The High Court of Bombay at Goa has directed the Public Works Department (PWD) and the Goa State Urban Development Agency (GSUDA) to undertake and complete the works of providing a full-fledged Kabrastan (graveyard) at the acquired lands in Sonsodo within six months.

The Division Bench of Justice M.S. Sonak and Justice Bharat P. Deshpande passed the order on a PIL concerning the establishment, upkeep and maintenance of crematoria, cemeteries and kabrastans in the state. 

The pleadings revealed a shortage extending to about 43 crematoria, 50 cemeteries and about 172 kabrastans in the State of Goa. Therefore, the Petitioner seeks mandamus to the State and local authorities to make good this shortfall and further upkeep and maintain the existing facilities.

The order, however, concerned and disposed of the issue of establishing a kabrastan at Sonsodo within the municipal limits of the Margao Municipal Council (MMC).

This issue has been pending at least since October 2009, when the National Commission for Minorities, by its communication dated October 20, 2009, drew the attention of the state administration towards the acute lack of place for burials of those professing Muslim and allied faiths.

Acquisition of land measuring around 30,100 sq mt at Sonsodo for establishing a Kabrastan was completed in 2011.

The PIL noted that for the past 11 years, despite the state administration and the MMC not once doubting or questioning the dire necessity of a Kabrastan, no such burial land has been provided, either due to inactivity and bureaucratic obscurantism, or for something more than what meets the eye.  

Neither the State administration nor the MMC has ever disputed the legal and constitutional position that they must provide for an adequate and decent burial place (kabrastan). The legal and constitutional provisions indeed obligate the State administration and the local authorities to provide reasonable facilities to all communities in this regard, it added.  

Section 248 of the Municipalities Act prohibits certain acts in connection with the disposal of the dead. This provision states that except with the permission of the Chief Officer, no person shall burn, bury or otherwise dispose of any corpse except for the place provided for the purpose. Several other acts are also prohibited under this Section. Any person contravening the   provisions of Section 248(1), shall, on conviction, be punished with fine which may extend to Rs 5,000.

“Thus, for obvious reasons, there are restrictions on burying or cremating the departed at places other than those designated by the local authorities in consultation with the State.

“Correspondingly, there is a duty cast upon the local authorities and the State to provide reasonable facilities for the burial and cremation of the departed. These are primary duties. These are essential duties.

“These duties cannot be delayed or denied. At least in discharging these duties, there ought to be no red tape or sustained inaction. In particular, there ought to be not even a hint of discrimination.

“Death, they say, is the greatest equalizer, for it levels all distinctions. Therefore, without apportioning blame upon any particular entity or agency, we would fail if we were not to say that there is a failure of Legal and Constitutional duty in not providing a Kabrastan after the completion of the acquisition process at Sonsodo almost 11 years ago,” the Court observed.

The Constitution (74th Amendment) Act, 1992, which came to force on June 1, 1993, introduced Article 243-W and the XIIth Schedule in the Constitution.

Article 243-W inter alia provides that subject to the provisions of this Constitution, the Legislature of a State may, by law, endow the Municipalities   with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to the preparation of plans for economic development and social justice and the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule.

Entry 14 of the XIIth Schedule refers to: burials and burial grounds; cremations, cremation grounds and electric crematoriums.

Consistent with the above constitutional amendment, the State Legislature introduced Section 322-A in the Goa Municipalities Act, 1968, which provides that the Council shall prepare plans for economic development and social justice and perform the functions and implement the schemes as may be introduced by it including those in relation to the matters listed in the Xth Schedule.

Entry 7 of the Xth Schedule provides: burials and burial grounds; cremations, cremation grounds and electric crematoriums.  

Thus, both under the Constitutional and Statutory scheme, there is no dispute about the State Administration and local   authorities being enjoined to provide reasonable facilities towards burials and burial grounds, cremations, cremation grounds and electric crematoria.

Such an obligation also stems from the provisions of Article 21 of the Constitution, which mandate that fair and dignified treatment extends not only to the living but also the dead , the Court held.

The National Human Rights Commission, in its Advisory dated 14.05.2021 for upholding the dignity and protecting the   rights of the dead, also referred to the legal position articulated by the above decisions and held that it is a well-accepted legal position that the right to life, fair treatment and dignity derived from Article 21 of the Constitution of India, extends not only to the living persons but also to their dead bodies.

The petitioner and the Jamat have supported the provision of Kabrastan at the Sonsodo site and urged the Authorities to complete the construction at the earliest. However, the Jamat  must also cooperate in this venture, keeping aside their internal politics or without aligning themselves with any factions.

In fact, all the authorities and stakeholders must cooperate in this venture, which all acknowledge is a dire necessity, directed the Court.

It was clarified by the Court that the Managing Director of GSUDA and the concerned Superintending Engineer, P.W.D. having jurisdiction over the Sonsodo area where the acquired land is located, shall be held personally responsible if the works are not completed within the timeline now indicated.

Therefore, they are given the liberty by the Court to apply in case of difficulties, the court observed and fixed November 29 as the next date of hearing.

The Supreme Court has granted interim protection from arrest to a septuagenarian accused in an FIR registered for offences punishable for “illegal colonization” under the Madhya Pradesh Municipalities Act, 1961.

While appreciating the counsel for the petitioner, the two-judge bench of Justices Sanjay Kishan Kaul and MM Sundresh has said prima facie, he rightly pointed out that the impugned order passed by High Court of Madhya Pradesh, rejecting the anticipatory bail application of the petitioner is in the teeth of the mandate of this Court in Satender Kumar Antil v. Central Bureau of Investigation & Anr. (2021) 10 SCC 773 and Siddharth v. State of Uttar Pradesh & Anr. (2022) 1 SCC 676.

The Court has issued notice and noted in the meantime, he shall not be arrested but ensure his presence before the court in accordance with law and cooperate with any further investigation, if so called upon to do so by the Investigating Officer. The matter is tagged with SLP Crl 1912/2022.

The petitioner, who is one of the owners of land situated in the territorial limits of Municipality Nagda, sold small pieces of land by dividing them into plots unauthorizedly to other persons. It was further alleged that the petitioner have not obtained requisite permission for development of colony thereby violating the rules laid down for all such work. Accordingly, the complainant has lodged report against the petitioner. Thereafter, the petitioner filed for anticipatory bail in the High Court in connection with Crime No.07/2021, registered at Police Station Nagda, District Ujjain, Madhya Pradesh, for offences punishable under Section 339-C of the Municipalities Act. The Section reads: 339-C. Punishment for illegal colonization.—

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(1) A colonizer, who, in contravention of the provisions of Section 172 of Madhya Pradesh Land Revenue Code, 1959 ( No. 20 of 1959) and the rules made thereunder, diverts the land or part thereof, commits an offence of illegal diversion of land.

(2) A colonizer who diverts his lands into plots or the land of any other person with the object of establishing a colony in branch of the requirements contemplated in this Act or the rules made in this behalf, commits an offence of illegal colonization.

(3) Whoever commits or abets the commission of an offence of illegal diversion or illegal colonization shall be punished with imprisonment of not less than three years and not more than seven years or with minimum fine of ten thousand rupees or with both. Such offence shall be a cognizable offence.

(4) Whoever constructs a building in an area of illegal diversion or illegal colonization commits an offence of illegal construction.

(5) Whoever commits an offence of illegal construction shall be punished with imprisonment of not less than three years and not more than seven years or with minimum fine of ten thousand rupees or with both. Such offence shall be a cognizable offence.

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It was contended before the High Court by learned counsel for the petitioner that they have not developed any colony for which statutory permissions were required. They even appeared before the Investigating Officer after receiving notice and fully cooperated with the investigation. Allegations are based on documentary evidence which is already in possession of the police. They are not required for custodial interrogation. They are old persons aged about 72 and 77 years respectively & have been falsely been implicated in the matter. Even otherwise, chargesheet has been filed before the Court of JMFC, Nagda Distt. Ujjain against them from where arrest warrant has been issued against the petitioner. Trial will take time to conclude.

The State opposed the said application before High Court contending that petitioner remained absent before the Court of JMFC, Nagda on the date when chargesheet was filed against him & other accused.

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The High Court rejected the bail application, however, looking at the old age of the petitioner and also the fact that offences alleged against them are not punishable for more than seven years of imprisonment and keeping in view the law laid down by Hon’ble Apex Court in the case of Arnesh Kumar’s case [(2014) 8 SCC 273], it was directed that if petitioner surrendered before the concerned court and they want to file for regular bail, then, their application shall be considered as expeditiously as possible, preferably on the same day in light of Arnesh Kumar’s case.

Case Name- Nemichand Vs The State of Madhya Pradesh

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