IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRD DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 14315 of 2009 Between: 1 Mohd. Sirajuddin, s/o. Mohd. Sharfuddin, R/o. 23-6-271, Sultan Shahi, Hyderabad. 2 Mohd. Sayeeduddin, s/o. Mohd. Qadeeruddin, R/o. 23-6-271, Sultan Shahi, Hyderabad. 3 Mohd. Abdul Qadeer, s/o. Mohd. Mashaiq, R/o. 23-6-271, Sultan Shahi, Hyderabad. ..... PETITIONER(S) AND 1 Greater Municipal Corporation of Hyderabad, Rep by Commissioner, Burgula Ramakrishna Bhavan, Tank Bund, Hyderabad. 2 Behest-E-Zahra Trust, Rep by its founder Trustee, Ali Dashtee, S/o. Late Gulam Ali Dashti, R/o. 2-3-153, 2nd Floor, Ramgopalpet, Secunderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ order or direction more particularly a writ of mandamus declaring the action of the 1st respondent in premitting the Behest-E-Zahra Trust, the 2nd respondent to convert house sites into a burial ground in Sultan Shahi, Hyderabad vide proceedings No. 455/KCMOH/GHMC/2008 dated 18-3-2009 as arbitrary, illegal, unjust, contrary to the provisions of Hyderabad Municipal Corporation Act, more particularly under section 566 to 572 and issue consequential directions to the 1st respondent to issue necessary instructions to ensure that no burial ground is permitted in property bearing No. 23- 6-266, 23-6-267, 23-6-268, 23-6-269 and 23-6-270 at Sultan Shahi, Hyderabad as burial ground Counsel for the Petitioners : MR. L.RAVICHANDER Counsel for the Respondents: R.RADHA KRISHNA REDDY(SC FOR GHMC,SNCZONE) The Court made the following : THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.14315 OF 2009 ORDER : This writ petition is filed seeking a declaration that the action of the 1st respondent – Greater Municipal Corporation of Hyderabad (for short, ‘the Corporation’) in permitting the 2nd respondent Trust to convert the properties bearing H.Nos.23-6-266 to 270 at Sulthan Shahi Road, Hari Bowli, Hyderabad as burial ground is arbitrary and illegal. The petitioners who claim to be the residents of the colony wherein the above said properties are situated made a representation dated 2.9.2005 objecting the conversion alleging that the 2nd respondent Trust was encroaching upon the privacy of the residents of the locality and that the conversion of a residential area into a grave-yard was impermissible under law. Alleging that the 1st respondent Corporation had failed to consider the objections raised by them, the petitioners herein filed W.P.No.19993 of 2005 seeking a declaration that the action of the Corporation is arbitrary and illegal. Pending the said writ petition this Court by order dated 12.9.2005 directed the 2nd respondent Trust not to use the land in question as burial ground. However, during the pendency of the said writ petition, the 1st respondent passed an order dated 18.3.2009 according permission to the 2nd respondent Trust to utilize the site in question for burial of the dead bodies. Having regard to the said order passed by the Corporation, W.P.No.19993 of 2005 was dismissed as infructuous by this Court on 7.4.2009 leaving it open to the petitioners to question the order of the Corporation dated 18.03.2009. Thereafter, the present writ petition came to be filed on 16.07.2009 seeking a declaration that the proceedings of the Corporation dated 18.03.2009 as arbitrary, illegal and contrary to Sections 566 to 572 of the Hyderabad Municipal Corporations Act, 1955 (for short, ‘HMC Act, 1955’) and consequently to set aside the same. A counter-affidavit dated 17.07.2009 has been filed on behalf of the 2nd respondent at the stage of the admission itself stating that the order dated 18.3.2009 was withdrawn by the Corporation by its subsequent proceedings dated 28.3.2009 on the ground of pendency of W.P.No.19993 of 2005 and that after the dismissal of W.P.No.19993 of 2005 on 7.4.2009, a fresh order was passed by the Corporation on 17.6.2009 according permission to the 2nd respondent Trust to utilize the properties in question as grave-yard. In the circumstances, the petitioners got the prayer in the present writ petition amended seeking a declaration that the action of the 1st respondent in permitting the 2nd respondent Trust to convert the house- sites into a burial ground vide proceedings dated 17.6.2009 as arbitrary, illegal and contrary to the Sections 566 to 572 of the HMC Act, 1955, and for a consequential direction to the Corporation to ensure that no burial ground is permitted in the property in question. It is primarily contended by the petitioners that the action of the Corporation in granting the impugned permission is in total violation of the provisions of Sections 566, 567 & 568 of the HMC Act, 1955, under which permission for new burial ground can be granted only where the existing places are insufficient or when the Commissioner in exercise of his power under Section 570 of the HMC Act, 1955 orders closure of an existing burial ground. The Chief Medical Officer of Health, Greater Hyderabad Municipal Corporation filed a counter-affidavit filed on behalf of the Corporation stating that he was deputed by the Corporation to inspect the property in question along with the Assistant City Planner, Circle-IV, and to report whether the said site can be used as burial ground. After such inspection, it was found that the site was covered by the Registered Sale Deed dated 18.8.2005 and that the same was situated adjacent to the existing burial ground of 200 years old and it appeared as part of the existing burial ground as there was no compound wall separating both the premises. It was also found that the site where the dead bodies were burying in the existing burial ground was surrounded by the residents and it is not causing any health hazards to the public. Accordingly, a report was submitted and the recommendations therein were approved by the Commissioner of G.H.M.C., according permission to the 2nd respondent Trust to utilize the site in question for burying the dead bodies. It is further stated that the site of 440 sq. yards purchased by the 2nd respondent Trust in respect of which permission was accorded, was extension of existing burial ground and it was not yet included in the Register kept under Section 566 of the HMC Act, 1955. A separate counter-affidavit has been filed on behalf of the 2nd respondent Trust alleging that the petitioners are only some busy bodies in the locality who are bent upon extortion of the 2nd respondent by abuse of process of the Court. It is also alleged that the petitioners have no locus standi in the matter since they are mere encroachers and further the action being questioned is neither illegal nor unlawful activity in their neighbourhood. It is explained that the 2nd respondent Trust was constituted for the purpose of provision of grave-yard for burial of the members of the Irani Shia Isnashri Community so as to respect the feelings and sentiments of the community to be buried near their near and dear ones. For the said purpose, the 2nd respondent has purchased two properties absolutely adjacent to the ancient Dayera Mir Momin Shaib, a very ancient grave-yard situated in Sultan Shahi, Bahadurpura Mandal, Hyderabad City. It is alleged that encroachments crept in all along the main wall of the ancient grave-yard of the Dayera including the areas held by the writ petitioners. It is further contended that the petitioners and their ancestors or predecessors-in-title have lived beside the said grave-yard for the last four centuries and therefore the petitioners cannot now come out with a plea that they would suffer inconvenience and that the present writ petition is only an attempt to extort some pecuniary gain from the 2nd respondent. I have heard the learned counsel for both the parties and perused the original record placed before this Court by the learned Standing Counsel for the Corporation. As could be noticed from the pleadings extracted above, the property in question has been purchased by the 2nd respondent Trust for the purpose of using the same as burial ground. The record placed before this Court by the learned Standing Counsel for the Corporation shows that the 2nd respondent Trust made an application dated 24.10.2008 before the Special Officer and Commissioner, Greater Hyderabad Municipal Corporation stating that the property purchased by them is abutting the existing grave-yard namely Dayera Mir Momin and that the necessary permission may be granted at the earliest to utilize the same as burial ground. It is also stated in the said representation that a burial had already taken place in the site on 8.1.2005. The record further reveals that on the basis of the said application, a note was submitted to the Commissioner and Special Officer, GHMC, stating that the Assistant City Planner, Circle-IV, having examined the layout of the site opined that the property in question was adjacent to the existing grave-yard Dayera Mir Momin, and accordingly recommended to accord permission. It is also stated in the note that the Chief Medical Officer of Health, GHMC, and the Assistant Medical Officer of Health, Circle No.IV, GHMC, had inspected the grave-yard on 28.1.2009 and found that the property in question was adjacent to the old existing grave-yard Dayera Mir Momin, and that permission can be granted as the newly acquired property is adjacent to the existing old grave-yard. Basing on the said remarks of the Assistant City Planner, Circle No.IV, GHMC, and the combined inspection findings of the Chief Medical Officer of Health, GHMC and Assistant Medical Officer of Health, Circle No.IV, the note was approved by the Commissioner and Special Officer on 26.2.2009. Pursuant thereto, the proceedings dated 18.3.2009 were issued according permission to the 2nd respondent to utilize the site for burial of the dead bodies. Though the said proceedings were withdrawn on 28.03.2009, after the dismissal of W.P.No.19993 of 2005 as withdrawn, a fresh note was put up before the Commissioner and Special Officer, GHMC, for grant of permission to the 2nd respondent to use the property in question as burial ground and the same was approved on 11.6.2009. In pursuance thereof, the impugned proceedings dated 17.6.2009 were issued. For proper appreciation of the controversy involved in this writ petition, it is necessary to refer to Sections 566, 567 and 568 of the HMC Act, 1955, which run as under : 566. Places for disposal of dead to be registered:- (1) Every owner or person having the control of any place already used for burying, cremating or otherwise disposing of the dead, shall apply to the Commissioner within a period of six months from the coming into force of this Act to register the same and the Commissioner shall cause the same to be registered. (2) Such application shall accompanied by a plan, bearing the signature of a licensed surveyor in token of its having been prepared by or under the supervision of such surveyor of the place to be registered, showing the locality, boundaries and extent of the same. The application shall also contain information as regards the name of the owner or person or community interested therein, the system of management and such further particulars as the Commissioner may require. (3) The Commissioner may, on receipt, of such application and plan, register the said place in a register which shall be kept for this purpose. (4) The Commissioner shall cause to be deposited in the chief municipal office at the time of registration the plan referred in sub-section (2) (5) If the Commissioner is not satisfied with the plan or statement or particulars, he may refuse or postpone registration, until his objections have been removed. (6) Every place vesting in the Corporation used for burying, cremating or otherwise disposing of the dead shall be registered in the register kept under sub-section (3), and a plan showing the locality, extent and boundaries thereof and bearing the signature of the City Engineer shall be deposited in the chief municipal office. 567. Provision of new places for disposal of dead:- (1) If the existing places for the disposal of the dead shall at any time appear to be insufficient or if any place is closed under the provisions of Section 570, the Commissioner shall, with the sanction of the Corporation, provide other fit and convenient places for the said purpose, either within or without the city and shall cause the same to be registered in the register kept under Section 566 and shall deposit in the municipal office, at the time of registration of each place so provided, a plan thereof showing the locality, extent and boundaries of the same and bearing the signature of the City Engineer. (2) All the provisions of this Act and rules and bye- laws made thereunder shall apply to anyplace provided under sub-section (1) without the city and vesting in the Corporation as if such place were situate within the city. 568. New places for disposal of dead not to be opened without permission of Commissioner:- No place which has never previously been lawfully used as a place for the disposal of the dead registered as such shall be opened by any person for the said purpose without the written permission of the Commissioner who, with the approval of the Corporation may grant or withhold such permission. A reading of the above provisions show that so far as the places already being used for burying, cremating or otherwise disposing of the dead, it is necessary for the owner or person having the control of such place to get the same registered by making an application to the Commissioner within a period of six months from the coming into force of the Act. Section 567 of the Act provides the procedure where the existing places for the disposal of the dead appear to be insufficient or if any place is closed under the provisions of Section 570. In those circumstances, the Commissioner shall, with the sanction of the Corporation, provide other fit and convenient places for disposal of the dead and shall cause the same to be registered in the register kept under Section 566 of the HMC Act, 1955. Section 568 of the HMC Act, 1955, further makes it clear that such power to grant permission for new places vests with the Commissioner with the approval of the Corporation. In S.R. RAMANUJAM v. CHIEF SECRETARY TO GOVERNMENT OF ANDHRA PRADESH[1], a Division Bench of this Court having considered the scope of power conferred under the above said provisions held that provision for new place for disposal of the dead is permissible only when the existing place for the disposal of the dead appear to the Commissioner to be insufficient or if any place for disposal of the dead already registered under Section 566 of HMC Act, 1955, is closed under the provisions of Section 570 of HMC Act, 1955. So far as the power conferred under Section 568 of HMC Act, 1955 is concerned, it is explained by the Division Bench as under: “The Commissioner's power is further restricted by the provision in Section 568, which says no place which has never previously been lawfully used as a place for the disposal of the dead and registered as such shall be opened by any person for the said purpose without the written permission of the Commissioner who, with the approval of the Corporation may grant or withhold such permission. This only means that no new place for disposal of the dead 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 and bearing the signature of the City Engineer. The expression "registered as such" in Sec,568 is referable to the registration as contemplated under Section 567 of the Act. Thus, the Commissioner's power to grant permission for disposal of the dead is limited to the decision in accordance with Section 567 and unless he is satisfied as contemplated under Section 567, he has no power to grant permission for disposal of the dead at any other place.” In the light of the ratio laid down by the Division Bench, it is clear that the sanction to use a new place for disposal of the dead can be accorded by the Commissioner only where the existing places appeared to be insufficient or where an already existing burial ground is closed under the provisions of Section 570 of the HMC Act, 1955. It is also relevant to note that such permission can be granted by the Commissioner only with the approval of the Corporation. It is urged on behalf of the petitioners that the impugned proceedings of the Commissioner granting permission for using the property in question as a burial ground without recording his satisfaction that the existing places for the disposal of the dead are insufficient are arbitrary and illegal. Admittedly, this is not a case where any place formerly used for the disposal of the dead was sought to be reopened under Section 570 of the HMC Act, 1955. The record also shows that it is nobody’s case that the existing place for the disposal of the dead is insufficient. As per the counter-affidavit filed on behalf of the Corporation, the Chief Medical Officer of Health, Greater Hyderabad Municipal Corporation, who was said to have inspected the property in question i.e., the site purchased by the 2nd respondent Trust under Registered Sale Deed, dated 18.8.2005, had only expressed that the site in question is situated adjacent to the existing burial ground of 200 years old and it was not causing any health hazards to the public. However, the learned counsel for the 2nd respondent while placing much reliance upon paragraph-7 of the said counter-affidavit contended that it is clear from the counter-affidavit that the existing burial ground is insufficient for disposal of the dead. Para-7 of the Counter-affidavit of the Corporation may be extracted hereunder: “It is respectfully submitted that the 1st respondent has considered the request of the 2nd respondent for according permission for extension of grave yard / burial ground to avoid health hazards like spread of infection to the people in the vicinity, which may arise due to excess of burying dead bodies within the existing burial ground where there is no reasonable space between one grave yard to another for burying new dead bodies. Therefore, it would not change the present environments causing any inconvenience to the petitioners.” As could be seen, even in the counter-affidavit, it is not specifically pleaded that the existing burial ground is insufficient. That apart, the record placed before this Court by the learned Standing Counsel for the Corporation did not contain the so-called report of the Chief Medical Officer of Health. In the absence of the inspection report of the Chief Medical Officer of Health, GHMC, it cannot be assumed from the vague averments in paragraph-7 of the counter-affidavit that the impugned permission was granted by the Commissioner on being satisfied that the existing burial ground is insufficient. The note file and the other material placed before this Court make it clear that the 1st respondent has never taken into consideration the sufficiency or otherwise of the existing burial ground for disposal of the dead before granting the impugned permission. The record shows that the impugned permission was granted only on the ground that the proposed site is situated just adjacent to the existing grave-yard. Thus, it is clear that none of the requirements under Section 567 of HMC Act, 1955 have been satisfied. Moreover, the approval of the Corporation as required under Section 568 of the HMC Act, 1955 has not been obtained before granting the impugned permission by the Commissioner. In the considered opinion of this Court, the approval of the Corporation is a condition precedent for granting the permission by the Commissioner under Section 568 of the HMC Act, 1955. Hence, on that ground also, the impugned order is illegal and liable to be set aside. However, the learned counsel for the 2nd respondent contended that the judgment in S.R. RAMANUJAM’S case (1 supra) in which the legality of the permission granted as a one time measure to convert public places for the cremation of high dignitaries was considered has no application to the facts and circumstances of the present case. It is true that the facts are different, however, the Division Bench in S.R. RAMANUJAM’S case (1 supra) having considered the scope and object of the relevant provisions held that the permission under Section 568 of HMC Act, 1955 can be accorded only where the requirements under Section 567 of HMC Act, 1955, are satisfied. The said ratio is binding and squarely applies to decide the legality of the proceedings impugned in this writ petition. As expressed above, since the impugned permission was granted by the Commissioner without recording his satisfaction as to the requirements under Section 567 of the HMC Act, 1955 and moreover since there was no approval by the Corporation, the impugned proceedings cannot be sustained and hereby set aside. Accordingly, the Writ Petition is allowed. No costs. However, this shall not preclude the 1st respondent to pass appropriate orders afresh in accordance with law. ______________ G. ROHINI, J. Dt. 03.08.2009 Note:- CC by tomorrow. (B/O) gbs [1] 1997 (2) ALT 512