In the high court of Delhi at New Delhi

(extraordinary original writ jurisdiction)

Civil writ petition no. ______ of 2007

In the matter of: -

Shantanu Sharma,

Son of Shri Suresh Sharma,

Resident of E-544, Greater Kailash � II,

New Delhi � 110 048 � petitioner.

Versus

Union of India,

Through

The Secretary,

Ministry of Urban Development,

Government of India,

New Delhi.

Also,

Through

The Secretary

Ministry of Health & Family Welfare

Nirman Bhawan

Maulana Azad Road

New Delhi � 110 011.

Government of National Capital Territory of Delhi

Through

Chief Secretary

I P Estate

New Delhi � 110 002.

The Delhi Development Authority

Through

Vice Chairman

Vikas Minar

Indraprastha Estate

New Delhi.

Municipal Corporation of Delhi

Through

Commissioner

Town Hall

Chandni Chowk

Delhi.

New Delhi Municipal Council

Through

Chairperson

Palika Sadan

Parliament Street

New Delhi.

Central Pollution Control Board

Through Secretary

Ministry of Environment & Forests

Government of India

Parivesh Bahawan

East Arjun Nagar

Delhi � 110 032.

Delhi Pollution Control Committee

Through Secretary

Ministry of Environment

Government of NCT of Delhi

4^th floor, ISBT building

Kashmere Gate

Delhi � 110 006.

��. Respondents

Writ petition under article 226 of the Constitution of India in public interest seeking writs in the nature of mandamus, etc., against the respondents directing them to provide and manage decent, dignified and honourable places / ghats for burning / burial / cremation of hindu deceased infants / children below the customary age of three years.

To,

The hon'ble chief justice

And his companion justices

Of the high court of Delhi.

The humble petition of the

Petitioner above named.

MOST RESPECTFULLY SHOWETH: -

That this Writ Petition is being filed in public interest to invite the attention of this Hon'ble Court to ghastly and appalling conditions prevalent in the National Capital Territory of Delhi concerning the last rites of Hindu infants and children below the age of three years and to pray before this Hon'ble Court to issue appropriate writ / directions / orders to the concerned authorities particularly the Respondents mentioned hereinabove to stem the rot. 

That the Petitioner very painfully recalls the dreadful experience his family had to endure and the trauma undergone by the family at the sudden and untimely demise of his young nephew namely Raghav, son of his cousin (Maasi's daughter) Mrs. Pallavi Chaubey, of about 1 � years on April 6, 2007.  "Antyesti" or Hindu funeral rites is an important sacrament of Hindu society.  Extensive texts of such rites are available particularly in the Garuda Purana.  There is wide inconsistency in theory and practice and the procedure differs from place to place depending on the caste, social standing and the status of the deceased person.  The cremation ground is generally called "Shmashana" and traditionally it is located near a holy river, if not on the river banks itself.  There, a pyre is prepared on which the corpse is laid and the pyre is set alight with a torch of flame amongst the recitation of religious hymes and the body is ultimately consumed by fire, followed by many other Hindu rites and ceremonies.  Hindus believe that cremation (burning of the body) compared to burial or outside disintegration is most spiritually beneficial to the departed soul.  If the body is not cremated the soul remains nearby for days or months haunting the bereaved family. 

That the Petitioner being a staunch Hindu from upper caste with status in life and good family background along with his abovementioned cousin and family prepared the body of master Raghav for being taken to a crematorium for dignified and honorable cremation.  The management of various crematoria, however, firmly refused to permit the Petitioner and his family to perform the last rites for the child saying that Hindu religion apparently does not allow cremation by burning of children who are younger than three years of age and in turn the Petitioner and his family were guided to proceed to the only final resting place for children in Delhi namely "BACHA GHAT", located under the iron bridge leading to Shahadra. 

That already reeling under a great shock, the Petitioner and his family had no other option but to hesitatingly take the body of the child to the said Ghat at Shahadra where they found a man running towards the car of the Petitioner inquiring if he had a dead child with him.  This man was ecstatic to see the Petitioner and his family carrying a dead body of a child.  He was seen fully drunk chewing beetle and was barely able to walk straight.  The Petitioner and other relations accompanying the dead body were further awfully pained to find that the said man was the only person available managing the said so-called Ghat.  He was quick to tell the Petitioner that the child could be either buried here in the said ghastly and repulsive place or the body could be immersed in the water, which looked like a polluted pool of untreated sewage. 

That the aforesaid Bacha Ghat is a filthy cesspool with scavenging dogs and despicable conditions.  It is the dirtiest possible barren piece of land littered all over with human and animal excreta.  It is a place where stray dogs and animals roamed freely busy digging up graves and eating the remains of the buried infants / children.  The Petitioner and his other relations were further traumatized to see a naked beggar running around aimlessly shouting obscenities.  The aforesaid so-called Ghat looked like a filthy garbage dump emitting foul smell.  Finding themselves to be completely helpless, the Petitioner, his cousin and their family had no other option but to surrender there.  It was a nightmare for the Petitioner and his family and the surrounding environment mentioned above around the so-called Ghat keeps haunting them causing further pain to the already grieved family.  Photographs depicting the appalling surroundings of Bacha Ghat located under the iron bridge leading to Shahadra are appended herewith as                  "ANNEXURE � P1 (COLLY)."

That the National Capital Territory of Delhi has a population of over One Crore Fifty Lakh living in different areas with a sizable number of infants and children living in those families.  On an average 25 � 30 infants or children below the age of three years belonging to different segments of society die everyday and are brought to the said Ghat for their last rites as per information given by the person managing the said Ghat.  The Petitioner was unable to locate any dignified and descent place for the cremation of infants / children below the said age of three years nor was he able to find any crematorium where the last rites of his nephew could be allowed.  It appears that the existing crematoria are arbitrarily denying cremation of infants / children below the age of three years.  Moreover, the Respondents are not providing any decent and honorable place anywhere much less by the side of a Holy River for the performance of last rites for such children. 

That it is pertinent to mention here, Sir, that the obligation of Health Department of Respondent No. 4 Municipal Corporation of Delhi (hereinafter referred to as the "MCD") and Respondent No. 5 New Delhi Municipal Council (hereinafter referred to as the "NDMC") is to provide Health care facility for the population residing in its territory in holistic manner i.e. Preventive, Curative, Rehabilitative and Training Research.  Besides providing services for registration of births, deaths and preventive and curative services the Health Department of Respondent No. 4 and 5 also maintain Public Utility services like Slaughter house, Cremation grounds, Hearse van services.  There are 268 cremation grounds within the jurisdiction of Respondent No. 4 MCD.  Out of these 58 are run by the Respondent No. 4 and fuel wood at "no profit, no loss" basis is provided at the seven cremation ground.  In addition to these there are four electronic crematoriums and 19 funeral vans made available by the Respondent No. 4 for general public.  True copy of the home page and a few other pages of the official website of Respondent No. 4 MCD is appended herewith as "ANNEXURE � P2."

That sections 389, 390 and 391 of the Delhi Municipal Corporation Act, 1957 and corresponding sections 300, 301 and 302 of the New Delhi Municipal Council Act, 1994 enumerate (a) power to call for information regarding burning and burial grounds, (b) permission for use of new burning and burial grounds and (c) power to require closing of burning and burial grounds respectively.  The same are reproduced herein below: -

Section 389  (Section 300 NDMC Act)

"Power to call for information regarding burning and burial grounds � The Commissioner (Chairperson) may, by notice in writing, require the owner or person in charge of any burning or burial ground to supply such information as may be specified in the notice concerning the condition, management, or position of such ground."

Section 390 (Section 301 NDMC Act) "Permission for use of new burning or burial ground � (1) No place which has not been used as a burning or burial ground before the commencement of this Act shall be so used without the permission in writing of the Commissioner (Chairperson).

(2) Such permission may be granted subject to any conditions which the Commissioner (Chairperson) may think fit to impose for the purpose of preventing any annoyance to, or danger to the health of, any person residing in the neighbourhood."

Section 391 (Section 302 NDMC Act)

"Power to require closing of burning or burial grounds - (1) Where the Commissioner (Chairperson), after making or causing to be made local enquiry is of the opinion that any burning or burial ground has become offensive to, or dangerous to the health of, persons residing in the neighbourhood, he may, with the previous sanction of the Standing Committee (Council), by notice in writing, require the owner or person in charge of such ground to close the same from such date as may be specified in the notice.

(2) No corpse shall be burnt or buried at the burning or burial ground in respect of which a notice has been issued under this section."

That a bare perusal of the Twelfth Schedule of the MCD Act and Tenth Schedule of the NDMC Act, which deal with PENATIES, reveal that whoever contravenes any provision of the aforementioned sections or fails to comply with any order or direction lawfully given to him or any requisition lawfully made upon him under the aforesaid sections shall be punished with fine which may extend to Rs. 50.  In the modern context, this penalty of a meager sum of Rs. 50 seems to be archaic and fails to serve as a deterrent for the offending owners / person in charge of the burning and / or burial grounds.

That in view of the above noted provisions of the Act, it is absolutely clear that the Respondent No. 4 MCD and Respondent No. 5 NDMC have been empowered with ample powers to call for information concerning the condition, management or position of any burning or burial ground by issuing notice in writing to its owner or person in charge.  Apart from this, the Respondent No. 4 and 5 also have the powers to close any burning or burial ground in case the Commissioner / Chairperson after making a local enquiry is of the opinion that the burning or burial ground has become offensive to, or dangerous to the health of, person residing in the neighbourhood.  However, it is most unfortunate and deplorable that in blatant violation of the rules and regulations set out hereinabove, the Respondent No. 4 and 5 have completely failed to perform their aforesaid statutory duties and obligatory functions as a result of which on Ghats such as Bacha Ghat scavenging dogs are hovering digging up graves and eating the remains of the buried infants / children.  Due to the apathy of the Respondents the said Ghat was, is and continues to be allowed to function as a final resting place for infants despite the fact that it is nothing less than a filthy cesspool emanating repulsive odour with human and animal excreta littered all over tantamounting to showing avoidable indignities to the memory of the deceased child and his mourning family. 

That it is shocking to see that in addition to the untreated sewage and industrial effluents, the holy river faces pollution of a different kind � human corpses and animal carcasses.  Although no religious text speaks of consigning unburnt or partly burnt bodies to the river, the practice is rampant.  Ritually it's the ashes that are immersed in sacred rivers.  Human bodies and animal carcasses can be seen floating in various stages of decay in various ghats such as Nigam Bodh Ghat, Bacha Ghat and ghats in Varanasi, Allahabad, Kanpur and Patna at any given time.  According to superstition, bodies of those who die from certain diseases (leprosy, snake bit, poisoning, etc.,) and those of newborn babies, infants and children below the age of three years and unmarried persons are consigned to the river.  However, it has been learnt from reliable sources that poor people also dump bodies into the holy rivers to save on costly wood cremation.  The said Bacha Ghat on the banks of holy river Yamuna is being currently found as a sewer, garbage depot and morgue littered with human and animal excreta emitting foul smell round the clock.

That the Petitioner is a law abiding, public spirited citizen and also an aggrieved party who is distressed and alarmed at the manner in which the Respondents have neglected their statutory duties of providing, managing and controlling the burning and burial grounds in the National Capital Territory of Delhi.  It appears that time has come to wake the authorities concerned from deep slumber and remind them of their statutory obligations in this behalf.  It is in these circumstances, that the Petitioner has decided to approach this Hon'ble Court to voice the sentiments of millions of ordinary citizens who are distressed at the current state of in action by the Respondents and others concerned.  The Petitioner has no personal interest or axe of his to grind and without meaning of any offence to anyone would like this Hon'ble Court to consider the various issues raised herein, so as to vindicate the wrong being suffered by various families including the family of the Petitioner.

That under the circumstances, the Petitioner is left with no other alternative, efficacious and speedy remedy other than approaching this Hon'ble Court under its extraordinary jurisdiction by way of the present petition, to direct the Respondents to perform their statutory duties and obligatory functions with regard to providing decent, safe, hygienic and convenient crematoria in various parts of the of the National Capital Territory of Delhi where infants / children under the age of three years can be laid to rest with dignity, honour  and respect. 

That the Petitioner craves for liberty to add or delete appropriate authorities in this writ petition to further the public cause undertaken by him and to meet the ends of justice.

That the Petitioner has not filed any other similar petition either in this Hon'ble Court or Hon'ble The Supreme Court of India.

PRAYER

It is therefore most respectfully prayed that this Hon'ble Court be pleased to: -

issue suitable writs in the nature of mandamus and any other writs directing the Respondents to perform their statutory duties and obligatory functions under The Delhi Municipal Act, 1957 and The New Delhi Municipal Council Act, 1994 by providing, constructing, managing and maintaining decent, safe, hygienic and convenient crematoria all over the National Capital Territory of Delhi, at least one in each zone, on an urgent basis for burning and burial of infants / children below the age of three years thereby providing them dignity, honour and respect. 

In the meanwhile the Central Government, State Government and other Respondents concerned be directed to allot and provide requisite land(s) on a top priority basis and in a time bound schedule and manage at least two such crematoria in some appropriate places catering to the needy population of the Metropolis;

issue suitable writs in the nature of mandamus and any other writs directing the Respondents to allow the parents / families of deceased infants / children below the age of three years of age to cremate their bodies by burning them in holy pyre and not to insist on their burial, either in ground or under water;

issue suitable writs in the nature of mandamus and any other writs directing the Respondents to ensure that the river banks such as Bacha Ghat are cleaned immediately and no person is allowed to pollute the riverside by dumping bodies, cattle wallowing, washing of clothes, using of soaps and detergents, discarding workship material, defecating, etc.;

direct an inquiry to be held by a Committee constituted by this Hon'ble Court comprising of various eminent personalities of the society concerned with the issue;

issue suitable writs in the nature of mandamus and any other writs directing the Respondents to set up a River Force to guard and prevent desecration and pollution of such ghats including Bacha Ghat and all other districts through which the said river flows so as to provide healthy environment around such ghats / burning and burial places;

issue suitable writs in the nature of mandamus and any other writs directing the Respondents to suitably amend the law especially The Delhi Municipal Act, 1957 and The New Delhi Municipal Council Act, 1994 so as to make provision for deterrent punishment of imprisonment and punitive fines for violators of the above salutary provisions concerning management, control, etc., of burning and burial places by raising the fine of Rs. 50 to Rs. 50,000/- or any other amount as this Hon'ble Court may deem fit in the interest of justice;

any other writ, order or direction which may be deemed fit and proper under the facts and circumstances of the case and in the interest of justice be also passed in favour of the Petitioner and against the Respondents.

(Shantanu sharma)

Petitioner

                                                            through: -

(rahul mehra)

Advocate

Counsel for the petitioner

216, Lawyers' Chambers

New Delhi                                                               Delhi High Court

April 15, 2007                                                      New Delhi � 110 001.

In the high court of Delhi at New Delhi

(extraordinary original writ jurisdiction)

Civil writ petition no. ______ of 2007

In the matter of: -

                        Shantanu Sharma                             � petitioner

                                                            versus

                        Union of India & others            � respondents                                   

Affidavit:

I, Shantanu Sharma son of Shri Suresh Sharma aged 33 years resident of E � 544, Greater Kailash � II, New Delhi � 110 048, do hereby solemnly affirm and declare as under: -

That I am the Petitioner in the above noted case and am conversant with the facts of the case and as such am competent to swear this Affidavit.

That I have gone through the contents of the accompanying writ petition and say that the same are true and correct and has been drafted under my instructions. The legal submissions made in the petition are true on the basis of legal advice received and are believed to be correct.

That the Annexures appended with the writ petition are true and correct copies of their respective originals.

DEPONENT

VERIFICATION:

VERIFIED at NEW DELHI on this __ day of April 2007 that the contents of my above Affidavit are true and correct to my knowledge, no part of it is false and nothing material has been concealed therefrom.

DEPONENT