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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