Bombay High Court: In the present case, a petition was filed under Article 226 of the Constitution by the petitioners’ seeking directions against CIDCO from granting any approval, sanction, permission for construction of crematorium on Plot Nos. 176, 176A and 176B of Sector 9, Ulwe, Navi Mumbai. The Division Bench of A.S. Gadkari and Kamal Khata*, JJ., opined that a citizen or group of citizens would not have any fundamental right in seeking any place for cremation or burial. The Court held that the petitioners were correct, especially after considering the presence of schools, open playgrounds and several societies that were being affected by the fire and smoke. The Court thus directed the respondents to use the said land, which was reserved for petrol pumps, as per Sanctioned Development Plans in accordance with law.
Background
The petitioners were co-operative societies that were situated in Sector 9, Ulwe, Panvel, Raigad, Navi Mumbai and they stated that as per the Development Plan of CIDCO, Plot Nos. 176, 176A and 176B of Sector 9, Ulwe were reserved as petrol pumps. However, some highly influential person appointed a contractor and initiated construction of a crematorium instead of a petrol pump. Since these societies were situated around these plots, they were severely affected. Therefore, the petitioners and two other adjoining societies, Delta Tower Co-operative Housing Society and Hari Darshan Co-operative Housing Society Ltd., made representations dated 27-8-2023 and 11-9-2023 to CIDCO to take steps to remove the unauthorized structure from the plot.
Respondent 2, Nodal Executive Engineer issued a letter dated 12-10-2023 to Respondent 3, Chief Controller of Unauthorized Constructions, to take appropriate action against the unauthorized structure on the plot. On 9-11-2023, when Respondent 3 proceeded to take action, the villagers of Kharkopar, in huge numbers, not only foiled their attempt to demolish the unauthorized crematorium but launched a massive protest and objected to the demolition. Thus, the present petition was filed by the petitioners.
Counsel for the petitioners submitted that the use of wood in cremation, generated fire and smoke which results in emanating of foul smell, air pollution, which impacted the mental and physical health of residents as the crematorium was not only in the middle of residential societies and commercial shops but also near a school area and its playground. It was stated that there was already a crematorium which was situated around 15-20 minutes away from these affected societies and the construction which commenced on the said plots was illegal.
Analysis, Law, and Decision
The Court stated that it was the Planning Authorities, in the present case CIDCO, who were tasked with these responsibilities for providing crematoriums. The Court noted that CIDCO provided a fully functional crematorium at Plot No. 1 Sector 14 which was at a distance of about three and half kilometers away from the said plot. Thus, the Court stated that the request by counsel for the village residents to maintain the crematorium at the present place was quite unusual despite being informed that functional crematorium was provided in the vicinity.
The Court opined that CIDCO, being the Planning authority, had exercised its lawful power consciously to change the location of the crematorium and there was no reason to interfere with this decision. The Court did not accept the request by counsel for the village residents to keep this crematorium as the villagers would have to travel a greater distance to use the new crematorium.
The Court opined that a citizen or group of citizens would not have any fundamental right in seeking any place for cremation or burial. It was the duty of the Authorities to meet the needs of the people and in the present case, CIDCO had already provided a fully functional cremation ground.
The Court held that the petitioners were correct, especially after considering the presence of schools, open playgrounds and several societies that were being affected by the fire and smoke. The Court thus allowed the present petition and directed the respondents to use the said land as per Sanctioned Development Plans in accordance with law.
[Lakhani’s Blue Waves Co-operative Housing Society Ltd. v. CIDCO, 2025 SCC OnLine Bom 776, decided on 28-3-2025]
*Judgment authored by: Justice Kamal Khata
Advocates who appeared in this case:
For the Petitioners/Applicants: Ashok T. Gade a/w Riya John for the Petitioners; Nitin Gangal a/w Prapti Karkeja for the Applicants in IA/13795/2024; Sachindra B. Shetye for the Applicants in IA/3040/2025;
For the Respondents: Sameer Patil for Respondents 1 to 3 in WP/813/2024; A.A. Alaspurkar, AGP, for Respondents 4 and 5-State.
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