Respectable Last Rites As Important As Any Other Right Available When Alive: Bombay HC

It would be extremely vital to note that the Bombay High Court while ruling on a very significant legal point pertaining to the last rites of a person, the Bombay High Court in a most learned, laudable, landmark, logical and latest judgment titled Shamsher Ahmed Shaikh & Ors vs Municipal Corporation of Greater Mumbai & Ors in Public Interest Litigation No. 35 of 2023 With Public Interest Litigation (L) No. 24597 of 2023 and cited in Neutral Citation No.: 4-PIL.35.2023 that was pronounced as recently as on June 10, 2024 has minced just no words to hold in no uncertain terms that respectable last rites are as important as any other fundamental rights. It must be disclosed here that the Division Bench of Bombay High Court comprising of Hon’ble Mr Chief Justice Devendra Upadhyaya and Hon’ble Mr Justice Amit Borkar was hearing a Public Interest Litigation (PIL) in which it was petitioned seeking additional burial grounds in Mumbai’s Eastern Suburbs. We need to note that the Bombay High Court criticized the Brihanmumbai Municipal Corporation (BMC) for its inability to find a suitable burial ground since November 2023. The Bench very strongly questioned the BMC asking that, “Should the dead go to Mars now?”

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Chief Justice Devendra Upadhyaya and Hon’ble Mr Justice Amit Borkar of Bombay High Court sets the ball in motion by first and foremost putting forth in para 1 that, “This PIL petition concerns itself with the paucity of adequate space to be used for burial ground so that the dead can be give decent and respectful departing note.”

As we see, the Division Bench then discloses in para 2 of this notable judgment that, “The Court, in its order dated 22nd August 2023 noticed the statutory obligation of the Municipal Corporation under section 436 of the Mumbai Municipal Corporation Act, 1888 which casts a duty to provide adequate space for disposal of dead.”

As it turned out, the Division Bench enunciates in para 3 of this robust judgment disclosing that, “In subsequent proceedings of this matter, three places, namely, (i) some space next to Deonar Colony; (ii) some space at Rafi Nagar; and (iii) another plot of land near Hindustan Petroleum Corporation Limited, were identified.”

Lamentably, the Division Bench laments in para 4 of this refreshing judgment stating that, “The Court has consistently been making orders to ensure that the aforesaid three plots at three different sites are made available at the earliest to be used as burial ground, however, the expected co-operation from the authorities, specially the authorities of the Municipal Corporation of Greater Mumbai (hereafter referred to as “the Municipal Corporation”) does not appear to be in sight.”

It certainly cannot be glossed over ever that the Division Bench then points out in para 5 of this extremely commendable judgment that, “As far as the cemetery proposed next to Deonar Colony is concerned, we have been informed that the State Government has issued a notification under section 37 of the Maharashtra Regional and Town Planning Act, 1966 reserving the area as cemetery, however, there appears to be some dispute in relation to the said site, which has led to filing of Writ Petition (L) No.13514 of 2024, wherein a challenge to the notification reserving the land as cemetery has been made. We, thus, feel it appropriate to club the said Writ Petition (L) No. 13514 of 2024 with these PIL petitions and hear them together. Accordingly, Writ Petition (L) No. 13514 of 2024 be clubbed with the instant PIL petitions.”

Do note, the Division Bench notes in para 6 of this noteworthy judgment that, “As far as the cemetery at Rafi Nagar is concerned, the Court, in its order dated 8th November 2023, had noticed the submission that for the reason that there is solid waste heap, using the said plot as cemetery will not be feasible. The Court in the said order also noted that the learned counsel for the Municipal Corporation had informed that some other plot within the vicinity of three kms. has been identified and feasibility study was being undertaken. About seven months’ period has elapsed since the said statement on behalf of the authorities of the Municipal Corporation was recorded, however, today when the matter is taken up, learned counsel for the Municipal Corporation informs that even the said plot, in respect of which information was given to the court on 8th November 2023, has not been found feasible for cemetery. On being asked as to whether any other plot has been identified, learned counsel representing the Municipal Corporation states that he will seek instructions in this regard from the authorities concerned.”

Adding more to it, the Division Bench then notes in para 7 of this rational judgment that, “So far as the plot in the vicinity of Hindustan Petroleum Corporation Limited is concerned, it has been informed that the said plot of land is now owned by some private entity and the Court was accordingly informed. The statement made to that effect by the learned Advocate General stands noted in our order dated 8th November 2023 which reads that since the efforts made for acquiring the said land through private negotiations did not succeed, the process of compulsory acquisition has been initiated and proposal in this regard has been sent by the Municipal Corporation to acquire the said plot. The learned Advocate General also informed that the Municipal Corporation has been required to deposit 30% of the compensation which may be paid in case acquisition takes place.”

Be it noted, the Division Bench notes in para 8 of this progressive judgment that, “Having regard to the aforesaid facts, we, in our order dated 8th November 2023, had recorded our expectation that the Municipal Corporation shall take appropriate steps to deposit 30% of the compensation amount. We had also directed that process of compulsory acquisition shall be completed within the minimum statutory period in terms of the provisions of the enactment, namely, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.”

It is worth noting that the Division Bench hastens to add in para 9 of this pertinent judgment that, “As noticed above, the said expectations were expressed and directions were accordingly given, both to the State Government as also the Municipal Corporation on 8th November 2023 and seven months’ period since then has elapsed, however, nothing in the direction of acquisition has been done as it has been informed by learned AGP that the 30% of the estimated amount of compensation has yet not been deposited by the Municipal Corporation.”

Most significantly, most forthrightly and so also most sagaciously, the Division Bench deems it fit to encapsulate in para 10 what constitutes the cornerstone of this pragmatic judgment mandating that, “Such callousness on the part of the authorities cannot be appreciated. Right of dead to be given a decent and respectful last rites is as important as any other right available when he is alive. Moreover, it is the statutory duty and obligation cast on the Municipal Corporation to provide adequate place for burial of the dead. The authorities of the Municipal Corporation, thus, cannot shirk their shoulders away from such statutory responsibility.”

As a corollary, the Division Bench then deems it apposite to direct in para 11 of this learned judgment stating that, “In the aforesaid view of the matter, we direct that none other than the Commissioner of the Municipal Corporation himself shall look into the matter personally and accordingly issue directions/instructions which may be required for (a) finding out another plot of land to be used as burial ground within the vicinity of three kms. from Rafi Nagar and (b) ensuring that all steps are taken for initiation and completion of the process of acquisition of the land which exists near Hindustan Petroleum Corporation Limited, including making of requisite deposit as required by the State Government.”

Not stopping here, the Division Bench then further directs in para 12 of this creditworthy judgment that, “We also call upon the Municipal Commissioner to file his personal affidavit by the next date of listing indicating therein the steps, which, in the meantime, shall be taken by the authorities of the Municipal Corporation to ensure compliance of this order.”

Finally, we see that the Division Bench then concludes by holding and directing in para 13 of this remarkable judgment that, “Stand over to 21st June 2024 (High on Board).”

In the ultimate analysis, we thus see very clearly that the Bombay High Court in this leading case came down very heavily like a tsunami on the Brihanmumbai Municipal Corporation (BMC) for its utter failure to find a burial plot in the Eastern suburbs and minced just no words to make it absolutely clear that the right to a decent and respectful last rite is as important as any other right. We also must note that it was also made crystal clear by the Bombay High Court in this learned judgment that the Brihanmumbai Municipal Corporation (BMC) has a statutory duty to provide adequate burial grounds and it cannot avoid this responsibility. The right to a deceased individual to get a dignified and respectful final farewell from the earthly world has been very rightly equated by the Bombay High Court to the other fundamental rights. No denying or disputing it!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.