Federation Of Residents Welfare ... vs Union Of India & Ors.
2015 Latest Caselaw 473 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                              Date of decision: 19th January, 2015.

+                                       W.P.(C) 3687/1995

        FEDERATION OF RESIDENTS WELFARE ASSOCIATIONS,
        VASANT KUNJ                              ..... Petitioner
                    Through: Cpt. Karan Singh Bhati with Mr.
                             Shubham Shri Seth and Mr. Dinesh
                             Bhati, Advs.

                                        Versus

        UNION OF INDIA & ORS.                                      ..... Respondents
                     Through:                   Mr. Manish Mohan with Ms. Pooja
                                                Sarkar, Ms. Hina Shaheen, Mr.
                                                Abhay Prakash Sahay, Mr. Amit
                                                Kishore Sinha and Ms. Sidhi Arora,
                                                Advs. for UOI.
                                                Mr. Abhay P. Singh, Adv. for Mr.
                                                Gaurang Kanth, Adv. for MCD.
                                                Mr. Arun Birbal, Adv. for DDA.
                                                Mr. Siddharth Yadav with Mr.
                                                Wasim Ashraf, Advs. for review
                                                petitioner.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

Review Petition No.240/2014 & CM No.6255/2014 (for condonation of 3799 / 238 days delay in applying for review)

1. Gram Vikas Samiti, Masoodpur, Vasant Kunj, New Delhi which was

not a party to the writ petition seeks review of the order dated 3rd December,

2003 disposing of the writ petition.

2. Notice of the review petition was issued to the writ petitioner as well

as respondents. Reply has been filed by the counsel for the writ petitioner.

3. We have heard the counsel for the review applicant, counsel for the

writ petitioner as well as counsel for the respondents in the writ petition.

4. The subject writ petition was filed by the Federation of Residents

Welfare Associations of Vasant Kunj, impleading Secretary of Ministry of

Urban Development, Delhi Development Authority (DDA) and Municipal

Corporation of Delhi (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

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.

5. The petition was entertained and notice thereof issued.

6. DDA in its counter affidavit 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 ground and to develop the cremation ground at

Kishangarh.

7. MCD in its counter affidavit 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.

8. In the light of the aforesaid stand of the DDA and MCD, the writ

petition was disposed of vide order dated 3rd December, 2003 with a

direction to the MCD to 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 under Sections 390 and

391 of the Delhi Municipal Corporation (DMC) Act, 1957 for closure of the

subject cremation ground.

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 3rd 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 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 27th 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 non-party 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 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 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.

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 584.

23. 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.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE JANUARY 19, 2015 bs