No Fundamental Right To Be Cremated Or Buried At A Specific Site, Authorities Will Decide Where To Cremate Or Bury A Citizen: Bombay High Court

In a significant ruling, the Bombay High Court recently held that the citizens do not have a fundamental right to be cremated or buried at a specific place. 

A division bench of Justices Ajay Gadkari and Kamal Khata while pronouncing the ruling on March 26, ordered the City and Industrial Development Corporation (CIDCO) to remove a crematorium constructed nearby residential societies, shops, a school and a playground on a few plots in sector 9 of Navi Mumbai's Ulwe area.

The bench noted that the CIDCO has already provided a fully functional crematorium at sector 14, which was some 3.5 km away from the site in question and therefore, held that the citizens cannot choose where they must be cremated or buried. 

"It is the Planning Authorities (in this case the CIDCO) who are tasked with these responsibilities for providing crematoriums. A citizen or group of citizens would not have any fundamental right in seeking a particular place for cremation or burial," the bench held. 

The bench was seized with the petitions filed by two housing societies - Lakhani's Blue Waves Co-operative Housing Society and Ami's Planet Mercury Co-operative Housing Society - both challenging the construction of the crematorium in their vicinity. The petitioners told the judges that the plots in question were reserved by the CIDCO for constructing petrol pump, however, due to some 'influential persons' a contractor was appointed and the construction work of the crematorium was started. 

The petitioners highlighted the fact that the crematorium was not only in the middle of residential societies and commercial shops but also in close proximity to a school area and its playground which created mental impact on the kids. According to the petitioners, the use of wood, in cremation generating fire and smoke often resulted in emanating of foul smell, air pollution, which again affected the mental and physical health of residents.

The societies, therefore, argued that the villagers, who claim to be using the said crematorium, could use the alternate crematorium in sector 14 which was only 15 to 20 minutes of distance. 

Per contra, the villagers argued that the crematorium on the said plots have been for more than 250 years and thus, is not illegal. They pointed out how the CIDCO itself provided funds and issued work orders for construction and renovation of the said crematorium and now suddenly shifting the same to another area, would cause hardship to the locals. The villagers further argued that just because now the adjoining areas have been used by such housing societies, that cannot be a good ground to shift the crematorium. 

However, the bench seemed, unimpressed with the submissions, especially in view of the fact that the CIDCO has already provided a fully functional alternate crematorium.

"We are unable to agree with the request to keep this crematorium as the villagers will have to travel a greater distance to use the new crematorium. This cannot justify the continuation of the current crematorium. Citizens do not have the right to cremate or bury at a specific location. It is the duty of the Authorities to meet the needs of the people. In this instance, CIDCO has already provided a fully functional cremation ground," the judges noted.  

The bench further held that the petitioners are correct "especially considering the presence of schools, open playgrounds and several societies that are being affected by the fire and smoke."

The bench, therefore, ordered the CIDCO to remove the crematorium from the site in question. 

Appearance:

Advocates Ashok Gade, Riya John, Nitin Gangal and Prapti Karkeja appeared for the Petitioners.

Advocate Sachindra Shetye represented Villagers. 

Advocate Sameer Patil represented CIDCO.

Assistant Government Pleader AA Alaspurkar represented the State.

Case Title: Lakhani's Blue Waves Co-operative Housing Society Ltd vs The Chairman, CIDCO (Writ Petition 813 of 2024)

Citation: 2025 LiveLaw (Bom) 125

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