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Synopsis

A division bench of the Bombay High Court, consisting of Acting Chief Justice Nitin Jamdar and Justice Arif Doctor, recently observed that once plots are designated as burial grounds, they cannot be utilized for any other purpose except the one for which they are designated.

“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,” the bench observed.

The High Court was addressing a public interest litigation (PIL) filed by Melwyn Isidore Fernandes and others, represented by advocate Sunita S Banis. The PIL sought directions to open and ensure accessibility to all the reserved plots designated for Christian cemeteries in accordance with the development plan of Thane City.

The petitioners contended that the current cemeteries available to the Christian community are grossly inadequate.

The High Court made the remark after referring to the reply from the Thane Municipal Corporation, which was found to be unsatisfactory.

The Corporation's response lacked sufficient details regarding why the lands were not in the possession of the Municipal Corporation and failed to specify the structures that encumbered the lands.

In response to the PIL, the Thane Municipal Corporation provided a list of 19 plots that were reserved for cemeteries. According to the list, 6 of these plots were utilized as burial grounds. Two plots were situated within the Special Economic Zone (SEZ) area and therefore could not be used. Additionally, two plots were affected by slums, and the status of possession for these plots was not explained. Furthermore, five plots were impacted by Coastal Regulation Zone (CRZ) restrictions. One plot was under the possession of the police, and another plot was encumbered by structures.

The Thane Municipal Corporation, in its affidavit, presented the number of deaths within the Christian community based on the 2011 census. In response to this information, the bench said,,

“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,” the bench said.

While directing the corporation to file an additional affidavit and provide details of the steps taken, the division bench observed,

“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,” the bench observed.

Case title: Mr.Melwyn Isidore Fernandes and Others vs State of Maharashtra & Ors