Monday 19 February 2024

Bombay HC: Plots Designated As Burial Ground In Development Plan Can’t Be Put To Any Other Use without following procedure for change of user

 It is clear that once the plots are designated as burial ground, cremation ground or Smashan Bhumi in the development plan, then they cannot be put to any other use other than the one designated.

7. In the meanwhile, we direct that the plots mentioned in paragraph-6 of the affidavit dated 14 September 2022, which have been designated as Cremation Ground/ Burial Ground/ Smashan Bhumi in the development plan will not be put to any other use other than the one designated in the development plan unless requisite procedure of law is followed for the change of user.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE

PUBLIC INTEREST LITIGATION NO. 119 OF 2021

Mr.Melwyn Isidore Fernandes and Others  V/s. The State of Maharashtra and Others 

CORAM : NITIN JAMDAR, ACJ. AND ARIF S. DOCTOR, J.

DATE : 19 July 2023.


This Public Interest Litigation (PIL) filed for a direction

to open all the reserved plots which are earmarked for the purpose of

christian cemeteries in the development plan of Thane city.

According to the Petitioner, the cemeteries which are available to the

christian community are extremely inadequate. An affidavit in

reply is filed on behalf of the Municipal Corporation wherein the

Municipal Corporation has given list of plots which have been

earmarked as cemetery grounds in the development plan of the city

of Thane. The said list reads thus:

SANJAY

KASHINATH

NANOSKAR

Digitally signed by

SANJAY KASHINATH

NANOSKAR


Sr.

No.

Designation of

Site/ Sector No. /

Res. No.

Area of

the site in

Ha.

Description of

the land Name

of Village / S.

No./ Gut No.

Acquired

area in

Ha.

Remarks

1 2 3 4 7

1 Cremation

Ground / I/1

0.43 Kopari Gut No.

86 pt.

0.00 Land is under SEZ

2 Extn. to

Cremation

Ground / I/2

0.07 Naupada S. No.

144 pt. near

Anand nagar

Cremation

Ground

0.00 Not in possession

of TMC

3 Extn. to

Cremation

Ground/ V/1

Vide Plan

0.09 Chitalsar-

Manpada Gut

No. 3 pt.

0.00 Encumbered by

Slum

4 Sayukta

Smashanbhumi

& Smruti

Udyan/ VI/ 1A

3.70 Bhayendarpada

S. No. 42pt.,

45pt., 47pt.,

109pt

2.60 Under

Development.

3000 Sq. Mt. is

proposed for

Christen Cemetery

as per General Body

Resolution No. 03,

Dt. 20.03.2017

5 Burial Ground

/ VIII/1

0.36 Kalwa S. No. 17

pt.

Existing

Crematio

n

Ground

Existing Cremation

Ground

6 Cremation

Ground/ VIII/1

3.06 Kharegaon Gut

No. 184 pt.

0.00 Land is affected by

CRZ-IA, CRZ-B &

CRZ-II

7 Cremation

Ground/ VIII/2

0.45 Kalwa S. No. 17

pt.

0.00 Land is in

possession of Thane

Gramin Police.

Corporation

demanded this land

for Burial Ground,

but yet land is not

handover by them.

8 Cremation

Ground/ VIII/ 3

1.92 Kalwa S. No.

234 & 236 pt.

0.00 Encumbered by

Slum area

9 Cremation

Ground / VIII/4

0.22 Kalwa S. No.

424 pt.

0.00 Encumbered by

Structures

10 Cremation

Ground / IX/ 1

0.45 Mumbra S. No.

107A Pt.

Existing

Use.

Existing use.

11 Burial Ground/

IX/1

0.45 Mumbra S. No.

107A Pt.

Existing

use

Existing use under

muslim Burial

ground.

12 Cremation

Ground, Burial

Ground for

Muslims &

Burial Ground

for Christians /

IX

2.00 Mumbra S. No.

55pt, 56pt,

57pt, 58pt

2.00 Developed 1000

Sq.mt.land is under

Christen Cemetery

13 Cremation

Ground/ IX

0.50 Kausa S. No.

123/1, 123/2 &

126/4

0.00 Application by land

Owner trust for

cremation ground

maintenance.

14 Cremation

Ground/X/1

1.88 Diva S. No. 192

pt.

0.00 Land is affected by

CRZ-IA

15 Cremation

Ground /X/2

0.50 Diva- Sabe S.

No. 242A. pt.,

269pt, 231 pt,

97pt & 74pt.

0.00 Land is affected by

CRZ-IA

16 Cremation

Ground /X/3

0.78 Agasan S. No.

153 pt.

0.00 CRZ

17 Extn. to

Cremation

Ground/X/4

0.62 Dativali S. No.

46pt., 59pt.,

240Apt.

0.00 Partly CRZ-IA &

CRZ-II

18 Cremation

Ground/ XI/1

0.44 Dawale S. No.

127 pt.

0.00 Encumbered by

structures

19 Cremation

Ground /XI/2

0.79 Daighar S. No.

26 pt., 28pt &

55 pt.

0.3950 Existing Hindu

Smashanbhumi

2. As regards Serial No.1, Gut No.86, the same is

designated as cremation ground, however, according to the

Municipal Corporation, it cannot be put to use because it is under

SEZ. The same is the position as regards Survey No.144, Naupada

that it is designated for cremation ground, however, it is stated that

it is not in possession of the Municipal Corporation. In whose

possession it is, is not explained. As regards Serial No.3, it is stated

that it is encumbered by slum. Serial No.6 at Kharegaon is affected

by CRZ. Serial No.7 at Kalwa is in possession of Police. As regards

Serial No.8 at Kalwa, it is stated that it is encumbered by slums.

Serial No.9 at Kalwa is encumbered by structures. Serial Nos.14, 15,

16 and 16 are affected by CRZ. Serial No.18 is encumbered by

structures. As regards Serial Nos.4, 5, 10, 11, 12 and 19 are

concerned, we are informed that they are already put in use for burial

grounds.

3. We find that these remarks are not satisfactory. The

details as to why the lands are not in possession of the Municipal

Corporation, the lands are encumbered by which structures is not

specified. It is clear that once the plots are designated as burial ground, cremation ground or Smashan Bhumi in the development plan, then they cannot be put to any other use other than the one designated.

4. As regards adequacy of the cremation grounds, in

paragraph-11 of the reply, the Municipal Corporation has stated as

under:

“11. I say the Petitioner that with reference to Para 5 of the

Petition, the total Population of Thane in the year 2011 was

18,41,488 out of which 2.5% i.e. there are approximately

46,000 people who belong to the Christian Community. I

further say that as mentioned in the Petition about 250 to 300

people who belong to the Christian Community die per year

and that approximately 80 sq. ft. of area is required to bury

one single person, similarly for burial of 300 persons an

approximate area 2400 sq.mt. is required according to

petitioner. 80 sq.ft. area per single burry is increased area more

than required to bury. Thane Municipal Corporation has

already provided two Cemeteries in the area of Mumbra at

present which are being used by Christian community and the

cemetery behind Mumbra Fire Brigade is admeasuring about

900 sq.mt. and there is also another cemetery admeasuring

about 1000 sq. mt. situated at Mittal compound is within

Thane City Limits. Hence, total area admeasuring about

1900 sq. mt. is already in use for the purpose of burial of dead

bodies…….”

There is a reference to the population of Thane of the year 2011.

The affidavit also refers to the number of deaths of the people

belonging to the community. Thereafter certain area is calculated

and it is stated that the area provided at present is adequate. We do

not find any reference to the source for these calculations. This

exercise cannot be on ad hoc basis. There has to be a scientific

approach on the part of the Planning Authority. Ultimately the

phrase planning means considering the position for future.

5. The Senior Advocate for the Municipal Corporation

states that an additional affidavit with necessary data, its source and

future projection in detail would be filed.

6. To enable the Corporation to file this affidavit, we defer

the hearing to 23 August 2023.

7. In the meanwhile, we direct that the plots mentioned in

paragraph-6 of the affidavit dated 14 September 2022, which have

been designated as Cremation Ground/ Burial Ground/ Smasha

Bhumi in the development plan will not be put to any other use

other than the one designated in the development plan unless

requisite procedure of law is followed for the change of user.

8. In light of this position, it is open to the Municipal

Corporation to proceed to take requisite action in respect of the user

of these plots contrary to the user designated in the Development

Plan. The additional affidavit will also place on record the steps

taken by the Municipal Corporation in this regard.

ARIF S. DOCTOR, J. ACTING CHIEF JUSTICE


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