Source: Bombay High Court 

Why in News? 

Recently, the bench of Justices Ajay Gadkari and Kamal Khata held that citizens do not have a fundamental right to be cremated or buried at a specific place. 

• The Bombay High Court held this in the matter of Lakhani's Blue Waves Co-operative Housing Society Ltd v. The Chairman, CIDCO (2025). 

What was the Background of Lakhani's Blue Waves Co-operative Housing Society Ltd v. The Chairman, CIDCO Case? 

• Two co-operative housing societies filed a petition under Article 226 of the Constitution of India, 1950 (COI) seeking directions against CIDCO to prevent approval or construction of a crematorium on plot numbers 176, 176A, and 176B of Sector 9, Ulwe. 
• The petitioner societies were situated on plots 161 and 163 of Sector 9, Ulwe, and alleged that the subject plots were reserved for a petrol pump according to CIDCO's Development Plan. 
• The petitioners claimed that influential persons had appointed a contractor to illegally construct a crematorium on these plots, severely affecting the nearby residential societies. 
• The petitioners, along with two other adjoining societies, made representations to CIDCO on 27th August 2023 and 11th September 2023 requesting removal of the unauthorized structure. 
• The Nodal Executive Engineer issued directions to the Chief Controller of Unauthorized Constructions (CCUC) to take appropriate action after verifying the site. 
• When CCUC attempted to demolish the structure on 9th November 2023, villagers from Kharkopar protested in large numbers and prevented the demolition. 
• The villagers of Kharkopar contended that the crematorium had existed for over 250 years on the subject plots and had received funding from CIDCO for improvements, making it an authorized structure. 
• The petitioners argued that the crematorium's proximity to residential societies, commercial shops, and a school area created negative mental impacts on children, and the use of wood for cremation caused foul smell and air pollution affecting residents' health. 

What were the Court’s Observations? 

• The Court observed that Planning Authorities (in this case, CIDCO) are tasked with the responsibility of providing crematoriums, and citizens do not possess any fundamental right to seek a particular place for cremation or burial. 
• The Court noted that CIDCO had already provided a fully functional crematorium at plot no. 1, sector 14, approximately three and a half kilometers away from the disputed location. 
• The Court found the villagers' request to maintain the crematorium at its current location unusual despite the availability of a functional alternative in the vicinity. 
• The Court determined that CIDCO had exercised its lawful power to consciously change the location of the crematorium and found no reason to interfere with this decision. 
• The Court observed that the societies were situated in close proximity to the cremation ground as evidenced by photographs presented and disagreed with the villagers' argument that traveling a greater distance to use the new crematorium justified maintaining the current facility. 
• The Court held that the presence of schools, open playgrounds, and several societies being affected by fire and smoke supported the petitioners' position that the crematorium should be removed. 
• The Court ultimately allowed the petition, directing the respondents to use the land as per Sanctioned Development Plans in accordance with law. 

What is Article 226 of Indian Constitution? 

• Article 226 of the Constitution of India empowers High Courts to issue directions, orders, or writs including habeas corpus, mandamus, prohibition, quo warranto, and certiorari. 
• These writs can be issued to any person, authority, or government within the territories over which the High Court exercises jurisdiction. 
• High Courts can issue such writs both for the enforcement of fundamental rights under Part III of the Constitution and for any other purpose. 
• The power extends to High Courts even if the cause of action arises partly within their territorial jurisdiction, regardless of whether the government, authority, or person's seat or residence is within those territories. 
• When an interim order (injunction, stay, etc.) is made without providing copies of the petition and supporting documents to the affected party or without giving them an opportunity to be heard, the affected party can apply for vacation of such order. 
• The High Court must dispose of such vacation applications within two weeks from receipt or from the date when a copy is furnished to the opposing party, whichever is later. 
• If the application is not disposed of within this timeframe, the interim order automatically stands vacated upon expiry of the specified period. 
• The power conferred on High Courts under Article 226 does not diminish the power conferred on the Supreme Court under Article 32(2). 
• Following constitutional amendments, Article 226(A) was deleted, and changes were made regarding the right to property, which is now a constitutional right under Article 300A rather than a fundamental right under Part III.