Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 15
PETITIONER:
MUNICIPAL COUNCIL, RATLAM
Vs.
RESPONDENT:
SHRI VARDHICHAND & ORS.
DATE OF JUDGMENT29/07/1980
BENCH:
KRISHNAIYER, V.R.
BENCH:
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 15
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 15
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]
JUDGMENT:
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 15
considered. In that sense, the case before us between the
Ratlam Municipality and the citizens of
100
a ward, 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 15
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 15
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 15
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.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 15
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.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 15
(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.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 15
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,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 15
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 processual 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-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 15
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 want 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 15
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 15
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 fulfil 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 15
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.
116