Death Is The Greatest Equalizer, State Bound To Provide Reasonable Facilities For Burial & Cremation, There Must Be No Discrimination: Bombay HC

This order was passed in a PIL highlighting that the land was acquired for the purpose of constructing the kabristan 11 years ago but there has been no progress in the construction and development of the kabristan since then.

A division bench of Justice Mahesh Sonak and Justice Bharat Deshpande of the Goa bench observed that the authorities have a duty to provide cemeteries, burial grounds, electrical crematorium etc. to the public.

"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", the court held.

The PIL was filed by one Muzaffar Manzoor Kadri regarding shortage of crematoria, cemeteries and burial grounds in Goa. The Muslim community of Margao were allotted a burial ground several years ago. This area has been in use for at least 50 years and is now insufficient. Therefore, the Goa State Legislative Assembly in 1999 passed a resolution for allocation of sufficient land to solve the burial problems faced by the community

The MMC had acquired about 31100 sq. mtrs. of land at Sonsodo, Margao, Goa in 2012 for developing a kabristan. However, no kabristan has been provided till now. The court noted that the project had substantially advanced on paper but whenever actual execution has to start various obstacles come up from some quarter or the other.

The court said that there are statutory restrictions on burying or cremating the deceased at places other than those designated for this purpose by the authorities. Therefore, the state and the local authorities have the duty to provide reasonable facilities for the burial and cremation.

The court remarked the death is the greatest equaliser and it levels all distinctions. "There is a failure of Legal and Constitutional duty in not providing a Kabrasthan after the completion of the acquisition process at Sonsodo almost 11 years ago", added the court.

The court relied on Apex Court judgment in PT Parmanand Katara v. Union of India and observed that the obligation to provide reasonable facilities also stems from Article 21 of the Constitution which mandates that fair and dignified treatment extend to living as well as dead persons.

The court referred to an Advisory by National Human Rights Commission which directs the local governments and administration to ensure that the crematoriums, burial grounds, electric crematoriums are in effective working condition.

The MMC on 5 November 2021, had decided to cancel the work order for construction in favour of a private construction agency and decided that the GSUDA would take up the works of burial grounds at the site.

According to submissions of the MMC before the court on various dates, as of August 3, 2022, there were no legal impediments for proceeding with the construction of kabristan at the site.

However, on 8 September 2022, the MMC informed the court that it would not comply with the decision to handover the works to GSUDA and will locate a new site. This was due to a communication by the South Goa Planning and Development Authority (SGPDA).

The Member Secretary of the SGPDA explained in his affidavit that the MMC misinterpreted the SGPDA's stand and the land, except a small portion, can be used for a burial ground.

The court said that the construction of the kabristan cannot be delayed any further due to some red tape or other extraneous considerations.

The court directed the PWD and the GSUDA to complete a full-fledged kabristan at the acquired land in Sonsodo within 6 months. The court directed the MMC to co-operate with the PWD and the GSUDA. However, if MMC refuses to co-operate, that should not deter the PWD and the GSUDA from completing the construction, the court stated.

The court directed the GSUDA and the PWD to file a compliance affidavit by 29 November 2022 indicating the progress at the site.

The court also directed the Member Secretary of SGPDA to state the names of persons responsible if the work does not commence or progress at the site by 28 November 2022.

The court stated that the Managing Director of GSUDA, the Chief officer of MMC and the concerned Superintending Engineer of PWD would be held personally responsible if the development of the kabristan is not completed within 6 months.

Case no. – PIL Writ Petition No. 60/2019

Case title – Muzaffar Manzoor Kadri v. State Govt. of Goa and Ors.

Citation- 2022 LiveLaw (Bom) 420