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Telangana High Court · body

2020 DIGILAW 589 (TS)

Madadi Keshava Reddy v. State of Telangana

2020-07-30

CHALLA KODANDA RAM

body2020
ORDER : 1. This writ petition is filed questioning the action of respondent No. 2-Commissioner, GHMC in establishing a crematorium/burial ground in an area of Acs. 6-20 gts. in Survey No. 34 of Fathullaguda Village, Nagole, Uppal Mandal, Medchal-Malkajgiri District, adjacent to the petitioners' residential houses, as illegal and arbitrary. 2. Heard Sri. S. Niranjan Reddy, learned Senior Counsel, assisted by Sri. Naveen Kumar, learned Counsel on record for the petitioners and Sri. J. Ramachandra Rao, learned Additional Advocate General, assisted by Sri. Sampath Prabhakar Reddy, learned Standing Counsel for GHMC and Sri Narasimha Goud, learned Standing Counsel for HMDA. 3. The sum and substance of the averments in the writ affidavit is that the petitioners are owners and possessors of their respective villas in the gated community of Golden Leaves Villas, situate at Survey Nos. 18/Part, 19, 20, 21, 22, 23/Part and 24 of Fathullaguda Village, Nagole, Uppal Mandal, Medchal-Malkajgjri District, having purchased the same from M/s. Devi Constructions; that about 235 villas were constructed in the gated community, out of which about 100 villas were occupied and remaining are getting ready-to-occupy; that respondent No. 2-Commissioner, GHMC, allocated the adjacent land of Acs. 6-20 gts. in Survey No. 34 of Fathullaguda to respondent No. 3-HMDA for establishing a crematorium, and the construction activity is contracted to respondent No. 6; that the vendor of petitioners obtained approval for development of gated community in the year 2016 and the proposal for construction of crematorium is made in 2019; that the Disaster Relief Force Training Centre, and GHMC Animal Care Centre are also located in the locality; that the petitioners addressed letters dated 29.5.2020 to respondents 1 to 4 requesting to stop the establishment of new crematorium in the midst of residential locality; that more than 2,000 people are living in the gated community; that establishing a crematorium near residential houses would have serious mental impact on the inmates of the locality especially children, due to the daily sights of burning dead bodies and grieving people; and therefore requested the Commissioner to stop the construction of crematorium and shift it to some other suitable location. 4. 4. On behalf of respondent No. 2-GHMC, the Commissioner, GHMC, filed counter- affidavit stating that on receipt of letter dated 21.8.2019 from the Member of Legislative Assembly (MLA), L.B. Nagar Constituency, for establishment of a pollution-free and environment friendly model crematorium in Fathullaguda that would cater to the Hindu, Muslim and Christian Communities, the proposal was put before the Standing Committee, GHMC. As the population in the L.B. Nagar area and surrounding localities is rapidly growing, and as the existing burial ground is insufficient for disposal of the dead, the Standing Committee approved the proposal vide Resolution No. 139 dated 17.10.2019; and therefore there is no merit in the writ petition and the writ petition is liable to be dismissed. 5. On behalf of respondent No. 3-HMDA, the Chief Engineer, HMDA, filed counter- affidavit stating that after approval of Standing Committee of GHMC vide Resolution dated 17.10.2019, the construction work of crematorium was contracted to respondent No. 6, and that the crematorium is going to be a model crematorium for the country catering to the requirements of Hindu, Muslim and Christian Communities. 6. Learned Senior Counsel, while asserting that the petitioners are all living in the neighborhood near the impugned site for proposed crematorium, would submit that the decision to establish a crematorium by the Commissioner is without application of mind and without taking into consideration the relevant factors which are required to be considered as mandated under the GHMC Act. Elaborating on the same, learned Senior Counsel would contend that Section 567 of the GHMC Act mandates the Commissioner (i) to come to a conclusion that the existing place for disposal of the dead (for short ‘the crematorium’) is insufficient or existing place is closed in terms of Section 570 of the GHMC Act and (ii) such conclusion has to be based on enquiry and empirical data with respect to existing facilities in the locality and an estimation of the future needs in relation to different sections of people. 7. Learned Senior Counsel submits that in the present case, the Commissioner has mechanically acted and accepted in toto the MLA's letter alongwith the sketch of demarcation of graveyards allocating Acs. 2-00 gts. each for three communities viz. Hindu, Muslim and Christian, without there being independent application of mind by taking into consideration various factors like population ratio of the communities, area of crematorium, location etc. 8. 2-00 gts. each for three communities viz. Hindu, Muslim and Christian, without there being independent application of mind by taking into consideration various factors like population ratio of the communities, area of crematorium, location etc. 8. Learned Senior Counsel further submits that mere are four existing burial grounds - two at Jayapuri Colony, one at Mathuguda and one at Nagole within the vicinity of 1 to 2 kilometers from the impugned construction site; and as a matter of fact, there is a land admeasuring Acs. 5-18 gts. adjacent to the existing burial ground in Acs. 3-00 gts. situated at Jayapuri Colony, and that place would be more convenient as that is already identified and being used for public purpose i.e. as a dump-yard and the same can be used for the purpose of establishment of crematorium. 9. Learned Senior Counsel placed reliance on the judgment of this Court in S.R. Ramanujam and Others vs. The Chief Secretary to Government and Others, 1997 (3) ALD 114 (DB) : 1997 (2) ALT 512 , in particular Paragraph 12 of the judgment, for the proposition that no new place for a crematorium can be opened or permitted to be used unless the existing places for the disposal of the dead appear to be insufficient or unless any place is closed under the provisions of Section 570 of the Act, and the Commissioner with the sanction of the Corporation has registered the same with a plan showing the locality extent and boundaries of the same arid bearing the signature of the City Engineer. 10. Per contra the learned Additional Advocate General submits that the interpretation placed by the learned Senior Counsel for the petitioners is misconceived. He further submits that the expression “appears to be insufficient” mentioned in Section 567 of the Act means the Commissioner, if in his wisdom, thinks it necessary. He further submits that there is no fetter on the discretion of the Commissioner and the provisions do not obligate the Commissioner to state reasons for establishing a new crematorium, and Section 567 is an independent provision not connected with Section 568, 569 or 570 of the GHMC Act. 11. He further submits that there is no fetter on the discretion of the Commissioner and the provisions do not obligate the Commissioner to state reasons for establishing a new crematorium, and Section 567 is an independent provision not connected with Section 568, 569 or 570 of the GHMC Act. 11. Learned Additional Advocate General further submits that while Section 567 of the GHMC Act does not obligate the Commissioner, under Section 570 the Commissioner may state reasons in cases falling within Section 570 i.e. the Commissioner seeks to reopen a place that has earlier been closed for disposal of the dead. 12. Learned Additional Advocate General would further submit that there being no obligation on the Commissioner, there is no justiciable right in the petitioners to seek a writ of mandamus alleging violation of duty that is not imposed by the Statute; and thus the writ petition is misconceived. 13. Learned Additional Advocate General would also submit that there cannot be any dispute that the population of Hyderabad has increased manifold and there is a dire need for establishment of new crematoriums to meet the ever increasing requirement to meet the contingencies arising from time to time and when that be the position there is no requirement for the Commissioner to elaborate the reasons while taking administrative decision in recommending establishment of new crematoriums for disposal of dead. He further submits that it is also the policy of the State to allocate Acs. 2-00 gts. of land for major communities of the Society for disposal of the dead. He would also submit that the reliance placed by the learned Senior Counsel for the petitioners on S.R. Ramanujam's case (supra), is misconceived as the issue in the said case was only with regard to whether public parks can be permitted to be used for disposal of the dead, and the issue of the nature in the present writ petition did not fall for consideration before the Division Bench in S.R. Ramanujam's case (supra). 14. 14. Learned Additional Advocate General would further submit that merely because an elected representative of the State, more particularly, of the Constituency where the impugned site is situated, had recommended for establishment of crematorium and the Commissioner has gone ahead with the establishment of new crematorium, that by itself does not become invalid when the action is initiated by the Commissioner in terms of Section 567 which is within the power of the Commissioner and, as a matter of fact, it is the statutory duty of the Commissioner to discharge his duties under Section 567 of the GHMC Act. 15. Having regard to the importance of the issue as well as the subject-matter involved and having regard to the present dicey situation prevailing in the society on account of COVID-19, this Court had bestowed a deeper attention on the issue, and summoned the original Note file relating to the subject-matter and perused the record. 16. It may be noted that the organized development of the society, more particularly, the villages, towns and cities, is sought to be regulated through various enactments from time to time, like the A.P. Town Planning Act, 1920, A.P. Panchayat Raj Act, A.P. Municipalities Act, Urban Areas Development Act, Hyderabad Metropolitan Development Act, A.P. Apartments Act etc. Originally the developments of leaving spaces and colonies by way of approving of layout was being done under A.P. Town Planning Act, and the Rules made thereunder read with respective Municipalities Act. Under the said enactment, the objects of the said Act were set out under Section 4 therein, which are planned development of towns for securing their inhabitants, sanitary conditions, amenities and conveniences. Under the said Act, the functions were entrusted to Director of Town Planning at the State level in terms of Section 44 specifying the matters to be covered for a scheme to be approved. The word “scheme” was defined under Section 3(9) of the Urban Areas Development Act. Thereafter further amendments were made under the Act providing for classification of the land use as industrial, commercial, residential, agricultural etc. Prior to 1996 amendment, the Urban Areas Development Act came to be enacted for the cities and Urban Areas, more particularly, keeping in view the enactment of Urban Land Ceiling Act. 17. Thereafter further amendments were made under the Act providing for classification of the land use as industrial, commercial, residential, agricultural etc. Prior to 1996 amendment, the Urban Areas Development Act came to be enacted for the cities and Urban Areas, more particularly, keeping in view the enactment of Urban Land Ceiling Act. 17. It may be noted that Urban Land Ceiling Act being a Central enactment, the jurisdiction to make laws having been made over by the States in favour of the Union, the A.P. Urban Areas Development Act also which was specific to the State, received the assent of the President of India. Likewise, the GHMC Act, 1955, an enactment of the State has also received assent of the President of India. 18. The object of the Urban Areas Development Act, 1975, was coordinated development of Urban areas whereunder the power to acquire, hold and developing the same were entrusted. Under the said act, the State is required to make a Master Plan and Zonal development plans. While the Master Plan is an overall plan relating to the area, Zonal development plan relates to the division of the area into Zones and the same is required to be meet the parameters mentioned in Section 7 of the A.P. Urban Areas Development Act, 1975. 19. As an additional enactment, HMDA Act came to be enacted in 2008 to further appoint a HMDA in place of Urban Areas Development Act so far as Hyderabad City is concerned. Likewise similar enactments were made in respect of other areas like Visakhapatnam, Vijayawada, Tirupati, etc. in the erstwhile composite State of Andhra Pradesh. 20. A.P. Panchayat Raj Act, in Section 45(i)(vi), so far as relevant for the purpose of this case, we are required to examine the provision made for establishment and maintenance of crematoriums and burial grounds for disposal of dead bodies of human beings and animals, and the duty is vested with the Grama Panchayat. There is no specific provision made under the A.P. Town Planning Act, 1920, or the Rules thereunder. However, under Chapter-VH of Sections 300 to 307 of A.P. Municipalities Act, 1965, (now repealed), a provision is made for opening and maintenance of burial grounds. There is no specific provision made under the A.P. Town Planning Act, 1920, or the Rules thereunder. However, under Chapter-VH of Sections 300 to 307 of A.P. Municipalities Act, 1965, (now repealed), a provision is made for opening and maintenance of burial grounds. Likewise, Sections 149 to 151 of the newly enacted Telangana Municipalities Act, 2019, deal with duties of Municipal Authorities in creation, maintenance and finding of alternative sites of crematorium/burial grounds in case the existing place is found to be dangerous to the health of persons residing in its vicinity. 21. A perusal of the above provisions does not disclose there being any clear guidance provided under respective Acts, more particularly, with respect to creation and maintenance of crematoriums. One significant aspect that can be noticed in all the above enactments is that the establishment and maintenance of burial grounds is also permissible to be done by private individuals. As a matter of fact, as of date, most of the burial grounds/cremation places are under the control of individuals or religious organizations. In other words, even a private individual can seek to establish, operate and maintain a crematorium or a burial ground by obtaining relevant permission. 22. However, under the Municipalities Act, 1965, there is a legislative reorganization, in view of there being a need for categorization of crematoriums based on religion or community. 23. On account of the rapid urbanization and inhabitation of people of different communities and religions in urban areas, it cannot be denied that there is a need for creation and maintenance of crematoriums/burial grounds. Though the GHMC Act does not in clear terms provide for any guidance on the issue, a combined reading of Sections 567 to 572 do throw light on the issue and the factors required to be considered by the Commissioner. 24. A reading of Sections 569 and 570 would disclose that the Commissioner is empowered to close down or open or reopen or establish a new crematorium and there is guidance therein mandated by way of directing the Commissioner to obtain information from competent persons and thereafter inspect the respective places before forming an opinion for the decisions to be taken under Sections 567 and 570 of the GHMC Act. Section 570 does not state in express terms however in exercise of the powers under Section 567 the Commissioner is required to come to a definite conclusion that the existing place for disposal of the dead appears to be insufficient, thus, necessitating creation of a new crematorium/burial ground, thereby requiring the Commissioner to make a plan identifying suitable location, notifying the extent and boundaries under the signature of City Engineer. Such exercise obviously is required to be done in consultation with the City Engineer and the same would also require to be in consonance with the provisions and Rules made under the Act. In cases of sites falling within the scope of Urban Areas Development Act, the Master Plan and Zoning regulations have to be necessarily taken into consideration. 25. We may notice that G.O. Ms. No. 538 dated 29.10.2001 notifies the Master Plan for Cyberabad Development Authority area, whereunder the entire of the Master Plan was divided into different Zones based on land use regulations. In the said notification, in Paragraph 4.3 of Annexure-2 of the notification, one finds that under heading Public and Semi-Public Use Zone, establishment of crematorium or burial grounds was a permitted activity. 26. From time to time there are changes made to the position and, in discharge of the functions, the Commissioner is required to take into consideration of the Master Plan, Zoning regulations and examine whether opening of new crematorium is permissible. The need and necessity of opening a new crematorium necessarily involves making of assessment in a particular zone and the area under the Zone in the Urban areas, more particularly, in the areas falling under the GHMC, in the different] clusters, the habitation of different religious groups in clusters, density of population of particular religious group in the particular areas. Crematorium is required to cater to different groups who are inhabitants in that particular locality or in the vicinity which necessitates the Commissioner to take into consideration of the data relating to religious groups in that particular area, though not with mathematical precision but in a broader way. The gathering of such material data would help the Commissioner to take an informed decision. 27. Learned Advocate General had made available before this Court the Note file relating to the decision of the Standing Committee of GHMC. The gathering of such material data would help the Commissioner to take an informed decision. 27. Learned Advocate General had made available before this Court the Note file relating to the decision of the Standing Committee of GHMC. The file discloses the receipt of requisition letter, alongwith a sketch map demarcating the specifics of graveyards to be provided with Acs. 2-00 gts. each for Hindu, Muslim and Christian Communities, from the Local Member of the Legislative Assembly by the Commissioner on 21.8.2019. The Commissioner thereafter marked the same to the Superintending Engineer and the Assistant Commissioner to examine and put up, who in turn had marked the same to the Executive Engineer who in turn marked it to Deputy Executive Engineer of the Corporation. 28. The note file and the documents in loose form as made available to this Court does not disclose the opinion expressed by the Superintending Engineer/Assistant Commissioner/ Executive Engineer/Deputy Executive Engineer. However, on 17.10.2019 under the signature of the Commissioner, the note was put before the Standing Committee of GHMC. The note reads as under: File No. SWM/0052/2019/DEE-2(SWM)/HO Preamble submitted to Standing Committee GHMC: Subject: GHMC - SWM - Request to establish pollution free and environmental friendly model crematorium at Fathullaguda - Regarding. Ref: Letter received from Sri. D. Sudheer Reddy, MLA, L.B. Nagar constituency. *** *** *** Kindly peruse the letter received from Sri. D. Sudheer Reddy, MLA, L.B. Nagar Constituency, wherein he stated that Government land admeasuring Acs. 2-00 each were allotted for Hindu, Muslim and Christian graveyards located near Fathullaguda Dumping yard in L.B. Nagar Constituency. He has also stated that when Hindu person dies, for cremation one or two trees are being burnt during the cremation process. To curb such practice and also to take measures for environmental friendly measures, he requested to establish pollution free environmental friendly electric burners for the cremation for the cremation process in the Hindu Graveyard. Further he stated that, the said land is handed over to Ramky Infrastructure Pvt. Ltd. for development for the same by GHMC and hence the same may be taken back by GHMC for development of separate graveyards for three different communities, He also requested to construct electrical crematoriums to establish environmental friendly and pollution free structures to curb the menace of Air, water and Noise pollution. Further it is also requested to provide the amenities in the proposed graveyards such as compound walls, three bore wells (1,000 ft.) for each graveyard, overhead tanks for bathing purpose and drinking water supply to each graveyard separately. In this regard, the following points are brought to the notice of the Commissioner, GHMC: (i) As per the records this site of 45.76 Acres was an existing dump site which was handed over to HIMSW vide licence Agreement dated 17.7.2012 for the purpose of reclamation an reuse as per CA dated 21.2.2009. (ii) As per clause 3.1 of CA, GHMC has licensed the said land to the Concessionaire (HIMSW) and as per clause 5.17, Concessionaire shall be responsible for reclamation and alternative use of the existing three dump sites located at Fathullaguda disposal site, Shamshiguda disposal site and Gandhamguda disposal site in accordance to the specifications given in the annexed schedules. (iii) As such, as per Schedule 8 of CA, it was proposed to develop transfer station at Fathullaguda dump site. Also, as per clause 5.17, the site may be utilized for development of parking facilities for MSW transportation vehicles. Whereas the site is presently being utilized for several other purposes such as B.T. hot mix Plant, dog and monkey pond etc., the details of which are: (a) Total area 45.76 acres (b) Compound wall Constructed all around the site for a length of 850 mt. except capping side and at the side of entrance BT plant 2 acres (c) Dog and Monkey pound 5 acres (d) Capping of old dump site 5.5 acres (e) C&D plant 10 acres Balance area 23.26 acres It is further submitted that keeping in view of the difficulties in identification/ materialising the new sites for solid waste management facilities owing to the resistance from local population (known as NIMBY or Not In My Back Yard syndrome) a decision may be taken whether to preserve this site for SWM related activities only and to explore the possibility of identifying any other sites for developing the facilities requested by Hon'ble MLA or any other decision. Hence, the matter is placed before the Standing Committee, GHMC for taking a decision on the request made by Sri. D. Sudheer Reddy, Hon'ble MLA, LB. Nagar Constituency for construction of the Graveyards for three communities (Hindu, Muslim and Christian) at Fathullaguda. Commissioner, GHMC. 29. Hence, the matter is placed before the Standing Committee, GHMC for taking a decision on the request made by Sri. D. Sudheer Reddy, Hon'ble MLA, LB. Nagar Constituency for construction of the Graveyards for three communities (Hindu, Muslim and Christian) at Fathullaguda. Commissioner, GHMC. 29. A perusal of the note file would show that the Commissioner, in the third paragraph, had recounted the request of the MLA and, in the next paragraphs, had stated with respect to the area and the present use and in the last two paragraphs, with respect to placing the matter before the Standing Committee to take a decision on the request made by the MLA. 30. It may be noted that in the note there is neither any independent reasoning nor opinion expressed by the Commissioner, which is the basic requirement for a decision to be made by the Corporation. In that view of the matter, this Court has no hesitation to hold that there is a total non-application of mind on the part of the Commissioner on an important issue like establishment of a new crematorium, a decision which is required to be taken after taking into account various aspects mentioned supra. The decision of the Commissioner, blindly accepting the requirement including the demarcations as assessed by the MLA, is vitiated as not being in consonance with Section 567 of the GHMC Act, and therefore the same is liable to be set aside. 31. In the result, the recommendation of the Commissioner, and the consequent Resolution of the Standing Committee of GHMC, to convert the land in an extent of Acs. 6-20 gts. in Survey No. 34 of Fathullaguda Village, Nagole, Uppal Mandal, Medchal-Malkajgiri District, into a burial ground/crematorium is set aside; however, with the liberty to respondent authorities to take a decision considering relevant factors, more particularly keeping in view the provisions so far as relevant under: (a) GHMC Act, 1955. (b) Guidelines notified in G.O. Ms. No. 1235, Revenue (Assignment-I) Department, dated 15.10.2008, as modified by G.O. Ms. No. 715, Revenue (Assignment-I) Department, dated 16.7.2009. (c) Urban and Regional Development Plans Formulation and Implementation (URDPFI) Guidelines of Ministry of Urban Development, Town and Country Planning Organization. (d) The Division Bench judgment of this Court in S.R. Ramanujam's case (supra). 32. (b) Guidelines notified in G.O. Ms. No. 1235, Revenue (Assignment-I) Department, dated 15.10.2008, as modified by G.O. Ms. No. 715, Revenue (Assignment-I) Department, dated 16.7.2009. (c) Urban and Regional Development Plans Formulation and Implementation (URDPFI) Guidelines of Ministry of Urban Development, Town and Country Planning Organization. (d) The Division Bench judgment of this Court in S.R. Ramanujam's case (supra). 32. Keeping in view the exponential growth of population and reduction in forest cover/tree growth on account of increased habitation in the city and peripheral areas, and in the light of the critical situation thrown up by COVID-19, the State is required to explore, as a matter of Policy, the possibility of establishing and encouraging the use of electric crematoriums, by extending concessions in electricity and any other incidental charges, if necessary, as such practice would go a long way in avoiding felling of trees and also preserve forest cover thereby protect the environment instead of traditional practice of consigning the dead to burning pyre. 33. While parting with the present case, keeping in view of contingencies of growing population and also the expanding limits of urban agglomeration and inhabitation, and given the challenges thrown by COVID-19, this Court also likes to add that in a matter of such undeniable importance, there is unfortunately no clear policy framework or guidance with respect to establishment and management of crematoriums/burial grounds either by the State/local bodies/private persons. It may be noted that the Ministry of Urban Development had laid down certain guidelines for the purpose of development of townships. While it is the prerogative of the State/local bodies to make provision for burial grounds/crematoriums, the adherence to the provisions made by the Ministry of Urban Development would become all the more relevant on account of the fact that the State gets funds from the Central Government with respect to development of urban areas and town planning in general and also in the process of creating smart cities. It may also be noted that though the Urban Land Ceiling Act has been repealed, the A.P. Urban Areas Development Act (as adopted and enacted by the State of Telangana), which has received the assent of President of India, is still in force and the provisions of the HMDA Act are in addition to the provisions contained in A.P. Urban Areas Development Act and not in derogation of the provisions of the A.P. Urban Areas Development Act. The State also may consider enacting a comprehensive law governing the creation, operation and maintenance of crematoriums/burial grounds, so as to cater to the needs of various communities and religious groups of the country. 34. Accordingly, the writ petition is disposed of. No costs. Miscellaneous petitions, if any pending, shall stand closed.