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CASE NO.: Appeal (civil)  5793 of 2007

PETITIONER: Shakur Basti Shamshan Bhumi Sudhar Samiti (Regd.)

RESPONDENT: The Lt. Governor, National Capital Territory of Delhi and others

DATE OF JUDGMENT: 11/12/2007

BENCH: S.B. SINHA & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 5793 OF 2007 (Arising out of SLP (C) No. 15784 of 2004)

S.B. SINHA, J.  

1.      The present controversy relates to a cremation ground known as  ’Shakur Basti Shamshan Bhumi’.  It is located in a village known as  Shakur Basti in the town of Delhi.   

2       Appellant herein is a society registered under the Societies  Registration Act, 1960.  It is said to be managing the affairs of the  cremation ground being in charge and possession thereof.    The  village in question as also the adjoining areas viz. Rani Bagh, Rishi  Nagar, Mohindra Park, Sant Nagar, Raja Park, Sri Nagar etc. are said  to be inhabited by the displaced persons from Pakistan.  This site in  question was being used as cremation ground by the residents of the  village as also the adjoining areas.   

3.      A land acquisition proceedings was initiated for acquisition of  the said land on or about 26th December, 1964.  An award was also  published.  The possession of the vacant land was admittedly taken.   Despite acquisition of the said land unauthorized cremation of dead  bodies continued.

4.      It is not in dispute that pursuant to or in furtherance of the land  acquisition proceedings a Notification was issued by the Delhi  Development Authority declaring the said area to be the residential  area.  Some Group Housing Societies developed residential units  thereat.  A few cooperative group housing societies filed writ petitions  before the Delhi High Court impleading inter alia the Delhi  Development Authority and the Municipal Corporation of Delhi as  parties-respondents therein praying inter alia for discontinuance of the  said site as cremation ground.  By judgment and order of 8th May,  1996 a purported observation was made that cremation of dead bodies  was being made unauthorisedly on the land in question the relevant  part whereof reads :-

"       Learned counsel for respondent No.1 submits that  it appears that on the land which has been placed at the  disposal of DDA, cremation of bodies has been  unauthorisedly started sometime in 1991.  Even counsel  for respondent no.3 has not disputed that the land in  question on which bodies are being cremated is an  unauthorized cremation ground.  We direct respondents  to ensue that till further orders the bodies are not  cremated upon the land in question.  The SHO of Police

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Station, Saraswati Vihar is also directed to ensure  compliance of the order."  

5.      The said order of the High Court was challenged by way of  Special Leave Petitions before this Court and  this Court on or about  17th June, 1996 passed the following order :-

"Issue notice in the special leave petitions. Issue notice in the stay applications also. In the meanwhile the direction of the High Court dated  8th May, 1996 restraining cremation of the dead bodies at  the site in question is stayed.  It is, however, directed that  no construction, whether temporary or permanent, shall  be raised at the site by any party till further orders by this  Court."

6.      By an order dated 13th January, 1997 the Special Leave  Petitions were dismissed observing :-

"Learned counsel for the contesting respondent submits  that the writ petition which was pending in the High  Court has since been disposed of and since these special  leave petitions were directed against the interim orders  made in that writ petition, these special leave petitions  have been rendered infructuous.   Mr. Jaitley appearing  for the petitioners does not dispute this position.  The  special leave petitions are dismissed as infructuous."

7.      On or about June, 1998 the Municipal Corporation of Delhi  issued a Public Notice that the cremation ground near Harsh Vihar  had been closed with immediate effect and the new cremation ground  at Beri Wala Bagh was commissioned for Public use henceforth.   

8.      In or about June 1998 ’Aggarwal Samaj’, Shakur Pur filed a  writ petition raising objection against the opening of the abovesaid  cremation ground at Beri Wala.  

9.      Several other proceedings were also initiated wherein the  appellant herein was not impleaded as the party.  An attempt made by  the appellant to intervene in some of the said proceedings did not  succeed.  

10.     A suit was filed by one Balvant Rai.  It related to Khasra  No.181/2.  A prayer was made therein that the said cremation ground  at Shakur Basti be retained.   

11.     A writ petition was also filed by Harsh Vihar Cooperative  House Building Society and others inter alia on the premise that the  decision taken for regularization of cremation ground at that place  despite allotment of a separate site for establishment of an alternative  cremation ground was invalid in law.

12.     A representation was made by the appellant to the Lieutenant.  Governor of Delhi for allotment of the land in question in its favour.   The said representation was said to have been allowed in terms of the  order of the. Governor dated 7th September, 2001 , which reads :-

"       Enclosed is a representation made before the Lt.  Governor by the Shakur Basi Shamshan Bhumi Sudhar  Samiti regarding retention of Shakur Basi Shamshan  Bhumi at its existing site.  The details are reflected, in the  afore-mentioned representation.  Lt. Governor has  desired that MCD should officially take over the

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cremation ground for which DDA would have to make a  formal allotment to the MCD.  Thereafter as discussed  with Commissioner, MCD, Lt. Governor has desired that  an MoU could be entered with the Shakur Basti  Shamshan Bhumdi Sudhar Samiti for proper  management.  Action on these lines may kindly be  taken."

13.     Delhi Development Authority, pursuant to or in furtherance of  the said order of the Lieutenant Governor addressed a letter to the   Commissioner of Municipal Corporation of Delhi on 26th November,  2001 relevant part of which reads "-

"With reference to your letter dated xxxxxxx on the  subject noted above, I am directed to inform you that  under the provisions of DDA (Developed Nazul Land)  Rules, 1981 it is proposed to allot you on perpetual lease  hold basis a plot of land measuring 1700 sq. mtr. For the  purpose of Cremation Ground on the usual  terms/conditions as given in the approved format of  perpetual lease and the following conditions amongst  others."           14.     The Lieutenant Governor of Delhi reviewed his order on 23rd  April, 2002 which was communicated to the appellant on 20th June,  2002.           15.     However, after the aforesaid order of allotment was made, one  Smt. Jyotsna Kashap a resident of an adjoining Kailash Colony  approached the High Court by filing a writ petition which was  numbered as CWP No.3612 of 2001. By an order dated 22nd July,  2002 a learned Single Judge of the High Court disposed of the said  writ petition, the relevant part whereof reads as under :-

"It may be noted that certain representations were made  to the Lt. Governor for continuing the Shakur Basti Land  to be used as a cremation ground.  It is now stated in the  Court that the said representation has been rejected by the  Lt. Governor and a copy of the communication dated  20.6.2002 is placed on record.  In view of the aforesaid  position all the public authorities who are respondents  have agreed that the use of the land as a cremation  ground has to be stopped.  

       In view of the aforesaid it is directed that  respondent No.3 shall ensure that the land in question is  not used as a cremation ground and remove unauthroised  permanent or temporary structures constructed thereon.   Respondent No.2 shall render police assistance as and  when requisitioned by respondent No.3 to ensure the  compliance of the order.  The needful be done within a  period of two months from today and compliance report  be filed in the Court.  The writ petition stands disposed of  in the aforesaid terms."

Appellant, however, was not a party therein.

        16.     By an order dated 22nd July, 2002, a learned Single Judge of the  High Court having regard to the orders passed by the Delhi High  Court, some of which have been noticed  by us hereinbefore,  directed:-

"In view of the decision now finally taken by the Lt.

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Governor that land at Shakur Basti is not to be used as a  cremation ground and in view of the directions issued by  this Court in CW 3612/2001 no further orders are called  for in this writ petition and the same stands disposed of."

16.     An  LPA was filed by the appellant herein against the said order  dated July 22, 2002 in CW No.591 of 2002 in which a Division Bench  of the High Court passed the following order on 27th August, 2002 :-

"Counsel for the appellant says that the grievance of the  appellant is that he had filed an application for  impleadment in Civil Writ Petition NO.591/2002 but  without taking any decision on his application, the writ  has been disposed of, which has adversely affected the  interest of the appellant.  It is the appellant who had been  agitating about this land since 1991.  He would like to  file review application or may file substantive writ  petition, therefore, prays that while disposing of this LPA  status quo order till Monday 2nd September, 2002 may be  ordered to be maintained.  In view of the statement of the  counsel for the appellant, the appeal is dismissed as  withdrawn.  However, till 2nd September, 2002 order of  status quo is ordered to be maintained."

17.     We may also incidentally notice, although nothing much turns  out of it, that a resolution was purported to have been passed on 4th  October, 2002 by the Councillors to the effect that the Municipal  Corporation of Delhi would carry out improvement and development  of the Cremation Ground at its existing site only.  

18.     A separate writ petition was filed by the appellant wherein the  aforesaid Smt. Jyotsna Kashyap and others, some of the cooperative  group housing societies were impleaded as parties.  It was marked as  CWP No. 5567 of 2002.  A learned Single Judge disposed of the said  writ petition by an order dated 23rd October, 2002 which reads :-

"       The grievance made in the present writ petition by  the petitioner is that the order dated 20.6.2002 passed by  the Lt. Governor allotting the site in question to the  M.C.D. which was contrary to the earlier order dated  7.9.2001 directing the memorandum of understanding to  be executed by the petitioner had been passed without  any intimation to the petitioner and without the petitioner  being heard.           Learned senior counsel for respondent No.3  D.D.A. states that the order was in fact passed on  23.4.2002 though D.D.A. communicated to the M.C.D.  on 20.6.2002.

In view of the fact that the order dated 23.4.2002  communicated on 20.6.2002 to the M.C.D. had  admittedly been passed without hearing the petitioner  which seeks to modify the earlier order dated 7.9.2001, it  is agreed by the respondents that the petitioner will be  given a personal hearing and a fresh order shall be passed  thereafter.  The petitioner shall appear before the Lt.  Governor on 8.11.2002 at 3.00 P.M.  It will be open to  the petitioners 5 to 10 can also appear before the Lt.  Governor.  All the parties will be given a personal  hearing on the said date or any subsequent adjourned date  and a reasoned order shall be passed within a period of  two months thereafter.  In view thereof the impugned  order dated 23.4.2002 and the letter dated 20.6.2002 shall

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not be given effect to.  Needless to say that if any of the  parties are aggrieved by the order passed by the Lt.  Governor it will be open to them to impugn the same in  accordance with law."

19.     On the aforementioned basis a detailed representation was filed  by the appellant before the Lieutenant Governor of Delhi wherein  inter alia the following prayers were made :-

"       It is therefore prayed that Your goodself may be  pleased to :

a.      first consider and decide the preliminary  issues/objections raised by the applicant in the present  application;     

b.      uphold that the order dated 7.9.2001 passed by your  goodself and further hold that no interference with the  said order is called for in view of the fact that no  power of review is conferred on Your goodself;  

c.      uphold that the order dated 7.9.2001 passed by Your  goodself and further hold that no interference with the  said order is called for in the facts and circumstances  of the present case;

d.      make available to the applicant a copy of the  purported order of cancellation/revocation of the order  dated 7.9.2001;

e.      grant opportunity to the applicant to bring additional  facts and evidences on record to justify that the order  dated 7.9.2001 passed by Your goodself is correct and  valid in the facts and circumstances of the present  case and calls for no interference.

f.      Pass such other orders or directions as deemed fit in  the facts and circumstances of the present case."

20.     Allegedly prayer (d) was made therein in the said representation  as the purported order of cancellation/revocation of the order dated 7th  September, 2001 by order dated 23rd April, 2002 had not been  received by the appellant.  

21.     The Lieutenant Governor heard all the concerned parties.  In  terms of an order dated 27th June, 2003 it was opined :-

"       I have considered the contentions of Shakur Basti  Shamshan Sudhar Samiti as well as the representation of  the various Group Housing Societies.

       The Shakur Basti Shamshan Sudhar Samiti has  contended that the cremation ground has been in  existence since the year 1955, in support of which they  have submitted documents showing that cremations have  been held at that site since then.  The representatives of  the Group Housing Societies have stated, on the other  hand, that the land where the cremation ground is  presently situated had been acquired by the Delhi  Administration vide award No.1755 dated 26.12.1964  and that its physical possession was taken on 6.4.1965.   The land was transferred to D.D.A. for development of  Pitampura Residential Complex on 3.1.1968.  As per the  Zonal Development Plan of D.D.A the land use of the

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site in question is for setting up of a local shopping  centre, a primary school and residential group housing.

       I have also gone through the judgments of the  court of Sub-Judge Ist Class, Delhi, ADJ, the High Court  and the Supreme Court on this matter.  According to  judgments the use of the land should conform to the  zonal development plan and that the cremation ground  should not be allowed to function from there.  The High  Court has further ordered that M.C.D. construct a  cremation ground at Beriwala Bagh, close to the Shakur  Basti site.  

       The aforementioned facts were not in my  knowledge when the representatives of the Shakur Basti  Shamshan Bhumi first met me with their petition to allow  the Shamshan Bhumi to function from the existing site.   On the basis of the earlier representation and the facts  then submitted, D.D.A. had been advised to make a  formal allotment of the cremation ground to the M.C.D.,  after which M.C.D. was to conclude a MoU with the  Samiti for proper management of the cremation ground.   This advise was conveyed to D.D.A. and M.C.D. by my  Secretary on 7th September, 2001.  However, when the  facts of the case and the orders of the High Court were  put up on file, I had directed D.D.A. on 23rd April, 2002  to make immediate efforts to re site the Shamshan Bhumi  and to put to use the land so vacated as per the layout  plan."    

22.     A writ petition filed thereagainst which was marked as WP  No.6855 of 2004 has been dismissed in terms of an order dated 7th  May, 2004, the  relevant part of which reads as under :-

"       In compliance with these orders, another hearing  took place before the Hon’ble Lieutenant Governor in  which the petitioner was avowedly granted a hearing.  By  order dated 27.6,2003, the Lieutenant Governor has  stated inter alia that "on hearing the contention of the two  parties and keeping in view the judicial Orders, I reiterate  my decision of 23rd April, 2002".  Counsel for the  Petitioner contends that by reiterating the order dated 23rd  April, 2002 the situation has not been remedied as they  are not even aware of the wording of that Order.                          In my view, too much emphasis has been laid on  the extracted words of the impugned order making a  reference to the orders dated 23.4.2002.  Of course, it  would have been legally preferable not to needlessly  mention those orders.  The impugned Order dated  27.6.2003 takes in contemplation the Award No.1755  dated 26.12.1964 and the transfer of the land to the  D.D.A. for setting up of a local shopping centre, a  primary school and a residential group housing.  It also  notes the allotment of an alternate site at Beriwala Bagh,  close to the Shakur Basti site.  If the entire order is read,  it will be evident that the Hon’ble Lieutenant Governor  had changed his earlier opinion in favour of the retention  of the Shamshan Bhumi at its present site, looking  towards the decisions given by this Court and the  allotment of an alternate site.  It is wholly immaterial  whether the earlier order dated 23rd April, 2002 had been  conveyed to the Petitioner.  The thought process and the  reasons for the decision of the Hon’ble Lieutenant  Governor are fully contained in his Order dated

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27.6.2003 which has been passed after the Petitioner was  granted a hearing."  

23.     A writ appeal preferred thereagainst has summarily been  dismissed by a Division Bench of the said Court by reason of the  impugned judgment.  

24.     Mr. U.U. Lalit, learned senior counsel appearing for the  appellant, would submit that ; (i)     in the absence of the order recalling order dated  7th February, 2001 passed by the Lieutenant  Governor having been made available, the  appellant’s right to make an effective  representation has been taken away. (ii)    If any reason had been assigned in the said order  of 23rd April, 2002, the appellant would have been  able to raise grounds assailing the same and as the  same has not been supplied the impugned order  must be held to be violative of principles of  natural justice. (iii)   By reason of the said order which was the subject  matter of the writ petition before the Delhi High  Court, the Lieutenant Governor merely reiterated  his earlier order, which is apparently bad in law. (iv)    The order dated 23.04.2002 being the primary  order, the Lt. Governor could not have reiterated  the same without considering the details of the  representation made by the appellant dated  22.11.2002.  (v)     Following the earlier order mechanically was an  act of misdirection in law on the part of the Lt.  Governor. (vi)    When the learned Single Judge of the Delhi High  Court had directed the appellant to go to the Lt.  Governor, it was bound to give effect to the  judicial order upon consideration of the fact of the  matter judiciously.   

25.    Mr. Vishnu B. Saharya, learned counsel appearing on behalf of  the Delhi Development Authority (DDA), on the other hand, would  submit that the site in question is no longer in use as a cremation  ground.  Drawing our attention to various orders passed by the Delhi  High Court in a writ petition filed by Brahman Sabha Shakur Basti   which was also claiming itself to be managing the affairs of the  cremation ground as also the writ petition filed by various cooperative  societies in whose favour allotment of land had been made by DDA,  the learned counsel would contend that apparently dead bodies were  being cremated at the said place unauthorisedly.  The Lt. Governor  having passed the order after taking into consideration all the  contentions of the appellant, the High Court must be held to have been  correct in passing the impugned order.

26.    The fact that there existed a cremation ground is not in dispute.   Furthermore the fact that the said land was acquired under the  provisions of the DDA Act is not in dispute.  The land in question was  shown to be a residential area in the lay out plan.  Why and how the  award made in the Land Acquisition Proceedings was not and could  not be taken to its logical conclusion has not been disclosed.   According to the Municipal Corporation of Delhi as also DDA, the  land was allotted for setting up of a local shopping centre, a primary  school and a resident group housing society.  There was also a  direction to shift the cremation ground to Beri Wala Bagh, Shakurpur.   Acquisition of the land for the purpose of DDA is not in question.  An  award was made, the effect whereof is that the land vested in the

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Government of National Capital Territory of Delhi.

27.    We have noticed hereinbefore that in the first round of litigation  following the award made in the land acquisition proceedings, not  only various restraint orders but also a closure order of the cremation  ground was passed.  Appellant might not have been impleaded as a  party therein but it is difficult to conceive that it was not aware  thereof.  We have also noticed that another society presumably  claiming itself to be managing the affairs of the said cremation ground  had also filed a writ petition.  The same was dismissed.   

28.    The second round of litigation started with challenging the  order of closure dated 3.06.1998 passed by the High Court but by the  appellant by filing a writ petition.  The said writ petition was  dismissed.  Leaving recourse to its remedies on the judicial side, the  appellant moved the Lt. Governor on administrative side.  The land in  question was directed to be allotted and on the basis thereof only the  appellant had gone back to the High Court.  29.      The learned Single Judge of the High Court who was a party to  the earlier orders passed in writ petition very graciously directed the  Lt. Governor to consider the matter afresh when it was brought to its  notice that the earlier order dated 7.09.2001 stood rescinded by an  order dated 23.04.2002.  

30.     The order directing allotment of land was not a judicial or a  quasi-judicial order.  It was an executive order.  If an executive order  had been passed in ignorance of various judicial orders passed by the  High Court, the same could be reviewed.  In view of the fact that  the  development plans have the force of a statute and the purpose for  which the area was earmarked by the development authority therein  we do not see any reason as to why the mistake committed by the  Lieutenant Governor could not be rectified.

31.    The purported letter proposing allotment of land by the Lt.  Governor did not confer any legal right on the appellant.  Only a  desire was expressed by the said authority that the Municipal  Corporation of Delhi should officially take over the cremation ground  for which DDA was to make a formal allotment to it whereafter only a  Memorandum of Understanding could be entered into by and between  the appellant and the Commissioner, MCD.  Action pursuant to or in  furtherance of the said order was merely undertaken, but no final  order was passed conferring any legal right upon the appellant.   Apart  from furnishing a copy of the said order of the Lt. Governor dated  7.09.2001 and a copy of the letter issued by the Competent Authority  of DDA to the Commissioner, MCD dated 26.11.2001, no document  was executed in its favour.  For possessing a legal title, a deed was  required to be executed by the MCD in favour of the appellant.  Even  such an allotment was carried into effect, the same would have been  illegal being contrary to the development plan.  Without a valid order  for change in user, a site meant for a shopping complex, a school and   user thereof for residential purpose, it could not have been directed to  be used as a cremation ground. (See The Bihar Eastern Gangetic  Fishermen Cooperative Society Ltd. Vs. Sipahi Singh and Others  (1977) 4 SCC 145.    

32.    It is one thing to say that the cremation ground could be  directed to be continued at the old site but it is another thing to say  that the appellant acquired any legal right over the land.  

33.     Harsh Vihar Cooperative House Building Society and Mrs.  Jyotsna Kashyap also filed writ petitions before the Delhi High Court  whereupon directions to close the cremation ground was issued.   It  may be that the matter was taken to the Appellate Court but the LPA  was also withdrawn.  The said order attained finality.

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34.     It is in the aforementioned situation when a writ petition was  filed by the appellant in the Delhi High Court, viz., Civil Writ Petition  No. 5567 of 2007, the order dated 23.10.2002 came to be passed.  It  only provided for a relief of grant of an opportunity of being heard  before the Lt. Governor in favour of the appellant.   

35.     Appellant, as noticed hereinbefore, before the Lt. Governor as  also before us, raised a question in regard to his competence to review  his own order.  The said contention proceeded on the premise that an  order of allotment was required to be reviewed.  Apart from the fact  that the principle governing review of a judicial or statutory order has  no application in the matter of administrative orders, the Lt. Governor,  as noticed hereinbefore, in its order dated 7.09.2001 did not direct  allotment of the land in favour of the appellant.  He merely expressed  his desire and directed the manner in which the same should be done.

36.    The Lt. Governor acts as a statutory authority under the DDA  Act.  We are not sure as to whether he has any role to play in regard to  the affairs of the Municipal Corporation of Delhi.  If not, the said  order was per se illegal.  

37.     It may be that in the writ petitions filed by Harsh Vihar  Cooperative House Building Society and Mrs. Jyotsna Kashyap, the  appellant was not a party but we may notice that even in the writ  petition filed by the appellant questioning the order of the Lt.  Governor dated 22.04.2003 (communicated to the appellant on  27.06.2003) they were not impleaded as respondents, although they  were parties before the said authority.    38.    The learned Subordinate Judge has also passed an order in a  suit filed by one Balvant Rai in 1991.  What was the nature of the  decree passed by the Subordinate Judge has not been disclosed.  The  only contention raised in the list of dates is that the same was a  collusive suit.  With whom, the said Balvant Rai colluded or what was  the nature and purport of the decree had not been disclosed.  Some  orders appear to have been passed also by the Additional District  Judge.  We do not know whether the Additional District Judge has  passed the order in the same proceeding or in some other proceedings.   If the judgments directing user of the land in conformity with the  Zonal Development Plan and further directing that a cremation ground  should not be allowed to operate become final, an order passed in  ignorance thereof would be a nullity.   39.     It appears from the order dated 22.04.2003 that group housing  societies were also heard by the Lt. Governor.  They evidently  claimed their own rights thereupon.  Even then, they were not  impleaded as parties in the writ application.  In their absence, the writ  petition was not maintainable. 40.     As a statutory authority, the Lt. Governor could not ignore the  development plan.  As the earlier order passed by a statutory authority  was a nullity, an order recalling the same shall not be allowed to  operate only because certain formalities (assuming there were some)  in passing the same have not been complied with.  41.    It is now well-known that a writ court in exercise of its  jurisdiction under Article 226 of the Constitution of India need not  quash an order if it gives rise to another illegal order or may quash  both the orders. 42.     In this view of the matter we are of the opinion that no case has  been made out for interference with the impugned judgment.  43.     For the reasons aforementioned, we do not see any infirmity in  the impugned judgment.  The appeal is dismissed with costs payable  to D.D.A.  Counsel’s fee assessed at Rs.25,000/-.