commissioner, MCD, no document was executed in its favour. For possessing a legal title, a deed was required to be executed by the MCD in favour of the appellant. Even such an allotment was carried into effect, the same would have been illegal . being contrary to the development plan.

Without a valid order for change in user, a site meant for a shopping complex, a school and user thereof for residential purpose, it could not have been directed to be used as a cremation ground. [Para 31) [161-G-H; 162-A-B-C-D] The Bihar Eastern Gangetic Fishermen Cooperative Society Ltd Vs. Sipahi Singh and Others (1977) 4 SCC 145 - relied on. I ~ SHAKUR BASii SHAMSHAN BHUMI S. S. (REGD. ) v. 149 THE LT. GOVERNOR, N. C. T OF DELHI & ORS. 2. 1. Writ petitions were also filed by a Housing Society and local residents before the High Court whereupon directions to close the cremation ground were issued by the High Court. It may be that the matter was taken to the Appellate Court but the LPA was also withdrawn. The said order attained finality. It is in such . a situation when a writ petition was filed by the appellant in the High Court. The High Court by its order dated 23. 10. 2002 only provided for a relief of grant of an opportunity of being heard before the Lt.

Governor in favour of the appellant. [Paras 33, 34] [162-E-F-G] 2. 2. Appellant, raised a question in regard to competence of L. G to review his own order. The said contention proceedea on the premise that an order of allotment was required to be reviewed. But, the principle governing review of a judicial or statutory order has no application in the matter of administrative ~~. [Para 35] [162-G-H; 163-A] 2. 3. The Lt. Governor acts as a statutory authority under the DDAAct. It is not sure as to whether he has any role to play in regard to the affairs of the Municipal Corporation of Delhi. If not, the said order was per se illegal. [Para 36] [163-B-C] 3. 1. It appears from the order of Lt. Governor that group housing societies were also heard by the Lt. Governor. They evidently claimed their own rights thereupon. Even then, they were not impleaded as parties in the writ application. In their absence, the writ petition was not maintainable. [Para 39] [163-H; 164-A] 3. 2.

As a statutory authority, the Lt. Governor could not ignore the development plan. As the earlier order passed by a statutory authority was a nullity, an order recalling the same shaU not be allowed to operate only because certain J formalities (assuming there were some) in passing the same have not been complied with. [Para 40] [164-B] 3. 3. It is now well-known that a writ court in exercise of its 150 SUPRE:V! ECOURTRFPORTS [2007'. r. 1r. \ddl. )S. C. i\ jurisdiction under Article 226 of the Constitution of India nn·d not quash an order if it gives rise to another illegal order or may "" quash both the orders. In this view of the matter no case ha~ been made out for interference with the impugned judgment. [Paras 40-41) [164-B-C] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5793 of 2007. From the Judgment and final Order dated 7. 7. 2004 ofthe High Court of Delhi at New Delhi in W. A. No. 576/2004. U. U. Lalit, P. S. Narasimha, Anupam Lal Das and Amit Shorma for the Appellant.

Sanjiv Sen, Praveen Swamp. SubhashBansal and Vishnu B. Saharya (for Mis. Saharya & Co. ), for the Respondents. The Judgment of the Court was delivered by S. B. SINHA, J. 1. The present controversy relates to a cremation ground known as 'Shakur Basti Shamshan Bhumi'. lt is located in a village known as Shakur Basti in the town of Delhi. 2. Appellant herein is a society registered under the Societies Registration Act, 1960. It is said to be managing the affairs of the cremation ground being in charge and possession thereof. The village in question as also the adjoining areas viz. Rani Bagh, Rishi Nagar, Mohindra Park, Sant Nagar, Raja Park, Sri Nagar etc. are said to be inhabited by the displaced persons from Pakistan. This site in question was being used as cremation ground by the residents of the village as also the adjoining areas. 3. A land acquisition proceedings was initiated for acquisition of the said land on or about 26th December, 1964. An award was al~o published.

The possession ofthe vacant land was admittedly taken Despite acquisition of the said land unauthorized cremation o! ' Lkad bodies continued. 4. It is not in dispute that pursuant to or in furtherance of the [;;p1d ·-4 SHAKUR BASTl Sl-IAMSHA~ BHUMI S. S. (REGD. ) v. 151 acquisition proceedings a Notification was issued by the Delhi Development Authority declaring the said area to be the residential area. Some Group Housing Societies developed residential units thereat. A few cooperative group housing societies filed writ petitions before the Delhi High Court impleading inter alia the Delhi Development Authority and the Municipal Corporation ofDelhi as parties-respondents therein praying inter alia for discontinuance ofthe said site as cremation ground. By judgment and order of gth May, 1996 a purported observation was made that cremation of dead bodies was being made unauthorisedly on the land in question the relevant part whereofreads:- "Learned counsel for respondent No.

1 submits that it appears that on the land which has been placed at the disposal ofDDA, cremation ofbodies has been unauthorisedly started sometime in 1991. Even counsel for respondent no. 3 has not disputed that the land in question on which bodies are being cremated is an unauthorized cremation grmmd. We direct respondents to ensue that till further orders the bodies are not cremated upon the land in question. The SHO ofPolice Station, Saraswati Vihar is also directed to ensure compliance of the order. " 5. The said order ofthe High Court was challenged by way of Special Leave Petitions before this Court and this Court on or about 1 l7 h June, 1996 passed the following order:- "Issue notice in the special leave petitions. Issue notice in the stay applications also. In the meanwhile the direction ofthe High Court dated 8th May, 1996 restraining cremation of the dead bodies at the site in question is stayed.

It is, however, directed that no construction, whether temporary or permanent, shall be raised at the site by any party till further orders by this Court. " 111 ) 6. By an order dated 13 January, 1997 the Special Leave Petitions were dismissed observing:- "Learned counsel for the contesting respondent submits that the rt writ petition which was pending in the High Court has since been disposed of and since these special leave petitions were directed against the interim orders made in that writ petition, these special leave petitions have been rendered infructuous. Mr. Jaitley appearing for the petitioners does not dispute this position. The special leave petitions are dismissed as infructuous. " 7. On or about June, 1998 the Municipal Corporation of Delhi issued a Public Notice that the cremation ground near Harsh Vihar had been closed with immediate effect and the new cremation ground at Beri Wala Bagh was commissioned for Public use henceforth. 8.

In or about June 1998 'Aggarwal Samaj', Shakur Pur filed writ petition raising objection against the opening of the abovesaid cremation ground at Beri Wala. 9. Several other proceedings were also initiated wherein the appellant herein was not impleaded as the party. An attempt made by the appellant to intervene in some of the said proceedings did not succeed. l0. A suit was filed by one Balvant Rai. It related to Khasra No. 18112. Aprayer was made therein that the said cremation ground at Shakur Basti be retained. 11. A writ petition was also filed by Harsh Vihar Cooperative House Building Society and others inter alia on the premise that the decision taken for regularization of cremation ground at that place despite allotment of a separate site for establishment of an alternative cremation ground was invalid in law. 12. Arepresentation was made by the appellant to the Lieutenant. Governor of Delhi for allotment ofthe land in question in its favour.

The said representation was said to have been allowed in terms ofthe order of the. Governor dated 7th September, 2001, which reads :- "Enclosed is a representation made before the Lt. Governor by the Shakur Basi Shamshan Bhumi Sudhar San1iti regarding retention ofShakur Basi Shamshan Bhumi at its existing site. l11e SHAKURBASTISHAMSHANBHUMI S. S. (REGD. )v. 153 details are reflected, in the afore-mentioned representation. Lt. t Governor has desired that MCD should officially take over the cremation ground for which DDA would have to make a formal allotment to the MCD. Thereafter as discussed with Commissioner, MCD, Lt. Governor has desired that an MoU could be entered with the Shakur Basti Shamshan Bhumdi Sudhar Samiti for proper management. Action on these lines may kindly be taken. " 13.

Delhi Development Authority, pursuant to or in furtherance ofthe said order of the Lieutenant Governor addressed a letter to the Commissioner ofMunicipal Corporation ofDelhi on 26th November, 2001 relevant part of which reads"- "With reference to your letter dated xxxxxxx on the subject noted above, I am directed to inform you that under the provisions ofDDA (Developed Nazul Land) Rules, 1981 it is proposed to allot you on perpetual lease hold basis a plot of land measuring 1700 sq. mtr. For the purpose of Cremation Ground on the usual terms/conditions as given in the approved format of perpetual lease and the following conditions amongst others. " 14. The Lieutenant Governor of Delhi reviewed his order on 1 23rd April, 2002 which was communicated to the appellant on 20 June, 2002. 15. However, after the aforesaid order of allotment was made, one Smt.

Jyotsna Kashap a resident of an adjoining Kailash Colony approached the High Court by filing a writ petition which was numbered as CWP No. 3612 of 2001. By an order dated 22nd July, 2002 learned Single Judge of the High Court disposed of the said writ petition, the relevant part whereofreads as under:- "It may be noted that certain representations were made to the Lt. Governor for continuing the Shakur Basti Land to be used as a cremation ground. It is now stated in the Court that the said representation has been rejected by the Lt. Governor and copy ofthe communication dated 20. 6. 2002 is placed on record. 154 SUPREME COURT REPORrS [2007] 13 (Add!. ) S. C. R. In view of the aforesaid position all the public authorities who are respondents have agreed that the use of the land as a cremation ground has to be stopped. In view of the aforesaid it is directed that respondent No.

3 shall ensure that the land in question is not used as a cremation ground and remove unauthroised permanent or temporary structures constructed thereon. Respondent No. 2 shall render police assistance as and when requisitioned by respondent No. 3 to ensure the compliance of the order. The needful be done within a period oftwo months from today and compliance report be filed in the Court. The writ petition stands disposed of in the aforesaid terms. " Appellant, however, was not a party therein. 16. By an order dated 22nd July, 2002, a learned Single Judge of the High Court having regard to the orders passed by the Delhi High Court, some of which have been noticed by us hereinbefore, directed:- "In view of the decision now finally taken by the Lt. Governor that land at Shakur Basti is not to be used as a cremation ground and in view ofthe directions issued by this Court in CW 3612/ 2001 no further orders are called for in this writ petition and the same stands disposed of. " 16.

An LPA was filed by the appellant herein against the said order dated July 22, 2002 in CW No. 591 of2002 in which a Division Bench of the High Court passed the following order on 27th August, 2002 :- "Counsel for the appellant says that the grievance ofthe appellant is that he had filed an application for impleadment in Civil Writ Petition N0. 591/2002 but without taking any decision on his application, the writ has been disposed of, which has adversely affected the interest of the appellant. It is the appellant who had been agitating about this land since 1991. He would like to file ( f SHAKUR BASTI SHAMSHAN BHUMI S. S. (REGD. ) v. 155 review application or may file substantive writ petition, therefore, ,. prays that while disposing ofthis LPA status quo order till Monday 2"d September. 2002 may be ordered to be maintained. Jn view of the statement of the counsel for the appellant the appeal is dismissed as withdrawn.

However, till 2"c1 September, 2002 order of status quo is ordered to be maintained. " 17. We may also incidentally notice, although nothing much turns out of it, that a resolution was purported to have been passed on 4th October, 2002 by the Councillors to the effect that the Municipal Corporation ofDelhi would carry out improvement and development of the Cremation Ground at its existing site only. 18. A separate writ petition was filed by the appellant wherein the aforesaid Smt. Jyotsna Kashyap and others. some ofthe cooperative group housing societies were impleaded as parties. It was marked as CWPNo. 5567 of2002. A learned Single Judge disposed of the said writ petition by an order dated 23rd October. 2002 which reads :- " The grievance made in the present writ petition by the petitioner is that the order dated 20. 6. 2002 passed by the Lt. Governor allotting the site in question to the M. C. D. which was contrary to the earlier order dated 7. 9.

2001 directing the memorandum ofunderstanding to be executed by the petitioner had been passed without any intimation to the petitioner and without the petitioner being heard. Learned senior counsel for respondent No. 3 D. D. A. states that the order was in fact passed on 23. 4. 2002 though D. D. A. communicated to the M. C. D. on 20. 6. 2002. In view of the fact that the order dated 23. 4. 2002 communicated on 20. 6. 2002 to the M. C. D. had admittedly been passed without hearing the petitioner which seeks to modify the earlier order dated 7. 9. 2001, it is agreed by the respondents -' that the petitioner will be given a personal hearing and a fresh order shall be passed thereafter. The petitioner shall appear before the Lt. Governor on 8. 11. 2002 at 3. 00 PM. It will be open to \ the petitioners 5 to 10 can also appear before the Lt. Governor.

All the parties will be given a personal hearing on the said date or any subsequent adjourned date and a reasoned order shall be passed within a period oftwo months thereafter. In view thereof the impugned order dated 23. 4. 2002 and the letter dated 20. 6. 2002 shall not be given effect to. Needless to say that if any ofthe parties are aggrieved by the order passed by the Lt. Governor it will be open to them to impugn the same in :.. accordance with law. " 19. On the aforementioned basis a detailed representation was filed by the appellant before the Lieutenant Governor ofDelhi wherein inter alia the following prayers were made:- " It is therefore prayed that Your goodselfmay be pleased to: a. first consider and decide the preliminary issues/objections raised by the applicant in the present application; b. uphold that the order dated 7. 9.

2001 passed by your goodselfand further hold that no interference with the said order is called for in view of the fact that no power of review is conferred on Your goodself; c. uphold that the order dated 7. 9. 2001 passed by Your goodselfand further hold that no interference with the said order is called for in the facts and circumstances of the present case; d. make available to the applicant a copy of the purported order of cancellation/revocation of the order dated 7. 9. 2001; e. grant opportunity to the applicant to bring additional facts and evidences on reco. -d to justify that the order dated 7. 9. 2001 passed by Your goodself is correct and valid in ;.. the facts and circumstances of the present case and calls for no interference. SHAKURBASTI SHAMSHANBHUMI S. S. (REGD. ) v. 157 f Pass such other orders or directions as deemed fit in the facts and circumstances of the present case. " 20.

Allegedly prayer (d) was made therein in the said representation as the purported order of cancellation/revocation of the order dated 7th September, 2001 by order dated 23rd April, 2002 had not been received by the appellant. . ;. 21. The Lieutenant Gove;rnor heard all the concerned parties. In terms of an ~rder dated 27th June, 2003 it was opined :- " I have considered the contentions ofShakur Basti Shamshan Sudhar Samiti as well as the representation ofthe various Group Housing Societies. The Shakur Basti Shamshan Sudhar Samiti has contended that the cremation ground has been in existence since the year 1955, in suj)port ofwhich they have submitted documents showing that cremations have been held at that Site since then. The representatives ofthe Group Housing Societies have stated, on the other hand, that the land where the cremation ground is presently situated had been acquired by the Delhi Administration vide award No. 1755 dated 26. 12.

1964 and that its physical possession was taken on 6. 4. 1965. The land was transferred to D. D. A. for development of Pitampura Residential Complex on 3. 1. 1968. As per the Zonal Development Plan ofD. D. A the land use ofthe site in question is for setting up ofa local shopping centre, a primary school and residential group housing. I have also gone through the judgments ofthe court ofSub- Judge Ist Class, Delhi, ADJ, the High Court and the Supreme Court on this matter. According to judgments the use ofthe land . should conform to the zonal development plan and that the cremation ground should not be allowed to function from there. The High Court has further ordered that M. C. D. construct a cremation ground at Beriwala Bagh, close to the Shakur Basti site. 158 SUPREME COURT ! U:PORTS [2007] J3 (Addi. ) S. C. R.

The aforementioned facts were not in my knowledge when the representatives of the Shakur Basti Shamshan t3humi first met me with their petition to allow the Shamshan Bhumi to fi. mction from the existing site. On the basis ofthe earlier representation and the facts then submitted, D. D. A. had been advised to make a formal allotment ofthe cremation ground to the M. C. D. , after which M. C. D. was to conclude a MoU with the Samiti for proper management ofthe cremation ground. This advise was conveyed to D. D. A. and M. C. D. by my Secretary on 7'h September, 2001. However, when the facts of the case and the orders of the High Court were put up on file, I had directed D. D. A. on 23rd April, 2002 to make immediate efforts to re site the Shamshan Bhumi and to put to use the land so vacated as per the layout plan. " 22. A writ petition filed thereagainst which was marked as WP 111 No.

6855 of2004 has been dismissed in te1ms of an order dated 7 May, 2004, the relevant part of which reads as under:- " In compliance with these orders, another hearing took place before the Hon'ble Lieutenant Governor in which the petitioner was avowedly granted a hearing. By order dated 27. 6,2003, the Lieutenant Governor has stated inter alia that "on hearing the contention of the two parties and keeping in view the judicial Orders, I reiterate my decision of23'd April, 2002". Counsel for the Petitioner contends that by reiterating 1 the order dated 23 d April, 2002 the situation has not been remedied as they arc not even aware of the wording of that Order. In my view, too much emphasis has been laid on the extracted words of the impugned order making a rderence to the orders dated 23. 4. 2002. Ofcourse. it \\\Hild have been legally preferable not to nccdkssh mention those order~. The impugned Order datl·d 27. (i. 2(10_) takes in ctintcmplation the Award No. 1755 dakd .

2 vrit petition was not maintainable. 40. As a statutory authority, the Lt. Governor could not ignore the development plan. As the earlier order passed by a statutory ~ authority was a nullity, an order recalling the same shall not be allowed to operate only because certain formalities (assuming there were some) in passing the same have not been complied with. 41. It is now well-known that a writ court in exercise of its jurisdiction under Article 226 of the Constitution of India need not quash an order if it gives rise to another illegal order or may quash both the orders. 42. In this view ofthe matter we are ofthe opinion that no case has been made out for interference with the impugned judgment. 43. For the reasons aforementioned, we do not see any infirmity in the impugned judgment. The appeal is dismissed with costs payable to D. D. A. Counsel's fee assessed at Rs. 25,000/-. S. K. S. Appeal dismissed.