Andhra HC (Pre-Telangana)
S.R. Ramanujam And Anr. vs The Chief Secretary To Government And ... on 28 January, 1997
Equivalent citations: 1997(2)ALT512
JUDGMENT P.S. Mishra, C.J.
1. Two petitions addressed to the Chief Justice of the Court were clubbed and treated as a petition under Article 226 of the Constitution of India being Writ Petition No. 25835 of 1996. The first petition in Writ Petition No. 25835 of 1996 is by the residents of the locality of Indira Park in the lower Tank Bund area in Hyderabad and the second is by the Advocates of City Civil Court. In both the petitions, objections are raised against the proposed cremation of the body of Dr.M. Channa Reddy, former Chief Minister of the State and the Governor of Tamil Nadu, who expired on 2-12-1996. On 3-12-1996, when the matter was taken up by a Bench of this Court and it was noticed that cremation was fixed for 4-12-1996, the Court issued notice to the learned Advocate-General, who filed a memo answering the various queries made by the Court. Ordering, however, the petition after the memo filed by the learned Advocate-General, the Court postponed final disposal awaiting response to its directions which were/are as follows:
"We direct the respondents 1 and 3 immediately consider the objections raised in the two petitions in the background of the fact and law discussed in this order and take decision as to whether any suitable alternate site can be selected or whether the site already selected for cremation would be used. We are not passing any orders of injunction as we are leaving it to the consideration of the respondents 1 and 3. But, we make it clear that it is the responsibility of these respondents to take the decision but that when the matter is finally decided the legality or otherwise of the decision will be considered and appropriate orders passed in respect of the action taken".
The Court also directed for filing of a detailed counter-affidavit. Meanwhile, Smt. Amrita Ahluwalia, a resident of the City, filed Writ Petition No. 35 of 1997 and alleged, inter alia, that it is the duty of the Municipal Corporation of Hyderabad to maintain and manage all the public parks, gardens, public parking places and open spaces vested in or under its control, law i.e. the Hyderabad Municipal Corporation Act,1955, enjoins it to frame bye-laws necessary for the said purpose and the bye-laws for regulating the use of parks, gardens, public parking places, open space, playgrounds etc., in the twin cities of Hyderabad and Secunderabad are made under Section 586 of the Act in the year 1968. She has, however, alleged -
"Unfortunately, in spite of the Bye-Laws, the condition of the above said public places, is not satisfactory in some cases and deplorable in other cases. Out of these public places, parks and gardens occupy important role in the life of a citizen whether single or with family, as people go there to relax and for recreation which is badly needed in the present day world. In view of this, there is an extra responsibility cast on the Corporation to maintain them befitting the purpose for which they are intended to. The Corporation failed to discharge, this responsibility and the same is evident from the condition of the public parks and gardens of the twin cities. In some of the public parks, there are encroachments by the private persons and in some there are unauthorised constructions and in some cases the land which is intended for public park are converted for some other purpose. The Corporation is not taking any action in this regard In reality these public places meant for public purpose are allowed to be used for private purpose. I understand that some of the residents of the twin cities have already approached this Hon'ble Court by way of a Writ Petition in this regard. In the recent past the Corporation has gone a step ahead and allowed these places to become crematoriums. Though for the present only two places have become the targets, one can very clearly foresee a situation in the future where the rest of the parks also may turn out to be crematoriums as and when the occasion arises.
I submit that the Buddha Poornima Project was dedicated to Lord Buddha and was started with an intention of developing it in such a way that foreign travellers also it would be attracted.
A part of it was allotted for the purpose of cremation of the mortal remains of Ex. Chief Minister late Sri Dr. N.T. Rama Rao in January this year. The Buddhists raised hue and cry objecting the same but in vain. Indira Park in the heart of the city is one of the few well maintained parks of the twin cities. Now a part of it is allotted this month for cremating the mortal remains of the Ex. Chief Minister and the Governor of Tamil Nadu Sri Dr. M. Chenna Reddy, on 4-12-1996."
However, it is contended on her behalf that Section 568 of the Hyderabad Municipal Corporation Act, 1955, which vests the Commissioner to grant permission for disposal of the dead with the approval of the Corporation, is invalid being violative of Article 14 of the Constitution of India as it vests them with arbitrary powers without any guidelines. Society for Preservation of Environment and Quality of Life, represented by its President Captain J. Ramarao, has intervened in Writ Petition No. 25835 of 1996 and brought to the notice of the Court the following facts:-
"In several occasions, the petitioner has objected to the actions of the Government/authorities as and when there was violation of environment law adversely affects the quality of life. The SPEQL also filed public interest litigation in W.P.No.22307 of 1995 before this Hon'ble Court against the decision of Government of A.P. to allow the building to come up in the Hussain Sagar Lake viz., Duncan Macneil. The said W.P. is pending before this Hon'ble Court and got impleaded in another Writ Petition No. 15168 of 1996 filed by resident Associations wherein the action of the HUDA in auctioning of park in Saroornagar i.e., in Green Belt. Two of the members of the petitioner-society viz., the deponent Capt. J. Rama Rao and Mrs.Anuradha Reddy were appointed in a three member Committee by this Hon'ble Court by an order dt.25-04-1996 in W.P.No.5840 of 1996, to submit a report and suggestions on maintenance of parks in twin cities. The said interim and final reports and suggestions were submitted to this Hon'ble Court by them on 3-6-1996 and July, 1996 respectively. Therefore, the petitioner Society has got locus standi to implead in the present Writ Petition, which is concerning the public interest at large, regarding the issue of conversion of Indira Park into a burial ground/graveyard. The petitioner-society also objected to the decision of the Government to convert the Indira Park into Crematoriums and Graveyard. The said protest was published in News Time on 4-12-1996. The members of the petitioner-society Mr. Sarvotham Rao and Mrs. Anuradha Reddy have also protested for the decision of the Government."
Petitioners and interveners have alleged that the Hyderabad city is a fast growing state capital in the country in size with population growth at 1.5 millions from 1961 to about 5 millions at present. It is expected to be the fourth largest city by the year 2000. Growth of the city has caused fast depletion of the green cover and there is alarming pace of ecodegradation and rise in the air, water and noise pollution. There is, according to the petitioners and interveners, accute scarcity of open space and low percentage of green areas exhibit "a sense of lack of aesthetical values". According to them, parks in the city provide recreational and leisure activities and with lawns, open space, green space etc. It has very small lung space compared to its population and size. They have brought also on record the statement made on the floor of the Assembly of the State in September, 1996, "that in Municipal Corporation, Hyderabad area the per capita recreational area is less than 0.50 Sq. metres, as against the national standard of 3.00 sq. metres.
2. It is not in dispute that on 2-12-1996 in the early hours, the Governor of Tamil Nadu and former Chief Minister of Andhra Pradesh Dr. M. Chenna Reddy passed away. Most of the leading newspapers on 3-12-1996 stated that cremation of the departed leader would be in lower Tank Bund, opposite to Ramakrishna Mutt. However, it came to light that cremation was to take place on 4-12-1996 in Indira Park. Since decision to cremate on 4-12-1996 the body of late Chenna Reddy could be known only on 3-12-1996, the two petitions in Writ Petition No. 25835 of 1996 were taken up on the same day. Notwithstanding, however, clear observations by the Court in its order dated 3-12-1996 to decide strictly in accordance with law and in the light of the observations of the Court in its order, body of Dr. Chenna Reddy was put to flames in the Indira Park. Mrs. Amrita Ahluwalia and the interveners have also brought to the notice of the Court that before cremation of Dr.Chenna Reddy in the Indira Park, the Lumbini Park of the city on Hussain Sagar has also suffered a similar degradation of cremation and performance of funeral rites of the departed leader late Sri N.T. Rama Rao and a park, which was earmarked for Buddha Poornima project and green-belt in prime locality of the heart of the city, has been converted into a memorial for late Sri N.T. Rama Rao. After funeral rites of late Dr. M. Chenna Reddy, the Indira Park is also sought to be converted into a memorial for late Dr. M. Chenna Reddy.
3. Regrets and lamentations, which are expressed for degradation of the parks of the city, which are stated in some details in the petitions, are not required to be detailed, except that the Court has to see whether proper and legal decisions have been taken in permitting performance of cremational rites of some of the leaders in places other than the places earmarked and registered as required under the provisions of the Hyderabad Municipal Corporation Act, 1955, for disposal of the dead by the competent authority and in accordance with law, whether by according such permission, the respondent- Government of Andhra Pradesh and the Corporation of Hyderabad and their functionaries have acted within the bounds of law and even in case they are found to have acted within the bounds of law, whether they have violated the right under Article 21 of the Constitution of India of the residents of the city of Hyderabad by permitting conversion of public places of recreation as cremation grounds and memorials in the name of departed leaders like late Sri N.T. Rama Rao and late Dr. M. Chenna Reddy.
4. List II i.e., State List in the Seventh Schedule of the Constitution of India includes at item-5 local Government, that is to say, the constitution and powers of Municipal Corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of self- government or village administration; at item-6 public health and sanitation, hospitals and dispensaries; at item 10 burials and burial grounds, cremations and cremation grounds; at item-18 land, that is to say, rights in and over land, land tenures including the relation of landlord and tenant, and the collection of rents, transfer and alienation of agricultural land, land improvement and agricultural loans, colonization; at item 45 land revenue, including the assessment and collection of revenue, the maintenance of land records, survey for revenue purposes and records of rights, and alienation of revenues and at item 49 taxes on lands and buildings. Part IX of the Constitution, which consisted of Article 243 relating to the territories in Part-D of the First Schedule and other territories not specified in that schedule, was omitted by the Constitution (Seventh Amendment) Act, 1956 and has since been inserted by the Constitution (Seventy-third Amendment) Act, 1992 with effect from 20th April, 1993 and provided for the constitution, in every State, of panchayats at the village, intermediate and district levels in accordance with the provisions therein and Part IX-A has been introduced providing for the constitution of a Municipal Council for a smaller Urban area, a Municipal Corporation for a larger urban area and a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area. Since, in the instant case, we are concerned with the twin cities of Hyderabad and Secunderabad, which constitute the Corporation of Hyderabad under the Hyderabad Municipal Corporation Act, 1955, we can profitably refer to the provisions in this (Part IX-A) part of the Constitution which, besides speaking of how the self-government shall be constituted under Article 213-Q, of the Constitution, contains Article 243-V, which reads as follows:
"243W. Powers, authority and responsibilities of Municipalities etc. Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow-
(a) 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-
(i) the preparation of plans for economic development and social justice;
(ii) 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;
(b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule.
There is no controversy before us that the Hyderabad Municipal Corporation Act, 1955 is a legislation under entry 5 in List II of the Seventh Schedule of the Constitution of India. The subject of local Government, however, which has been left exclusively to the State Legislature and for which there was no restriction by the Constitution on the manner in which the State Legislature would decide to constitute Municipal Corporation and other local authorities has received constitutional injunction that 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 that 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 - (i) the preparation of plans for economic development and social justice; and (ii) 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. A reference to Twelfth Schedule of the Constitution shows that such items of State Legislature as, 'regulation of land-use and construction of buildings', 'Public Health, Sanitation Conservancy and solid waste management' etc., which could be seen present in the items, in respect of which the State is competent to be devolved upon Municipalities under such law as the State may make in this behalf and the Schedule i.e., Twelfth Schedule includes item 12- 'provision of urban amenities and facilities such as parks, gardens, play-grounds' and item 14 'burials and burial grounds, cremations, cremation grounds and electric crematoriums.'
5. Section 112 of the Hyderabad Municipal Corporations Act, which has spelled out duties and powers of the Municipal authorities and obligatory and discretionary duties of the Corporation, include in Sub-section 22, the provision of public parks, gardens, playgrounds and recreation grounds as one of the obligatory duties of the Corporation. With the disposal of the dead. Section 566 speaks of places for disposal of the dead to be registered and provides as follows:
"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 there of and bearing the signature of the City Engineer shall be deposited in the chief municipal office."
Section 567 of the Act takes care of new places for disposal of the dead by providing for, the Commissioner with the sanction of the Corporation, if the existing places for the disposal of the dead at any time appear to be insufficient or if any place is closed under the provisions of Section 570, other fit and convenient places for the said purpose, either within or without the city to enjoin that the same shall be registered in the register kept under Section 566 and for the deposit in the municipal office, at the time of registration of each place so provided, a the City Engineer. Section 568, however, puts a further restriction on new places for disposal of the dead by providing that 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. Section 569 empowers the State Government to direct for the closure of any place for the disposal of the dead on grounds, inter alia, (1) that any place of public worship, is or is likely to become injurious to health by reason of the state of the vaults or graves within the walls of or underneath the same, or in any Churchyard or burial ground adjacent thereto, or (2) that any other place used for the disposal of the dead in such a state as to be or to be likely to become injurious to health or is otherwise no longer suitable for such use, by following the procedure prescribed therein.
The Government is also permitted to sanction reopening of places which have been closed for disposal of the dead and is given power to control making of any vault or grave or internment within any wall, or underneath any passage, porch, portico, plinth or verandah of any place of worship, or make any internment or otherwise dispose of any corpse in any place which is closed for the disposal of the dead under Section 569 etc. Section 572 has spelled out acts prohibited in connection with the disposal of the dead. Acts prohibited are - (1) retaining corpse on any premises, without cremating, burying or otherwise lawfully disposing of the same for so long a time after death as to create nuisance;
(2) carrying corpse or part of corpse along any street without having and keeping the same decently covered or without taking such precautions to prevant risk of infection or injury to the public health;
(3) except when no other route is available carrying a corpses prohibited by a public notice;
(4) removal of corpse or part of a corpse, which has been kept or used for purposes of dissection, otherwise than in a closed receptacle or vehicle etc., and in particular, prohibits in respect of cremation -
(1) after bringing or causing to be brought to a crematorium any corpse or part of a corpse not completing cremation within six hours from the time of arrival thereof at such grounds;
(2) When cremating or causing to be cremated any corpse or part of corpse, permit the same or any portion thereof to remain without being completely reduced to ashes or permit any cloth or other article used for the conveyance or cremating of such corpse of part of a corpse to be removed or to retain on or near the place of cremation without its being completely reduced to ashes.
6. Besides the subordinate legislative powers, with which we are not concerned at this stage, the Corporation Act has preserved for the State Government power to confirm bye-laws framed under Section 586 by the Corporation (see Section 589), to modify or repeal bye-laws (see Section 592) and a general control as envisaged in Chapter XXI thereof to call for the records, to depute any Officer to inspect or examine any Municipal Office, service, work or thing and to report thereon, and after receiving information or report that any duty imposed on any Municipal Authority by or under the Act has not been performed or has been performed in an imperfect, inefficient or unsuitable manner, or that adequate financial provision has not been made for the performance of any such duty, to direct the performance of the duty or for making financial provision for the same and in the event of default to appoint a person to take action in default. The Government is also vested with the power either swo motu or on representation of any Councillor or Mayor or the Commissioner, to cancel any resolution passed, order issued, or licence or permission granted or prohibit the doing of any act which is about to be done, or is being done in pursuance or under colour of the Act, if in the opinion of the Government such resolution, order, licence, permission or act has not been passed, issued, granted or authorised in accordance with law or is in excess of the powers conferred by the Act or any other enactment, or the execution of such resolution or order, the continuance in force of such licence or permission or the doing of such act is likely to cause financial loss to the Corporation, danger to human life, health or safety or is likely to lead to a riot or breach of peace or is against public interest. Besides the above and some other powers, the Government is also given under Section 679-E, the power to give such directions from time to time as it may consider necessary for carrying out the purposes of the Act, which directions however, arc not inconsistent with the provisions of the Act or the Rules made thereunder.
7. We have taken a birds eye view of some of the relevant provisions of the Constitution of India with a view to follow the course adopted by the State Government and the Corporation in deciding or permitting cremation in the public parks of at least two public figures and to know whether they have acted in accordance with law and in public interest and whether, in doing so, they have violated the rights of the citizens of Hyderabad under Article 21 of the Constitution of India as alleged by the petitioners and the interveners. It is a settled principle of law that executive power of the State Government under Article 162 of the Constitution of India is co-terminus with its legislative power, but ceases to exist the moment legislation steps in. The words "subject to the provisions Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws" can get no better interpretation than the above and restrictions are clearly spelled-out in the proviso, which reads as follows:
"Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof".
Since the Corporation Act has occupied the filed and the Legislature while enacting the same, has limited the executive power of the State to matters specifically spelled out in various provisions of the Act, it is not possible to see any such executive power in the State Government, which is not found fixed within the bounds or confines of the provisions of the Corporation Act. Before, however, we judge in respect of the validity of the Act of the Government of the State, we propose to lay bare the facts which the records produced on behalf of the Corporation before us reveal.
8. The Corporation received a letter from the Chief Secretary to the Government dated 4-12-1996 circulated to the Chief Minister along with a copy of a note circulated by him to the Chief Minister with regard to the site considered for the cremation of late Dr. M. Chenna Reddy and stating "I request you to take further necessary action, on an urgent basis". The note accompanying the said letter reveals that at a meeting of the Council of Ministers, a broad view was taken that the cremation of late Dr. M. Chenna Reddy should be done in a befitting manner. It was first decided that the cremation should be done with police honours. Subsequently, the Government received a message, from the Government of India that the cremation was to be done Military honours, as late Dr. Chenna Reddy was a Governor at the time of his passing away. The Chief Minister called on the bereaved family members, when the family members desired that the cremation should be done in a public place and not in a cremation ground as late Dr. Chenna Reddy was a leader of national stature. The note further reads:"
"In view of the sensitivities of the matter and as the request was a reasonable one, the Chief Minister wanted 2 or 3 sites to be located for such cremation. After looking at a number of sites, it was found that the only suitable site was a corner site in Indira Park which was being presently used as a Tennis Court, which was elevated and which had no trees, The CM. request M (Revenue) and M(Home) to. inspect the site along with the representatives of the family members of Sri Channa Reddy. The family members of Sri Channa Reddy were very particular about a site near tank bund should be located. As there was some litigation about this site, this Court not be considered. Subsequently, they accepted the site near Indira Park and Govt. of A.P. accordingly decided that this site may be used for the cremation of Sri Chenna Reddy. The following factors primarily weighed with the Government in coming to such a decision:
(1) The need to cremate Sri M. Channa Reddy with Military honours meant that considerable space should be availabe for the gun salute, riversing of arms, body being brought in a gun carriage etc;
(2) Since a large number of his admirers were expected to come, the site obviously had to be a place other than the usual cremation ground;
(3) The Government also noted that the site now selected near Indira Park would not ecologically be affected since no trees were there in this particular open space. Govt. noted that no trees would have to be cut and no permanent structures would have to be brought down for this purpose;
(4) Government also took note of the overwhelming view of a large cross section of the people who felt that the former CM. of A.P. who had come to occupy many important positions in other States and as also in Govt. of India, needed to be cremated in a befitting manner, for all the valuable services rendered by him to the State and the Country.
Accordingly, Government decided that the cremation should be at Indira Park and consequential steps have been taken, in consultation with the local Defence authorities and various other departments. CM. may please see for approval."
The above note of the Chief Secretary is endorsed by the Chief Minister by appending his signature at the end of it. The above is followed by another letter in the file dated 5-12-1996, obviously after this Court on 3-12-1996 issued directions in this behalf and after the cremation was over and the letter D.O.Lr.No.392/CSP/N/96-3 addressed to the Commissioner and Special Officer, Municipal Corporation of Hyderabad, reads as follows:
"Kindly recall the discussions relating to the decision of the Government to conduct the funeral ceremony of late Dr. M. Chenna Reddy. You have mentioned to me on 4-12-1996 that you have issued the requisite formal orders. I am enclosing herein a copy of a letter received from the Advocate-General, dt.4-12-96 (along with the enclosures). I request you to take further necessary action to contest the W.P. Apart from your Counsel, you may take also the advise of the Advocate General."
The file contains the Proceedings of the Commissioner, Municipal Corporation of Hyderabad in Roc.No.ll33/P/96, dated 4-12-1996 which recites, inter alia, that the Chief Secretary to Government had communicated the decision of the Government to the Commissioner of the Corporation regarding cremation of the mortal remains of late Dr. M. Channa Reddy, Governor of Tamil Nadu, at Indira Park in the site which was being used as a Tennis Court. The Chief Secretary had further informed that factors, such as the requirement of space for cremation with Military honours, the large number of admirers expected to come for the cremation, the absence of adverse impact on ecology of the park and the valuable services rendered to the State and the Country by late Dr. M. Channa Reddy, were taken into consideration by the Government before coming to the decision about the site for cremation. The order then reads - "the request of the Government has been examined as per the revelant provisions of the Hyderabad Municipal Corporation Act regarding cremation at a place other than notified cremation/burial ground. Keeping in view the request of the Government, the necessity of large place required for cremation, the services rendered by the late leader to the State and the country in various capacities, the permission is hereby granted for the cremation of the mortal remains of Dr. M. Channa Reddy at Indira Park in the site selected by the Government". The order does not bear the signature of the Commissioner, Municipal Corporation of Hyderabad. There are corrections therein in two different inks and pens, obviously in the hands of two different persons. There is, however, an order besides the above, having the same Roc. No. on the file of the same date, a copy of which is marked to the Chief Secretary to Government and which bears the signature of the Commissioner and Special Officer, Municipal Corporation of Hyderabad, which reads as follows:
"Chief Secretary to Government in the letter cited under reference has informed that the Government after taking into consideration factors such as the requirement of space for cremation with military honours, the large number of admirers expected to come for the cremation, the absence of adverse impact on ecology of the park and the valuable services rendered to the State and the Country by late Dr. M. Channa Reddy, has decided to conduct cremation of the mortal remains of Late Dr. M. Channa Reddy at the site which is being presently in use as Tennis Court in Indira Park and has requested the Commissioner & Special Officer, MCH to take further necessary action.
The request of the Government has been examined as per the revelant provisions of the HMC Act regarding cremation at a place other than notified cremation/ burial ground.
Keeping in view the request of the Government, the necessity of large place required for cremation, the servies rendered by the late Leader to the State and the Country in various capacities, permission is hereby granted under Section 568 of the HMC. Act for the cremation of the mortal remains of Dr. M. Channa Reddy at Indira Park in the site selected by the Government,"
A purported copy of it in the file, however, has additional words in the expression 'permission is hereby granted for the cremation ', by pen, the words being "under Section 568 of the HMC Act". The memo, in the taken up case i.e., Writ Petition No. 25835 of 1996, filled on behalf of the State Government by the learned Advocate General, states that since a large amount of space was required to provide for military honours inclusive of the Gun salute of 17 vollies to be fired by mounted Guns. A corner of Indira Park which had not been developed as a garden was selected. The memo further states as follows:
"The clearance of the Sports Authority was obtained. The Special Officer, Minicipal Corporation of Hyderabad also agreed to the use of site for the above purpose. A meeting of the Council of Ministers was convened and the consensus of opinion after consideration of every aspect of the case was to perform the funeral ceremony in the garden of Indira Park site.
Several alternate sites were considered. For instance a site in Sanjeevaiah Park was also considered. There are no sites available including the existing burial grounds in the City where there is sufficient space available to conduct the funeral of the departed Leader with military honours. Sanjeevaiah Park was also considered and since already named in the memory of Sanjeevaiah and the sentiments of Dalit leaders have to be respected, it was not chosen.
In choosing the garden of Indira Park, the wishes of the family members of the departed Leader were also consulted and duly respected.
The State Government have duly taken into consideration the sentiments of the people.
Late Dr. Chenna Reddy was a leader of National eminence and an over-whelming majority of the people including innumerable followers of Dr. Chenna Reddy were taken into account. The sentiments of the people including neighbouring inhabitants are duly respected."
9. A Joint Secretary to the Government of Andhra Pradesh, General Administration Department has filed counter-affidavit in Writ Petition No. 25835 of 1996 and has stated almost the same facts as are stated in the memo filed by the learned Advocate General and added that permission was granted under Section 568 of the Hyderabad Municipal Corporation Act for the cremation of mortal remains of Dr. Chenna Reddy in Indira Park in the site selected by the Government and that the Government has evolved comprehensive guidelines for selection of the sites for the purpose of cremation of high dignitaries and enclosed a copy of the alleged guidelines, which reads as follows:
"Memo No. 839/Poll./C/96-ll dated 14-12-1996.
The Hon'ble High Court in their Order dated 3-12-1996 have directed the Government to formulate comprehensive guidelines for selection of site for the cremation of high dignitaries.
After careful consideration, the Government issue the following guidelines:
(i) The site selected should not cause any inconvenience to general public or offend public sentiments;
(ii) The site should be such that it is befitting the stature of the person who died;
(iii) To the extent possible, the sentiments of the followers, the family members of the departed leaders besides the general public should be kept in view;
(iv) The endeavour of the Government is to see that the public parks are not converted into such memorials. However, if it becomes inevitable, building should be erected at such place and a garden should be maintained.
10. The Commissioner and Special Officer, Municipal Corporation has stated in the counter-affidavit that it is the duty of the Municipal Corporation of Hyderabad to maintain and manage all the public parks, gardens etc., and that bye-laws for regulating the use of parks, gardens, parking places, playgrounds arc framed in the year 1968. He has stated that a scheme was formulated by the Corporation for development and protection of the public parks at a cost of Rs. 345 lakhs, which was approved by the Government of Andhra Pradesh and an amount of Rs. 85 lakhs, being contribution by the Government, was already released and the remaining part of Rs. 85 lakhs would be released in the next year. He has stated, "besides the total contribution of Rs. 170 lakhs by the State Government, the Corporation proposed to provide Rs. 175 lakhs for the purpose of improving protection and development of the parks to ensure proper utilisation of the play grounds and parks maintenance some of the playgrounds and parks were entrusted to the Resident Welfare Associations of the respective colonies and other Associations.....the Corporation has been taking effective steps to improve and maintain the parks and playgrounds properly subject to the financial constraints......The Corporation took up the beautification of Tank Bund with a project cost or Rs. 40 lakhs and work has already commenced.....As per the records of the Corporation, no written permission was granted by the Commissioner for cremation of the mortal remains of late N.T.Rama Rao at Budda Purnima Project. However, in the case of cremation of Dr. Chenna Reddy, a letter dated 4-12-1996 (i.e., the day of cremation ) from the Chief Secretary to Government communicating the decision of the Government to use the site for the cremation of Dr. Chenna Reddy was received in the fore- noon of 4th December, 1996, written permission was granted for cremation of Dr. M. Chenna Reddy in a corner of Indira Park near a dis-used Tennis Court. .The said permission was granted considering the decision of the Government and by taking into consideration the services rendered by the departed leader to the State and the Country, the necessity of large area for cremating with military honours, paucity of time, as it does not involve ecological imbalance and not necessitating any cutting of trees as a one time measure.....Even after cremation, it was decided that the said site will be continued to be used as a park. With regard to the various conditions.... There are four(4) Tennis Courts in Indira Park and no cremation took place on any Tennis Court and the place of cremation is only nearer to the one disused Tennis Court. The nature of the Tennis Court has not been changed by permitting the cremation of late Dr. M. Chenna Reddy.....The permission was granted as a one time measure to cremate but not intended to continue the said place as a cremation ground. Indira Park will not be disused and it will be used only as a park and cremation would not be allowed in any part of the park by private persons.........As per the records available, only once the permission was granted exercising the power under Section 568 of HMC Act, it was not exercised routinely but in the circumstances explained above as a one time measure. ... There are no guidelines issued as to how the power under Section 568 shall be exercised. I exercised the powers and gave the permission by taking into consideration the facts such as the decision of the Government of India to cremate with Military Honours, expected assemblage of large number of admirers, inadequate space in the existing cremation grounds, absence of the adverse impact on the ecology of the park, valuable services rendered by Dr. M. Chenna Reddy to the State and the Country, decision of the State Government to use the site for cremation at Indira Park which has received wide media coverage and paucity of time to change to a suitable alternative venue." On the two issues - (1) Whether there are already existing and ear-marked burial/ cremation ground in the city, and whether there are public places set aside for being used as places for the disposal of the lead; and (2) Whether any permission has been granted under Section 568 of the Hyderabad Municipal Corporation Act, 1955 for disposal of the dead at a place which is not registered as such as contemplated under the said provision and if so, such place/places for which permission/permissions was/were granted were ear-marked for any other purpose, and before granting permission all necessary formalities were complied with and reason, if any, for granting such permission, the answer in the affidavit is as follows:
"As far as the first issue is concerned, there are 376 places earmarked as burial/cremation grounds and other than these, no public places are set aside for being used as places for the disposal of dead. So far as the second issue is concerned, no permission was granted by the MCH under Section 568 of HMC Act for disposal of the dead at any place which is not registered as such except in the case of late Dr. M. Chenna Reddy. I submit that in view of the factors in para 4 above, the permission was granted to cremate in a place other than the registered burial ground exercising the powers under Section 568 as a one time measure.
11. The above lead to irresistible inferences that the State Government acted on its own to use a public park for disposal of the dead body of late Sri N.T. Rama Rao and Corporation silently watched the conversion of the public park first into a cremation ground and later its appropriation for raising a memorial for late Sri N.T. Rama Rao. In the case of Dr. Chenna Reddy's cremation, however, Corporation is remembered only because two petitions were received by the Court and were entertained as a writ petition on 3-12-1996 and only after this, Court directed the learned Advocate General to file the memo and when the Chief Secretary to the Government of the State was reminded of the existence of a law for disposal of the dead at places registered for the said purpose under the Hyderabad Municipal Corporation Act.
12. Conceptually and in fact a Government in a democracy has to be a Government of the people and while people retained their rights to themselves, they transferred their mite to the Government for being used for their welfare and for the protection of the interest of the public or the public interest. Constitution of India has created a welfare State of the Union and the States which is not the same thing as a police state. While the former has to function only in public intererst, the latter functions in the interest of the rulers. Precisely it appears, for the said reason, that in the Memo filed on behalf of the Government of the State as well as in the counter-affidavit by a Joint Secretary of the General Administration Department, attempts are made to say that the status of Dr. M. Chenna Reddy, as a leader of national eminence, was taken into account and the sentiments of the people and, "the Government took note of the overwhelming view of a large cross section of the people who felt that the former Chief Minister of Andhra Pradesh, who had come to occupy many important positions in other States and as also in Government of India, needed to be cremated in a befitting manner, for all the valuable services rendered by him to the State and the Country.' It seems to us quite strange that the Government has confused the sentiments of the people or desire of the people with the interest of the people or the public interest. There can be several occasions when people charged with emotions or acting in sentiments be demanding from the Government actions which are against the public interest and only because a majority or overwhelming majority is demanding such action, the Government cannot yield to act against the public interest. If Governments decide the issues of public interest by the vote of majority or desire of majority, there can be occasions when the Government would even be indulging in acts which go against the interest of such people as well. There can be innumerable instances of communal flareups when a majority community would desire to eliminate or to remove the presence of minority community or a larger section of a village community combine and want a smaller section or individual ex-communicated. Public interest shall, however, be on test in such circumstances and it shall be obviously protecting the victim by all means within the control of the Government of the State against aggressions which are charged mainly by emotions and sentiments. Emotions and sentiments thus of the admirers of late N.T.Rama Rao or late Chenna Reddy cannot be stamped with the quality of public interest. No Government can justify violations of law either by it or by its servants and agents merely because there are demand from the public or a section there of to do things which are violative of the law. It is not difficult to see in the disposal of the dead bodies of late N.T. Rama Rao and late Dr. Chenna Reddy in the public parks, clear violations of law. We have already noticed that the Corporation Act has limited the executive power of the State Government and has kept its powers confined for some matters to that of a quasi judicial authority and in some matters as the authority delegated with the power to legislate and the only power which is, besides the above, left for the executive by the Act is under Section 679 of the Act, which provides that the Government may from time to time give such directions not inconsistent with the provisions of the Act or the rules made thereunder to the Corporation as it may consider necessary for carrying out the purposes of this Act. The rider in the words in the section "necessary for carrying out the purposes of this Act" is enough to put the Government of the State completely out of arena in which provisions under Sections 566 to 572 of the Corporation Act operate. The Government has been given a very limited role in matters of disposal of the dead by provisions in Sections 569 and 570 of the Act and they do not leave any scope for the Government to include in the matter of either registration of a place for disposal of the dead or for new place for disposal of the dead. 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. is closed under the provision of Section 570 i.e. under the orders of the Government of the State and the Corporation has sanctioned the new place for the disposal of the dead, which is fit and convenient for the said purpose either within or without the City and such new place is registered and maintained as one such place in the register kept under Section 566 of the Act with a plan thereof, showing the locality, extent and boundaries of the same and bearing the signature of the City Engineer. Once such a place is registered as contemplated under Section 566 of the Act, all the provisions of the Act and the rules and bye-laws made thereunder would become applicable. 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 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 is 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 Section 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. Provisions of the Corporation Act appear to significant both in the use of the language and that content. They obviously recognised the religious and customary rites of cremation or burial or other modes of disposal of the dead by various communities in the Country. Some communities follow the religious rites of cremation, some communities follow the religious rites of burial, some follow it as a custom, some follow it as faith and as ordained by their religion. Communities in the Country, however, who consign the body of the dead to flames (Agni or fire) do so in the place called "Smasan". The Act has chosen to include the same in the expansive expression places for disposal of the dead'. Those who follow the textual or sastric instructions of Sanathana Dharma of Hindus do so at such places only which are sanctified as "Smasan" for the disposal of the dead and believe that it is not a place for the living except for rituals and performance of such rites which are necessary and are accepted as rites to be performed by the living for the dead, ordinarily by the nearest amongst the Agnates. Smasan is thus a place always created out side of the habitations and if they are engulfed by the expanding agglomerations and habitants, they are kept sufficiently excluded and preserved only for the dead. The same applies to communities who bury their dead or otherwise dispose of the dead either following the commands of their religion or custom. Provision for the disposal of the dead in the Corporation Act thus clearly recognises that such places which are used for burying, cremating or otherwise disposal of the dead have to be registered and new place opened only in the circumstances and in the manner as envisaged under Sections 567 and 568 thereof. One need not marvel at the wisdom of the elders of the communities who lived in the past that they recognised such religious commands or customs, which intrinsically carry the care of ecology and environment and keep pollution which any burial or cremation or any other mode of the disposal of the dead would cause to them. Legislature's wisdom, in the provisions under Sections 566 to 568 in this behalf, thus has to be appreciated that it has enjoined the self-government created by the Corporation Act to register the places for disposal of the dead and not to open new places for disposal of the dead just for the asking of any person/persons, not even when a large section of people come and ask for it. We have no hesitation in concluding, for the above reasons, that disposal of the dead either by burying, cremating or otherwise is not permissible at a place which is not registered as a place for disposal of the dead.
13. We have already noticed that State Government's powers are limited and it has no role to decide with respect to the registration of the place for the disposal of the dead or even otherwise in selecting a place for disposal of the dead. Whatever little scope was available to argue that the Government of the State represent the soverign and retained thus its eminent domain in deciding in respect of the use of a public place one way or the other, is taken away by the Constitution (Seventy-fourth Amendment) Act, 1992 and Article 245-V (a) therein read with the List in the Twelfth Schedule. Article 243W (a) states that "the Legislature of a State may, by law, endow the Municipalities (Corporation being a Municipality for the said purpose) 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, with respect to - "(i)....(ii) 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", subject to such conditions as may be specified therein. We have seen that the Twelfth Schedule of the Constitution includes as item 14 subjects of burials and burial grounds, cremations, cremation grounds and electric crematoriums. Sections 566 to 572 of the Corporation Act, which deal with the places for disposal of the dead cover the subjects of burials and burial grounds, cremations, cremation grounds and electric crematoriums. The Legislature has, by the Corporation Act, endowed upon the Municipal Corporation the performance of functions and the implementation of schemes as respects burials and burial grounds, cremations and cremation grounds and electric crematoriums. All functions and implementation of schemes in respect of burials and burial grounds, cremations and cremation grounds and electric crematoriums fall in the domain of the self-government under the Corportion Act and the executive Government of the State has no power except those recognised under Sections 569 to 571 of the Act. State Government's general power to issue directions can be exercised only for the implementation of the provisions of the Act and not in derogation or disregard of such provisions.
14. None of the respondents have been able to dispute the averment on behalf of the petitioners and interveners that the City's parks and other open spaces are hopelessly inadequate as per the standard in this behalf. The expanding urban agglomeration of the twin cities of Hyderabad and Secunderabad and the per capita recreational area in the city is less than 0.50 square metres as against the national standard of 3.00 square metres. The city is already breathing less than the required breath and further depletions by acts of the State of the lung space of the city will make the breathing more difficult. Although in the counter affidavits respondents have chosen to assert that while deciding to hold cremations, of course only in the case of late Dr. Channa Reddy and that also after protests were raised and this Court called upon the learned Advocate General to file a Memo in this behalf, they took the cause of environment into consideration and satisfied themselves that there was no likelihood of ecology being affected, the manner in which they have proceeded and the hurry in which the decision has been taken, make us doubt the sincerity behind such statements. The Commissioner has acknowledged the influence of the decision of the Government of the State in his issuing orders and has thus admitted that his decision making in this behalf was influenced by the decision of the Government and the communications made by the Government to it. One of the settled principles of law is that if a person, who is empowered to decide a matter and in deciding the matter, takes into consideration irrelevant materials, he acts mala fide in law. The whole episode is so full of malice almost at every stage of decision making that every thing that has been done with respect to the use of the parks as cremation grounds (according to the Commissioner's affidavit as a special case and as one time decision in the case of Dr. Channa Reddy) is without jurisdiction in all respects. The Government of the State has acted without any legal sanction and interfered with the constitutional and statutory power of the self-government and the Commissioner of the Corporation. The Commissioner of the Corporation has abdicated his jurisdiction and surrendered the self- government to the command of the State Government. A ruthless interference in the public interest by the welfare Governments, both the State Government and the self-government, has left the citizens shocked and alarmed. When they have invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, will the Court fall in line with the Government or stand to the public interest? We have no hesitation, on the facts as aforementioned, to hold that the Government of the State has gone against the public interest in being influenced by the emotions and sentiments of people whose honoured leaders had died and failed in discharge of its soverign duty assigned to it by the Constitution of India and gone beyond its powers under the Corporation Act. The rights of the petitioners and others similarly situated, of equal protection of law and equality before law are violated by the above interference in the matter by the State Government. Their right under Article 21 of the Constitution is violated, at least, in not taking into account the fact that any conversion of any open space of the city, which is available for public recreation, into any cremation ground or memorial, shall further reduce the open space in the city and thus violate the right under Article 21 of the Constitution of India. Corporation's failure in preventing the cremation of late Sri N.T. Rama Rao in one of the parks of the city and in not taking any action to remove any encroachments by any person including the Government of the State upon the lands belonging to the park, are glaring violations of Articles 14 and 21 of the Constitution of India and the provisions with respect to disposal of the dead in the Corporation Act. Repetition of the above for the cremation of the dead body of late Dr. Channa Reddy by the Government of the State and abdication of jurisdiction by the Commissioner and the Corporation is a repeat of the violation of the right of the petitioners as above.
15. Petitioners as well as intervenes have not doubted the popular image of either late Sri N.T.Rama Rao or late Dr. Channa Reddy and they cannot for the reason that they have chosen to move this Court, be accounted amongst those who do not share or cherish the contributions by the two great leaders. Their concern, however, we believe could have been said, had lite N.T. Rama Rao or late Dr. Channa Reddy been alive, who in their lives strived and worked in public interest would never have thought in their death to do anything which would go against the public interest. Those who have chosen, when charged with emotions to take their bodies for cremation to the public parks have paid no oblations to them by bringing the cremations in controversy, which they themselves when alive could have resented most. We have a feeling, however, Governments including self-government have chosen to be more exuberant or to be ahead even of those who wanted the said honours for the two leaders in imagining situations for military salute or the march must take every individual to the ground of cremation and thus must have a space for all the followers of the leader at a time. There were great leaders and there are great leaders and there can be greater leaders commanding more support and ever increasing number of the supporters would be causing shortage of a space for cremation, if the process of cremation is given the extended meaning of providing a space for every person who participates in the funeral. The words in Section 567 of the Corporation Act "if the existing places for the disposal of the dead.... appear to be insufficient" have to be read as the space to be provided for the number of dead bodies brought for cremation and not the number of persons who accompany the dead body of a person in a funeral procession. We have no manner of doubt that the State Government or the Corporation had any such reason which made them to search for a new place for the disposal of the dead bodies of late N.T. Rama Rao, or late Dr. Channa Reddy. Military or State honours could be provided and all honours which the departed deserve could be extended without there being any interference with the parks in the city, if there was a will and desire to respect the Fundamental Rights of the citizens of Hyderabad and Secunderabad. In sum, respondents have acted without jurisdiction as well as with malice in law in permitting disposal of the dead bodies of late Sri N.T. Rama Rao and late Dr. Channa Reddy in the public parks and have violated the rights of the petitioners and others similarly situated under Articles 14 and 21 of the Constitution of India. The Government of the State has acted illegally in interfering with the statutory and constitutional domain of the self- government under the Corporation Act and the Commissioner of the Corporation has abdicated jurisdiction and violated the provisions under Sections 566 to 568 of the Corporation Act.
16. Violations, however, to the extent of cremation have been committed. Petitioners have apprehended further violations by raising of memorials in the names of late N.T. Rama Rao and late Dr. Channa Reddy at the places in the public parks in the twin cities of Hyderabad and Secunderabad, Since we have found that the respondents have acted in violation of the Fundamental Rights of the petitioners and others similarly situated and we have taken the view that any conversion of the parks to any other use would violate the rights under Articles 21 and 14 of the Constitution of India, We unhesitatingly accept the petitioners' plea that respondents have to be restrained from converting the parks to any other use.
17. In the result, the applications are allowed. Respondents are restrained from converting the above mentioned two parks to any other use and from permitting in future any burial, cremation or otherwise disposal of the dead at any place other than the place registered as contemplated under Section 566 of the Corporation Act read with Sections 567 and 568 thereof. Since the petitioners have moved the Court in public interest and since we have taken the view that the respondents-State Government and the Corporation have acted against the public interest, we are inclined to award exemplary costs payable by the Corporation as well as the State Government to the petitioners. Hearing fee for each petitioner and intervener each day at the rate of Rs. 5,000/-.