Municipal Council, Ratlam Vs. Shri
Vardhichand & Ors [1980] INSC 138 (29 July 1980)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
REDDY, O. CHINNAPPA (J)
CITATION: 1980 AIR 1622 1981 SCR (1) 97 1980
SCC (4) 162
CITATOR INFO :
RF 1981 SC 344 (45) R 1982 SC 149 (15,607,968)
RF 1986 SC 847 (12) RF 1991 SC1902 (24) R 1992 SC 248 (17)
ACT:
Code of Criminal Procedure 1973, s. 133 &
M. P. Municipalities Act 1961, s. 123-Municipality not providing sanitary
facilities and construction of public conveniences for slum dwellers-Whether
Courts can compel municipal body to carry out its duty to the community to
provide amenities and abate nuisance.
HEADNOTE:
The residents (respondents) of a prominent
residential locality of the Municipality (petitioner) in their complaint under
s. 133 Criminal Procedure Code to the Sub-Divisional Magistrate averred that
the Municipality had failed despite several pleas, to meet its basic
obligations, like provision of sanitary facilities on the roads, public
conveniences for slum dwellers who were using the road for that purpose, and
prevention of the discharge from the nearby Alcohol Plant of maladorous fluids
into the public street, and that the Municipality was oblivious to the
statutory obligation envisaged in s. 123 M. P. Municipalities Act, 1961 The
Municipal Council contested the petition on the ground that the owners of
houses had gone to that locality on their own choice, fully aware of the
insanitary conditions and therefore they could not complain. It also pleaded
financial difficulties in the construction of drains and provision of
amenities.
The Magistrate found the facts proved, and
ordered the municipality to provide the amenities and to abate the nuisance by
constructing drain pipes with flow of water to wash the filth and stop the
stench and that failure would entail prosecution under s. 188 I.P.C.
The order of the Magistrate was found
unjustified by the Sessions Court, but upheld by the High Court.
In the Special Leave Petition by the
Municipality to this Court on the question whether a Court can by affirmative
action compel a statutory body to carry out its duty to the community by
constructing sanitation facilities at great cost and on a time-bound basis.
HELD : 1. Wherever there is a public
nuisance, the presence of s. 133 Criminal Procedure Code must be felt and any
contrary opinion is contrary to the law. [112D]
2. The public power of the Magistrate under
the Code is a public duty to the members of the public who are victims of the
nuisance and so he shall exercise, it when the jurisdictional facts are
present. [107G] 98 3. The Magistrate's responsibility under s. 133 Cr.P.C.
is to order removal of such nuisance within a
time to be fixed in the order. This is a public duty implicit in the public
power to be exercised on behalf of the public and pursuant to a public
proceeding. Failure to comply with the direction will be visited with a
punishment contemplated by s. 188 I.P.C. [109C-D]
4. The Municipal Commissioner or other
executive authority bound by the order under s. 133 Criminal Procedure Code
shall obey the direction because disobedience, if causes obstruction or
annoyance or injury to any persons lawfully pursuing their employment, shall be
punished with simple imprisonment or fine as prescribed in the section.
The offence is aggravated if the disobedience
tends to cause danger to human health or safety. [109E]
5. Public nuisance, because of pollutants
being discharged by big factories to the detriment of the poorer sections, is a
challenge to the social justice component of the rule of law. [110C]
6. The imperative tone of s. 133 Criminal
Procedure Code read with the punitive temper of s. 188 I.P.C. make the
prohibitory act a mandatory duty. [109E]
7. The Criminal Procedure Code operates
against statutory bodies and others regardless of the cash in their coffers,
even as human rights under Part III of the Constitution have to be respected by
the State regardless of budgetary provision. [108H]
8. Section 123 M. P. Municipalities Act 1961
has no saving clause when the municipal council is penniless.
[108H]
9. Although the Cr.P.C. and I.P.C. are of
ancient vintage the new social justice orientation imparted to them by the
Constitution of India makes them a remedial weapon of versatile use. Social
Justice is due to the people and, therefore, the people must be able to trigger
off the jurisdiction vested for their benefit in any public functionary like a
Magistrate under s. 133 Criminal Procedure Code. In the exercise of such power,
the judiciary must be informed by the broader principle of access to justice
necessitated by the conditions of developing countries and obligated by Art. 38
of the Constitution.
[109F-G]
10. A responsible municipal council
constituted for the precise purpose of preserving public health and providing
better finances cannot run away from its principal duty by pleading financial
inability. Decency and dignity are non- negotiable facets of human rights and
are a first charge on local self-governing bodies. Similarly, providing
drainage systems not pompous and attractive, but in working condition and
sufficient to meet the needs of the people-cannot be evaded if the municipality
is to justify its existence.
[110E]
11. The Court, armed with the provisions of
the two Codes and justified by the obligation under s. 123 of the Act, must
adventure into positive directions as it has done in the present case. Section
133 Criminal Procedure Code authorises the prescription of a time-limit for
carrying out the order. The same provision spells out the power to give
specific directives. [111A-B] Govind Singh v. Shanti Sarup, [1979] 2 SCC 267,
279 referred to.
12. The state will realise that Art. 47 makes
it a paramount principle of governance that steps are taken for the improvement
of public health as amongst its primary duties. The municipality also will slim
its budget on 99 low priority items and elitist projects to use the savings on
sanitation and public health. [114C]
13. Where Directive Principles have found
statutory expression in Do's and Don'ts the court will not sit idly by and
allow municipal government to become a statutory mockery. The law will
relentlessly be enforced and the plea of poor finance will be poor alibi when
people in misery cry for justice. The dynamics of the judicial process have a
new `enforcement' dimension not merely through some of the provisions of the
Criminal Procedure Code (as here) but also through activated tort
consciousness. The officers in charge and even the elected representatives will
have to face the penalty of the law if what the Constitution and follow up
legislation direct them to do are defied or denied wrongfully. The wages of
violation is punishment, corporate and personal. [114G-115A] [The Court
approved a scheme of construction work to be undertaken by the Municipality for
the elimination of the insanitary conditions and directed that the work be
commenced within two months and that the Magistrate inspect the progress of the
work every three months and see that it is implemented. [113 D-114 B]
CRIMINAL APPELLATE JURISDICTION: Special
Leave Petition (Crl.) No. 2856 of 1979.
From the Judgment and Order dated 6-8-1979 of
the Madhya Pradesh High Court in Crl. Revision No. 392/76.
Sobhag Mal Jain and S. K. Jain for the
Petitioner.
C. S. Chhazed, Miss Manisha Gupta and M. S.
Gupta for Respondents 1-5. S. K. Gambhir for the State.
The Order of the Court was delivered by
KRISHNA IYER, J.-`It is procedural rules', as this appeal proves, `which infuse
life into substantive rights, which activate them to make them effective'.
Here, before us, is what looks like a pedestrian quasi-criminal litigation
under s. 133 Cr.P.C., where the Ratlam Municipality-the appellant-challenges
the sense and soundness of the High Court's affirmation of the trial court's
order directing the construction of drainage facilities and the like, which has
spiralled up to this Court. The truth is that a few profound issues of
processual jurisprudence of great strategic significance to our legal system
face us and we must zero-in on them as they involve problems of access to
justice for the people beyond the blinkered rules of `standing' of British
Indian vintage. If the centre of gravity of justice is to shift, as the
Preamble to the Constitution mandates, from the traditional individualism of
locus standi to the community orientation of public interest litigation, these
issues must be considered. In that sense, the case before us between the Ratlam
Municipality and the citizens of 100 award, is a path-finder in the field of
people's involvement in the justicing process, sans which as Prof.
Sikes points out,(1) the system may `crumble
under the burden of its own insensitivity'. The key question we have to answer
is whether by affirmative action a court can compel a statutory body to carry
out its duty to the community by constructing sanitation facilities at great
cost and on a time-bound basis. At issue is the coming of age of that branch of
public law bearing on community actions and the court's power to force public
bodies under public duties to implement specific plans in response to public
grievances.
The circumstances of the case are typical and
overflow the particular municipality and the solutions to the key questions
emerging from the matrix of facts are capable of universal application,
especially in the Third World humanscape of silent subjection of groups of
people to squalor and of callous public bodies habituated to deleterious
inaction. The Ratlam municipal town, like many Indian urban centres, is
populous with human and sub-human species, is punctuated with affluence and
indigence in contrasting co-existence, and keeps public sanitation a low
priority item. what with cesspools and filth menacing public health. Ward No.
12, New Road, Ratlam town is an area where prosperity and poverty live as
strange bedfellows. The rich have bungalows and toilets, the poor live on
pavements and litter the street with human excreta because they use roadsides
as latrines in the absence of public facilities.
And the city fathers being too busy with
other issues to bother about the human condition, cesspools and stinks, dirtied
the place beyond endurance which made the well-to-do citizens protest, but the
crying demand for basic sanitation and public drains fell on deaf ears. Another
contributory cause to the insufferable situation was the discharge from the
Alcohol Plant of malodorous fluids into the public street. In this lawless
locale, mosquitoes found a stagnant stream of stench so hospitable to breeding
and flourishing, with no municipal agent disturbing their stinging music at
human expense. The local denizens, driven by desperation, at long last, decided
to use the law and call the bluff of the municipal body's bovine indifference
to its basic obligations under s. 123 of the M. P. Municipalities Act, 1961
(the Act, for short). That provision casts a mandate:
123. Duties of Council.-(1) In addition to
the duties imposed upon it by or under this Act or any other enactment for the
time being in force, it shall be the duty of a Council to 101 undertake and
make reasonable and adequate provision for the following matters within the
limits of the Municipality, namely:
XX XX XX (b) cleansing public streets, places
and sewers, and all places, not being private property, which are open to the
enjoyment of the public whether such places are vested in the Council or not;
removing noxious vegetation, and abating all public nuisances:
(c) disposing of night-soil and rubbish and
preparation of compost manure from night-soil and rubbish.
And yet the municipality was obvious to this
obligation towards human well-being and was directly guilty of breach of duty
and public nuisance and active neglect. The Sub Divisional Magistrate, Ratlam,
was moved to take action under s. 133 Cr.P.C., to abate the nuisance by
ordering the municipality to construct drain pipes with flow of water to wash
the filth and stop the stench. The Magistrate found the facts proved, made the
direction sought and scared by the prospect of prosecution under s. 188 I.P.C.,
for violation of the order under s. 133 Cr.P.C., the municipality rushed from
court to court till, at last, years after, it reached this Court as the last
refuge of lost causes. Had the municipal council and its executive officers
spent half this litigative zeal on cleaning up the street and constructing the
drains by rousing the people's sramdan resources and laying out the city's
limited financial resources, the people's needs might have been largely met
long ago. But litigation with other's funds is an intoxicant, while public
service for common benefit is an inspiration; and, in a competition between the
two, the former overpowers the latter. Not where a militant people's will takes
over people's welfare institutions, energises the common human numbers,
canalises their community consciousness, forbids the offending factories from
polluting the environment, forces the affluent to contribute wealth and the
indigent their work and thus transforms the area into a healthy locality
vibrant with popular participation and vigilance, not neglected ghettoes noisy
with squabbles among the slimy slum-dwellers nor with electoral 'sound and fury
signifying nothing.' The Magistrate, whose activist application of s. 133
Cr.P.C., for the larger purpose of making the Ratlam municipal body to do its
duty and abate the nuisance by affirmative action, has our appreciation. He has
summed up the concrete facts which may be usefully quoted in portions:
"New Road, Ratlam, is a very important
road and so many prosperous and educated persons are living on this Road. On
102 the southern side of this Road some houses are situated and behind these
houses and attached to the College boundary, the Municipality has constructed a
road and this new Road touches the Government College and its boundary. Just in
between the said area a dirty Nala is flowing which is just in the middle of
the main road i.e. New Road. In this stream (nala) many a time dirty and filthy
water of Alcohol Plant having chemical and obnoxious smell, is also released
for which the people of that locality and general public have to face most
obnoxious smell. This Nala also produces filth which causes a bulk of
mosquitoes breeding. On this very southern side of the said road a few days
back municipality has also constructed a drain but it has (?) constructed it
completely but left the construction in between and in some of the parts the
drain has not at all been constructed because of this the dirty water of half
constructed drain and septic tank is flowing on the open land of applicants, where
due to insanitation and due to non-removing the obstructed earth the water is
accumulated in the pits and it also creates dirt and bad smell and produces
mosquitoes in large quantities. This water also goes to nearby houses and
causes harm to them. For this very reason the applicants and the other people
of that locality are unable to live and take rest in their respective houses.
This is also injurious to health".
There are more dimensions to the
environmental pollution which the magistrate points out:
"A large area of this locality is having
slums where no facility of lavatories is supplied by the municipality. Many
such people live in these slums who relieve their lateral dirt on the bank of
drain or on the adjacent land. This way an open latrine is created by these
people. This creates heavy dirt and mosquitoes. The drains constructed in other
part of this Mohalla are also not proper it does not flow the water properly
and it creates the water obnoxious. The Malaria Department of the State of M.P.
also pays no attention in this direction. The non-applicants have not managed
the drains, Nallahs and Naliyan properly and due to incomplete construction the
non-applicants have left no outlet for the rainy water. Owing to above reasons
the water is accumulated on the main road, it passes through living houses,
sometimes snakes and scorpions come out and this obstruct the people to pass
through this road. This also causes financial loss to the people of this area.
The road constructed by Nagarpalika is on a high level and due to this, this
year more 103 water entered the houses of this locality and it caused this year
more harm and loss to the houses also. This way all works done by the
non-applicants i.e. construction of drain, canal and road come within the
purview of public nuisance. The non-applicants have given no response to the
difficulties of the applicants, and non-applicants are careless in their duties
towards the public, for which without any reason the applicants are facing the
intolerable nuisance. In this relation the people of this locality submitted
their returns, notices and given their personal appearance also to the
non-applicants but the non- applicants are shirking from their responsibilities
and try to avoid their duty by showing other one responsible for the same,
whereas all the non- applicants are responsible for the public nuisance."
Litigation is traumatic and so the local people asked first for municipal
remedies failing which they moved for magisterial remedies:
"At the last the applicants requested to
remove all the nuisance stated in their main application and they also
requested that under-mentioned works must be done by the non-applicants and for
which suitable orders may be issued forthwith:
1. The drains constructed by Municipality are
mismanaged and incomplete, they should be managed and be completed and flow of
water in the drains should be made so that the water may pass through the drain
without obstruction.
2. The big pits and earthen drains which are
situated near the College boundary and on the corners of the road where dirty
water usually accumulates, they should be closed and the filth shall be removed
therefrom.
3. The big 'Nala' which is in between the
road, should be managed and covered in this way that it must not create
overflow in the rainy season.
4. The Malaria Department should be ordered
to sprinkle D.D.T. and act in such a manner and use such means so that the
mosquitoes may be eradicated completely from the said locality." The
proceedings show the justness of the grievances and the indifference of the
local body:
"Both the parties heard. The court was
satisfied on the facts contained in their application dated 12-5- 72 and
granted conditional order against non-applicants No. 1 and 2 u/s 133 of Cr.
P.C. (Old Code). In this order all the nuisances were described (which were
there in their main application) and the court directed to remove 104 all the
nuisances within 15 days and if the non- applicants have any objection or
dissatisfaction against the order then they must file it on the next date of
hearing in the court." XX XX XX "The applicants got examined the
following witnesses in their evidence and after producing following documents
they closed their evidence." XX XX XX "No evidence has been produced by
the non- applicants in spite of giving them so many opportunities. Both the
parties heard and I have also inspected the site." XX XX XX "The
non-applicant (Municipal Council) has sought six times to produce evidence but
all in vain. Likewise non-applicant (Town Improvement Trust) has also produced
no evidence." The Nallah comes into picture after the construction of road
and bridge. It has shown that Nallah is property of Nagarpalika according to
Ex.p.
10. Many applications were submitted to
remove the nuisance but without result. According to Sec. 32 to 43 of the Town
Improvement Trust Act, it is shown, that it has only the provisions to make
plans. Many a time people tried to attract the attention of Municipal Council
and the Town Improvement Trust but the non- applicants always tried to throw
the responsibility on one another shoulder.
XX XX XX It is submitted by non-applicant
(Municipality) that the said Nallah belongs to whom, it is still disputed i.e.
whether it belongs to non-applicant 1 or
2. Shastri Colony is within the area of Town
Improvement Trust. The Nagarpalika (non-applicant No.
1) is financially very weak. But Municipal
Council is not careless towards its duties.
Non-applicant (Town Improvement Trust) argued
that primary responsibility lies with the Municipal Council only. There is no
drainage system.
At the end of it all, the Court recorded:
............... after considering all the
facts I come to this conclusion that the said dirty Nallah is in between the
main road of Ratlam City. This dirty Nallah affects the Mohalla of New 105
Road, Shastri Colony, Volga Talkies and it is just in the heart of the city.
This is the very important road and is between the Railway Station and the main
city.
In these mohallas, cultured and educated people
are living. The Nallah which flows in between the New Road and Shastri Colony
the water is not flowing rapidly and on many places there are deep pits in
which the dirty water is accumulated. The Nallah is also not straight that is
also the reason of accumulation of dirty water.
The Nallah is not managed properly by the
non- applicants. It is unable to gush the rainy water and due to this the
adjoining areas always suffer from over-flowing of the water and it causes the
obstruction to the pedestrians.
XX XX XX It is also proved by the evidence
given by the applicants that from time to time the Power Alcohol factory which
is situated outside the premises of the Municipal Council and it flows its
dirty and filthy water into the said Nallah, due to this also the obnoxious
smell is spreading throughout the New Road or so it is the bounden duty of the
Municipal Council and the Town Improvement Trust to do the needful in this
respect.
XX XX XX The dirty water which flows from the
lavatories and urinals of the residential houses have no outlet and due to this
reason there are many pits on the southern side of the New Road and all the
pits are full of dirty and stinking water. So it is quite necessary to
construct an outlet for the dirty water in the said locality.
In this area many a places have no drainage
system and if there is any drain it has no proper flow and water never passes
through the drain properly. That causes the accumulation of water and by the
time it becomes dirty and stink and then it produces mosquitoes there.
The Magistrate held in the end:
Thus after perusing the evidence I come to
this conclusion and after perusing the applications submitted by the persons
residing on the New Road area from time to time to draw the attention of the
non- applicants to remove the nuisance, the non-applicants have taken no steps
whatsoever to remove all these public nuisances.
He issued the following order which was
wrongly found unjustified by the Sessions Court, but rightly upheld by the High
Court:
106 Therefore, for the health and convenience
of the people residing in that particular area of all the nuisance must be
removed and for that the following order is hereby passed:
(1) The Town Improvement Trust with the help
of Municipal Council must prepare a permanent plan to make the proper flow in
the said Nallah which is flowing in between Shastri Colony and New Road. Both
the non- applicants must prepare the plan within six months and they must take
proper action to give it a concrete form.
(2) According to para 13 a few places are
described which are either having the same drains and the other area is having
no drain and due to this the water stinks there; so the Municipal Council and
the Town Improvement Trust must construct the proper drainage system and within
their own premises where there is no drain it must be constructed immediately
and all this work should be completed within six months.
(3) The Municipal Council should construct
drains from the jail to the bridge behind the southern side of the houses so
that the water flowing from the septic tanks and the other water flowing
outside the residential houses may be channellised and it may stop stinking and
it should have a proper flow so that the water may go easily towards the main
Nallah. All these drains should be constructed completely within six months by
the Municipal Council.
(4) The places where the pits are in
existence the same should be covered with mud so that the water may not
accumulate in those pits and it may not breed mosquitoes. The Municipal Council
must complete this work within two months.
A notice under Section 141 of the Criminal
Procedure Code (Old Code) may be issued to the non- applicants Nos. 1 and 2 so
that all the works may be carried out within the stipulated period. Case is
hereby finalised.
Now that we have a hang of the case we may
discuss the merits, legal and factual. If the factual findings are good- and we
do not re-evaluate them in the Supreme Court except in exceptional cases- one
wonders whether our municipal bodies are functional irrelevances, banes rather
than booms and 'lawless' by long neglect, not leaders of the people in local
self-government. It may be a cynical obiter of pervasive veracity that
municipal bodies minus the people and plus the bureaucrats are the bathetic
vogue-no better than when the British were here:
107 We proceed on the footing, as we
indicated even when leave to appeal was sought, that the malignant facts of
municipal callousness to public health and sanitation, held proved by the
Magistrate, are true. What are the legal pleas to absolve the municipality from
the court's directive under s. 133 Cr.P.C. ? That provision reads:
s. 133(1) whenever a District Magistrate or a
Sub- Divisional Magistrate or any other Executive Magistrate specially
empowered in this behalf by the State Government, on receiving the report of a
police officer or other information and on taking such evidence (if any) as he
thinks fit, considers- (a) that any unlawful obstruction or nuisance should be
removed from any public place or from any way, river or channel which is or may
be lawfully used by the public;
XX XX XX such Magistrate may make a
conditional order requiring the person causing such obstruction or nuisance, or
carrying on such trade or occupation, or keeping any such goods or merchandise,
or owning, possessing or controlling such building, tent, structure, substance,
tank, well or excavation or owning or possessing such animal or tree, within a
time to be fixed in the order- (i) to remove such obstruction or nuisance; or
XX XX XX (iii) to prevent or stop the construction of such building, or to
alter the disposal of such substance; or if he objects so to do, to appear
before himself or some other Executive Magistrate subordinate to him at a time and
place to be fixed by the order, and show cause, in the manner hereinafter
provided.
why the order should not be made absolute.
So the guns of s. 133 go into action wherever
there is public nuisance. The public power of the Magistrate under the Code is a
public duty to the members of the public who are victims of the nuisance, and
so he shall exercise it when the jurisdictional facts are present as here.
"All power is a trust-that we are accountable for its exercise- that, from
the people, and for the people, all springs, and all must exist."(i)
Discretion becomes a duty when the beneficiary brings home the circumstances
for its benign exercise.
If the order is defied or ignored, s. 188
I.P.C. comes into penal play:
108 188. Whoever, knowing that, by an order
promulgated by a public servant lawfully empowered to promulgate such order, he
is directed to obtain from a certain act, or to take certain order with certain
property in his possession or under his management, disobeys such direction and
if such disobedience causes or tends to cause danger to human life health or
safety, or causes or tends to cause a riot or affray, shall be punished with
imprisonment of either description for a term which may extend to six months,
or with fine which may extend to one thousand rupees, or with both.
There is no difficulty in locating who has
the obligation to abate the public nuisance caused by absence of primary
sanitary facilities. Section 123, which is mandatory, (we repeat), reads:
123. Duties of Council :-(1) In addition to
the duties imposed upon it by or under this Act or any other enactment for the
time being in force, it shall be the duty of a Council to undertake and make
reasonable and adequate provision for the following matters within the limits
of the Municipality, namely:- (a)..............
(b) cleansing public streets, places and
sewers, and all places not being private property, which are open to the
enjoyment of the public whether such places are vested in the Council or not;
removing noxious vegetation, and abating all public nuisances;
(c) disposing of night-soil and rubbish and
preparation of compost manure from night-soil and rubbish.
The statutory setting being thus plain, the
municipality cannot extricate itself from its responsibility. Its plea is not
that the facts are wrong but that the law is not right because the municipal
funds being insufficient it cannot carry out the duties under s. 123 of the
Act. This 'alibi' made us issue notice to the State which is now represented by
counsel, Shri Gambhir, before us. The plea of the municipality that
notwithstanding the public nuisance financial inability validly exonerates it
from statutory liability has no juridical basis. The Criminal Procedure Code
operates against statutory bodies and others regardless of the cash in their
coffers, even as human rights under Part III of the Constitution have to be
respected by the State regardless of budgetary provision.
Likewise, s. 123 of the Act has no saving
clause when the municipal council is penniless. Otherwise, a profligate 109
statutory body or pachydermic governmental agency may legally defy duties under
the law by urging in self-defence a self-created bankruptcy or perverted
expenditure budget.
That cannot be.
Section 133 Cr.P.C. is categoric, although
reads discretionary. Judicial discretion when facts for its exercise are
present, has a mandatory import. Therefore, when the sub-Divisional Magistrate,
Ratlam, has, before him, information and evidence, which disclose the existence
of a public nuisance and, on the materials placed, he considers that such
unlawful obstruction or nuisance should be removed from any public place which
may be lawfully used by the public, he shall act. Thus, his judicial power
shall, passing through the procedural barrel, fire upon the obstruction or
nuisance, triggered by the jurisdictional facts. The Magistrate's
responsibility under s. 133 Cr.P.C.
is to order removal of such nuisance within a
time to be fixed in the order. This is a public duty implicit in the public
power to be exercised on behalf of the public and pursuant to a public
proceeding. Failure to comply with the direction will be visited with a
punishment contemplated by s. 188 I.P.C. Therefore, the Municipal Commissioner
or other executive authority bound by the order under s. 133 Cr.P.C. shall obey
the direction because disobedience, if it causes obstruction or annoyance or
injury to any persons lawfully pursuing their employment, shall be punished
with simple imprisonment or fine as prescribed in the Section. The offence is
aggravated if the disobedience tends to cause danger to human health or safety.
The imperative tone of s. 133 Cr.P.C. read with the punitive temper of s. 188
I.P.C.
make the prohibitory act a mandatory duty.
Although these two Codes are of ancient
vintage, the new social justice orientation imparted to them by the
Constitution of India makes it a remedial weapon of versatile use. Social
justice is due to the people and, therefore, the people must be able to trigger
off the jurisdiction vested for their benefit in any public functionary like a
Magistrate under s. 133 Cr.P.C. In the exercise of such power, the judiciary
must be informed by the broader principle of access to justice necessitated by
the conditions of developing countries and obligated by Art.
38 of the Constitution. This brings Indian
public law, in its procession branch, in line with the statement of Prof.
Kojima :(1) "the urgent need is to focus
on the ordinary man-one might say the little man..." "Access to
Justice" by Cappelletti and B. Garth summarises the new change thus:(2)
110 "The recognition of this urgent need reflects a fundamental change in
the concept of "procedural justice"... The new attitude to procedural
justice reflects what Professor Adolf Homburger has called "a radical
change in the hierarchy of values served by civil procedure"; the
paramount concern is increasingly with "social justice," i.e., with
finding procedures which are conducive to the pursuit and protection of the rights
of ordinary people. While the implications of this change are dramatic-for
instance, insofar as the role of the adjudicator is concerned-it is worth
emphasizing at the outset that the core values of the more traditional
procedural justice must be retained.
"Access to justice" must encompass
both forms of procedural justice." Public nuisance, because of pollutants
being discharged by big factories to the detriment of the poorer sections, is a
challenge to the social justice component of the rule of law. Likewise, the
grievous failure of local authorities to provide the basic amenity of public
conveniences drives the miserable slum-dwellers to ease in the streets, on the
sly for a time, and openly thereafter, because under Nature's pressure,
bashfulness becomes a luxury and dignity a difficult art. A responsible
municipal council constituted for the precise purpose of preserving public
health and providing better finances cannot run away from its principal duty by
pleading financial inability. Decency and dignity are non-negotiable facets of
human rights and are a first charge on local self-governing bodies. Similarly,
providing drainage systems- not pompous and attractive, but in working
condition and sufficient to meet the needs of the people- cannot be evaded if
the municipality is to justify its existence. A bare study of the statutory
provisions makes this position clear.
In this view, the Magistrate's approach
appears to be impeccable although in places he seems to have been influenced by
the fact that "cultured and educated people" live in this area and
"New Road, Ratlam" is a very important road and so many prosperous
and educated persons are living on this road. In India 'one man, one value' is
the democracy of remedies and rich or poor the law will call to order where people's
rights are violated. What should also have been emphasised was the neglect of
the Malaria Department of the State of Madhya Pradesh to eliminate mosquitoes,
especially with open drains, heaps of dirt, public excretion by humans for wants
of lavatories and slums nearby, had created an intolerable situation for
habitation. An order to abate the nuisance by taking affirmative action on a
time- bound basis is justified in the circumstances. The nature of the judicial
process is not purely adjudicatory nor is it functionally that of an umpire
only.
111 Affirmative action to make the remedy
effective is of the essence of the right which otherwise becomes sterile.
Therefore, the court, armed with the
provisions of the two Codes and justified by the obligation under s. 123 of the
Act, must adventure into positive directions as it has done in the present
case. Section 133 Cr.P.C. authorises the prescription of a time-limit for
carrying out the order. The same provision spells out the power to give
specific directives. We see no reason to disagree with the order of the
Magistrate.
The High Court has taken a correct view and
followed the observations of this Court in Govind Singh v. Shanti Sarup(1)
where it has been observed:
"We are of the opinion that in a matter
of this nature where what is involved is not merely the right of a private
individual but the health, safety and convenience of the public at large, the
safer course would be to accept the view of the learned Magistrate, who saw for
himself the hazard resulting from the working of the bakery." We agree
with the High Court in rejecting the plea that the time specified in the order
is unworkable. The learned judges have rightly said.
"It is unfortunate that such contentions
are raised in 1979 when these proceedings have been pending since 1972. If in
seven year's time the Municipal Council intended to remedy such a small matter
there would have been no difficulty at all. Apart from it, so far as the
directions are concerned, the learned Magistrate, it appears, was reasonable.
So far as direction No. 1 is concerned, the learned Magistrate only expected
the Municipal Council and the Town Improvement Trust to evolve a plan and to
start planning about it within six months: the learned Magistrate has rightly
not fixed the time limit within which that plan will be completed. Nothing more
reasonable could be said about direction No. 1." A strange plea was put
forward by the Municipal Council before the High Court which was justly
repelled, viz., that the owners of houses had gone to that locality on their
own choice with eyes open and, therefore, could not complain if human excreta
was flowing, dirt was stinking, mosquitoes were multiplying and health was held
hostage. A public body constituted for the principal statutory duty of ensuring
sanitation and health cannot outrage the court by such an ugly plea.
112 Luckily, no such contention was advanced
before us. The request for further time for implementation of the Magistrate's
order was turned down by the High Court since no specific time-limit was
accepted by the municipality for fulfillment of the directions. A doleful
statement about the financial difficulties of the municipality and the
assurance that construction of drains would be taken up as soon as possible had
no meaning. The High Court observed:
"Such assurances, it appears, are of no
avail as unfortunately these proceedings for petty little things like clearing
of dirty water, closing the pits and repairing of drains have taken more than
seven years and if these seven years are not sufficient to do the needful, one
could understand that by granting some more time it could not be done."
The High Court was also right in rejecting the Additional Sessions Judge's
recommendation to quash the Magistrate's order on the impression that s. 133
Cr.P.C. did not provide for enforcement of civic rights. Wherever there is a
public nuisance, the presence of s. 133 Cr.P.C. must be felt and any contrary
opinion is contrary to the law. In short, we have no hesitation in upholding
the High Court's view of the law and affirmation of the Magistrate's order.
Before us the major endeavour of the
municipal council was to persuade us to be pragmatic and not to force
impracticable orders on it since it had no wherewithal to execute the order. Of
course, we agree that law is realistic and not idealistic and what cannot be
performed under given circumstances cannot be prescribed as a norm to be
carried out. From that angle it may well be that while upholding the order of
the Magistrate, we may be inclined to tailor the direction to make it workable.
But first things first and we cannot consent to a value judgment where people's
health is a low priority. Nevertheless, we are willing to revise the order into
a workable formula the implementation of which would be watch-dogged by the
court.
Three proposals have been put forward before
us in regard to the estimated cost of the scheme as directed by the Magistrate.
The Magistrate had not adverted to the actual cost of the scheme nor the reasonable
time that would be taken to execute it. As stated earlier it is necessary to
ascertain how far the scheme is feasible and how heavy the cost is likely to
be. The Court must go further to frame a scheme and then fix time-limits and
even oversee the actual execution of the scheme in compliance with the court's
order.
Three schemes placed before us, together with
tentative estimates of the costs, have been looked into by us. Judges are
laymen and cannot put on expert airs. That was why we allowed the municipality
113 and the respondents to produce before us schemes prepared by expert
engineers so that we may modify the directions issued by the Magistrate
suitably. Scheme 'A' is stated to cost an estimated amount of Rs. 1.016 crores.
The State Government has revised this proposal and brought down the cost. In
our view, what is important is to see that the worst aspects of the insanitary
conditions are eliminated, not that a showy scheme beyond the means of the
municipality must be undertaken and half done. From that angle we approve
scheme 'C' which costs only around Rs. 6 lakhs. We fix a time limit of one year
for completing execution of the work according to that scheme. We further
direct that the work shall be begun within two months from to-day and the
Magistrate shall inspect the progress of the work every three months broadly to
be satisfied that the order is being implemented bona fide. Breaches will be
visited with the penalty of s. 188 I.P.C.
We make the further supplementary directions
which we specifically enjoin upon the municipal authority and the State
Government to carry out.
1. We direct the Ratlam Municipal Council
(R1) to take immediate action, within its statutory powers, to stop the
effluents from the Alcohol Plant flowing into the street. The State Government
also shall take action to stop the pollution. The Sub Divisional Magistrate
will also use his power under s. 133 I.P.C., to abate the nuisance so caused.
Industries cannot make profit at the expense of public health. Why has the
Magistrate not pursued this aspect ?
2. The Municipal Council shall, within six
months from to-day, construct a sufficient number of public latrines for use by
men and women separately, provide water supply and scavenging service morning
and evening so as to ensure sanitation. The Health Officer of the Municipality
will furnish a report, at the end of the six- monthly term, that the work has
been completed. We need hardly say that the local people will be trained in
using and keeping these toilets in clean condition. Conscious cooperation of
the consumers is too important to be neglected by representative bodies.
3. The State Government will give special
instructions to the Malaria Eradication Wing to stop mosquito breeding in Ward
12. The Sub Divisional Magistrate will issue directions to the officer
concerned to file a report before him to the effect that the work has been done
in reasonable time.
4. The municipality will not merely construct
the drains but also fill up cesspools and other pits of filth and use its
sanitary 114 staff to keep the place free from accumulations of filth. After
all, what it lays out on prophylactic sanitation is a gain on its hospital
budget.
5. We have no hesitation in holding that if
these directions are not complied with the Sub Divisional Magistrate will
prosecute the officers responsible. Indeed, this court will also consider
action to punish for contempt in case of report by the Sub Divisional
Magistrate of willful breach by any officer.
We are sure that the State Government will
make available by way of loans or grants sufficient financial aid to the Ratlam
Municipality to enable it to fulfill its obligations under this order. The
State will realise that Art. 47 makes it a paramount principle of governance
that steps are taken 'for the improvement of public health as amongst its
primary duties'. The municipality also will slim its budget on low priority
items and elitist projects to use the savings on sanitation and public health.
It is not our intention that the ward which has woken up to its rights alone
need be afforded these elementary facilities. We expect all the wards to be
benefited without litigation. The pressure of the judicial process, expensive
and dilatory, is neither necessary nor desirable if responsible bodies are
responsive to duties. Cappelletti holds good for India when he observes :(1)
"Our judicial system has been aptly described as follows:
Admirable though it may be, (it) is at once
slow and costly. It is a finished product of great beauty, but entails an
immense sacrifice of time, money and talent.
This "beautiful" system is
frequently a luxury; it tends to give a high quality of justice only when, for
one reason or another, parties can surmount the substantial barriers which it
erects to most people and to many types of claims." Why drive common
people to public interest action ? Where Directive Principles have found
statutory expression in Do's and Dont's the court will not sit idly by and
allow municipal government to become a statutory mockery. The law will
relentlessly be enforced and the plea of poor finance will be poor alibi when
people in misery cry for justice.
The dynamics of the judicial process has a
new 'enforcement' dimension not merely through some of the provisions of the
Criminal Procedure Code (as here), but also through activated tort
consciousness. The officers in charge and even the elected representatives will
have 115 to face the penalty of the law if what the Constitution and follow-up
legislation direct them to do are defied or denied wrongfully. The wages of
violation is punishment, corporate and personal.
We dismiss this petition subject to the
earlier mentioned modifications.
N.V.K. Petition dismissed.
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