Aggarwal Samaj Shakur Pur (Regd) vs Municipal Corporation Of Delhi ...
2001 Latest Caselaw 1359 Del

ORDER

Arijit Pasayat, C.J.

1. These three writ petitions are inter-linked and are, therefore, disposed of by this common judgment. Grievance in all the three petitions, essentially, is to the decision taken by the Municipal Corporation of Delhi (in short, MCD) and the Delhi Development Authority (in short, DDA) for opening a cremation ground in Khasra No. 19/26 (36-0), 27(24/8) measuring 60 Bighas and 8 Biswas known as Beriwala Bagh, situated in the revenue estate of Shakur Pur Delhi. In Writ Petition No. 2659/98, prayer is to maintain the cremation ground situated in Khasra No. 180-181 in the revenue estate of Saleem Pur Majra, Madipur, Delhi and to maintain it like other cremation grounds in Delhi. In Writ Petition 2494/98, the prayer is for stoppage of construction work and completion of aforesaid cremation ground in Khasra No. 19/26 (36-0), 27(24/8) measuring 60 Bighas and 8 Biswas known as Beriwala Bagh, situated in Shakur Pur Delhi.

In Writ Petition No. 4503/2000, prayer is that Shakur Pur Shamshan Bhumi be permitted to be converted to electric crematorium and for provision of necessary assistance in this regard. It has been highlighted that to maintain the sanctity of Shakur Pur Shamshan Bhumi there should not be any change in old use of cremation ground to commercial or any other use. In a nutshell the grievance is that cremation ground at the new place should not be permitted to come into existence and Shakur Pur Shamshan Bhumi should be allowed to be continued. Counter affidavits have been filed by the MCD and DDA in CWP 4503/2000 and stands taken therein are adopted in other two writ petitions.

2. Stand of the petitioners is that procedural requirements as spelt out in Sections 389 to 392 of the Municipal Corporation Act, 1957 (in short the Act) have not been complied with and therefore the purported action in closing down the cremation ground is illegal. Furthermore the petitioner in CWP 4503/2000 i.e. Shakur Pur Shamshan Bhumi Sudhar Samiti is in possession of the land, notwithstanding the claim that the land has been acquired. The purported acquisition is meaningless and without any effect because the Samiti continues to be in possession and is continuing to cremate dead bodies. There is no logic behind opening the new cremation ground. The new place is not conveniently situated and therefore the cremation ground (Shakur Pur Shamshan Bhumi) should be continued as in the past and functioning of the new cremation ground should be stopped.

3. Stand of the MCD and DDA, on the other hand, is that the land where it is claimed that cremation ground is situated was acquired by Delhi Administration in 1964 and a part of it was acquired for group housing society and the same has been allotted to the society, which has come up fully. The old cremation ground area was earmarked for shopping centre and primary school. As per Master Plan, there is adequate provision for a cremation ground in nearby locations and also provision for new electric crematorium. Cremation ground at the new site, which is at a short distance has already become operational and was constructed at a cost of Rs. 40 lakhs. In the affidavit filed by the DDA, it has also been stated that the land in respect of which the petitioners are making a claim is in Khasra No. 180/3 and 180/2 in the revenue estate of Salimpur Majra Madipur and it was acquired by a notification dated 24.10.1961 under Section 4 of the Land Acquisition Act, 1894 (in short, LA Act). A declaration under Section 6 of the LA Act was made by notification dated 20.11.1963. The land was acquired for public purposes and for the planned development of Delhi. Subsequent to the notification under section 4 and the declaration under Section 6, award No. 1775 was made under the Act as a result of which the acquisition has become final. In pursuant of the provisions of Section 22 of Delhi Development Authority Act, 1957 (in short the DDA Act) the land was placed at the disposal of the DDA for development by notification dated 3.1.1968. The land was allotted to 23 cooperative housing societies and possession was handed over to those societies in 1969-70. When the development work was going on, an unauthorized cremation ground was created with oblique motives. The land in question is primarily meant for local shopping centre and partly for a primary school and group housing societies. Interestingly, one Balwant Rai filed a suit for permanent injunction in respect of Khasra No. 181 seeking injunction against MCD and DDA. By order dated 11.4.1990 the Subordinate Judge dismissed the said suit holding that the DDA had placed on record award No. 1775 which shows that the land formed part of acquired land in Khasra No. 181/2. In the same award, there was no mention that the land was used as cremation ground. An appeal was preferred before the Addl District Judge, Delhi who also dismissed the same vide order dated 3.5.1990 on the ground that the land claimed as cremation ground has been acquired. Thereafter a Civil Revision was also filed which was dismissed on 12.12.1991 on the ground that Courts have come to the conclusion that the petitioners have failed to prove that piece of land has been used as cremation ground for many years. It is highlighted that non-challenge to the award for more than three decades is fatal and the writ petitions cannot be maintained.

4. The effect of delay in challenging a notification under L.A. Act and an award there under has been considered by the Apex Court in several cases. In State of Tamil Nadu & Ors. etc. vs Krishnan & Ors, 1995 (6) SCALE 221, it was held that non-challenge to the declaration for four years is fatal. Reference was made to a Constitutional Bench decision in Aflatoon & Ors v. Lt Governor of Delhi & Ors, 1975 (2) SCR 802. Reference was also made to Moti Chand and Ors v. H.B. Munshi and Anr., and Rabindranath Bose v. Union of India, and it was held that a premium cannot be put on dilatory tactics. In Municipal Corporation Greater Bombay v. IDI Co Pvt Ltd. AIR 1977 SC 482, it was held that persons who make delayed approach really miss the bus by adopting an indolent attitude in not challenging an acquisition proceedings promptly. In State of Orissa v. Dhobei Sethi, 1995 (5) SCALE 1881 it was held that on account of laches on the part of the petitioners the writ petition was liable to be dismissed. In Maharashtra v. Digambar, 1995 (4) SCALE 98, the Supreme Court directed dismissal of the writ petition on the ground of laches. In Ramjas Foundation v. Union of India, , it was held that mere retaining the possession or delay on the part of the authority to pass an award are not grounds to challenge the notification under Section 4(1) and declaration under Section 6 and the laches were held to be valid ground to dismiss the writ petition. In Ramchand v. Union of India, , the Apex Court held that because of inordinate delay in approaching the Court after entire process of acquisition was over pursuant to notification under Section 4(1) and declaration under section 6, the Court was not justified in quashing the same. Similar view was expressed in Bhoop Singh v. UOI, , Indrapuri Griha Nirman Sahakari Samiti Ltd v. State of Rajasthan, , H.D. Vora v. State of Maharashtra, , Pt Girdharan Prasad Missir v. State of Bihar, (1980) 2 SCC 835. Thus it is well settled that when there is inordinate delay and all steps taken in acquisition process are final the Court should be loathe to quash the notification. In the case at hand, the situation is even worse. After nearly three decades also there is no challenge to the award. In view of the above, disputed question relating to possession is really of no consequences. Above being the position, we find to merit in these writ petitions which are accordingly dismissed.