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Nikhil Wagle and others v State of Maharashtra and others

Bombay High Court
07 January 2016
Case Analysis
Bench A.S. Oka, G.S. Patel
Where Reported 2016 Indlaw MUM 6; 2016 (2) ACC 960; 2016(1) ALL MR 862;
2016 (2) MahLJ 198
Case Digest Subject: Carriers & Transportation

Keywords: Central Motor Vehicles Rules, 1989, Maharashtra
Prohibition of Ragging Act, 1999, Bombay Prohibition Medical
Examination and Blood Test Rules, 1959
Summary: Carriers & Transportation - Motor Vehicles Act, 1988,
s. 185A - Drunk driving - Violation of Rules - Interim direction -
PIL was filed with respect to accidents caused by persons under
influence of alcohol, hence, violating s. 185 of Act - Hence, interim
directions are sought by court.
Held, Court urge the Central Govt. to consider a suitable
amendment, either by allowing various State Governments to
prescribe their own norms, or to prescribe such a zero-tolerance
norm in s. 185 itself. State and Central Govt. directed to file
comprehensive affidavits in terms of directions issued by HC.
Matter listed. Order accordingly.
Ratio - Court is justified to issue directions to State and Central
Govt. in order to maintain law and order in society.
All Cases Cited Referred

State Tr.P.S.Lodhi Colony New Delhi v Sanjeev Nanda2012 Indlaw
SC 239, (2012) 8 SCC 450, 2012 (3) ACC 379, AIR 2012 SC
3104, 2012 ALL MR (Cri) 3005, 2012 CRLJ 4174, 2012 (2) OLR
1003, 2012 (3) RCR(Criminal) 897, 2013 (1) RLW 629, 2012(7)
SCALE 120, [2012] 12 S.C.R. 881
Legislation Cited Indian Penal Code, 1860

Indian Penal Code, 1860 s. 279
Indian Penal Code, 1860 s. 304A
Maharashtra Prohibition of Ragging Act, 1999

Motor Vehicles Act, 1988
Motor Vehicles Act, 1988 s. 185(a)
Motor Vehicles Act, 1988 s. 19
Motor Vehicles Act, 1988 s. 204(1)
Motor Vehicles Act, 1988 s. 19(1)(f)
Bombay Prohibition Medical Examination and Blood Test Rules,
1959
Central Motor Vehicles Rules, 1989
Central Motor Vehicles Rules, 1989 r. 21(16)
This database contains editorial enhancements that are not a part of the original material. The database may also have mistakes or omissions. Users are requested to verify the contents with the
relevant original text(s) such as, the certified copy of the judgment, Government Gazettes, etc. Thomson Reuters bears no liability whatsoever for the adequacy, accuracy, satisfactory quality or
suitability of the content.
Bombay High Court
7 January 2016
Nikhil Wagle and others
State of Maharashtra and others
Case No : Civil Appellate Side Jurisdiction Public Interest Litigation No. 77 of 2002
Bench : A.S. Oka, G.S. Patel
Citation : 2016 Indlaw MUM 6, 2016 (2) ACC 960, 2016(1) ALL MR 862, 2016 (2) MahLJ 198
Summary : Carriers & Transportation - Motor Vehicles Act, 1988, s. 185A - Drunk driving -
Violation of Rules - Interim direction - PIL was filed with respect to accidents caused by persons
under influence of alcohol, hence, violating s. 185 of Act - Hence, interim directions are sought by
court.
Held, Court urge the Central Govt. to consider a suitable amendment, either by allowing various
State Governments to prescribe their own norms, or to prescribe such a zero-tolerance norm in s.
185 itself. State and Central Govt. directed to file comprehensive affidavits in terms of directions
issued by HC. Matter listed. Order accordingly.
Ratio - Court is justified to issue directions to State and Central Govt. in order to maintain law and
order in society.
The Order of the Court was as follows :

1. Rule has been already issued in this Public Interest Litigation and the same is pending for
final disposal. This Public Interest Litigation has appeared on board from time to time under
the caption of "Directions" for reporting compliance by the Union of India with the directions
issued earlier. The occasion for filing the present Public Interest Litigation is an incident of the
early morning of 28th November 2002 in Mumbai in which the Fourth Respondent, who is a
popular Hindi Cine-star, was allegedly involved. During the pendency of this Petition, he was
convicted by the Court of Sessions for various offences including those punishable under
Section 304 Part II of the Indian Penal Code and Section 185 of the Motor Vehicles
Act,1988(for short "M.V.Act"). It is alleged that he was found driving a car while he was under
the influence of alcohol.
2. The order of conviction passed by the Sessions Court was set aside by learned Single Judge
of this Court Criminal Appeal No.572 of 2015 decided on 7th, 8th, 9th and 10th December
2015. Today, the learned Government Pleader on instructions states that the State
Government has taken a decision to immediately prefer a Special Leave Petition before the
Apex Court for challenging the said judgment and order of the learned Single Judge of this
Court. He states that the Special Leave Petition will be filed in January 2016. In view of this
statement, for the time being, we are not considering the implications of the observations
made by the learned Single Judge in the said judgment and order about the major defects in
the investigation. Nevertheless, appropriate interim directions will have to be issued
considering the fact that in the recent past, there have been large number of cases involving
violation of Section 185 of the M.V. Act. During last few years there have been number of
cases of accidents involving motor vehicles driven by persons who were under the influence of
alcohol and who were guilty of violation of clause (a) of Section 185 of the M.V.Act.
3. The Apex Court has dealt with the issue of drunken driving in several cases. Recently, in the
case of State Through P.S. Lodhi Colony, New Delhi v. Sanjeev Nanda (2012)8 SCC 450 2012
Indlaw SC 239. In paragraph 86, the Apex Court has succinctly noted the issue involved which
reads thus:
"86. Drunken driving has become a menace to our society. Everyday drunken driving results in
accidents and several human lives are lost, pedestrians in many of our cities are not safe. Late
night parties among urban elite have now become a way of life followed by drunken driving.
Alcohol consumption impairs consciousness and vision and it becomes impossible to judge
accurately how far away the objects are. When depth perception deteriorates, eye muscles
lose their precision causing inability to focus on the objects. Further, in more unfavourable
conditions like fog, mist, rain etc., whether it is night or day, it can reduce the visibility of an
object to the point of being below the limit of discernibility. In short, alcohol leads to loss of
coordination, poor judgment, slowing down of reflexes and distortion of vision."
4. Driving by a drunken person or by a person under the influence of drugs is made punishable
under Section 185 of the M.V. Act. Section 185, which reads thus:
"185. Driving by a drunken person or by a person under the influence of drugs.-Whoever,
while driving, or attempting to drive, a motor vehicle,-
[(a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a
breath analyser, or]
(b) is under this influence of a drug to such an extent as to be incapable of exercising proper
control over the vehicle, shall be punishable for the first offence with imprisonment for a term
which may extend to six months, or with fine which may extend to two thousand rupees, or
with both; and for a second or subsequent offence, if committed within three years of the
commission of the previous similar offence, with imprisonment for a term which may extend to
two years, or with fine which may extend to three thousand rupees, or with both.
Explanation.-For the purposes of this section, the drug or drugs specified by the Central
Government in this behalf, by notification in the Official Gazette, shall be deemed to render a
person incapable of exercising proper control over a motor vehicle."
5. Apart from this penal provision under the M.V. Act, depending upon the facts of the case,
the offences punishable under Sections 279, 304 (Part-II) and 304A of the Indian Penal Code
may be attracted.
6. On a plain reading of Section 185 of the M.V. Act, the offence of driving by a drunken
person (popularly known as "Drunken Driving") is established when in his blood, alcohol
exceeding 30 mg per 100 ml of blood is detected in his breath test. On this aspect, Sections
203 and 204 of the M.V. Act also relevant which read thus:-
"203. Breath tests.- [(1) A police officer in uniform or an officer of the Motor Vehicles
Department, as may be authorised in this behalf by that Department, may require any person
driving or attempting to drive a motor vehicle in a public place to provide one or more
specimens of breath for breath test there or nearby, if such police officer or officer has any
reasonable cause to suspect him of having committed an offence under section 185:
Provided that requirement for breath test shall be made (unless, it is made) as soon as
reasonably practicable after the commission of such offence.]
2. If a motor vehicle is involved in an accident in a public place and a police officer in uniform
has any reasonable cause to suspect that the person who was driving the motor vehicle at the
time of the accident had alcohol in his blood or that he was driving under the influence of a
drug referred to in section 185 he may require the person so driving the motor vehicle, to
provide a specimen of his breath for a breath test-
(a) in the case of a person who is at a hospital as an indoor patient, at the hospital,
(b) in the case of any other person, either at or near the place where the requirement is
made, or, if the police officer thinks fit, at a police station specified by the police officer:
Provided that a person shall not be required to provide such a specimen while at a hospital as
an indoor patient if the registered medical practitioner in immediate charge of his case is not
first notified of the proposal to make the requirement or objects to the provision of a specimen
on the ground that its provision or the requirement to provide it would be prejudicial to the
proper care or treatment of the patient.
3. If it appears to a police officer in uniform, in consequence of a breath test carried out by
him on any person under sub-section (1) or sub-section (2) that the device by means of which
the test has been carried out indicates the presence of alcohol in the person's blood, the police
officer may arrest that person without warrant except while that person is at a hospital as an
indoor patient.
4. If a person, required by a police officer under sub-section (1) or sub-section (2) to provide
a specimen of breath for a breath test, refuses or fails to do so and the police officer has
reasonable cause to suspect him of having alcohol in his blood, the police officer may arrest
him without warrant except while he is at a hospital as an indoor patient.
5. A person arrested under this section shall while at a police station, be given an opportunity
to provide a specimen of breath for a breath test there.
6. The results of a breath test made in pursuance of the provisions of this section shall be
admissible in evidence.
Explanation.-For the purposes of this section "breath test", means a test for the purpose of
obtaining an indication of the presence of alcohol in a person's blood carried out on one or
more specimens of breath provided by that person, by means of a device of a type approved
by the Central Government by notification in the Official Gazette, for the purpose of such a
test.
204. Laboratory test.- (1) A person who has been arrested under section 203 may, while at a
police station be required by a police officer to provide to such registered medical practitioner
as may be produced by such police officer, a specimen of his blood for a laboratory test if,-
(a) it appears to the police officer that the device, by means of which breath test was taken in
relation to such person, indicates the presence of alcohol in the blood of such person, or
(b) such person, when given the opportunity to submit to a breath test, has refused, omitted
or failed to do so:
Provided that where the person required to provide such specimen is a female and the
registered medical practitioner produced by such police officer is a male medical practitioner,
the specimen shall be taken only in the presence of a female, whether a medical practitioner
or not.
2. A person while at a hospital as an indoor patient may be required by a police officer to
provide at the hospital a specimen of his blood for a laboratory test-
(a) if it appears to the police officer that the device by means of which test is carried out in
relation to the breath of such person indicates the presence of alcohol in the blood of such
person, or
(b) if the person having been required, whether at the hospital or elsewhere, to provide a
specimen of breath for a breath test, has refused, omitted or failed to do so and a police
officer has reasonable cause to suspect him of having alcohol in his blood:
Provided that a person shall not be required to provide a specimen of his blood for a laboratory
test under this sub-section if the registered medical practitioner in immediate charge of his
case is not first notified of the proposal to make the requirement or objects to the provision of
such specimen on the ground that its provision or the requirement to provide it would be
prejudicial to the proper care or treatment of the patient.
3. The results of a laboratory test made in pursuance of this section shall be admissible in
evidence.
Explanation.-For the purposes of this section, "laboratory test" means the analysis of a
specimen of blood made at a laboratory established, maintained or recognised by the Central
Government or a State Government."
7. Under Section 203, if an officer in uniform or an officer of the Motor Vehicles Department as
may be authorized in this behalf by the Motor Vehicles Department, may require any person
driving or attempting to drive a motor vehicle in a public place to provide one or more
specimens of breath for breath test there or nearby, if such officer has any reasonable cause
to suspect him of having committed an offence under Section 185 of the M.V. Act. The proviso
to Sub-section (1) thereto lays down that the breath test shall be taken as soon as reasonably
practicable after commission of such offence. Sub-section (2) deals with a case where a motor
vehicle is involved in an accident in a public place. Sub-section (2) is applicable when a police
officer in uniform has any reasonable cause to suspect that the person who was driving the
motor vehicle at the time of the accident had alcohol in his blood. In such a case, the police
officer may require the person so driving the motor vehicle to provide a specimen of his breath
for conducting a breath test. The Explanation defines breath tests. A breath test can be
conducted only by means of a device of a type approved by the Central Government by a
notification in the Official Gazette. Sub- section (3) of Section 203 provides for the arrest of a
person without warrant after the presence of alcohol is detected in such person's blood after a
test of his breath.
8. Sub-section (1) of Section 204 of the M.V. Act lays down that a person who has been
arrested under Section 203, while at the police station, may be required by a police officer to
provide to such registered medical practitioner as may be produced by such police officer, a
specimen of his blood for a laboratory test. He can be subjected to such a blood test if it
appears to the police officer that the device by means of which breath test was taken in
relation to such person indicates the presence of alcohol in the blood of such person. When
any person who is given an opportunity to submit to a breath test refuses, omits or fails to do
so, even he can be subjected to a blood test.
9. We must note here that the plain language of Section 185 of the M.V. Act makes it clear
that an offence punishable under Section 185 of the M.V. Act can never be proved unless it is
proved that the person concerned while driving or attempting to drive a motor vehicle has in
his blood alcohol exceeding 30 mg per 100 ml. Therefore, the conduct of a proper breath test
by a device approved by the Central Government, at the proper time, is of a great deal of
importance. Only after the accused is arrested in accordance with the sub-sections (3) and (4)
of Section 203 that the police officer can exercise the powers under Section 204 of the M.V.
Act of requiring the accused to provide a specimen of his blood for laboratory test. Thus, a
person cannot be sent for laboratory test unless he is arrested.
10. On the conduct of the laboratory test as provided under Section 204 of the M.V. Act, in the
case of State Through P.S. Lodhi Colony, New Delhi v. Sanjeev Nanda 2012 Indlaw SC 239,
Justice Radhakrishnan, in his separate Judgment in paragraph 82 has held thus:
"82. The accused, in this case, escaped from the scene of occurrence, therefore, he could not
be subjected to breath analyser test instantaneously, or to take or provide specimen of his
breath for a breath test or a specimen of his blood for a laboratory test. The cumulative effect
of the provisions, referred to above, would indicate that the breath analyser test has a
different purpose and object. The language of the above sections would indicate that the said
test is required to be carried out only when the person is driving or attempting to drive the
vehicle. The expressions "while driving" and "attempting to drive" in the above sections have a
meaning "in praesenti". In such situations, the presence of alcohol in the blood has to be
determined instantly so that the offender may be prosecuted for drunken driving. A breath
analyser test is applied in such situations so that the alcohol content in the blood can be
detected. The breath analyser test could not have been applied in the case on hand since the
accused had escaped from the scene of the accident and there was no question of subjecting
him to a breath analyser test instantaneously. All the same, the first accused was taken to
AIIMS Hospital at 12.29 p.m. on 10-1-1999 when his blood sample was taken by Dr Madhulika
Sharma, Senior Scientific Officer (PW 16). While testing the alcohol content in the blood, she
noticed the presence of 0.115% weight/volume ethyl alcohol. The report exhibited as PW-16/A
was duly proved by the doctor. Over and above, in her cross-examination she had explained
that 0.115% would be equivalent to 115 mg per 100 ml of blood and deposed that as per
traffic rules, if the person is under the influence of liquor and alcohol content in blood exceeds
30 mg per 100 ml of blood, the person is said to have committed the offence of drunken
driving."
(emphasis added)
Thus, in such a case where the breath test could not be conducted, the conduct of the blood
test at the earliest assumes a great deal of importance. The Editor of the report (in Supreme
Court Cases) has appended a note to the Head Notes of the said Judgment in the case of
Sanjeev Nanda which reads thus:
"Ed.: In order to understand the import of Section 185 of the Motor vehicles Act, 1988, it is
necessary to study the biological process which is set in motion when alcohol is consumed.
Alcohol is a depressant. When alcohol goes into the stomach it mixes with blood and then
through the circulatory system, it diffuses into the whole body. It primarily affects the central
nervous system, particularly the brain (vide Richard Saferstein: Criminalistics, 10th Edn., p.
214). Biologically, drunkenness is a temporary impairment of the nervous system caused due
to consumption of alcohol.
In order to determine how much a particular person is affected by alcohol consumption, the
ideal situation is to examine his brain tissues but practically it is not feasible to interfere with
such a sensitive organ of a living human being, simply to know the effect of alcohol. Scientists
have therefore found an alternative method of detecting the effect of alcohol in the body
through blood examination. There is a close correlation between the concentration of alcohol in
the blood and in the brain. If the concentration of alcohol in the blood is detrmined, this will in
turn determine the level up to which it has affected the nervous system.
Saferstein puts it like this: "From a medico-legal point of view, blood-alcohol levels have
become the accepted standard for relating alcohol intake to its effect on the body." (p. 215)
However, blood analysis requires expert medical examination which should be carried out in
clinical conditions in a property equipped laboratory. This is therefore not a very handy
method for traffic police who has to keep a watch over hundreds of drivers to know whether
they are sober or drunken. The problem arises particularly when traffic on highways has to be
watched at night. It is because of this difficulty, that portable devices called breath analysers
or testers have been devised which can be used conveniently by the police. These devices
estimate the presence of alcohol through alveolar breath but they by no means completely
dispense with the requirement of blood breath but they by no means completely dispense with
the requirement of blood examination in certain cases. Quoting Saferstein again, results
obtained through modern portable instruments like an alco-sensor or alcometer should be
considered preliminary and non- evidential in nature. They establish only a probable cause for
requiring an individual to submit to a more thorough breath or blood test (p.222).

Thus the position which emerges is that a portable breath analyser may be a useful device to
conduct a preliminary test at the spot when a drunken driver is caught on the road but this is
not the only test to determine the effect of alcohol. There are other sophisticated techniques
like gas chromatography through which the presence of alcohol in blood can be detected with
a high degree of accuracy. It may therefore be possible to book a drunken driver under
Section 185 of the MV Act, 1988 on the basis of a test conducted on a portable device
provided his only fault is that he was found drunken on the road but did not otherwise cause
any harm. Mention of a breath analyser in Section 185, it is suggested, must be understood in
this perspective. However, if a drunken driver has caused a serious accident or some other
harm so as to be liable for punishment under the Penal Code, 1860. Section 185, it is
submitted, does not exclude detailed medical examination which may be conducted under
Section 53 of the Criminal Procedure Code, 1973.
Even otherwise, a breath analyser can be used when a drunken driver is caught at the spot. If
he has fled from scene and is caught later on, say after a few hours, the prudent approach
seems to be to subject him to blood analysis and other method tests. In such a situation, the
task of prosecution becomes more onerous inasmuch as an additional fact has to be proved:
that the offending driver had consumed liquor before the mishap took place. Authoritative
works on Toxicology do not provide much material about the estimation of time when alcohol
might have been consumed but still some useful guidelines are available. According to
Safestein, "Depending on a combination of factors, maximum blood-alcohol concentration may
not be reached until two or three hours have elapsed from the time of consumption. However,
under normal social drinking conditions, it takes anywhere from 30 to 90 minutes from the
time of the final drink until the absorption process is completed." (p.215) Once alcohol has
been absorbed in the body, then the elimination process starts. Elimination takes place
through oxidation and excretion of alcohol. Again, according to Saferstein, "The elimination
or burn off rate of alcohol varies in different individuals: 0.015 per cent w/v (weight per
volume) per hour seems to be the average rate once the absorption process is complete.
However, this figure is an average that varies by as much as 30% among individuals." (p.216)
In Modi's Medical Jurisprudence and Toxicology (23rd Edn.), it is mentioned that alcohol in
blood diminishes at the rate of 12-15 mg per hour (p.312). Considering that Saferstein
qualifies his opinion both as to the time it takes for alcohol to be absorbed and with the
possibility of a 30% variation as to the rate of elimination depending on the individual, it is
submitted that the prosecution would have to produce some other evidence in addition to the
medical evidence, relating to the time of consumption of alcohol."
(Emphasis added)
11. The Editor has observed that a portable breath analyser may be a useful device to conduct
a preliminary test at the spot when a drunken driver is caught on the road but this is not the
only test to determine the effect of alcohol. We find that neither the M.V.Act nor the Rules
framed thereunder lay down the procedure to be followed while conducting breath test and
blood test. In case of the Maharashtra Prohibition Act,1948 the Bombay Prohibition Medical
Examination and Blood Test Rules, 1959 prescribe a detailed procedure for collection of blood
samples and further steps to be taken thereafter. The State Government and the Central
Government will have to look into this aspect. We must hasten to add that there is no illegality
attached to conduct of breath and/or blood test merely because there are no Rules. The
necessity of having the Rules or Guidelines is to ensure that the Authorities do not commit any
errors of which undue advantage taken by the accused. The time frame for taking various
steps from the collection of blood samples will have to be fixed. There is no provision made to
properly preserve the blood samples, to immediately dispatch the same for analysis within a
specified time and to complete the analysis within a time schedule.
12. The first direction will have to be issued to ascertain whether in the City of Mumbai and
other Municipal Corporation Areas, the Police Department and the Regional Transport Offices
have a sufficient number of breath test devices approved by the Central Government by a
notification in the Official Gazette. The question is whether the State Government has provided
adequate number of breath analyser devices in working condition to the police and to the
authorised officers of the Motor Vehicles Department. Another connected issue is of regular
maintenance and checking of the proper functioning of the devices. Moreover, it is necessary
for the State to furnish the data of cases registered under Section 185 of the M.V.Act in
Mumbai and other Municipal Corporation areas during last three years with special reference to
the cases registered on 31st December and 1st January every year. This data is necessary
with a view to ascertain whether adequate number of devices are available to conduct the
breath tests.
13. The second direction will be as regards action to be taken for framing Rules and/or laying
down the guidelines in terms of paragraph above.
14. The third direction will be of making available the facility of collection of blood samples and
prompt analysis thereof by providing mobile laboratories and by providing laboratories in all
Government/Municipal hospitals including civil and cottage hospitals as well as in selected
Primary Health Centres.
15. Another important issue is regarding the exercise of power of suspension of driving licence
of a person against whom a case is registered under clause (a) of Section 185. Section 19 of
the M.V.Act which reads thus:
"19. Power of licensing authority to disqualify from holding a driving licence or revoke such
licence. - (1) If a licensing authority is satisfied, after giving the holder of a driving licence an
opportunity of being heard, that he-
(a) is a habitual criminal or a habitual drunkard; or
(b) is a habitual addict to any narcotic drug or psychotropic substance within the meaning of
the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or
(c) is using or has used a motor vehicle in the commission of a cognizable offence; or
(d) has by his previous conduct as driver of a motor vehicle shown that his driving is likely to
be attended with danger to the public; or
(e) has obtained any driving licence or a licence to drive a particular class or description of
motor vehicle by fraud or misrepresentation; or
(f) has committed any such act which is likely to cause nuisance or danger to the public, as
may be prescribed by the Central Government, having regard to the objects of this Act; or
(g) has failed to submit to, or has not passed, the tests referred to in the proviso to sub-
section (3) of Section 22; or
(h) being a person under the age of eighteen years who has been granted a learner's licence
or a driving licence with the consent in writing of the person having the care of the holder of
the licence and has ceased to be in such care, it may, for reasons to be recorded in writing,
make an order-
(i) disqualifying that person for a specified period for holding or obtaining any driving licence
to drive all or any classes or descriptions of vehicles specified in the licence; or
(ii) revoke any such licence.
(2) Where an order under sub-section (1) is made, the holder of a driving licence shall
forthwith surrender his driving licence to the licensing authority making the order, if the
driving licence has not already been surrendered, and the licensing authority shall,-
(a) if the driving licence is a driving licence issued under this Act, keep it until the
disqualification has expired or has been removed; or
(b) if it is not a driving licence issued under this Act, endorse the disqualification upon it and
send it to the licensing authority by which it was issued; or

(c) in the case of revocation of any licence, endorse the revocation upon it and if it is not the
authority which issued the same, intimate the fact of revocation to the authority which issued
that licence:
Provided that where the driving licence of a person authorises him to drive more than one
class or description of motor vehicles and the order, made under sub-section (1), disqualifies
him from driving any specified class or description of motor vehicles, the licensing authority
shall endorse the disqualification upon the driving licence and return the same to the holder.
(3) Any person aggrieved by an order made by a licensing authority under sub-section (1)
may, within thirty days of the receipt of the order, appeal to the prescribed authority, and
such appellate authority shall give notice to the licensing authority and hear either party if so
required by that party and may pass such order as it thinks fit and an order passed by any
such appellate authority shall be final."
(underlines supplied)
16. The Central Government has exercised the power under clause (f) of sub-section 1 of
Section 19. Rule 21 of the Central Motor Vehicles Rules, 1989 (for short "the Central Rules)
provides thus:
"21. Powers of licensing authority to disqualify.- For the purpose of clause (f) of sub-section
(1) of Section 19, the commission of the following acts by holder of a driving licence shall
constitute nuisance or danger to the public, namely:-
(1) Theft of motor vehicle.
(2) Assault on passengers.
(3) Theft of personal effects of passengers.
(4) Theft of goods carried in goods carriages.
(5) Transport of goods prohibited under any law. 2[(6) Driver while driving a transport vehicle,
engages himself in activity which is likely to disturb his concentration.]
(7) Abduction of passengers.
(8) Carrying overload in goods carriages.
(9) Driving at speed exceeding the specified limit.
(10) Carrying persons in goods carriage, either inside the driver's cabin in excess of its
capacity or on the vehicle, whether for hire or not.
(11) Failing to comply with the provisions of Section 134.
(12) Failure to stop when signalled to do so by any person authorised to do so.
(13) Misbehaviour with and showing discourtesy to passengers, intimidating passengers or
consignors and consignees of goods.
(14) Smoking while driving public service vehicles.
(15) Abandoning vehicle in a public place causing inconvenience to other road users or to
passengers in the vehicle.
(16) Driving vehicle while under the influence of drink or drugs.
(17) Interfering with any person mounting or preparing to mount upon any other vehicle.
(18) Allowing any person to sit or placing things in such a way as to impede the driver from
having a clear vision of the road or proper control of the vehicle.
(19) Not stopping a stage carriage at approved stopping places for a sufficient period of time
in a safe and convenient position upon demand or signal of the conductor or any passenger
desiring to alight from the vehicle and unless there is no room in the vehicle, upon demand or
signal of any person desiring to become a passenger.
(20) Loitering or unduly delaying any journey and not proceeding to the destination as near as
may be in accordance with the time-table pertaining to the vehicle, or, where there is no such
time- table, with all reasonable despatch.
(21) Not driving a contract carriage, in the absence of a reasonable cause, to the destination
named by the hirer by the shortest route.
(22) The driver of a motor cab not accepting the first offer of hire which may be made to him
irrespective of the length of the journey for which such offer is made.
(23) The driver of a motor cab demanding or extracting any fare in excess to that to which he
is legally entitled or refusing to ply motor cab.
3[(24) Abandoning a transport vehicle as a mark of protest or agitation of any kind or strike in
a public place or in any other place in a manner causing obstructions or inconvenience to the
public or passengers or other users of such places.]
4[(25) Using mobile phone while driving a vehicle.]"
(underlines supplied)
Clause (16) is relevant for our purpose. On a conjoint reading of clause (f) of sub-section 1 of
Section 19 of the M.V.Act with clause (16) of Rule 21 of the Central Rules, we find that on
registration of an offence under Section 185, the power to suspend the driving licence under
Section 19 can be exercised by the Licencing Authority. The Licencing Authorities will have to
invoke the said power in the cases of violation of clause (a) of Section 185. The exercise of the
said power may have the desired deterrent effect. The State Government will have to issue
appropriate directions to ensure that there is a proper coordination between the Police and the
Licencing Authorities so that an action of suspension of the driving licence is initiated
immediately after the offence is committed. The State Government while filing an affidavit
shall disclose the details of the number of cases in which action of suspension of licence has
been taken during last three years in Mumbai and other Municipal Corporation areas in the
cases under Clause (a) of Section 185.
17. At this stage, we must express our grave concern about the growing problem of driving
while under the influence of alcohol. As we have noted, the editorial comment in the Supreme
Court Cases report clearly demonstrates the likely impairment of cognitive functions essential
to driving a vehicle caused by an intake of alcohol. While Section 185 prescribes the so-called
'limits', we feel duty-bound to observe that these limits seem to us to be theoretical. The effect
of alcohol on an individual can vary widely. It may be a function of a multitude of factors,
including body type, the amount of food taken before or after alcohol consumption, a genetic
disposition to high or low tolerance for alcohol, how fast the alcohol is consumed and even
external factors. These effects are well studied, but they cannot be viewed in isolation, nor is it
reasonable, in our view, to adopt any particular norm that may be applied in other jurisdictions
overseas. Regard must necessarily be had to the conditions in our country and in our cities:
the overcrowded roads, pedestrian movement on roads, the absence of sufficient sidewalks or
pavements, a general indiscipline and indifference to traffic regulations, and the fact, too, that
our roads and such few sidewalks as exist are used by hawkers during the day and by the
poorest of the poor at night. This makes drunken driving all the more dangerous, and we do
not think it is possible to ignore these conditions, especially given our experience with fatalities
caused to third parties by reported incidents of drunken driving. It is not possible, in our view,
to countenance an argument that any person has a fundamental right to drink, let alone to
drink any amount and then get behind the wheel of a motor car or onto a two-wheeler. Even
the most minute impairment caused by alcohol intake might have the most disastrous
consequences.
18. We note with a great deal of alarm and dismay that on 31st December 2015/1st January
2016, Mumbai alone saw as many as 705 drunk driving cases, as reported by the Times of
India, an increase of 35% from the previous year 31st December 2014. This Court has had
occasion in the past to permit various establishments such as bars and restaurants to remain
open till 5:00 am on New Year's Eve, and this has now been permitted by the State
Government as well. But this demands, in turn, greater and not lesser responsibility on the
part of citizens. Further, in the major metros at any rate there are now several viable
alternatives in the form of not only public transport but also drivers whose services can be
hired for the purpose. We note, too, that in at least one incident, there were some police
officers who lost their lives.
19. We find nothing to suggest that some quantity of alcohol in the blood can be considered
'safe'; at the highest, a specified quantity is a generalized norm, one that does not allow for
the very wide variations that may result from one person to the next. There is, in fact, no
reason why any person who has had any amount to drink should be permitted to drive at all.
Given the alternatives available, and having regard to the manifest risks especially to third
parties, we would strenuously urge the adoption by the Central Government of a zero-
tolerance policy toward drunk driving. We see no reason why the police should be burdened
with having to prove whether or not a person is above or below any particular limit; the mere
presence of alcohol in the blood should, in our view, be sufficient to disentitle a person from
driving. In itself, this would facilitate the work of the police and go a long way to ensuring
safety on our roads, apart from lessening the forensic burden on enforcement agencies.
20. Section 185 is placed in Chapter 13 of the M.V. Act. This Chapter does not contain any
provision by which the State Government can make appropriate rules. We would urge the
Central Government to consider a suitable amendment in this regard, either by allowing
various State Governments to prescribe their own norms (and we would urge the Maharashtra
Government to adopt a zero tolerance norm), or to prescribe such a zero-tolerance norm in
Section 185 itself. The time has now come for just such a measure. Too many lives have
already been lost to this lethal cocktail of internal consumption and internal combustion.
21. Detailed directions will be issued after considering the response of both the State and the
Central Government. For the time being, we issue the following interim directions :
(a) The State Government shall file an affidavit setting out whether adequate number of
devices for conducting breath test as approved by the Central Government are available in
Mumbai as well as in other Municipal Corporation Areas. The affidavit to contain the data of the
devices provided to the Police as well as to the authorised Officers of the Motor transport
Department which are in working condition today. The affidavit shall also set out the details of
the arrangements made for the regular maintenance and checking of the devices used for
conducting the breath test;
(b) The State shall furnish the data of the cases registered under Section 185 of the M.V.Act in
Mumbai and other Municipal Corporation areas during last three years (2013,2014 and 2015)
with special reference to the cases registered on 31st December and 1st January every year.
The State Government shall also provide details of the action of suspension of driving licences
taken in such cases during the aforesaid period of three years in Mumbai and other Municipal
Corporation areas;
(c) The State Government as well as the Central Government shall file an affidavit stating
whether they intend to frame Rules and/Regulations and/or guidelines for the conduct of
breath test, for collection of blood samples and for taking further steps for analysis of the
blood samples;
(d) The State Government shall also state whether it intends to set up Forensic Laboratories at
every Government hospital including the District/Civil/Cottage hospitals as well as selected
Primary Health Centres near major State and National Highways for testing of blood samples in
the cases under Section 185 of the M.V.Act. The State Government shall also state whether it
intends to provide mobile Forensic Laboratories;
(e) The State Government shall issue appropriate directions to ensure that an action is
initiated by the Licencing Authorities in the State of the suspension of the driving licenses
immediately on the registration of cases under clause (a) of Section 185 of the M.V.Act. The
State Government shall also issue appropriate directions to establish a proper coordination
between the Police and the Licencing Authorities to ensure that action is immediately initiated
of suspension of licences in the aforesaid cases;
(f) We direct the State and Central Government to file comprehensive affidavits in terms of the
above directions within a period of three weeks from today so that the appropriate guidelines
can be issued by this Court;
(g) We direct the State and the Central Government to file affidavits dealing with the
observations made by this Court in paragraphs 17 to 20 above. For filing affidavits dealing with
the said observations, we grant longer time of six weeks to both the State and the Central
Government;
(h) Place the Petition under the caption of "Directions" on 9th February 2016 reporting
compliance and for issuing further directions;
Order accordingly
Nazmaben Saddambhai Shakarayani v State of Gujarat and others

Gujarat High Court
13 January 2014
Case Analysis
Bench J. B. Pardiwala, Bhaskar Bhattacharya
Where Reported 2014 Indlaw GUJ 234
Case Digest Subject: Constitution; Socio-Economic

Summary: Constitution - Socio-Economic - Constitution of India,
1950 - PIL - Petitioner filed petition praying to direct the
respondents to take swift and stringent action to put and end by
swift removal the mushrooming growth of unauthorized
encroachments on public streets, including the foot paths, put an
end to the stench as a result of filthy and unhygienic conditions to
remove encroachments by way foot boards and/or other
projections, including awnings, etc. put up by the shopkeepers
and also, by removing the stalls i.e. laris, galas, etc., carrying on
business on foot paths and also, on the public streets, and to
enjoin upon the respondents to ensure that underground drainage
system was installed without further delay to keep clean the open
drains by removing chokes and the filth and the affluent
overflowing on the public streets at various places, almost all over
the town, as would make the life of the inhabitants livable and
that such amenities be provided within a stipulated time frame
and may kindly be monitored by Court or any one appointed by
Court for the purpose - Further submitted that due to
encroachments on public streets and foot-paths, it had become
virtually impossible for the pedestrians to move freely and the
public places which have been encroached upon were used as
eateries - Roads and foot paths were littered and no steps were
being taken by the Municipal authorities to clean the same on
regular basis - Whether PIL filed by the petitioner could be
allowed -
Held, Municipality was directed to implement the notices issued to
the various shop keepers and ensure that all the unauthorized
constructions were removed within a period of 3 months from the
date of this judgment - Municipality was also directed to enhance
the manpower of Safai Kamdars on the establishment - Till regular
appointments were made, the number of Safai Kamdars on daily
wages be increased appropriately, so as to maintain cleanliness in
the town - Municipality was directed to ensure that the work of

the underground sewerage system, the contract of which had
been assigned to the Gujarat Water Supply and Sewerage Board
by the State Government was expeditiously completed - State
Govt. was also directed to issue appropriate directions to the
Gujarat Water Supply and Sewerage Board to complete the work
of underground sewerage system in Dhoraji town on priority basis
- Order accordingly.

Dr B. L. Wadehra v Union of India and Others1996 Indlaw SC
2561, (1996) 2 SCC 594, 1996 (2) AD(SC) 478, AIR 1996 SC
2969, 1996 (63) DLT 236, JT 1996 (3) SC 38, 1996(2) SCALE
514, [1996] 3 S.C.R. 80, 1996 (2) Supreme 402, 1996 (2) UJ 26
Suo Motu v Ahmedabad Municipal Corporation2006 (2) GLH 148
Legislation Cited Constitution of India, 1950

Constitution of India, 1950 art. 226
Constitution of India, 1950 art. 48A
Gujarat High Court
13 January 2014
Nazmaben Saddambhai Shakarayani
State of Gujarat and others
Case No : W.P. (Pil) No. 139 of 2013

Bench : J. B. Pardiwala, Bhaskar Bhattacharya
Citation : 2014 Indlaw GUJ 234
Summary : Constitution - Socio-Economic - Constitution of India, 1950 - PIL - Petitioner filed
petition praying to direct the respondents to take swift and stringent action to put and end by swift
removal the mushrooming growth of unauthorized encroachments on public streets, including the
foot paths, put an end to the stench as a result of filthy and unhygienic conditions to remove
encroachments by way foot boards and/or other projections, including awnings, etc. put up by the
shopkeepers and also, by removing the stalls i.e. laris, galas, etc., carrying on business on foot
paths and also, on the public streets, and to enjoin upon the respondents to ensure that
underground drainage system was installed without further delay to keep clean the open drains by
removing chokes and the filth and the affluent overflowing on the public streets at various places,
almost all over the town, as would make the life of the inhabitants livable and that such amenities
be provided within a stipulated time frame and may kindly be monitored by Court or any one
appointed by Court for the purpose - Further submitted that due to encroachments on public
streets and foot-paths, it had become virtually impossible for the pedestrians to move freely and
the public places which have been encroached upon were used as eateries - Roads and foot paths
were littered and no steps were being taken by the Municipal authorities to clean the same on
regular basis - Whether PIL filed by the petitioner could be allowed -
Held, Municipality was directed to implement the notices issued to the various shop keepers and
ensure that all the unauthorized constructions were removed within a period of 3 months from the
date of this judgment - Municipality was also directed to enhance the manpower of Safai Kamdars
on the establishment - Till regular appointments were made, the number of Safai Kamdars on daily
wages be increased appropriately, so as to maintain cleanliness in the town - Municipality was
directed to ensure that the work of the underground sewerage system, the contract of which had
been assigned to the Gujarat Water Supply and Sewerage Board by the State Government was
expeditiously completed - State Govt. was also directed to issue appropriate directions to the
Gujarat Water Supply and Sewerage Board to complete the work of underground sewerage system
in Dhoraji town on priority basis - Order accordingly.
The Judgment was delivered by : J. B. Pardiwala, J.

1. By this Public Interest Litigation, the writ petitioner, who is a Social Worker has prayed for
the following reliefs :

"(a) to allow this petition and issue a writ of mandamus or any other appropriate writ,
direction or order in the nature of writ, enjoining upon the respondents to take swift and
stringent action to put and end by swift removal the mushrooming growth of unauthorized
encroachments on public streets, including the foot paths, put an end to the stench as a result
of filthy and unhygienic conditions to remove encroachments by way foot boards and/or other
projections, including awnings, etc. put up by the shopkeepers and also, by removing the
stalls i.e. laris, galas, etc., carrying on business on foot paths and also, on the public streets,
and to enjoin upon the respondents to ensure that underground drainage system is installed
without further delay to keep clean the open drains by removing chokes and the filth and the
affluent overflowing on the public streets at various places, almost all over the town, as would
make the life of the inhabitants livable and that such amenities be provided within a stipulated
time frame and may kindly be monitored by this Hon'ble Court or any one appointed by this
Hon'ble Court for the purpose;
(b) to grant interim relief by enjoin upon the respondents to take swift and stringent action to
provide the requisite amenities and also, to furnish figures of utilization or rather the non-
utilisation of the grants available from time to time; pending admission, hearing and final
disposal of this petition;
(c) to direct expeditious disposal of the present petition;
(d) to grant such further and other reliefs, as may be deemed to be just and proper."
2. The case made out by the Writ Petitioner may be summed up thus :
2.1. The object of filing the PIL is with a view to espouse and agitate the just, long pending
and continuing problem of unhygienic conditions prevailing in the town of Dhoraji.
2.2. It is the case of the petitioner that due to encroachments on public streets and foot-paths,
it has become virtually impossible for the pedestrians to move freely and the public places
which have been encroached upon are used as eateries. The roads and foot paths are littered
and no steps are being taken by the Municipal authorities to clean the same on regular basis.
2.3. It is also the case of the petitioner that the town of Dhoraji has a open sewerage as the
work of laying the underground sewerage is yet to be undertaken. The open sewerage has
been covered illegally by the people carrying-on business on public streets and foot-paths.
Since they are covered, the authorities find it very difficult to clean them on regular basis due
to which the drains get choked resulting in a foul stench and leading to other un-hygienic
conditions.
2.4. According to the petitioner, the Municipal Authorities have failed to discharge their duties
efficiently and the negligence and carelessness on their part has created a situation which may
result in an epidemic.
2.5. In such circumstances referred to above, it has been prayed that appropriate directions be
issued to the respondents as prayed for in the petition. 3. An affidavit-in-reply has been filed
on behalf of the respondent no.5 Dhoraji Municipality duly sworn by its Chief Officer inter alia
stating as under:
(i) "The Municipality is taking all possible steps to keep the town clean, however, even after
removing the garbage from the public streets and the market, the same is littered in no time
as the people keep on throwing all sorts of articles on the street."
(ii) "The Municipality is also keeping the sewerage drain clean so that the storm water can flow
easily. No sooner a blockage is noticed in any sewage drain the same is being attended and
removed at the earliest."
(iii) "There is no underground drainage system in Dhoraji. The Government has allocated
funds for the underground sewerage system and the contract has been assigned to the
Gujarat Water Supply & Sewerage Board by the State Government."
(iv) "The sanctioned set-up of Safai Kamdar in the establishment of Dhoraji Municipality is
114. Some of the Safai Kamdars have retired and at present only 48 Safai Kamdars are
working with Dhoraji Municipality."
(v) "In last 10 years the population and the limits of the municipality has increased in leaps
and bounds, whereas on the other hand the set-up of the Municipality has remained the
same."
(vi) "The Municipality is engaging Safai Kamdars as daily wagers to keep the town clean."
(vii) "The Sanitary Administrative Officer of the Municipality undertakes regular visits in the
different wards of the municipality to inspect whether the cleaning has been done or not.
Some of the shop owners have covered the space or otta without permission of the
Municipality, as a result it is very difficult to clean the open drainage. The Municipality has also
issued notices to the various shopkeepers, directing them to remove the unauthorized
covering of the open sewerage and other encroachments."
3. Mr. Trivedi, the learned Advocate appearing on behalf of the petitioner, has strenuously
contended before us that the failure or omission on the part of the Dhoraji Nagar Palika to
maintain hygienic conditions in the entire town is ex-facie illegal, improper, inequitable,
arbitrary, unjust and violative of Articles 14, 19, 21 and 48A of the Constitution of India,
necessitating interference by this Court. Mr. Trivedi further submitted that u/art. 21 of the
Constitution of India, right to life is guaranteed in any civilized society. Article 21, with the
expansion of its scope, has now imposed a positive obligation upon the State to take steps for
ensuring to the individual a better enjoyment of his life and dignity.
4. Mr. Trivedi submitted that such obligations include maintenance and improvement of public
health, elimination of water and air pollution and providing hygienic conditions, within the area
under them.
5. Mr. Trivedi placed strong reliance on the Division Bench decision of this High Court in Suo
Motu Vs. Ahmedabad Municipal Corporation, reported in 2006 (2) GLH 148, wherein this Court
made the following observations:-
"The right to life would also take within its sweep right to decent environment and reasonable
accommodation to live in. It would mean that even if a house is comfortable considering the
inner facilities, the living in such house may become miserable on account of the dirty
environment and the unhygienic condition prevailing outside it. Like the State, every civic
authority is clothed with power and equipped with means to ensure the citizens better
enjoyment of life and dignity and if it fails to provide them, it would violate Art. 21. It is the
function of the local authority i.e. the municipal authority to maintain cleanliness by timely
disposal of the garbage and solid waste and to resolve the difficulties of the citizens vis-a-vis
water logging, pit falls, mud, etc. When they fail to discharge these functions, this Court is well
within its bounds to give proper and adequate directions to the civic authorities."
6. According to Mr. Trivedi, failure to take immediate steps to remove the encroachments and
the unhygienic conditions prevailing all over the town as pointed out in this writ- application
gives rise to cause of action for filing this writ- application and consequently, this Court should
grant the reliefs prayed for in the application.
7. Mr. Premal Joshi, the learned Advocate appearing for the respondent No.5, Dhoraji
Nagarpalika and Ms. Vachha Desai, the learned Assistant Government Pleader appearing for
the State-respondent have, on the other hand, opposed the aforesaid contention of Mr. Trivedi
and have contended that the Municipal authority is taking all possible steps to ensure that
cleanliness is maintained all over the town, and all unauthorised structures built on the open
sewerage are removed at the earliest. The learned Counsel appearing for the respondent No.5
and the learned Assistant Government Pleader submitted that this Court, sitting in a writ
jurisdiction, cannot monitor the exercise of power conferred under the statute duly vested in
the Municipal authority itself. The learned counsel for the respondents, thus, prayed for
dismissal of this application.

8. Therefore, the only question that arises for determination in this PIL is whether, in the facts
of the present case, this Court should grant the relief claimed for in the application as quoted
above.
9. Having heard the learned counsel appearing for the parties and having gone through the
materials on record, we find that the petitioner, who is a social worker, by filing this writ-
application wants this Court to supervise the duties of the Municipal authorities in the matters
of administration of the activities of the same provided by the statute.
10. We could have rejected this application on the ground that it is not the function of the High
Court exercising power u/art. 226 of the Constitution to run the Municipality by giving
guidance in the matter of its daily activity, unless the inaction is of such a nature that it has
vitally affected the life and personal liberty of the citizens.
11. However, what has weighed with us are two pertinent features surfacing in the matter.
First, the admission on the part of the Dhoraji Nagar Palika that maintenance of hygienic
conditions is a problem and despite taking all possible steps, the unhygienic conditions do
prevail because of non- cooperation at the end of the people at large, and secondly, the
unhygienic conditions in the town is due to lack of adequate manpower.
12. In the affidavit in reply it has been conceded by the Chief Officer that out of 114 Safai
Kamdars on the establishment of Dhoraji Nagar Palika, most of them have retired and at
present only 48 Safai Kamdars are working. It has also been stated in the affidavit in reply
that in the last 10 years, the population and the territorial limits of the Municipality has
increased by leaps and bounds, whereas, on the other hand, the set up of the Nagar Palika has
remained the same.
13. We are afraid, we are unable to accept the explanation tendered by the Nagar Palika.
14. Non-availability of funds, inadequacy or inefficiency of the staff, insufficiency of machinery
etc. cannot be pleaded as grounds for non-performance of their statutory obligations. (Dr. B.L.
Wadhera Vs. UOI (1996) 2 SCC 594 1996 Indlaw SC 2561).
15. We may also quote with profit a decision of the Supreme Court in Municipal Council Ratlam
Vs. Vardhichand, reported in (1984) SCC 162.
16. The question before the Supreme Court was whether the order of the trial Court as upheld
by the High Court, directing the Ratlam Municipality to draft a plan within six months for the
removal of nuisance caused by the open drains and public excretion by the nearby slum
dwellers could be sustained. The Supreme Court dismissed the appeal of the Municipality and
held as under:-
"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 to face the penalty of the law
if what the Constitution and follow-up legislation direct them to do are defied or defied
wrongfully. The wages of violation is punishment, corporate and personal."
17. Reminding the State Government of its duties under the Constitution of India, Krishna
Iyer, J. observed as under:-
"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."
18. In view of the above, the explanation offered by the Nagar Palika deserves to be rejected
outright.
19. Dhoraji Nagar Palika has also conceded the fact that majority of the shop owners in the
town have put up construction on the otta of their premises or on the open drainage, as a
result it is not possible to clean the drainage regularly. Although the Municipality has issued
several notices to the persons concerned, yet, it appears that till this date there has been no
implementation of the same.
20. In such circumstances, we are of the view that the following directions would subserve the
purpose for which this public interest litigation has been filed.
1. The Municipality is directed to implement the notices issued to the various shop keepers and
ensure that all the unauthorized constructions are removed within a period of three months
from the date of this judgment.
2. The Municipality is also directed to enhance the manpower of Safai Kamdars on the
establishment. Till regular appointments are made, the number of Safai Kamdars on daily
wages be increased appropriately, so as to maintain cleanliness in the town.
3. The Municipality is directed to ensure that the work of the underground sewerage system,
the contract of which has been assigned to the Gujarat Water Supply and Sewerage Board by
the State Government is expeditiously completed.
4. We direct the State Government to issue appropriate directions to the Gujarat Water Supply
and Sewerage Board to complete the work of underground sewerage system in Dhoraji town
on priority basis.
21. With the above observations and directions, we close this public interest litigation.
However, in the facts and circumstances of the case, there shall be no order as to costs.
Order accordingly
Jaipur Golden Gas Victims Association v Union of India and Others

Delhi High Court
23 October 2009
Case Analysis
Bench Manmohan, Ajit Prakash Shah
Where Reported 2009 Indlaw DEL 2902; 2010 (1) ACC 141; 2011 ACJ 1879; 2009
(164) DLT 346
Case Digest Subject: Carriers & Transportation; Constitution; Criminal;

Municipalities & Local Governments
Keywords: Writ Proceedings, Act Of God, r Ta, Pollution, Coal
Mines, Individual Liability, Impleadment Application, Development
Of Law
Summary: Human Rights - Delhi Municipal Corporation Act,
1957, s. 417 - Motor Vehicles Act, 1988 - Dangerous and
hazardous activity - Negligence - Mischief on escape -
Compensation - Petitioner/Association stated that huge fire in
godown of respondent no.5 which resulted in death of four
persons died due to exposure to chemical gases that were emitted
during fire - Loss of lives and injury fell within ambit of risk
created by respondent no. 5's breach - Hence, instant petition -
Whether Legal heirs of three deceased were entitled to
compensation - Held, cause of fire was irrelevant for attraction of
rule - Respondent no. 5's premises was situated in residential area
which could not be used as godown - Further, as consequence of
fire in godown containing consignment of pesticides, gas escaped
which caused loss of lives and injuries to people living in
neighborhood - Respondent no.5 breached duty of care owed to
fire and gas victims, exposing them to unreasonable risk of injury
- Pulmonary Tuberculosis of deceased got aggravated due to
inhalation of phosphate gas and they died at premature age -
Legal heirs of three deceased were entitled to full compensation -
Petition allowed.

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Raj Kumar v. Union of India2005 (125) DLT 653
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and Dependants of Arthur Eric Fairchild (Deceased)); Fox (Suing
As Widow and Administratrix of Thomas Fox (Deceased)) (Fc);
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Chitra Chary v. DDA2005 (1) AD(Del) 29
B.L. Wali v. Union of India2004 (8) AD(Del) 341
Association of Victims of Uphaar Tragedy and Others v. Union of
India and Others2003 (3) AD(Del 321
Cases Citing this Case Mahipal Singh Chauhan and others v State (NCT of Delhi) and
others
2017 Indlaw DEL 1157
Hajara and others v Government of India
Shashi Bala Pathak and others v Delhi Development Authority
2016 Indlaw DEL 5222, 2016 (235) DLT 695

Pooja Khemka and others v Delhi Development Authority
Suraj Verma and another v Delhi Development Authority and
another
2015 Indlaw DEL 1919, 2016 ACJ 1873
Rekha and another v Bses Rajdhani Power Limited
2015 Indlaw DEL 3578, 2015 (3) ACC 929, 2016 ACJ 1490
Vikas Yadav and others v State of Uttar Pradesh and others
2015 Indlaw DEL 179
Uttar Pradesh Rajya Sadak Parivahan Nigam Sapru Marg, Lucknow
v Leelawati Devi and others
2014 Indlaw ALL 3463, 2015 (2) ACC 145, 2015 (1) ADJ 246
Satya Prakash v State of Delhi
2013 Indlaw DEL 3164, 2013 (203) DLT 652
Union of India v Dhyan Singh and others
2012 Indlaw DEL 3583, 2013 ACJ 2644
Nagrik Sangarsh Samiti and Others v Union of India and Others
2010 Indlaw DEL 3351, 2012 ACJ 1548, 2010 (4) ILR(Del) 293
Legislation Cited Code of Criminal Procedure, 1973

Code of Criminal Procedure, 1973 s. 174
Constitution of India, 1950
Delhi Municipal Corporation Act, 1957
Delhi Municipal Corporation Act, 1957 s. 417
Indian Penal Code, 1860
Indian Penal Code, 1860 s. 304A
Motor Vehicles Act, 1988
Delhi High Court
23 October 2009
Jaipur Golden Gas Victims Association
Union of India and Others
Case No : W.P.(C) 6415/2006

Bench : Manmohan, Ajit Prakash Shah
Citation : 2009 Indlaw DEL 2902, 2010 (1) ACC 141, 2011 ACJ 1879, 2009 (164) DLT 346
Summary : Human Rights - Delhi Municipal Corporation Act, 1957, s. 417 - Motor Vehicles Act,
1988 - Dangerous and hazardous activity - Negligence - Mischief on escape - Compensation -
Petitioner/Association stated that huge fire in godown of respondent no.5 which resulted in death
of four persons died due to exposure to chemical gases that were emitted during fire - Loss of lives
and injury fell within ambit of risk created by respondent no. 5's breach - Hence, instant petition -
Whether Legal heirs of three deceased were entitled to compensation - Held, cause of fire was
irrelevant for attraction of rule - Respondent no. 5's premises was situated in residential area
which could not be used as godown - Further, as consequence of fire in godown containing
consignment of pesticides, gas escaped which caused loss of lives and injuries to people living in
neighborhood - Respondent no.5 breached duty of care owed to fire and gas victims, exposing
them to unreasonable risk of injury - Pulmonary Tuberculosis of deceased got aggravated due to
inhalation of phosphate gas and they died at premature age - Legal heirs of three deceased were
entitled to full compensation - Petition allowed.
The Judgment was delivered by : HON'BLE JUSTICE MANMOHAN

1. Present writ petition has been filed by petitioner-Association in public interest under Article
226 of the Constitution of India, 1950 for issuance of an appropriate writ, direction or order
inter alia directing respondents to pay victims of Jaipur Golden fire tragedy suitable amount of
compensation for loss of lives and injuries suffered. Petitioner-Association has also prayed for
identification and prosecution of erring officials who were responsible for Jaipur Golden fire
tragedy as well as for implementation of recommendations of earlier committees to prevent
future tragedies in Delhi like the Jaipur Golden fire tragedy.
CASE OF PETITIONER
2. Ms. Aruna Mehta, learned counsel for petitioner-Association stated that on 4th April, 2004 at
about 10.30 p.m. there was a huge fire in the godown of respondent no. 5 at Mitra Wali Gali,
Roshnara Road, Delhi. She stated that in the said godown, respondent no. 5 had stored a
consignment of rodent killing pesticides which contained Aluminum Phosphate and Zinc
Phosphate. She further stated that the officials of respondent no. 5 along with fire brigade
officials poured water over the fire in a bid to extinguish it. According to Ms. Mehta, due to
pouring of water, Aluminum Phosphate and Zinc Phosphate reacted with water resulting in
emission of highly poisonous Phosphine gas which continued to emit till 7th April, 2004. She
stated that due to inhalation of the aforesaid gas, about thirty five persons living in the
neighbourhood of respondent no. 5's godown were taken unwell and were rushed to the
hospital with symptoms of breathlessness, pain in chest, vomiting, diarrhea, nausea and
stomach ache. While most of sick persons were admitted in Hindu Rao Hospital for a period of
a few days, a 19 years old boy, namely, Akash died in the morning of 7th April, 2004.
3. According to Ms. Mehta, subsequently three more persons, namely, Babu Lal (40 yrs.), Ved
Prakash @ Raju (25 yrs.) and Poonam (18 yrs.) died due to exposure to chemical gases that
were emitted during the fire in respondent no. 5's godown. In the case of Babu Lal, Ms. Mehta
referred to the discharge slip prepared by Hindu Rao Hospital wherein it was stated that he
had been treated for irritant gas inhalation. She also referred to prescriptions issued by Chest
Clinic, Gulabi Bagh to Babu Lal to show that he had been treated for respiratory distress on
account of gas inhalation. An affidavit of widow of Babu Lal was also relied upon by Ms. Mehta.
In the said affidavit it was stated that though Babu Lal was suffering from initial stages of
Pulmonary Tuberculosis, his condition deteriorated due to inhalation of gas that leaked from
the godown of respondent no. 5 for a continuous period of four days and he subsequently died
on 8th January, 2007.
4. In the case of Ved Prakash @ Raju, Ms. Mehta referred to Hindu Rao Hospital's medical
record to show that he had been admitted in the said hospital on 7th April, 2004 on account of
chemical smoke exposure. Though Ved Prakash @ Raju was discharged on the next day, his
mother has filed an affidavit in the present proceedings stating that his pulmonary tuberculosis
got aggravated to a great extent due to inhalation of gas and he ultimately expired on 14th
April, 2007. In the said affidavit his profession and his monthly salary have also been
mentioned.
5. In the case of deceased Poonam, Ms. Mehta once again referred to the medical record of
Hindu Rao Hospital which showed that she had been admitted in the hospital on account of
inhalation of phosphine gas. She also referred to an affidavit filed by deceased Poonam's
mother which stated that Poonam was not suffering from any ailment and it was only due to
ill-effects of gas leak that she died on 3rd November, 2005. Poonam's monthly income has
also been mentioned in the said affidavit.
6. Though Ms. Mehta admitted that Babu Lal and Ved Prakash @ Raju were suffering from
early stages of Tuberculosis, she stated that prognosis of Tuberculosis was excellent and in
recent years death rate had declined from 25% to 2.5%. In this regard, she referred to an
article on Tuberculosis published by Healthline Network as well as to the statement of Health
Minister, Government of NCT of Delhi published in the Tribune newspaper.
7. Ms. Mehta stressed upon the fact that respondent no. 5 had neither taken any precautions
nor obtained any prior licence from the Municipal Corporation of Delhi as mandated by Section
417 of Delhi Municipal Corporation Act, 1957 (hereinafter referred to as "DMC Act").
8. Ms. Mehta reiterated that petitioner is an Association which was formed by victims of the
fire tragedy as well as the next of kith and kin of those who had died due to inhalation of
phosphine gas. She stated that petitioner-Association is headed by one Shri Raj Kumar Jain,
who had been authorised by its members to file and pursue the present writ petition and to
seek compensation on behalf of gas victims as well as to ensure that the erring officials are
prosecuted for non-performance of their statutory duties.
9. Ms. Mehta stated that some of the poor victims are still suffering from the after-effects of
emission of poisonous gases that had escaped from respondent no. 5's godown. According to
her, as the gas victims belonged to the poor section of the society, this Court should grant a
fair and just compensation to them by applying the principle of strict liability as enunciated in
M.C. Mehta and another Vs. Union of India and others reported in 1987 (1) SCC 395 and
Association of Victims of Uphaar Tragedy and Others Vs Union of India and Others reported in
2003 III AD (Delhi) 321.

10. In this context, Ms. Mehta claimed the following compensation for the four deceased in
accordance with the Motor Vehicles Act, 1988 : A.
Babu Lal
Compensation should comprise two parts
I) Pecuniary loss of dependency.
II) Non pecuniary loss i.e. standard compensation or conventional amount for losses such as
loss of consortium, loss of parents, pain and suffering and loss of amenities of life.
For pecuniary loss
Age: 40 yrs. Carpenter
Income Rs.4,000/- per month.
Deducting 1/3rd for personal expenses of the deceased Rs.1,333/-.
Dependency comes out to be Rs.2,667/- per month.
Multiplier 15 at the age of 40 yrs.
Rs.2,667 x 12 x 15 = Rs.4,80,060/-.
For non pecuniary loss
This Court in Kamla vs. Govt. of NCT reported in 2005 ACJ 216 and in Kishan Lal & Ors. vs.
Govt. of NCT & Ors. W.P.(C) 5072/2005 decided on 3rd July, 2007 has calculated the non
pecuniary loss by taking the consumer price index for industrial worker (CPI(IW) (source
labour bureau Govt. of India) with base year 1982 (=100)m the average CPW(IW) for the year
1989 was 171 and for January 2005 was 526. Due to inflation corrected value of Rs.50,000/-
in 1989 would work out to Rs.1,53,801 in January, 2005.
Hence non pecuniary loss can be taken as Rs.1,53,801/-.
Total compensation works out to Rs.4,80,060 + Rs.1,53,801 = Rs.6,33,861/- along with
interest at the rate of 7.5% per annum from the date of petition till realization.
B. Ved Prakash @ Raju
Pecuniary loss :-
Age: 25 yrs.
Income Rs.5000/- annual income Rs.60,000/-.
Deducting 1/3rd for personal expenses of the deceased dependency comes out to Rs.40,000/-.
Multiplier 17
Rs.40,000 x 17 = Rs.6,80,000/-.
Non-pecuniary loss as discussed above Rs.1,53,801/-.
Total Rs.6,80,000 + Rs.1,53,801/- = Rs.8,33,801/- along with interest at the rate of 7.5% per
annum from the date of petition till realization.
C. Poonam
Age : 18 yrs.
Income : Rs.3000/-.
Deducting 1/3rd for personal expenses of the deceased dependency comes out to be
Rs.2000/- per month or Rs.24,000/- per annum.
Multiplier 13 as per the age of mother
Rs.24,000 x 13 = Rs.3,12,000/-.
Non-pecuniary loss as discussed above Rs. 1,53,801/-
Total 3,12,000/- + Rs. 1,53,801/- = Rs.4,65,801/- along with interest at the rate of 7.5.% per
annum from the date of petition till realization.
D. Akash
Age of deceased : 19 yrs. Age of father : 55 yrs. Income: 5000/- per month so annual income
Rs.60,000/ -per annum. Skilled
Future Prospects: Not claimed.
Deducting 1/3rd for personal expense of the deceased dependency comes out to be Rs.
40,000/-.
Multiplier 11 as per age of the father Rs. 40,000 x 11 = Rs.4,40,000/-.
Non pecuniary as discussed above Rs.1,53801/-.
Total Rs.4,40,000/- + Rs.1,53,801/- = Rs.5,93,801/- along with interest at the rate of 7.5%
per annum from the date of petition till realization.
CASE OF MCD
11. Respondent-MCD in its counter-affidavit has stated that as soon as they got information of
the incident, they inspected the property in question and found that the respondent no. 5 had
stored pesticide boxes which caused fire in the godown. It has been further stated in the said
affidavit that in order to prevent recurrence of such incidents, the property was sealed on 9th
April, 2004 under the orders of the Competent Authority.
CASE OF RESPONDENT NO.5
12. On the other hand, Mr. D.R. Thadani, learned counsel for respondent no. 5 stated that the
said respondent had been using the aforesaid godown since 1998. He further stated that
despite an application for licence having been filed on 04th December, 1998 by respondent
no.5, respondent-MCD took no action. According to him, respondent no. 5 was constrained to
file a writ petition being CWP No. 1346/2004 before this Court, which was disposed of on 10th
March, 2004 by a learned Single Judge of this Court after recording MCD's undertaking that
respondent no. 5's representation would be disposed of within three weeks.
13. Mr. Thadani stated that despite respondent no. 5 filing all the requisite papers,
respondent-MCD did not take any action in pursuance to this Court's order dated 10th March,
2004.
14. Though Mr. Thadani admitted the fact that on 4th April, 2004 there was an incident of fire
in respondent no. 5's godown and as a consequence of the said fire, about 34 persons were
admitted on 7th April, 2004 in Hindu Rao Hospital, he did not admit that fire was caused due
to negligence attributable to any official of respondent no.5. In this connection, he relied upon
a report prepared by the Loss Prevention Association of India Ltd. for respondent no. 5's
insurance company. According to him, the said report concluded that an electrical spark in all
probability was the cause of the fire.
15. He further submitted that M.C. Mehta's case (supra) was not applicable to the present
facts as opening of a godown could not by any stretch of imagination be said to be an
inherently dangerous and hazardous activity.
16. On merits, Mr. Thadani submitted that there was no conclusive evidence that death of
Babu Lal, Ved Prakash @ Raju and Poonam was attributable to inhalation of gas released. Mr.
Thadani repeatedly emphasised that Babu Lal and Ved Prakash @ Raju were already suffering
from Tuberculosis and, therefore, it could not be said with certainty that 'but for' emission of
gas from godown of respondent no. 5, they would have survived.
17. Mr. Thadani raised a number of preliminary objections to maintainability of the present
writ petition. He submitted that petitioner-Association had no locus standi to maintain the
present public interest writ petition inasmuch as petitioner-Association was not a registered
body and further the Minutes of the petitioner-Association Meeting held on 2nd May, 2005
indicated that it had been formed at the instance of the Advocates appearing for the
Association. Mr. Thadani submitted that its advocates cannot take up the cause of people by
way of a public interest litigation. In this regard, he relied upon Chhetriya Pardushan Mukti
Sangharsh Samiti Vs. State of U.P. and others reported in AIR 1990 SC 2060 wherein the
Supreme Court held as under:
"8. Article 32 is a great and salutary safeguard for preservation of fundamental rights of the
citizens. Every citizen has a fundamental right to have the enjoyment of quality of life and
living as contemplated by Article 21 of the Constitution of India, 1950Anything which
endangers or impairs by conduct of anybody either in violation or in derogation of laws, that
quality of life and living by the people is entitled to be taken recourse of Article 32 of the
Constitution of India, 1950But this can only be done by any person interested genuinely in the
protection of the society on behalf of the society or community. This weapon as a safeguard
must be utilised and invoked by the Court with great deal of circumspection and caution.
Where it appears that this is only a cloak to "feed fact ancient grudge" and enemity, this
should not only be refused but strongly discouraged. While it is the duty of this Court to
enforce fundamental rights, it is also the duty of this Court to ensure that this weapon under
Article 32 should not be misused or permitted to be misused creating a bottleneck in the
superior Court preventing other genuine violation of fundamental rights being considered by
the Court. That would be an act or a conduct which will defeat the very purpose of
preservation of fundamental rights."
18. Mr. Thadani strenuously urged that as respondent-MCD as well as deceased and injured
claimants were silent spectators to running of respondent no. 5's godown for a period of six
years, they could not file the present writ petition claiming compensation.
19. According to him, present writ petition was also barred by limitation as it had been filed
two years after the incident of fire which occurred on 4th April, 2004 and further the
impleadment application had been filed only on 17th March, 2009 on behalf of legal heirs of
deceased Babu Lal, Ved Prakash @ Raju and Poonam. In any event, according to him, no writ
petition for monetary claim was maintainable.
20. Mr. Thadani further submitted that present writ petition was also not maintainable as no
writ petition lies against a private company like respondent no. 5. Moreover, according to him,
in view of the voluntary settlements having already been executed between respondent no. 5
and the claimants, this Court could not award any compensation. Mr. Thadani pointed out that
on 19th May, 2004, respondent no. 5 entered into contracts with affected persons and paid
them compensation under concluded contracts.
21. In the context of the aforesaid settlement agreements, Mr. Thadani referred to a judgment
of the Supreme Court in Punjab National Bank Vs. Virender Kumar Goel and others reported in
(2004) 2 SCC 193 wherein the Supreme Court held as under :-
"16. We make it clear that the sentence, "accepted a part of benefit under the scheme", which
appeared in our direction as noticed above, would include the withdrawal of the benefit and
utilisation thereof. By no stretch of imagination, unilateral deposit of a part of benefit under
the scheme into the bank account that too after withdrawal of the application, would construe
as to have accepted the part of the benefit under the scheme, when the same was neither
withdrawn nor utilised by the employee concerned.
xxxxx xxxxxx xxxxx
19. I.A. No. 14 has been filed by an employee of the bank sought to clarify/modify our order
dated 17.12.2002. In this case, admittedly, the benefit of the Scheme had been withdrawn by
the applicant on 27.2.2001. The applicant had clearly admitted, in ground E of the application,
withdrawal of the amount so credited in his account albeit compelling financial constraints.
xxxxx xxxxxx xxxxx
21. As noticed in our judgment, having accepted the benefit under the Scheme by withdrawing
and utilisation thereof they are not permitted to approbate and reprobate.
22. Mr. Thadani also submitted that the writ petition should not be heard at the present stage
as criminal case against officers of respondent no. 5 was pending and any detrimental order in
the present writ petition would adversely affect the course of justice in the said criminal case.
UNDISPUTED FACTS
23. Having heard the parties and having perused the papers, we are of the view that the
admitted position is that respondent no. 5 was using the premises at Roshnara Road as a
godown without any prior mandatory statutory permission. In fact, in the present case, the
undisputed position was that there had been violation of Section 417 of the DMC ActThe
relevant portion of the said Section is reproduced hereinbelow :-
"417. Premises not to be used for certain purposes without license-
(1) No person shall use or permit to be used any premises for any of the following purposes
without or otherwise than in conformity with the terms of a license granted by the
Commissioner in this behalf, namely:-
(a) any of the purposes specified in Part I of the Eleventh Schedule;
(b) any purpose which is, in the opinion of the Commissioner dangerous to life, health or
property or likely to create a nuisance;....."
24. Moreover, the incident of fire and emission of gases on 4th April, 2004 in respondent no.
5's godown wherein pesticides were stored was not disputed. It was also not denied that as a
consequence of the fire and inhalation of chemical gases, thirty four persons were hospitalised.
In fact, death of Akash due to inhalation of poisonous phosphine gas immediately in the
aftermath of the fire incident was also not disputed.
25. In this connection, we may refer to first DD entry and FIR No. 123/2004 lodged by police
at Subzimandi Police Station, Delhi. The said DD entry reads as under :-
"DD No.30-A dated 4-4-04 PS Subzi Mandi Delhi.
Information received through PCR and Departure
Time 10.40 PM the Wireless Operator N. 61 from P.S. informed through intercom that from
PCR, ASI Beni Arun, he received message that there is a fire at Jaipur Golden Godown and
requested for sending police. The message was recorded and SI Rajiv Kumar was informed at
Wire Less Set SM-1. For necessary action.
ASI
True as per original.
Sir DO Sahab, PS Subzi Mandi, Delhi, it is submitted that I, SI on receipt of DD No. 30-A along
with my companion Ct. Tejpal No. 1256/N went to the place of occurrence at Roshnara Road,
Jaipur Golden Tpt Company Godown where there was an incident of very big fire and the fire
brigade was engaged in extinguishing the fire. Apparently the fire broke out due to
inflammable and combustible chemicals stored in the godown and there was fear and
possibility of the fire spreading to the nearby localities and there was also danger of loss of
lives and property, which was due to the godown owners storing combustible chemicals in the
godown without taking any precaution, which constitutes an offence under Section 285/336
Indian Penal Code, 1860Ct. Tejpal was sent to P.S. for lodging an FIR in this regard and I S.I.
is present at the place of occurrence.
Date 4-4-04 at about time unknown.
Jaipur Godlen Tpt Company Godown, Roshnara Road, Delhi.
5-4-04 at 12.55 AM.
Sd/- SI Rajeev Kumar No. D/1172 P.S. Subzi Mandi Dated 5-4-04."
(emphasis supplied)
26. The FIR lodged by the police reads as under :-

FIRST INFORMATION REPORT
1. District North P.S. Subzi Mandi Year 2004 FIR No. 123 date 7.4.04
2. Act Indian Penal Code, 1860 Section : 284/337/304A
3. Occurrence of Offence Day : Wednesday Date from 7.4.04
Date to : 7.4.04
Time from 0330 Hrs. Time to 0330 hrs.
(b) Information received at P.S. Date 7.4.04 Time 07.35 hrs.
(c) General Diary Reference Entry No. D.D. No. 7A Time 07.35 hrs.
4. Type of information :
5. Place of occurrence :
(a) Direction and distance from PS 1/2 KM West Side Beat No. 8
(b) Address : H.No. 4801 Gali Mitra, Arya Pura, Subzi Mandi, Delhi.
6. Complainant/Informant
(a) Shri Duli Chand
(b) Father's Name : Shri Dhalu Ram
(c) Date/year of birth 55 years Nationality : Indian
Occupation : Baildari
Address : H.No.4801 Gali Mitra Sabzi Mandi Delhi
7. Details of known/suspected accused
8. Reasons for delay in reporting by me
No Delay
STATEMENT OF DULI CHAND S/O. late Shri Dhadhu Ram, R/O.House No.4801 Gali Mitra
Roshanara Road, Sabzi Mandi Delhi-7 aged 58 years who stated that I am residing at the
above said address along with my family members and does the work of a labourer. In his
street, there is a godown of Jaipur Golden Transport Company. It was set to fire. This godown
was full of chemicals, clothes and cartons. Carton of tin were having poisonous pills which lost
due to fire and poisonous smoke came out of the pills. Today in the morning my son Akash
due to inhailing of poisonous smoke started vomiting and diarrhea and at about 3.30 in the
night his condition deteriorated so I took him to Hindu Rao Hospital where the doctor on duty
declared him as brought dead. Thereafter I took the dead body at home. The condition of the
other neighbourers of the vicinity also became worsen due to the above said smoke which was
coming out from the said godown. The treatment of all the neighbourers are continued in
Hindu Rao Hospital. This mishappening took place to the negligency of the owner of Jaipur
Golden Transport Company as he preserved poisonous things in his godown and did not take
precautionary measures to avoid such incidences. The necessary action may kindly be taken
against him. I have read my statement which is correct.
Sig. in Hindi Attested by Jai Kumar A.S.I. P.S. Sabzi Mandi 7.4.04
Sir,
It is submitted to the Duty Officer, P.S. Sabzi Mandi, that I ASI after receiving the D.D. No. 6A
along with Constable Amarjit No. 919/N visited Roshnara Road House No. 4801 Gali Mitranwali
Subzi Mandi where one person's dead body named as Akash son of Duli Chand was lying there
where the father of the deceased, Duli Chand got recorded his statement. Thereafter I ASI
with the Constable visited Hindu Rao Hospital and took the MLC of the injured. From the facts
and circumstances the case is made out under Section 284/337/304A Indian Penal Code, 1860
against the accused. I sent the case for registration of rukka through Constable Amarjeet
Singh No. 919/N who will inform him after registration of the case.
I am busy at the spot.
Date and time of accident : 7.4.04 at about 3.30 p.m.
Place of incident : House no. 4801 Gali Mitranwali, Subzi Mandi : Delhi
Date and time of departure : 7.4.04 at 7.25 AM
Signature in English Jai Kumar ASI No. 28740594
13. Action taken
Name of IO Jai Kumar Rank ASI No. 2406/D PIS No. 28740594
Sd/- Signature of Officer Incharge/Duty Officer, P.S.
Name : Manrakhan Rank HC No. 417/N
RO&AC
PIS No. 28850255
Sd/- Duli Chand
15. Date and time of departure to the court : By Dak.
(emphasis supplied)
27. The fact that Mr. Akash died due to inhalation of poisonous gases, is confirmed by the FSL
report dated 30th September, 2004 which concluded that exhibits tested positive for presence
of Aluminum Phosphide and Zinc Phosphide. The said report is reproduced hereinbelow:-
FORENSIC SCIENCE LABORATORY
GOVT. OF NCT OF DELHI MADHUBAN CHOWK, ROHINI SECTOR-14, DELHI-110085
REPORT No. FSL.....2004/C-1019 Dated 30/09/04
Please quote the Report (Opinion) No. & Date in all future correspondence & Summons.
To
The Station House Officer PS Subzi Mandi Distt. North, Delhi-7
Your letter No. 1021/SHO/S.Mandi Dated 25.05.2004 regarding six parcels in connection with
case FIR No. 123/04 dated 07.04.04 U/S 284/337/304A Indian Penal Code, 1860 P.S. Subzi
Mandi duly received in this office on 25.05.2004.
DESCRIPTION OF PARCELS & CONDITIONS OF SEAL/S
The Parcels six in numbers marked '1A', '2A', '2B', '3A', '3B' & '3C' which were sealed and
tallied with specimen seal impression forwarded.
DESCRIPTION OF ARTICLES CONTAINED IN PARCEL
Parcel-1 : One wooden box sealed with the seals of 'KLS SUBZI MANDI MORTUARY AAA
HOSPITAL, DELHI' labeled as PMR No. 497/04 Viscera of Akash. It was found to contain
exhibits '1A', '1B' & '1C'.
Exhibit-1A: Stomach and piece of small intestine with contents kept in a sealed jar.
Exhibit-1B : Pieces of liver, spleen and kidney kept in a sealed jar.
Exhibit-1C : Lung pieces kept in a sealed jar.
Parcel-2A : One sealed glass vial sealed with the seal of 'hrh' labelled as MLC No. 3171. It was
found to contain exhibit '2A'.
Exhibit-2A : Blood sample vol. 1 ml approx. of Ankush.
Parcel-2B: One sealed glass vial sealed with the seal of 'hrh' labelled as MLC No. 3184/04. It
was found to contain exhibit '2BA'
Parcel-3A: One cloth parcel sealed with the seals of 'JK'. It was found to contain exhibit '3A'.
Exhibit-3A : Dark Grey coloured tablets, kept in the sixteen metallic container, kept in a tin
container labelled as ALUMINUM PHOSPHIDE 56% W/W SANPHOS. Manufactured by SANDHYA
ORGANIC CHEMICALS PVT. LTD.
Parcel-3B : One cloth parcel sealed with the seals of 'JK'. It was found to contain exhibit '3B'.
Exhibit-3B : Black colour powder substance, kept in plastic packet labelled as RODENTICIDE
ZINC PHOSPHIDE RATIL Manufactured by SANDHYA ORGANIC CHEMICALS PVT. LTD.
Parcel-3C : One cloth parcel sealed with the seals of 'JK'. It was found to contain exhibit '3C'.
Exhibit-3C : Dark Grey coloured tablets kept in a metallic container.
RESULTS OF EXAMINATION
On chemical examination (i) Exhibits '1B', '1C', '2A' & '2B' gave positive tests for the presence
of phosphide.
(ii) Exhibits '3A' & '3C' gave positive tests for the presence of aluminum phosphide.
(iii) Exhibit '3B' gave positive tests for the presence of zinc phosphide.
(iv) Metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates,
transquillizers and insecticides could not be detected in exhibit '1A'.
Note : Remnants of the exhibits have been sealed with the seal of APS FSL DELHI.
Sd/- (AMARPAL SINGH)
(emphasis supplied)
28. The subsequent opinion given by a doctor of Aruna Asaf Ali Government Hospital, Delhi
confirmed that Mr. Akash died due to respiratory distress caused as a consequence of
phosphide poisoning. The relevant portion of the said report is reproduced hereinbelow:-
"Subsequent Opinion
Reference page ante, written application of Police I.O and FSL report No. FSL. 2004/C-1019
dated 30-09-04 which gave positive test for phosphide in pieces of lungs, liver, kidneys and
spleen, the subsequent opinion is as follows :-
"The cause of death is respiratory distress, asphyxia and myocardial anoxia as a result of
phosphide poisoning.
Sd/- Dr. Kulbhushan Goyal Senior Medical Officer Aruna Asaf Ali Govt. Hospital Delhi.
(emphasis supplied)
29. It is pertinent to mention that Dr. K.S. Narayan Reddy in his book "The Essentials of
Forensic Medicine and Toxicology" has stated as under:-
ALUMINUM PHOSPHIDE
Aluminum phosphide (ALP) is a solid fumigant pesticide, insecticide and rodenticide. In India it
is available as white tablets of Celpnos, Alphos, Quickphos, Phostoxin, Phosphotex, etc., each
weighing 3 g. and has the capacity to liberate one gram of phosphine (PH3). On coming in
contact with moisture ALP liberates phosphine. Phosphine is a systemic poison and affects all
organs of the body. The chemical reaction is accelerated by the presence of HCL in the
stomach. ALP has garlicky odour. It is widely used as grain preservative. Phosphite and
hypophosphite of aluminum which are non-toxic residues are left in the grains.
Absorption and Excretion : Phosphine is rapidly absorbed from the GI tract by simple diffusion
and causes damage to the Internal organs. It is also rapidly absorbed from the lungs after
inhalation. After ingestion, some ALP is also absorbed and is metablised in the liver, where
phosphine is slowly released accounting for the prolongation of symptoms. Phosphine is
oxidized slowly to oxyacids and excreted in the urine as hypophosphite. It is also excreted in
unchanged form though the lungs.
Action : Phosphine inhibits respiratory chain enzymes and has cytotoxic action. It acts by
inhibiting the electron transport resulting from preferential inhibition of cytochrome oxide.
Inhalation : Mild inhalation exposure produces irritation of mucous membranes and acute
respiratory distress. Other symptoms are dizziness, easy fatigue, tightness in the chest,
nausea, vomiting, diarrhea and headache. Moderate toxicity produces ataxia, numbness,
paraesthesia, tremors, diplopia, jaundice, muscular weakness, incoordination and paralysis.
Concentration of PH3 in air higher than 03 ppm causes severe illness. Severe toxicity produces
adult respiratory distress syndrome, cardiac arrhythmias, congestive heart failure, pulmonary
oedema, convulsions and coma."
30. According to the New Jersey Department of Health and Senior Services' Hazardous
Substance Fact Sheet, contact with Aluminum Phosphide can irritate the skin and eyes and its
repeated exposure can damage lungs, kidneys and liver. The Fact Sheet further states that
Aluminum Phosphide reacts with water or moisture to release highly toxic and flammable
Phosphine gas, which is a highly reactive chemical and a dangerous fire and explosion hazard.
31. The website of BOC Gases states that release of phosphine gas can aggravate pre-existing
respiratory, kidney and nervous system disorders.
LIMITATION OBJECTION
32. We fail to understand as to how a writ petition can be said to be barred by limitation
inasmuch as no period of limitation has been statutorily prescribed for filing a writ petition
under Article 226 of the Constitution of India, 1950In fact, writ petitions are dismissed on
account of delay on the ground of laches and not as barred by limitation. The test to be
applied is whether laches on the part of the Petitioner are such as to hold that petitioners by
their act or conduct have given a go-by to their rights. On perusal of the present case we find
that present writ petition was filed in about two years' time from the date of fire and delay in
filing the present petition was on account of the fact that victims of the fire and gas tragedy
were extremely poor and not organized. In any event the alleged delay, if any, has not
prejudiced the rights of any third party including that of respondent no.5.
33. As far as allowing of the impleadment application in 2009 is concerned, we find that by
virtue of the said application, legal heirs of three deceased victims were brought on record. In
fact, two out of three deceased had died after filing of the present writ petition. Consequently,
plea of limitation is without any merit and is accordingly rejected.
LOCUS-STANDI OBJECTION
34. Respondent no. 5's objections that petitioner-Association has no locus standi to maintain
the present writ petition as it is an unregistered body, is without any merit. In fact, the earlier
narrow concept of person aggrieved and individual litigation has become obsolete and Courts
are today even converting letter petitions into Public Interest Litigations. The Supreme Court in
Akhil Bharatiya Soshit Karamchari Sangh (Railway) vs. Union of India & Ors. reported in AIR
1981 SC 298 held as under:
"63. A technical point is taken in the counter-affidavit that the 1st petitioner is an
unrecognized association and that, therefore, the petition to that extent, is not sustainable. It
has to be overruled. Whether the petitioners belong to a recognized union or not, the fact
remains that a large body of persons with a common grievance exists and they have
approached this Court under Article 32. Our current processual jurisprudence is not of
individualistic Anglo-Indian mould. It is broad-based and people-oriented, and envisions access
to justice through 'class actions', 'public interest litigation' and 'representative proceedings'.
Indeed, little Indians in large numbers seeking remedies in courts through collective
proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of
participative justice in our democracy. We have no hesitation in holding that the narrow
concept of 'cause of action' and 'person aggrieved' and individual litigation is becoming
obsolescent in some jurisdictions."
35. Respondent no.5's further plea that Advocates were behind the petitioner-Association, is
contrary to facts and untenable in law. In any event, Advocates have in the past filed many
public interest litigations including those seeking compensation. In this context, we may refer
to a judgment of Karnataka High Court in P.A. Kulkarni & Anr. vs. State of Karnataka & Anr.
reported in AIR 1999 Karnataka 284 wherein it was held as under:
"Careless conduct and casual approach adopted by the respondent-State in the matter of
fundamental right dealing with life and safety forced the petitioners, belonging to a noble
profession of advocates to put off their robes and stand before us as litigant seeking justice for
the legal heirs of the dead and compensation for the injured. The deaths and injuries are
admitted to have been caused on account of the collapse of a building constructed by the
builders by using substandard material besides ignoring the structural guidelines and
protections. The rolling tears and the soar wailing cries of the victims of the tragedy did not
affect the mighty and careless State but did touch the tender hearts of the petitioners, who
initiated this action in public interest with prayer for granting appropriate relief to the needy
and deserving."
PENDENCY OF CRIMINAL PROCEEDINGS IS NO BAR TO MAINTAINABILITY OF PRESENT WRIT
PETITION
36. Mr. Thadani's plea that any decision in the present writ proceedings would prejudicially
affect the criminal trial, is untenable in law as in the present proceedings we are not holding
anyone criminally liable. In fact, we are only considering application of the principle of strict
liability according to which those engaged in certain activities have to compensate for the
damages caused by them irrespective of any fault on their part. Consequently, Mr. Thadani's
aforesaid objection is without any merit.
'SILENT SPECTATORS' OBJECTION
37. Respondent no.5's plea that as the deceased and injured were silent spectators to running
of a godown by respondent no. 5 for six years, they could not claim compensation, is only to
be stated to be rejected. If this plea were to be accepted it would amount to placing a
premium on dishonesty and any infringer of law would claim that he is not liable to pay any
compensation as he had not been prevented prior in time from violating the law.
VOLUNTARY SETTLEMENT'S PLEA
38. Respondent no. 5's further plea that in view of the voluntary settlement having been
executed, they were not liable to pay any compensation is equally untenable in law. One of the
sample agreements executed between respondent no. 5 and an affected party is reproduced
hereinbelow for ready reference :-
AGREEMENT
This agreement is made at Delhi on this 3rd day of May 2004 between Shri Sumer Chand S/o.
Shri Faquir Chand R/o. 4808, Gali Mitra, Arya Pura, Delhi (hereinafter called the FIRST PARTY
AND Jaipur Golden Trasnport Co. (Pvt.) Ltd. through its Jt. Managing Director, Shri V.L. Bahri
having its registered office at 4736/41, Roshnara Road, Delhi, hereinafter called the SECOND
PARTY.
WHEREAS the expressions FIRST PARTY AND SECOND PARTY shall mean and includes their
respective heirs, successors, assigns etc.
WHEREAS the SECOND PARTY M/s. Jaipur Golden Transport Co. (Pvt.) Ltd. is running the
business of transportation, all over the India and is having it one of godown at 4776, Roshnara
Road, Delhi.
AND WHEREAS the First Party is living in House No. 4808 which is situated adjacent to the
same Godown.
AND WHEREAS an unfortunate fire broke out in the above stated godown on the night of 4th
April, 2004 and resulting into loss of the entire consignments lying in the same.
AND WHEREAS the first party has approached the second party seeking the compensation in
terms of money to the tune of Rs. 5000/- (Rupees Five Thousand only), as he has stated that
he suffered simple suffocation due to smoke which emanated from the fire in the Godown.
AND WHEREAS both the parties have also arrived to this conclusion that the same fire was an
accidental fire which took place due to short circuit and there was no negligence on the part of
the Second Party.
AND WHEREAS keeping in view its pride and reputation and also the fact that the First Party is
the neighbourer to the Second Party, the Second Party, without prejudice to its rights and
contentions that the same fire took place due to an accident, beyond the control and powers of
the Second Party, has voluntarily offered to pay as a goodwill gesture, a sum of Rs. 5000/-
(Rupees Five Thousand only) by way of Cash towards the full and final satisfaction of the First
Party, which amount is also acceptable to the First Party.
NOW THIS DEED WITNESSETH as under :
1) That the First Party has made this claim on the contention that he suffered simple
suffocation due to smoke and by making this contention he has not concealed the material
facts and further has not concocted any false story.
2) That the First Party has accepted the amount of Rs. 5000/- (Rupees Five Thousand only) in
(cash) and the First Party undertakes not to claim any amount whatsoever from the Second
Party and the First Party hereinafter also undertakes & not to file any legal proceedings and/or
to file any other claim/case against the Second Party.
4. That this Agreement has been arrived at between the parties with their free consent and
consciences as no pressure or coercion has been applied upon.
IN WITNESS WHEREOF both the Parties have signed this Agreement on the day and date
mentioned above in presence of the following witnesses.
First Party Suresh Chand S/o. Faquirchand R/o. 4808, Gali Mitra, Delhi
(Seal)For Jaipur Golden Transport Co. (P) Ltd.)
Second Party Sd
Witnesses :
1) Rajiv Khanna S/o. SH. K.L. Khanna, R/o. 34/505, Kang Roshnara Appt. Sec-13, Rohini,
Delhi - 85
39. A chart filed by Mr. Thadani indicating the list of persons with whom respondent no. 5 had
executed settlements is reproduced hereinbelow :-
LIST OF PERSONS WHO WERE ADMITTED TO THE HOSPITAL, SHOWING THEIR DATE
ADMISSION & DATE OF DISCHARGE AS FILED BY THE PETITIONER
S. NO. NAME OF DATE OF DATE REMARKS

PERSON ADMISSION DISCHARGE
1. Duli Chand 05/05/2004 13/5/2004 Father of

Akash-
deceased
2. Babu Lal 07/04/2004 12/04/2004 All persons

paid Rs.
4000/- or Rs.
5000/-
3. Raju S/O Anna 07/04/2004 08/04/2004

Ram
4. Jai Devi 07/04/2004 08/04/2004
5. Tejwati 07/04/2004 10/04/2004
6. Jitender S/o 07/04/2004 19/04/2004

Davi Lal
7. Anil 08/04/2004 10/04/2004
8. Suman Chand 07/04/2004 08/04/2004
9. Tej Pal 07/04/2004 08/04/2004
10. Doli 07/04/2004 08/04/2004
11. Raju 07/04/2004 08/04/2004
12. Davi Lal 07/04/2004 08/04/2004
13. Sanjay 07/04/2004 08/04/2004
14. Vishal 07/04/2004 10/04/2004
15. Ruby 07/04/2004 10/04/2004
16. Ankush 07/04/2004 10/04/2004
17. Mangal 07/04/2004 08/04/2004
18. Birju 07/04/2004 17/04/2004
19. Gango Devi 07/04/2004 10/04/2004
20. Deepa 07/04/2004 08/04/2004
21. Moni Devi 07/04/2004 08/04/2004
22. Ravi Devi 07/04/2004 08/04/2004
23. Poonam 07/04/2004 08/04/2004
24. Seema Jain 07/04/2004
25. Shanti Devi 07/04/2004 10/04/2004
26. Kailash 07/04/2004 08/04/2004
27. Phoolwati 07/04/2004 08/04/2004
28. Brijesh 07/04/2004 12/04/2004
29. Sohan Lal 07/04/2004 08/04/2004
30. Radha Devi 07/04/2004 08/04/2004
31. Parmanand 07/04/2004 12/04/2004
32. Sohan Lal S/o 07/04/2004 08/04/2004

Prabu Dayal
33. Meena 07/04/2004 08/04/2004

34. Nanhaee 07/04/2004 12/04/2004
40. The insignificant compensation as well as the standard format of agreements leaves no
room for doubt that the said agreements are unfair, unreasonable, unconscionable, opposed to
public policy and consequently void. (See: Central Inland Water Transport Corporation Limited
& Anr. vs. Brojo Nath Ganguly & Ors. (1986) 3 SCC 156, paras 89 and 93).
PRESENT WRIT PETITION IS MAINTAINABLE
41. As far as the maintainability of present writ petition against respondent no. 5 is concerned,
it is submitted that Article 226 of Constitution of India, 1950 makes no distinction between a
public function and a private function. In U.P. State Cooperative Land Development Bank Ltd.
Vs. Chandra Bhan Dubey and Ors. reported in 1999 1 SCC 741 the Supreme Court held as
under :-
"27. .........When any citizen or person is wronged, the High Court will step in to protect him,
be that wrong be done by the State, an instrumentality of the State, a company or a
cooperative society or association or body of individuals, whether incorporated or not, or even
an individual. Right that is infringed may be under Part III of the Constitution of India, 1950 or
any other right which the law validly made might confer upon him. But then the power
conferred upon the High Courts under Article 226 of the Constitution of India, 1950 is so vast,
this Court has laid down certain guidelines and self-imposed limitations have been put there
subject to which the High Courts would exercise jurisdiction, but those guidelines cannot be
mandatory in all circumstances........"
42. Moreover, in our opinion, the present writ petition is maintainable as undoubtedly
respondent-MCD has been remiss and negligent in discharging its statutory obligations and in
ensuring that a citizen's fundamental right to health and pollution free environment was not
infringed. Consequently, present writ petition is maintainable.
MONETARY RELIEF CAN BE AWARDED IN THE PRESENT WRIT PETITION
43. As far as respondent no. 5's submission that no writ petition for money claim is
maintainable is concerned, we are of the view that the same is untenable in law. In our
opinion, the Constitution does not place any fetter on the exercise of extra ordinary jurisdiction
of the Court and reliefs to be granted under such extra ordinary jurisdiction is left to the
discretion of the Court in the light of facts and circumstances of each case. Moreover in the
present case what has been sought is award of compensation and not payment of monetary
claim.
COMPENSATION CAN BE AWARDED IN ARTICLE 226 PROCEEDINGS
44. It is further well settled that proceedings under Article 226 of the Constitution of India,
1950 , enable the courts, to reach out to injustice, and make appropriate orders, including
directions to pay damages or compensation. The Supreme Court in Dwarka Nath Vs. Income-
Tax Officer & Anr. reported in AIR 1966 SC 81 held as under :-
"(4).........This article is couched in comprehensive phraseology and it ex facie confers a wide
power on the High Courts to reach injustice wherever it is found. The Constitution designedly
used a wide language in describing the nature of the power, the purposes for which and the
person or authority against whom it can be exercised. It can issue writs in the nature of
prerogative writs as understood in England; but the scope of those writs also is widened by the
use of the expression "nature", for the said expression does not equate the writs that can be
issued in India with those in England, but only draws in analogy from them. That apart, High
Courts can also issue directions, orders or writs other than the prerogative writs. It enables the
High Courts to mould the reliefs to meet the peculiar and complicated requirements of this
country. Any attempt to equate the scope of the power of the High Court under Art.226 of the
Constitution of India, 1950 with that of the English Courts to issue prerogative writs is to
introduce the unnecessary procedural restrictions grown over the years in a comparatively
small country like England with a unitary form of Government to a vast country like India
functioning under a federal structure. Such a construction defeats the purpose of the article
itself. To say this is not to say that the High Courts can function arbitrarily under this Article.
Some limitations are implicit in the article and others may be evolved to direct the article
through defined channels. This interpretation has been accepted by this Court in T. C. Basappa
v. Nagappa, 1955-1 SCR 250: (AIR 1954 SC 440) and Irani v. State of Madras, 1962-(2) SCR
169 : (AIR 1961 SC 1731)."
45. Further the Supreme Court in Air India Statutory Corporation reported in 1997 (9) SCC
377 held that, "the Founding Fathers placed no limitation or fetters on the power of the High
Court under Article 226 of the Constitution of India, 1950 except self-imposed limitations. The
arm of the Court is long enough to reach injustice wherever it is found. The Court as sentinel
on the qui vive is to mete out justice in given facts."
46. The concept of compensation under public law, for injuries caused due to negligence,
inaction or indifference of public functionaries or for the violation of fundamental rights is well
known. In Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 at page 762, the Supreme
Court held as under:
"17. ......a claim in public law for compensation for contravention of human rights and
fundamental freedoms, the protection of which is guaranteed in the Constitution, is an
acknowledged remedy for enforcement and protection of such rights, and such a claim based
on strict liability made by resorting to a constitutional remedy provided for the enforcement of
a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages
for the tort' resulting from the contravention of the fundamental right. The defence of
sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental
rights, there can be no question of such a defence being available in the constitutional remedy.
It is this principle, which justifies award of monetary compensation for contravention of
fundamental rights guaranteed by the Constitution, when that is the only practicable mode of
redress available for the contravention made by the State or its servants in the purported
exercise of their powers."
47. In Chairman, Railway Board Vs. Chandrima Das reported in (2000) 2 SCC 465 Supreme
Court emphasised the obligation of the State to protect women from violence, including rape
and held that this right is a part of Right to Life guaranteed under Article 21 of the Constitution
of India, 1950In that case, the aggrieved party was a victim of rape committed in a railway
compartment. The court rejected the Central Government's disclaimer of liability, and declared
that the right of the victim under Article 21 had been violated. It awarded Rs.10 lakhs as pubic
law damages. It is pertinent to mention that the court did not examine who was the
perpetrator, or what duty he owed to the Government. It was held sufficient that a wrong had
occurred in a railway coach, which was under the control of the railway authorities.
48. It is pertinent to mention that this Court has also awarded compensation in writ
jurisdiction in Raj Kumar vs. Union of India (2005) 125 DLT 653, Delhi Jal Board vs. Raj Kumar
(2005) 8 AD (Delhi) 533, Chitra Chary vs. DDA (2005) 1 AD (Del) 29, Shri Chand vs Chief
Secretary 2004 (112) DLT 37, Shobha vs. GNCTD (2003) IV AD (Delhi) 492, Shyama Devi vs.
GNCTD (1999) 1 AD (Cr) Delhi 549, All India Lawyers' Union (Delhi Unit) vs. Union of India
AIR 1999 Del 120, B.L. Wali vs Union of India (2004) VIII AD (Delhi) 341, Ram Kishore & Ors.
Vs. Municipal Corporation of Delhi 2007 VII AD (Delhi) 441, WP(C) 5072-73/2005 titled as
Kishan Lal Vs. Govt. of NCT of Delhi decided on 3rd July, 2007, Kamla Devi Vs. Govt. of NCT of
Delhi & Anr. 2005 ACJ 216, and WP(C) 3370/2000 titled as Master Dheeru Vs. Govt. of NCT of
Delhi & Ors. decided on 9th February, 2009.
IN ARTICLE 226 PROCEEDINGS, THE COURT CAN ALWAYS MOULD THE RELIEF
49. The power of the High Courts and the Supreme Court under Article 226 and Article 32
respectively, to mould the relief so as to compensate the victim has been affirmed by the
Supreme Court on numerous occasions including Common Cause, A Registered Society v.
Union of India (1999) 6 SCC 667, Chairman Railway Board v. Chandrima Das (2000) 2 SCC
465 Delhi Domestic Working Women's Forum v. Union of India (1995) 1 SCC 14, D.K. Basu v.
State of W.B (1997) 1 SCC 416 and Rudul Sah v. State of Bihar (1983) 4 SCC 141.
APPLICATION OF RULE IN RYLAND VS. FLETCHER
50. The principle of liability without fault was enunciated in Ryland Vs. Fletcher reported in
(1868) LR 3 HL 330. Facts of the said case were that defendant, who owned a mill,
constructed a reservoir to supply water to the mill. This reservoir was constructed over old coal
mines, and the mill owner had no reason to suspect that these old diggings led to an operating
colliery. The water in the reservoir ran down the old shafts and flooded the colliery. Blackburn
J. held the mill owner to be liable, on the principle that the person who for his own purposes
brings on his land and collects and keeps there anything likely to do mischief if it escapes,
must keep it at his peril, and if he does not do so, he is prima facie answerable for all the
damage which is the natural consequence of its escape. On appeal this principle of liability
without fault was affirmed by the House of Lords (per Cairns, J.) but restricted to non- natural
users.
51. To oppose the application of Ryland Vs. Fletcher rule the only submission advanced by
respondent no. 5 before us was that running of a godown per se is not an inherently
dangerous or hazardous industry and further the cause of fire could not be attributed to
negligence of respondent no. 5.
52. But the fact is that the Rule in Rylands v. Fletcher (supra) was subsequently interpreted to
cover a variety of things likely to do mischief on escape, irrespective of whether they were
dangerous per se e.g. water, electricity, explosions, oil, vibralious, noxious fumes, colliery
spoil, poisonous vegetation, a flagpole, etc. (see 'Winfield and Jolowiez on 'Tort', 13th Edn. P.
425) vide National Telephone Co. v. Baker, (1893) 2 Ch 186, Eastern and South African
Telegraph Co. Ltd. v. Cape Town Tramways Co. Ltd., (1902) AC 3 81 ; Hillier v. Air Ministry,
(1962) CLY 2084, etc. (See: Delhi Jal Board vs. Raj Kumar reported in ILR (2005) 2 Del 778).
53. Consequently, in our view, the submission of respondent no. 5 that running of a godown
would not attract the rule enunciated in Ryland Vs. Fletcher is untenable in law.
54. Moreover, in our opinion, the dispute raised with regard to cause of fire is irrelevant for
attraction of the rule in Ryland Vs. Fletcher inasmuch as one has only to see as to whether a
person has put the land to a non-natural use and whether as a consequence of such use, some
damage has been caused to the public at large. In the present instance, the above test is
admittedly satisfied as respondent no. 5's premises was situated in a residential area which
could not have been used as a godown and further as a consequence of fire in the godown
containing consignment of pesticides, gas escaped which caused loss of lives and injuries to
people living in the neighbourhood. Accordingly, the rule in Ryland vs. Fletcher is attracted in
the present case.
APPLICATION OF PRINCIPLE EVOLVED IN M.C. MEHTA'S CASE
55. In any event, storage of chemical pesticides was certainly an inherently dangerous and/or
hazardous activity and, therefore, the principle evolved by the Supreme Court in M.C. Mehta
and another Vs. Union of India and others reported in 1987 (1) SCC 395 would apply. In the
said judgment, Supreme Court held as under :-
"31. We must also deal with one other question which was seriously debated before us and
that question is as to what is the measure of liability of an enterprise which is engaged in an
hazardous or inherently dangerous industry, if by reason of an accident occurring in such
industry, persons die or are injured. Does the rule in Rylands v. Fletcher apply or is there any
other principle on which the liability can be determined? The rule in Rylands v. Fletcher was
evolved in the year 1866 and it provides that a person who for his own purposes brings on to
his land and collects and keeps there anything likely to do mischief if it escapes must keep it at
his peril and, if he fails to do so, is prima facie liable for the damage which is the natural
consequence of its escape. The liability under this rule is strict and it is no defence that the
thing escaped without that person's wilful act, default or neglect or even that he had no
knowledge of its existence. This rule laid down a principle of liability that if a person who
brings on to his land and collects and keeps there anything likely to do harm and such thing
escapes and does damage to another, he is liable to compensate for the damage caused. Of
course, this rule applies only to non-natural user of the land and it does not apply to things
naturally on the land or where the escape is due to an act of God and an act of a stranger or
the default of the person injured or where the thing which escapes is present by the consent of
the person injured or in certain cases where there is statutory authority. Vide Halsbury Laws of
England, Vol. 45 para 1305. Considerable case law has developed in England as to what is
natural and what is non-natural use of land and what are precisely the circumstances in which
this rule may be displaced. But it is not necessary for us to consider these decisions laying
down the parameters of this rule because in a modem industrial society with highly developed
scientific knowledge and technology where hazardous or inherently dangerous industries are
necessary to carry part of the developmental programme. This rule evolved in the 19th
Century at a time when all these developments of science and technology had not taken place
cannot afford any guidance in evolving any standard of liability consistent with the
constitutional norms and the needs of the present day economy and social structure. We need
not feel inhibited by this rule which was evolved in the context of a totally different kind of
economy. Law has to grow in order to satisfy the needs of the fast changing society and keep
abreast with the economic developments taking place in the country. As new situations arise
the law has to be evolved in order to meet the challenge of such new situations. Law cannot
afford to remain static. We have to evolve new principles and lay down new norms which
would adequately deal with the new problems which arise in a highly industrialised economy.
We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in
England or for the matter of that in any other foreign country. We no longer need the crutches
of a foreign legal order. We are certainly prepared to receive light from whatever source it
comes but we have to build up our own jurisprudence and we cannot countenance an
argument that merely because the law in England does not recognise the rule of strict and
absolute liability in cases of hazardous or inherently dangerous liability or the rule as laid down
in Rylands v. Fletcher as developed in England recognises certain limitations and exceptions,
we in India must hold back our hands and not venture to evolve a new principle of liability
since English courts have not done so. We have to develop our own law and if we find that it is
necessary to construct a new principle of liability to deal with an unusual situation which has
arisen and which is likely to arise in future on account of hazardous or inherently dangerous
industries which are concomitant to an industrial economy, there is no reason why we should
hesitate to evolve such principle of liability merely because it has not been so done in England.
We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous
industry which poses a potential threat to the health and safety of the persons working in the
factory and residing in the surrounding areas owes an absolute and non-delegable duty to the
community to ensure that no harm results to anyone on account of hazardous or inherently
dangerous nature of the activity which it has undertaken. The enterprise must be held to be
under an obligation to provide that the hazardous or inherently dangerous activity in which it is
engaged must be conducted with the highest standards of safety and if any harm results on
account of such activity, the enterprise must be absolutely liable to compensate for such harm
and it should be no answer to the enterprise to say that it had taken all reasonable care and
that the harm occurred without any negligence on its part. Since the persons harmed on
account of the hazardous or inherently dangerous activity carried on by the enterprise would
not be in a position to isolate the process of operation from the hazardous preparation of
substance or any other related element that caused the harm the enterprise must be held
strictly liable for causing such harm as a part of the social cost of carrying on the hazardous or
inherently dangerous activity. If the enterprise is permitted to carry on an hazardous or
inherently dangerous activity for its profit, the law must presume that such permission is
conditional on the enterprise absorbing the cost of any accident arising on account of such
hazardous or inherently dangerous activity as an appropriate item of its over-heads. Such
hazardous or inherently dangerous activity for private profit can be tolerated only on condition
that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all
those who suffer on account of the carrying on of such hazardous or inherently dangerous
activity regardless of whether it is carried on carefully or not. This principle is also sustainable
on the ground that the enterprise alone has the resource to discover and guard against
hazards or dangers and to provide warning against potential hazards. We would therefore hold
that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm
results to anyone on account of an accident in the operation of such hazardous or inherently
dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and
absolutely liable to compensate all those who are affected by the accident and such liability is
not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict
liability under the rule in Rylands v. Fletcher (supra).
(emphasis supplied)
56. A Division Bench of this Court in the case of Association of Victims of Uphaar Tragedy and
Others Vs Union of India and Others reported in 2003 III AD (Delhi) 321 held that where an
accident occurs at an enterprise engaged in a hazardous or inherently dangerous activity, then
the said enterprise would be strictly and absolutely liable to compensate all those who are
affected by the said accident and such liability is not subject to any of the exceptions which
operate under the Rylands Vs. Fletcher Rule. In the said case, each injured was directed to be
paid a compensation of rupees one lakh for mental pain, shock and agony suffered by them.
57. In fact, the Supreme Court in Union of India (UOI) Vs. Prabhakaran Vijaya Kumar and Ors.
reported in 2008 (9) SCC 527 referred to Ryland Vs. Fletcher rule and after pointing out its
limitations, reiterated the principle of strict liability in M.C. Mehta case (supra) as under:
"21. Rylands v. Fletcher (supra) in fact created a new legal principle (the principle of strict
liability in the case of hazardous activities), though professing to be based on analogies drawn
from existing law. The judgment is noteworthy because it is an outstanding example of a
creative generalization. As Wigmore writes, this epoch making judgment owes much of its
strength to 'the broad scope of the principle announced, the strength of conviction of its
expounder, and the clarity of his exposition'.
22. Strict liability focuses on the nature of the defendants' activity rather than, as in
negligence, the way in which it is carried on (vide 'Torts by Michael Jones, 4th Edn. p. 247).
There are many activities which are so hazardous that they may constitute a danger to the
person or property of another. The principle of strict liability states that the undertakers of
these activities have to compensate for the damage caused by them irrespective of any fault
on their part. As Fleming says "permission to conduct such activity is in effect made
conditional on its absorbing the cost of the accidents it causes, as an appropriate item of its
overheads" (see Fleming on 'Torts' 6th Edn p. 302).
23. Thus in cases where the principle of strict liability applies, the defendant has to pay
damages for injury caused to the plaintiff, even though the defendant may not have been at
any fault.
24. The basis of the doctrine of strict liability is two fold (i) The people who engage in
particularly hazardous activities should bear the burden of the risk of damage that their
activities generate and (ii) it operates as a loss distribution mechanism, the person who does
such hazardous activity (usually a corporation) being in the best position to spread the loss via
insurance and higher prices for its products (vide 'Torts' by Michael Jones 4th Edn p. 267).
25. As pointed out by Clerk and Lindsell (see 'Torts', 14th Edn) "The fault principle has
shortcomings. The very idea suggests that compensation is a form of punishment for wrong
doing, which not only has the tendency to make tort overlap with criminal law, but also and
more regrettably, implies that a wrongdoer should only be answerable to the extent of his
fault. This is unjust when a wholly innocent victim sustains catastrophic harm through some
trivial fault, and is left virtually without compensation"......
xxxxx xxxxx xxxxx
33. As Winfield remarks, because of the various limitations and exceptions to the rule "we
have virtually reached the position where a defendant will not be considered liable when he
would not be liable according to the ordinary principles of negligence" (see Winfield on Tort,
13th Edn p. 443).
34. This repudiation of the principle in Rylands v. Fletcher (supra) is contrary to the modern
judicial philosophy of social justice. The injustice may clearly be illustrated by the case of
Pearson v. North Western Gas Board (1968) 2 All ER 669. In that case the plaintiff was
seriously injured and her husband was killed by an explosion of gas, which also destroyed their
home. Her action in Court failed, in view of the decision in Dunne v. North Western Gas Board
(1964) 2 QB 806. Thus the decline of the rule in Rylands v. Fletcher (supra) left the individual
injured by the activities of industrial society virtually without adequate protection.
35. However, we are now witnessing a swing once again in favour of the principle of strict
liability. The Bhopal Gas Tragedy, the Chernobyl nuclear disaster, the crude oil spill in 1988 on
to the Alaska coast line from the oil tanker Exxon Valdez, and other similar incidents have
shocked the conscience of people all over the world and have aroused thinkers to the dangers
in industrial and other activities, in modern society.
36. In England, the Pearson Committee recommended the introduction of strict liability in a
number of circumstances (though none of these recommendations have so far been
implemented, with the exception of that related to defective products).
37. In India the landmark Constitution Bench decision of the Supreme Court in M.C. Mehta v.
Union of India AIR 1987 SC 1086 has gone much further than Rylands v. Fletcher in imposing
strict liability. The Court observed
"31...... if the enterprise is permitted to carry on any hazardous or inherently dangerous
activity for its profit the law must presume that such permission is conditional on the
enterprise absorbing the cost of any accident arising on account of such hazardous or
inherently dangerous activity as an appropriate item of its overheads".
58. In Jay Laxmi Salt Works (P) Ltd. Vs. State of Gujarat reported in (1994) 4 SCC 1 the
Supreme Court held as under :
"9......What is fundamental is injury and not the manner in which it has been caused. 'Strict
liability', 'absolute liability', 'fault liability, and neighbour proximity', are all refinements and
development of law by English courts for the benefit of society and the common man. Once
the occasion for loss or damage is failure of duty, general or specific, the cause of action under
tort arises. It may be due to negligence, nuisance, trespass, inevitable mistake etc. It may be
even otherwise. In a developed or developing society the concept of duty keeps on changing
and may extend to even such matters as was highlighted in Donoghue v. Stevenson (1932 AC
562: 1932 All ER Rep 1) where a manufacturer was held responsible for injury to a consumer.
They may individually or even collectively give rise to tortuous liability. Since the appellant
suffered loss on facts found due to action of respondent's officers both at the stage of
construction and failure to take steps even at the last moment it was liable to be
compensated."
59. In Research Foundation for Science (18) Vs. Union of India reported in (2005) 13 SCC 186
the Supreme Court held as under :
"32......Law cannot afford to remain static. The Court cannot allow judicial thinking to be
constricted by reference to the law as it prevails in England or in any other foreign country.
Though the Court should be prepared to receive light from whatever source it comes but it has
to build up its own jurisprudence. It has to evolve new principles and lay down new norms
which would adequately deal with the new problems which arise in a highly industrialized
economy. If it is found that it is necessary to construct a new principle of liability to deal with
an unusual situation which has arisen and which is likely to arise in future on account of
hazardous or inherently dangerous industries which are concomitant to an industrial economy,
the Court should not hesitate to evolve such principle of liability because it has not been so
done in England. An enterprise which is engaged in a hazardous or inherently dangerous
industry which poses a potential threat to the health and safety of the persons working in the
factory and residing in the surrounding areas owes an absolute and non-delegable duty to the
community to ensure that no harm results to anyone. The enterprise must be held to be under
an obligation to provide that the hazardous or inherently dangerous activity in which it is
engaged must be conducted with the highest standards of safety and if any harm results to
anyone on account of an accident in the operation of such activity resulting, for example, in
escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who
are affected by the accident as a part of the social cost for carrying on such activity, regardless
of whether it is carried on carefully or not. Such liability is not subject to any of the exceptions
which operate vis-a-vis the tortuous principle of strict liability under the rule in Rylands v.
Fletcher. If the enterprise is permitted to carry on a hazardous or inherently dangerous activity
for its profit, the law must presume that such permission is conditional on the enterprise
absorbing the cost of any accident arising on account of such activity as an appropriate items
of its overheads. The enterprise alone has the resource to discover and guard against hazards
or dangers and to provide warning against potential hazards."
60. The Law Commission of India Report No. 186 (September, 2003) regarding the proposal to
constitute environment courts in Chapter 3 - The Constitutional Mandate and Survey of
Supreme Court's judgments on Environmental Issues states:-
"In 1987, the Court laid down principles of strict liability in the matter of injury on account of
use of hazardous substances. Under the rule in Rylands vs. Fletcher (1868) LR 3 HL 330,
absolute liability for negligence could be imposed only for non-natural use of land and for
'foreseeable damage'. However, such exceptions were held by the Court as no longer available
in the case of injury on account of use of hazardous substances. Hazardous industries which
produced gases injuring the health of the community took a beating in M.C. Mehta vs. Union of
India AIR 1987 SC 1086 (the Oleum gas leak case) where the rule in Rylands vs. Fletcher was
modified, holding that the 'enterprise which is engaged in a hazardous or inherently dangerous
industry which poses a potential threat to the health and safety of persons working in the
factory and residing in the surrounding areas, owes an absolute and non-delegable duty to the
community to ensure that no harm results to anyone on account of hazardous or inherently
dangerous nature of the activity which it has undertaken...the enterprise must be absolutely
liable to compensate for such harm and it should be no answer to the enterprise to say that it
had taken all reasonable care and that the harm occurred without any negligence on its
part...The larger and more prosperous the enterprise, greater must be the amount of
compensation payable for the harm caused on account of an accident in the carrying on of the
hazardous or inherently dangerous activity by the enterprise."
61. From the undisputed facts, it is apparent that respondent no. 5 was engaged in an
inherently dangerous or hazardous activity as it had stored chemical pesticides and
consequently, its duty of care was absolute. Accordingly, the exceptions to strict liability as
evolved in Ryland Vs. Fletcher rule are not applicable. Therefore, respondent no.5 is liable to
compensate the victims of the gas and fire tragedy in accordance with the strict liability
principle evolved by the Supreme Court in M.C. Mehta case (supra).
MCD IS ALSO LIABLE
62. In the present case, MCD was remiss and negligent in discharging its statutory obligations
and in ensuring that a citizen's fundamental right to health and pollution free environment was
not infringed.
63. In fact, the present case was not the first incident of gas leak or fire in Delhi which
occurred due to storage of hazardous substances. In this context, we may refer to the
following extract of P.P. Chauhan Committee's report:-
"REPORT OF SHRI P.P. CHAUHAN, COMMISSIONER, MUNICIPAL CORPORATION OF DELHI
REGARDING ADMINISTRATIVE REVIEW OF THE FIRE INCIDENT IN GANDHI GALI, TILAK
BAZAR, DELHI ON THE NIGHT OF 23RD JUNE, 1987.
xxxxx xxxxxx xxxxx
The congested areas of the walled city are being used for storage of chemicals and other
highly hazardous inflammable materials. There have been fire incidents in the past also. The
remedy lies in shifting of such hazardous and chemicals godowns from the congested areas of
the walled city. The Department of Industries, Delhi Administration had conducted a survey of
the entire walled city area and had suggested shifting of hazardous industries from the entire
walled city area and had suggested shifting of hazardous industries and godowns to the
outskirts of the city. Unless immediate steps are taken to shift such hazardous units and
godowns storing highly inflammable material from the walled city, the people inhabiting this
area would continue to face danger and risk to their life and property.
The following short term remedial measures are suggested with a view to overcome the
present situations :-
A. Grant of licences for storage of chemicals and other inflammable materials.
(i) Grant of further Adhoc licences for storage of chemicals and other inflammable materials
etc. should not be permitted. Any attempt at establishing new trade units including godowns
etc. in these congested areas should be dealt with firmly. The Adhoc licencing policy has been,
to a large extent, responsible for mushrooming growth of such units. It should be made
abundantly clear that no adhoc licences shall be sanctioned in future in the contested areas of
the walled city.
(ii) For the existing units, any violation of the conditions of licence should be dealt with
severely including sealing of premises which the Chief Fire Officer considers hazardous or risky
form the first point of view. The limit of fine of Rs. 5000/- provided in the DMC Act should be
enhanced substantially.
(iii) Storage of hazardous and dangerous substances without licence should be made a
cognizable offence.
(iv) Assistance of the market/residents association of the katras etc. should be sought in
providing adequate fire safety measures.
(v) Strict enforcement of the various provisions of the various acts mentioned in the annexure
IV should be ensured through a concentrated and coordinated action of all the implementing
agencies."
64. This Court in C.W.P. No. 3678/1999 titled as All India Lawyers Union (Delhi Unit) Vs. Union
of India & Ors. decided on 6th May, 2002 gave directions to MCD to ensure that hazardous
substances are not stored in Delhi. The relevant extract of the said judgment is reproduced
hereinbelow :
"1. A fire broke out at Lal Kuan on 31st May, 1999 in a godown of New Aligarh Transport
Company, which was a devastating one.
xxxxx xxxxxx xxxxx
3. After this Court entertained the writ petition, a Committee was constituted. A magisterial
enquiry was ordered purported to be in terms of Section 174 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as 'Cr. P.C.')
4. The report of the Committee suggests that the incident occurred due to negligence on the
part M/s. New Aligarh Transport Company in handling highly explosive chemicals stored in the
godown. It further appears that the whole of the walled city is lined with booking offices and
godowns of transporters. Consignments are kept by the transporters outside their respective
offices/godowns allegedly because of paucity of space causing traffic congestion. In the
godowns there existed no storage facility for Chemicals and other hazardous substances. It
was noted that having regard to the fact that the walled city is a congested area it was not
desirable to allow storage and transport of such hazardous substance. Such activities were
recommended to be shifted to the peripheral areas of Delhi where safety measures can be
ensured. Apprehensions were raised that similar other incidences may take place. While
holding that the said transporter is responsible for the incident, the following suggestions had
been made:
1) Area should be declared 'No Traffic Zone'. In case that is not feasible, then traffic should be
strictly regulated and all steps taken to reduce traffic congestion.
2) The wholesale Chemical Trading Market should be shifted out to peripheral areas of NCT of
Delhi.
3) Till the time the market is shifted, no unauthorized trading in dangerous or hazardous
chemicals should be allowed by the regulatory authorities like MCD or Delhi Police.
4) The booking offices/godowns of transporter must be shifted out of the walled city to
peripheral areas to reduce congestion on the roads and to minimize fire and other hazards.
5) A vigorous campaign should be launched against unauthorized construction and conversion
of residential houses into markets, to reduce traffic congestion and unauthorized storage of
hazardous material, thereby endangering public safety.
6) A massive public awareness campaign should be launched to educate the public regarding
preventive measures to be taken to minimize the risk of fire. Adequate fire safety measures
should be insisted to be adopted by the traders.
5. It was recorded that in past, several such major fires had taken place, as a result whereof,
55 persons in total were killed and several shops were gutted. Despite recommendations made
by the Committee afore-mentioned, no action had been taken. This Court, keeping in view the
urgency of the matter, from time to time issued various direction. A direction was also issued
to the Municipal Corporation of Delhi (in short 'MCD') to conduct survey in order to evict the
occupiers from the premises where there were unauthorized storage of hazardous substance
and chemicals.
xxxxx xxxxx xxxxx
15. The matter relating to storage of hazardous substance is covered by the provisions of
Section 417 of the Delhi Municipal Corporation Act, 1957 (in short the 'DMC Act').....
16. The afore-mentioned provisions does not show that storage must be made only by the
traders and not by the transporters. Such storage may be temporary in nature, but when it
comes to storage of hazardous substances, the law must strictly be complied with. It will not
be out of place of notice that the Apex Court in Shriram Foods & Fertilizer Industries and
another v. Union of India and others reported in AIR 1987 SC 965 evolved a principle that
those who manufacture hazardous substance, in the event an accident takes place, must show
they took all the precautionary measures to prevent the same.
17. When Court is faced with a question of law arising out of a fire accident caused owing to
negligence of the owner of he premises who did not take adequate precautions in preventing
the same, not only the strict liability for the payment of compensation may imposed, steps
must be taken to prevent recurrence of such accident. It is in this situation, we wonder as to
why the authority of the MCD did not take recourse to the precautionary principles which must
be viewed with grave concern.
18. The Commissioner of MCD was present in Court on 6th March 2002. He assured us that the
Director of Vigilance MCD would conduct an enquiry so as to ascertain the individual liability of
the concerned officers, if any. It must be done with expedition and a report in this regard must
be submitted within four weeks from the date. So far as items of hazardous goods are
concerned, MCD must issue an appropriate list identifying those goods and take adequate
steps for publishing thereof including furnishing of copies thereof to the learned counsel for the
parties appearing for the transporters and shops owners, who in turn should communicate the
same to their respective clients. All steps must be taken as expeditiously as possible and not
later than three months from date. By that date all concerned are directed to see that
transporters shift their business to the newly allocated area. They for no reason whatsoever
should be permitted to transport or store hazardous substances. In the event, it is found that
hazardous substances are stored in violation of the provisions of the statute the authorities of
the MCD must take adequate steps for proceeding against the defaulters without any delay
whatsoever.
19. We may notice that in the survey report dated 2nd August 1999, it is stated:
11. The issue of shifting of Chemicals market is still pending before the Government. A high
level meeting under the Chairmanship of Hon'ble L.G. was held on 1/6/99 following the Lal
Kuan fire incident. Chief Minister, Delhi was also present in this meeting. Chief Secy., Delhi,
Vice Chairman DDA, Commissioner Police, Chief Fire Officers Delhi, Divisional Commissioner,
Delhi were among the highest officers present in the meeting. The Dy. Com. (City)
represented the Commissioner, MCD in the said meeting. It was consciously decided to shift
the godowns of non-pharmaceutical and inflammable trades from the congested residential
and commercial areas of the capital in accordance with the Master Plan of Delhi. A Committee
headed by Divisional Commissioner of Delhi has been constituted to identify the Chemicals
trade which need to be shifted and to evolve principles and procedures of such shifting. A
detailed survey of the dealers of the Chemicals was decided to be carried out to identify those
who will be eligible to provide with space in the new complex.
12. In this meeting, various measures and modalities for shifting of all Chemical
godowns/shops dealing in inflammable material and stores from the city to the freight complex
to be developed at Ghazipur by DDA were discussed. The Vice Chairman of DDA informed the
Hon'ble L.G. that it would take about a year to develop a new complex Along with the
peripheral facilities before the physical shifting of the trade is possible.
13. The Law Secretary of the Delhi Got. Has been entrusted with the responsibilities of
examining the existing legislation for storage and shifting of Chemicals and suggest
amendments in case this was found inadequate.
20. We do not know what action had been taken by the National Capital Territory of Delhi (in
short 'NCT of Delhi') in this regard. An appropriate action to fill up the lacuna, if any, is
expected to be taken by the MCD as expeditiously as possible, although no direction in this
behalf can be granted by us.
21. We, therefore, direct that appropriate steps be taken by the respondents to remove all
occupants dealings in hazardous substances. The transporters may keep their offices but they
shall not store any hazardous substances in Lal Kuan area. Arrangement for storage of such
hazardous substances shall be made in the area allotted. While handling, transporting or
storing hazardous substances appropriate rules operating in the field as also the provisions of
other relevant statutes must strictly be complied with. All exercises must be undertaken and
completed within a period of three months from date.
Writ petition is accordingly disposed of."
65. However, despite the aforesaid categorical directions, respondent-MCD failed to take any
precautions and/or remedial measures.
66. Moreover, the Supreme Court in Vellore Citizen Welfare Forum Vs. Union of India & Ors.
reported in (1996) 5 SCC 647 has held that in view of constitutional and statutory provisions,
the Precautionary Principle and Polluter Pays Principle are part of the environmental law of the
country. The Supreme Court in the said judgment held as under:-

"11. ......We are, however, of the view that "The Precautionary Principle" and "The Polluter
Pays Principle" are essential features of "Sustainable Development". The "Precautionary
Principle" - in the context of the municipal law - means :
(i) Environmental measures - by the State Government and the statutory authorities - must
anticipate, prevent and attack the causes of environmental degradation.
(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty
should not be used as a reason for postponing measures to prevent environmental
degradation.
(iii) The "Onus of proof" is on the actor or the developer/industrialist to show that his action is
environmentally benign.
12. "The Polluter Pays Principle" has been held to be a sound principle by this Court in Indian
Council for Enviro-Legal Action v. Union of India, J.T. [(1996) 3 SCC 212]. The Court
observed : (SCC p. 246, para 65),
"....we are of the opinion that any principle evolved in this behalf should be simple, practical
and suited to the conditions obtaining in this country".
The Court ruled that : (SCC p. 246, para 65)
"......once the activity carried on is hazardous or inherently dangerous, the person carrying on
such activity is liable to make good the loss caused to any other person by his activity
irrespective of the fact whether he took reasonable care while carrying on his activity. The rule
is premised upon the very nature of the activity carried on".
Consequently the polluting industries are "absolutely liable to compensate for the harm caused
by them to villagers in the affected area, to the soil and to the underground water and hence,
they are bound to take all necessary measures to remove sludge and other pollutants lying in
the affected areas". The "Polluter Pays Principle" as interpreted by this Court means that the
absolute liability for harm to the environment extends not only to compensate the victims of
pollution but also the cost of restoring the environmental degradation. Remediation of the
damaged environment is part of the process of "Sustainable Development" and as such
polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the
damaged ecology.
13. The Precautionary Principle and the Polluter Pays Principle have been accepted as part of
the law of the land. Article 21 of the Constitution of India, 1950 guarantees protection of life
and personal liberty......."
67. Consequently, we are of the view that in the present case MCD has breached the
precautionary principle and is also liable to pay damages to the fire and gas victims.
MATERIAL CONTRIBUTOR AND NOT "BUT FOR" TEST WILL APPLY IN THE PRESENT CASE
68. Mr. Thadani's argument that "but for" test is applicable in the present case is not correct.
Undoubtedly, the "but for" test remains the starting point in tort, and in the case of single
cause it is likely to be determinative of the factual aspect of causation, but if there is more
than one cause, provided that the cause under consideration is a material contributor, it will
satisfy the factual test.
69. In Heskell v. Continental Express Ltd. & Anr. reported in (1950) 1 All ELR 1033, Devlin, J
said:
"Where the wrong is a tort, it is clearly settled that the wrongdoer cannot excuse himself by
pointing to another cause. It is enough that the tort should be a cause and it is unnecessary to
evaluate competing causes and ascertain which of them is dominant... In the case of breach of
contract the position is not so clear."
(emphasis supplied)
70. In Fairchild v. Glenhaven Funeral Services Limited & Ors. reported in (2002) UK HL 22, the
claimant had contracted mesothelioma after being exposed - in breach of duty - to significant
quantities of asbestos dust at different times by more than one employer or occupier of
premises, but in circumstances where he could not prove on the balance of probabilities which
period of exposure had caused or materially contributed to the cause of the disease. The
House of Lords held that the claimant could nevertheless succeed, on the basis that the
defendant's conduct in exposing the claimant to a risk to which he should not have been
exposed should (in the words of Lord Bingham) be treated as,"making a material contribution
to the contracting of the condition against which it was the defendant's duty to protect him."
71. The difficulties facing claimants in proving causation in cases of industrial disease have
persuaded the courts to relax the causal rules in some instances. The claimant does not have
to prove that the defendant's breach of duty was the sole, or even the main, cause of his
damage, provided he can demonstrate that it made a material contribution to the damage. The
origin of this approach is the decision of the House of Lords in Bonnington Castings Ltd. Vs.
Wardlaw reported in 1956 A.C. 613 in which the plaintiff contracted pneumoconiosis from
inhaling air which contained silica dust at his workplace. The main source of the dust was
pneumatic hammers for which the employers were not in breach of duty (the "innocent dust").
Some of the dust (the "guilty dust") came from swing grinders for which they were responsible
by failing to maintain the dust-extraction equipment. There was no evidence as to the
proportions of innocent dust and guilty dust inhaled by the plaintiff. Indeed, such evidence as
there was indicated that much the greater proportion came from the innocent source. On the
evidence the plaintiff could not prove "but for" causation, in the sense that it was more
probable than not that had the dust-extraction equipment worked efficiently he would not have
contracted the disease. Nonetheless, the House of Lords drew an inference of fact that the
guilty dust was a contributory cause, holding the employers liable for the full extent of the
loss. The plaintiff did not have to prove that the guilty dust was the sole or even the most
substantial cause if he could show, on a balance of probabilities, the burden of proof remaining
with the plaintiff, that the guilty dust had materially contributed to the disease. Anything which
did not fall within the principle de minimis non curat lex would constitute a material
contribution. Bonnington Castings is significant for two reasons. First, it was an express
departure from the normal requirement to prove "but for" causation. Despite recovering
damages in full in respect of the disease the claimant was not required to prove that the
defendant's breach of duty caused the disease, merely that it contributed to its onset.
Secondly, and perhaps more significantly, was the fact that the Court was willing to draw an
inference that there must have been a material contribution in circumstances where the
connection between the "guilty dust" and the plaintiff's medical condition was, in reality, little
more than speculation.
72. In McGhee Vs. National Coal Board reported in (1973) 1 W.L.R. 1, HL the plaintiff
contracted dermatitis from the presence of brick dust on sweaty skin. Some exposure to brick
dust was an inevitable result of working in brick kilns in respect of which there was no breach
of duty by his employers. But his employers negligently failed to provide washing facilities at
the site so that the plaintiff cycled home every day coated with abrasive brisk dust. Medical
evidence established that brick dust caused the dermatitis but it was impossible to prove
whether it was the additional "guilty" exposure to dust which triggered dermatitis in this
plaintiff or whether he would have developed the disease in any event as a result of the
"innocent" exposure during the normal working day. At best it could be said that the failure to
provide washing facilities materially increased the risk of the plaintiff contracting dermatitis.
The House of Lords held the defendants breach of duty made the risk of injury more probable
even though it was uncertain whether it was the actual cause. By a majority judgment the
Court treated a "material increase in the risk" as equivalent to a material contribution to the
injury. Lord Simon, for example, said that "a failure to take steps which would bring about a
material reduction of the risk involves, in this type of a case, a substantial contribution to the
injury."
73. In Jon Athey v. Ferdinando Leonati & Kevin Johnson reported in (1996) 3 S.C.R. 458
(British Columbia), the Plaintiff had a history of "minor back problems" since 1972. He was
then involved in two motor vehicle accidents injuring his back in both of them. As he recovered
from the second accident his physician encouraged him to get back to his exercise program.
While stretching, he heard a "pop". He was unable to move having suffered from a herniated
disc that required a discectomy. He was disabled from his position doing heavy lifting as an
auto body repairman and took a lesser job, which caused economic loss. The Trial Judge
awarded 25% responsible of Mr. Athey's damages finding that the motor vehicle accidents
were 25% responsible for his back problems and that his preexisting condition was 75% of the
cause of his disc herniation. The Court of Appeal for British Columbia agreed with that
decision. Both were reversed by Mr. Justice Major of the Supreme Court of Canada. While
reconfirming the traditional "but for/material contribution" test, Mr. Justice Major confirmed
that causation need not be determined by scientific precision. It is essentially a practical
question of fact to be answered by ordinary common sense. At paragraph 17 of the decision he
said as follows:
"It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant's
negligence was the "sole cause" of the injury. There will frequently be a myriad of other
background events which were necessary preconditions to the injury occurring.... As long as
the defendant is part of the cause of an injury, the defendant is liable, even though his act
alone was not enough to create the injury."
At paragraph 19 of the decision he says:
"The law does not excuse a defendant from liability merely because other causal factors for
which he is not responsible also helped to produce the harm... It is sufficient if the defendant's
negligence was a cause of the harm."
At paragraph 20 he went on to say:
"If the law permitted apportionment between tortuous causes and non-tortuous causes, a
plaintiff could recover 100% of his or her loss only when the defendant's negligence was the
sole cause of the injuries... This would be contrary to the established principles and the
essential purpose of tort law, which is to restore the plaintiff to the position he or she would
have enjoyed but for the negligence of the defendant."
(emphasis supplied)
74. In Resurfice Corp. v. Hanke reported in [2007] 1 S.C.R. 333, the Supreme Court of Canada
held that material contribution test can be applied if two requirements are met. "First, it must
be impossible for the plaintiff to prove that the defendant's negligence caused the plaintiff's
injury using the "but for" test. The impossibility must be due to factors that are outside of the
plaintiff's control; for example, current limits of scientific knowledge. Second, it must be clear
that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff
to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury."
75. In the present case, we find that respondent no. 5 breached the duty of care owed to the
fire and gas victims, thereby exposing them to an unreasonable risk of injury. In fact, the loss
of lives and injury falls within the ambit of risk created by respondent no. 5's breach. In our
opinion, it would also offend the basic notion of fairness and justice to deny liability by
applying a "but for" approach in the cases of Babu Lal and Ved Prakash.
'EGG-SHELL SKULL' RULE (YOU TAKE YOUR VICTIMS AS THEY CAME) APPLIES
76. It is further an established principle of law that a party in breach has to take his victim
talem qualem, which means that if it was reasonable to foresee some injury, however slight, to
the claimant, assuming him to be a normal person, then the infringing party is answerable for
the full extent of the injury which the claimant had sustained owing to some peculiar
susceptibility.
77. In Marconato v. Franklin reported in [1974] 6 W.W.R. 676 (B.C.S.C.) while on the road,
Franklin (defendant) crashed into Marconato, causing her to incur some mild physical injuries.
But Marconato had some paranoid tendencies and the accident caused her to develop a
debilitating syndrome of psychological problems. Thin skull rule was applied and that means
you take your victims as they come. Although the damage is remote and not reasonably
foreseeable, the accident operated on plaintiff's pre-existing condition and the defendant must
pay damages for all the consequences of her negligence. This doctrine applies only when the
claimant's pre-existing hypersensitivity is triggered into inflicting the injury complained of, or
an existing injury is aggravated by the infringing party's act. A clear example of the
hypersensitivity type of case is that of persons suffering from hemophilia or "egg-shell" skulls.
MacKinnon L.J. said that "one who is guilty of negligence to another must put up with
idiosyncrasies of his victim that increase the likelihood or extent of damage to him: it is no
answer to a claim for a fractured skull that its owner had an unusually fragile one. (See:
Owens vs. Liverpool Corporation (1939) 1 K.B. 394 at 400-401).
78. In Smith v. Leech Brain & Co. Ltd. & Anr. reported in (1962) 2 Q.B. 405, a workman, who
was working with molten metal, suffered a burn on his lip when a fleck of metal splashed onto
it. His employers were at fault in not having provided him with a proper shield. The burn
eventually turned cancerous and the man died. It was proved that he had a predisposition to
cancer, but this condition might never have become malignant were it not for the burn. The
defendants were held liable for his death. Nervous shock cases are also consistent with this
principle. The rule is that if injury from nervous shock is reasonably foreseeable to an
ordinarily strong-nerved person situated in the position of the claimant, the defendant is liable
for the full extent of the shock. Hypersensitivity to shock may prevent there being any initial
liability; but once that is established by showing that even a strong nerved person would have
suffered some shock, the defendant is liable for the full extent of the shock actually suffered
by the plaintiff. [See Clerk & Lindsell on Torts (Eighteenth Edition)].
79. Consequently, Mr. Thadani's arguments that Babu Lal and Ved Prakash @ Raju are not
entitled to any compensation as they were already suffering from Tuberculosis is not tenable in
law.
80. Accordingly, keeping in view the medical record of deceased Babu Lal and Ved Prakash @
Raju as well as the affidavits filed by their wife and mother respectively and the fact that their
Pulmonary Tuberculosis got aggravated due to inhalation of phosphine gas and they died at a
premature age, we are of the opinion that they are entitled to full compensation along with
deceased Akash.
RELIEF
81. In view of the aforesaid discussion, the following compensation is payable to victims of
Jaipur Golden fire and gas tragedy:-
(i) Legal heirs of Akash are entitled to a sum of Rs.5,93,801/- as mentioned in para 10 of the
present petition along with interest @ 7.5% per annum from the date of filing of the present
petition upto the date of payment.
(ii) Legal heirs of Babu Lal are entitled to a sum of Rs.6,33,861/- as mentioned in para 10 of
the present petition along with interest @ 7.5% per annum from the date of filing of the
present petition upto the date of payment.
(iii) Legal heirs of Ved Prakash @ Raju are entitled to a sum of Rs.8,33,801/- as mentioned in
para 10 of the present petition along with interest @ 7.5% per annum from the date of filing of
the present petition upto the date of payment.
(iv) Victims mentioned at serial nos. 4 to 34 of the chart furnished by Mr. Thadani and
extracted in para 39 hereinabove are entitled to a compensation of Rs.50,000/- each on
account of pain and suffering along with interest @ 7.5% per annum from the date of filing of
the present petition upto the date of payment.
82. The aforesaid compensation shall be paid to the extent of 85% by respondent no.5 and
15% by Municipal Corporation of Delhi. Both the parties shall make payment to the victims or
legal heirs of the victims as the case may be by Account Payee cheques in their names. The
said cheques would be paid within a period of twelve weeks from today.
83. Since criminal proceedings arising out of the Jaipur Golden fire tragedy incident are
already sub judice, no further order can be passed for identification and prosecution of those
involved and responsible for the said incident.
84. However, the petitioner association shall be entitled to costs of Rupees one lac payable by
respondent no.5.
85. Consequently, the present petition stands allowed in the above terms.
Suo Motu v State of Rajasthan and Others

Rajasthan High Court
JAIPUR BENCH
20 October 2004
Case Analysis
Bench A. D. Singh, K. S. RATHORE
Where Reported 2004 Indlaw RAJ 162; AIR 2005 RAJ 82; 2005 (2) RLW 1437
Case Digest Subject: Constitution

Keywords: Affirmative Action, Inaction, Right to live, Duty of
authority
Summary: Constitution - Constitution of India,1950, art.21 -
Right to live - Duty of authority - Inaction - Petition was filed
seeking directions to concerned authorities to them to perform
their statutory duties and to remind them that city deserved to be
rid of filth and squalor, heaps of dirt, piles of garbage,
unauthorized constructions, encroachments, stench and stink
caused by open drains, pot-hole roads, etc. was necessary so that
people can have life which was worth living - Hence, instant
Petition.
Held, Municipal Council, Ratlam v. Vardhichand, 1980 Indlaw SC
164 observed that by affirmative action Court could compel
statutory body to carry out its duties to community including
creation of sanitary conditions in the city. Due to failure of civic
authorities and other bodies to discharge their duties u/art.21 of
the Constitution and statutory provisions quality of life in city has
gone down tremendously. Civic bodies and other authorities have
been taking refuge under purile excuse that they do not have
funds to perform their duties. Plea of lack of finances is poor alibi
for not performing their statutory duties. Inaction of authorities
cannot be tolerated. Further, it takes time to improve conditions
in city especially when they have degenerated to such an extent.
Therefore, directions were issued to concern authorities to take
action for improvement and development of heritage city and its
beautification. Order accordingly.

2561, (1996) 2 SCC 594, 1996 (2) AD(SC) 478, AIR 1996 SC
2969, 1996 (63) DLT 236, JT 1996 (3) SC 38, 1996(2) SCALE
514, [1996] 3 S.C.R. 80, 1996 (2) Supreme 402, 1996 (2) UJ 26
Municipal Council, Ratlam v Shri Vardhichand and Others1980
Indlaw SC 164, (1980) 4 SCC 162, (1980) SCC (Cr) 933, AIR
1980 SC 1622, 1980 (6) ALR 601, 1980 CRLJ 1075, 1980
CrLR(SC) 543, [1981] 1 S.C.R. 97
Cases Citing this Case Suo Moto v State of Rajasthan and others
2013 Indlaw RAJ 85
Kalyan Sanstha Social Welfare Oganization v Union of India and
Others
2008 Indlaw DEL 1278, 2008 (152) DLT 767

JAIPUR BENCH
20 October 2004
Suo Motu
State of Rajasthan and Others
Case No : C. W. P. Nos. 4783, 7307 of 2003 and 513 of 2004; Civil Misc. Appln. No. 21 of 2004
Bench : A. D. Singh, K. S. RATHORE
Citation : 2004 Indlaw RAJ 162, AIR 2005 RAJ 82, 2005 (2) RLW 1437
Summary : Constitution - Constitution of India,1950, art.21 - Right to live - Duty of authority -
Inaction - Petition was filed seeking directions to concerned authorities to them to perform their
statutory duties and to remind them that city deserved to be rid of filth and squalor, heaps of dirt,
piles of garbage, unauthorized constructions, encroachments, stench and stink caused by open
drains, pot-hole roads, etc. was necessary so that people can have life which was worth living -
Hence, instant Petition.
Held, Municipal Council, Ratlam v. Vardhichand, 1980 Indlaw SC 164 observed that by affirmative
action Court could compel statutory body to carry out its duties to community including creation of
sanitary conditions in the city. Due to failure of civic authorities and other bodies to discharge their
duties u/art.21 of the Constitution and statutory provisions quality of life in city has gone down
tremendously. Civic bodies and other authorities have been taking refuge under purile excuse that
they do not have funds to perform their duties. Plea of lack of finances is poor alibi for not
performing their statutory duties. Inaction of authorities cannot be tolerated. Further, it takes time
to improve conditions in city especially when they have degenerated to such an extent. Therefore,
directions were issued to concern authorities to take action for improvement and development of
heritage city and its beautification. Order accordingly.
The Judgment was delivered by : ANIL DEV SINGH (CJ)

The city of Jaipur has an important place in the history of the State of Rajasthan. City of Jaipur
is steeped in history. It has rich mosaic. It has ancient monuments, palaces, Havelies, unique
architecture, art, culture and festivals. It being the capital of the State deserves to showcase
the history, heritage and culture of the people of the city. But the city has since been suffering
from slew of maladies. These have to some extent clouded its magnificence and splendour.
This has also adversely affected the quality of life of the residents. Decay of the city must be
prevented and it needs to be restored to its pristine glory, beauty, grace and charm. Keeping
this in view, we issued suo motu notice to the concerned authorities on August 13, 2003. A
nudge to them to perform their statutory duties and to remind them that the city of Jaipur
deserves to be rid of filth and squalor, heaps of dirt, piles of garbage, unauthorized
constructions, encroachments, stench and stink caused by open drains, pot-hole roads, etc. is
necessary so that people can have a life which is worth living.
2. It is well settled that right to life enshrined in Article 21 of the Constitution takes within its
sweepright to a life which is worth living. It includes the following rights as well :
(1). right to food, clothing, and shelter,
(2). right to reasonable accommodation to live in,
(3). right to decent environment, and
(4). right to live in a clean city.
In Municipal Council, Ratlam v. Vardhichand, 1980 Indlaw SC 164, the Supreme Court
considered the question whether the order of trial Court, which was upheld by the High Court
of Madhya Pradesh, directing the Ratlam Municipality to draft a plan within six months for the
removal of nuisance caused by the open drains, human excreta littering the roads etc., could
be sustained. The Supreme Court held that by affirmative action the Court could compel a
statutory body to carry out its duties to the community including creation of sanitary
conditions in the city. Expressing anxiety over the condition of Ratlam town, the Supreme
Court observed as follows :- -
"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.
:
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 peoples rights are violated. What should also have been
emphasized 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. Affirmative action to make the remedy effective is on 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.
authorizes 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."
:
3. Relying on the decision in Municipal Council, Ratlam's case (1980 Indlaw SC 164) (supra),
the Supreme Court in Dr. B. L. Wadehra v. Union of India, 1996 Indlaw SC 2561, directed the
Municipal Corporation Delhi and the New Delhi Municipal Council to perform its statutory duties
of scavenging and cleaning the city. The Supreme Court did not accept the grounds of
inadequacy of funds or insufficiency of machinery for non-performance of their statutory
obligations.
4. Due to failure of the civic authorities and other bodies to discharge their duties under Article
21 of the Constitution and statutory provisions the quality of life in the city has gone down
tremendously. Civic bodies and other authorities have been taking refuge under the purile
excuse that they do not have funds to perform their duties. The plea of lack of finances is a
poor alibi for not performing their statutory duties. The law must be enforced and the fragile
plea of lack of finances must be rejected. Inaction of the authorities cannot be tolerated, as
that will make mockery of Article 21 of the Constitution and the statutory provisions under
which they are obliged to carry out their duties, including duty to provide and maintain civic
amenities which make life worth living.
5. By order dated April 20, 2004 we had pointed out that plastic and polyethylene bags are the
bane of cities, towns and villages. There is no city, town or village, which is free from this
menace. Polythene bags can be seen scattered over a large area of the city of Jaipur. They are
degrading the soil, polluting the water -resources and preventing charging of the ground water
and also blocking sewers and drains. The menace of polythene bags even affects the bovine
animals as they consume these bags and suffer immensely. The damage due to bio-non-
degradable polythene bags is immense. The accumulation of polythene bags over a large area
of cities, towns and villages is having catastrophic effect on the environment. The Civic
Authorities have still not taken any action to remove the plastic and polythene bags lying on
the streets, roads, fields etc. This situation cannot be allowed to continue.
5i. By order dated June 4, 2004 we had directed the State to look into the question of
feasibility of imposing ban on the use of plastic and polythene bags in the State. We had also
asked the State to file a report. The report has not been filed. However, it appears that the
Jaipur Municipal Corporation has sent a report to the State Government in that regard. It was
pointed out by the learned Additional Advocate General, appearing for the State that vide
Notification dated December 11, 2000, ban on manufacture, sale or consumption and use of
polythene bags or containers having thickness less than 20 microns, has been imposed. We
are surprised to find that hardly any action is being taken against the persons who are
manufacturing, selling or using polythene bags having thickness less than 20 microns.
5ii. In the report of the Jaipur Municipal Corporation dated August 4, 2004, it is stated that 50
challans against the defaulters have been prepared. This is not enough. It shows that no
substantial steps have been taken to check manufacture, sale and consumption of the
polythene bags having thickness less than 20 microns.
6. One of the reasons for urban decay is increase in the population. The people from rural
areas are migrating to urban areas in search of work. People are also moving to cities as they
are attracted by the amenities and conveniences which the cities offer. As a result of this
movement, large number of people live on the pavements without proper shelter. They live an
animal like existence. The State should be able to secure occupation for the rural poor in the
villages to which they belong. By shifting to the cities, they become rootless. They lose their
cultural moorings and sense of belonging. The State should be able to provide opportunities to
them to secure food, clothing and shelter in the villages to which they belong. The State
should consider taking measures whereby the villagers can find work and occupation in their
own villages. This will not only reduce pressure on the cities like Jaipur but will also prevent
urban decay, which is taking place at a very fast rate. It will also preserve the traditional
values of village society.
7. The State must protect ecology. Any activity, which degrades environment, should not be
permitted except where such activity is accompanied by the use of measures that eliminate
such disastrous results.
8. After the first order dated August 13, 2003, which was rendered more than a year back,
several orders have been passed giving directions to the various authorities with a view to
improve the conditions in the city so that people can lead a dignified life as opposed to the
animal existence. The city must offer hygienic environment. The authorities pursuant to our
orders have done some work but much is still required to be accomplished by them. On one
pretext or the other, the authorities have been able to stifle our orders. We are conscious of
the fact that it takes time to improve the conditions in the city especially when they have
degenerated to such an extent. In the circumstances, therefore, we have been giving time to
the authorities to comply with the orders.
9. Since the compliance of the orders can be monitored by the Monitoring Committees
(Citizens Committees) under the chairmanship of the Chief Secretary and in the event of the
failure of the civic authorities and other bodies, Corporations and private persons to carry out
the directions, appropriate applications can be filed for initiating proceedings for contempt of
Court against them. Therefore, we consider it appropriate to dispose of the writ petition in
terms of the orders passed from time to time in the instant petitions and with the following
further and fresh directions and directions which are clarificatory in nature.
1. The Coordination Committee and the two Monitoring Committees will continue their work as
specified in the various orders.
2. The Jaipur Development Authority, The Jaipur Municipal Corporation and the Rajasthan
Housing Board shall prepare plans for improvement and development of the heritage city and
its beautification.
3. No commercial activity in residential premises shall be allowed to be carried out by the
Jaipur Development Authority, the Jaipur Municipal Corporation and the Rajasthan Housing
Board under the areas of their jurisdiction.
4. Encroachments in the city shall be removed by the Jaipur Development Authority, the Jaipur
Municipal Corporation and the Rajasthan Housing Board in accordance with law.
5. The Jaipur development Authority, the Jaipur Municipal Corporation and the Rajasthan
Housing Board shall not permit unauthorized constructions to come up in the city. Where
unauthorized constructions have already been raised, they shall be demolished in accordance
with the law by the Jaipur Development Authority, the Jaipur Municipal Corporation and the
Rajasthan Housing Board.
6. Strict vigil shall be kept by the Jaipur Development Authority, the Jaipur Municipal
Corporation and the Rajasthan Housing Board to prevent encroachments in the city.
7. The Public Works Department, the National Highways Authority of India, the Jaipur
Development Authority, the Jaipur Municipal Corporation, the Rajasthan Housing Board shall
keep the roads falling in their respective jurisdiction, in good repairs.
8. The Jaipur Development Authority, Jaipur Municipal Corporation and the Rajasthan Housing
Board shall not permit a new housing colony or commercial area to come up or to be
developed, in the areas falling within their respective jurisdiction, unless permission has been
accorded by them in accordance with the law. Permission shall be refused by the authorities
where the same are not being set up in accordance with the law and the Master plan.
9. In case an unauthorized construction or encroachment takes place and illegal housing
colony or commercial enterprise is set up, in an area falling under the jurisdiction of the Jaipur
Development Authority, the Jaipur Municipal Corporation or the Rajasthan Housing Board, the
concerned Enforcement Officer / Inspector/ Deputy Commissioner /Zonal Officer shall be
responsible. In the ACR of the defaulting Officer specific entry shall be made to the effect that
during his posting in the area unauthorized construction or encroachment took place or an
illegal colony was set up or an illegal commercial enterprise was established in a residential
area or an area which was not meant for commercial activity. This entry shall be treated as an
adverse entry and shall be kept in view at the time of considering the case of the officer for
promotion or selection. That apart, the Appointing Authority shall initiate departmental action
against him. Members of the Monitoring Committee and the Appointing Authority of the officer
shall be duty-bound to move an application for initiation of proceedings for contempt of Court
against the defaulting officer.
10. The Jaipur Municipal Corporation shall work out a plan for collection of garbage from
house-to-house independently or with the assistance and involvement of the residents.
11. The Rajasthan Pollution Control Board shall regularly send its inspection teams in different
areas of Jaipur city to ascertain whether or not the collection, transportation and disposal of
garbage are being carried on satisfactorily. The Board shall file reports in this Court by way of
affidavits every two months.
12. The Government and the Jaipur Municipal Corporation shall educate the residents
regarding :
(i). their civic duties,
(ii). importance of a clean city,
(iii). hygiene,
(iv). cleanliness,
(v). traffic rules etc.
through television, road-shows and other means.
13. The residents shall also be informed about the action which can be taken against them for
throwing garbage, including plastics and other waste materials on the roads/streets. They
should be informed that they will have to face the penalty, in case they defy the law. They
should be made aware that the violation of law and orders of the Court can result in infliction
of punishment, both corporeal as well as incorporeal on them.
14. The Jaipur Municipal Corporation shall work out a plan for waste-management. For this
purpose, training shall be imparted to some of its employees. The lifting and disposal of
garbage should be undertaken through mechanical devices. The garbage shall be disposed of
at the designated place.
15. The State shall construct night-shelters for the shelterless people of the city.
16. The Jaipur Municipal Corporation, the National Highways Authority of India Ltd. and the
Railways shall not permit hoardings on the roads and buildings, except at the following
places :
(a). tree-guards and railings which are raised on the dividers provided they are small, circular
or rectangular, in nature and;
(b). BOT type toilets
(c). Bus Shelters /stops.
17. The Railway Authority shall create adequate sitting arrangements at the platforms of the
following railway stations.
(1). Jaipur main,
(2). Gandhi Nagar,
(3). Durgapura,
(4). Jagatpura, and
(5). Dehr-ke-Balaji.
The Railways shall provide clean kitchens, potable water, sparkling toilets etc. at the Railway
Stations.
18. Subjects such as importance of ecology, cleanliness, hygiene, moral values, respect for the
law shall be taught in the schools.
19. The State shall maintain the historical places, which are in its control, namely, Amber
Palace, Hawa Mahal, Nahargarh Fort, Jaigarh Fort, City Palace, Jagat Siromani Temple,
Ramachanderji-ka-Mandir, Museum, Sisodiya Rani-ka-Bagh, Vidyadhar-ka-Bagh and Charan
Mandir. The income generated through the sale of tickets to the public and tourists visiting the
historical places shall be spent on their upkeep and maintenance. The details of income and
expenditure and upkeep of the historical monuments/buildings shall be filed every four months
by way of affidavits of the concerned authorities.
20. The Jaipur Municipal Corporation shall clean up Tal Katora lake, located near Govind
Deoji's temple. The Jaipur Municipal Corporation, Public Health Engineering Department and
Department of Irrigation shall provide pipes from Nahargarh hills to Tal Katora Lake so that
the lake which was originally existing is restored to its pristine glory.
21. Immediate steps shall be taken by the authorities for construction of 100 public toilets in
the city, as already directed.
22. The State shall appoint Sanitation Officers in the Government Hospitals.
23. The Dairies shall be removed from the city, within four months from August 23, 2004. or
within the period allowed by the Court in Civil Misc. Applications Nos. 1532/2004 and
619/2004, in DB Civil Writ Petition No. 4783/2003 and other applications, if any.
24. The State shall make a survey regarding the homeless population living on the pavements
and shacks in the city. Depending upon their numbers, the State shall construct night shelters
along with toilet facilities, so that the people do not defecate on the roads.
25. No vendor or shopkeeper shall deliver goods, including vegetables and any retail items to
the buyer or any other person in polythene bags after the expiry of the period of three months
from today.
26. That the Public Works Department, the Public Health Engineering Department, the Jaipur
Development Authority, the Jaipur Municipal Corporation, the Jaipur Vidyut Vitaran Nigam
Limited, the Rajasthan Housing Board, the Rajasthan State Road Transport Corporation, the
Railways and the Reliance Infocom shall file compliance reports once in two months with
advance copies to the Coordination Committee and the Monitoring Committees No. 1 and 2.
27. In the earlier Orders relating to hospitals, parking of vehicles, electricity poles and boxes,
bio-medical waste, unauthorized plying of jeeps and buses, providing of services by the RSRTC
and private operators, raising of height of the poles, underground laying of electricity wires,
telephone lines and cables etc., digging of roads, removal of electric poles for widening of the
roads, raising transformers to a specified height, as suggested by the Monitoring Committee,
construction of toilets, shops, Halwais, disposal of wastes, etc. passed from time to time in the
petitions and the directions given in the instant order shall be strictly complied with by the
concerned.
The Jaipur Vidyut Vitran Nigam Ltd. shall ensure that all the LT/11 KV lines are earthed in
accordance with the Indian Electricity Rules.
28. The Monitoring Committees under the Chairmanship of the Chief Secretary, Government of
Rajasthan shall over see the implementation of the directions which have been recorded by us
in the instant order and the orders which have been passed in the petitions from time to time.
List this matter after four weeks for reporting compliance.
Doctors' Forum Puttur (R) v Town Municipal Council and Another

Karnataka High Court
11 November 1998
Case Analysis
Bench A. J. SADASHIVA
Where Reported 1998 Indlaw KAR 363; AIR 1999 KAR 122; 1999 (1) KarLJ 689
Case Digest Subject: Municipalities & Local Governments

Summary: Municipalities & Local Governments - Karnataka
Municipalities Act,1964, s.256(1)(a - Municipality - License -
Levying licence fee on nursing homes and clinics - Levying of
license fees challenged - Court held,in view of s.256(1)(a), licence
is required to be obtained in respect of premises which would be
used for any of purposes enumerated in Part I of sch. XIII or for
any purpose which is in opinion of Municipal Commissioner or
Chief Officer, dangerous to life, health or property or likely to
cause nuisance - Part I of sch. XIII does not deal with clinics and
nursing homes in respect of which licence is required to be
obtained - Petition allowed.

2561, (1996) 2 SCC 594, 1996 (2) AD(SC) 478, AIR 1996 SC
2969, 1996 (63) DLT 236, JT 1996 (3) SC 38, 1996(2) SCALE
514, [1996] 3 S.C.R. 80, 1996 (2) Supreme 402, 1996 (2) UJ 26
1980 SC 1622, 1980 (6) ALR 601, 1980 CRLJ 1075, 1980
CrLR(SC) 543, [1981] 1 S.C.R. 97
Cases Citing this Case B. Ashwin Kumar S/o Late Gowramma and another v Mysore City
Corporation by its Commissioner, Mysore and another
2005 Indlaw KAR 483, 2005 (6) KarLJ 49

Karnataka Municipalities Act, 1964
Karnataka Municipalities Act, 1964 s. 256
Karnataka High Court
11 November 1998
Doctors' Forum Puttur (R)
Town Municipal Council and Another
Case No : W.P. No. 10259 of 1996.

Bench : A. J. SADASHIVA
Citation : 1998 Indlaw KAR 363, AIR 1999 KAR 122, 1999 (1) KarLJ 689
Summary : Municipalities & Local Governments - Karnataka Municipalities Act,1964, s.256(1)(a -
Municipality - License - Levying licence fee on nursing homes and clinics - Levying of license fees
challenged - Court held,in view of s.256(1)(a), licence is required to be obtained in respect of
premises which would be used for any of purposes enumerated in Part I of sch. XIII or for any
purpose which is in opinion of Municipal Commissioner or Chief Officer, dangerous to life, health or
property or likely to cause nuisance - Part I of sch. XIII does not deal with clinics and nursing
homes in respect of which licence is required to be obtained - Petition allowed.

:- This petition is filed for quashing the Resolution Nos. 166 and 173 dated April 29, 1996
passed by the 1st respondent and published in the newspaper dated May 31, 1995 levying
licence fees on nursing homes and clinics with, a further writ in the nature of declaration that
the Municipality cannot prevent the rate payers and the members of the petitioners forum
from utilising the garbage disposal infrastructure of the Municipality and to dispose of the
garbage generated within the limits of the municipality.
In view of the Resolution Nos. 166 and 173 dated April 29, 1995, the Municipality issued a
notification dated May 29, 1995 as per Annexure A and published the same in the various
newspapers levying licence fee on nursing homes and clinics along with other items. The
petitioner made a representation to the 1st respondent not to impose such licence fee as there
is no authority of law; for which the municipality in turn replied to the petitioner on July 28,
1995 requesting them to pay the licence fee and to assist them in the development of the
municipal area. After certain protracted proceedings, the Municipality issued a notice dated
February 29, 1996 under Sec. 256(a) and (b) calling upon the petitioners to secure licence in
order to run the clinics and nursing homes and in default of which, action would be taken
against them.
S. 256(1) of the Karnataka Municipalities Act, 1964 (hereinafter called 'the Act') reads as
follows :-
"256. Premises not to be used for certain purposes without licence :-
(1) No person shall use or permit to be used any premises for any of the following purposes
without or otherwise than in conformity with the terms of a licence granted by the Municipal
Commissioner or Chief Officer in this behalf, namely:-
(a) any of the purposes specified in Part I of Schedule XIII;
(b) any purpose which is, in the opinion of the Municipal Commissioner or Chief Officer
dangerous to life, health or property or likely to cause a nuisance ;
(c) keeping horses, cattle or other quadruped animals or birds for transportation, sale or hire
or for sale of the produce thereof; or
(d) storing any of the articles specified in Part II of Schedule XIII except for domestic use of
any of those articles ;
Provided that the municipal council may declare that premises in which the aggregate quantity
of articles stored for sale does not exceed such quantity as may be prescribed by bye laws in
respect of any such articles shall be exempted from the operation of cl. (d).
Where the order of the municipal area refusing permission is based on extraneous
considerations, it is liable to be quashed."
From the aforesaid provisions, it is seen that cls. (c) and (d) have not been made applicable.
The Municipality purported to have acted u/s. 256 and imposed the licence fee. # In view of
S. 256(1)(a), the licence is required to be obtained in respect of the premises which
would be used for any of the purposes enumerated in Part I of Schedule XIII or for
any purpose which is in the opinion of the Municipal Commissioner or Chief Officer,
dangerous to life, health or property or likely to cause nuisance. It is not the case of
the Municipality that running clinics and nursing homes in any premises is either
dangerous to life, health or property or likely to cause nuisance. Part I of Schedule
XIII does not deal with clinics and nursing homes in respect of which licence is
required to be obtained. It is true that the licence fee generates income to the
Municipality for its development. That does not mean that the Municipality has
authority of law to impose and levy fees on every item which according to the
opinion of the Municipality appears to be proper and appropriate. No fee nor any tax
shall be levied except by authority of law. The Municipality is authorised to levy licence fee
only in respect of items enumerated in Part I of Schedule XIII and if the schedule is silent in
respect of clinics and nursing homes any imposition of fee against them is without authority of
law. The respondents are unable to point out the source of their power to impose fee against
clinics and nursing homes.
Chapter X of the Act deals with the obligatory and discretionary functions of Municipal
Councils. S. 87 deals with the obligatory functions of the Municipal Council; S. 88 provides for
special functions and S. 91 deals with the discretionary functions of Municipal Council. S. 87 of
the Act reads thus :-
"87. Obligatory functions of Municipal Councils.-
It shall be incumbent on every Municipal Council to make adequate provision by any means or
resources which it may lawfully use or take for each of the following matters within the
Municipal area, namely :-
(a) lighting public streets, places and buildings ;
(b) watering public streets and places ;
(c) cleansing public streets, places and sewers, and all spaces not being private property,
which are open to the enjoyment of the public, whether such spaces are vested in the
municipal council or not, removing noxious vegetation and abating all public nuisances ;
(d) extinguishing fires and protecting life and property when fires occur ;
(e) regulating or abating offensive or dangerous trades or practices ;
(f) removing obstructions and projections in public streets, bridges, and other public places,
and in spaces not being private property, which are open to the enjoyment of the public,
whether such spaces are vested in the Municipal Council or belong to the Government ;
(g) securing or removing dangerous buildings or places and reclaiming unhealthy localities ;
(h) acquiring and maintaining, changing and regulation places for the disposal of the dead ;
(i) constructing, altering and maintaining public streets, culverts, municipal boundary marks,
markets [including separate and suitable place for vending vegetables], slaughter houses,
latrines, privies, urinals, drains, sewers, drainage works, sewage works, baths, washing
places, drinking fountains, tanks, wells, dams and the like ;
(j) to (q) xx xx xx xx
(r) providing covered metallic receptacles and covered metallic receptacles mounted on wheels
for use by servants employed by the Municipal Council for the removal of night-soil and
rubbish and disposing of night-soil and rubbish and, if so required by the Government,
preparation of compost manure from such night-soil and rubbish ;
Explanation :- In this clause, "rubbish" includes dust, ashes, broken bricks, mortar, sewage,
dung, dirt, decomposed substances and refuse of any kind ;"
The Supreme Court in Municipal Council, Ratlam v. Vardhichand, 1980 Indlaw SC 164 : 1980
Indlaw SC 164) considering the question, whether the order of the trial Court as upheld by the
High Court directing the Ratlam Municipality to draft a plan within six months for the removal
of nuisance caused by the open drains and public excretion by nearby slum dwellers could
be sustained has observed as follows :
" 15. Public nuisance, because of pollutants being discharged by the 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 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 the 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.
6. In B. P. Wadehar v. Union of India, 1996 Indlaw SC 2561 : 1996 Indlaw SC 2561) the
Supreme Court considering the provisions of the obligatory functions of the Corporation under
the Delhi Municipal Corporation Act, 1957, in the context of Articles 48A and 51G of the
Constitution and following the decision of the Supreme Court in Ratlam issued direction to the
New Delhi Municipal Council to comply with the statutory functions of the Corporation.
7. S. 87 of the Karnataka Municipalities Act is almost similar to S. 42 of the Delhi Municipal
Corporation Act. In view of the similarity of the provisions and the municipality is obliged to
perform its obligatory functions, the petitioner is entitled to succeed in this petition.
8. Accordingly, this petition is allowed. Rule made absolute, Annexure A the notification dated
May 29, 1995 issued in pursuance of the resolution Nos. 166 and 173 of the first respondent
municipality is hereby quashed in so far as it relates to the members of the petitioner's firm. It
is further declared that the municipality cannot prevent the rate payers and members of the
petitioner from utilising the garbage disposal of the municipality and it is the fundamental duty
of the municipality to dispose of the garbage generated within its limits in order to maintain
cleanliness and clean environment.
9. In the circumstances of the case, there is no order as to costs.

10. Sri M. N. Ramanjaneya Gowda, learned HCGA is permitted to file memo of appearance
within four weeks.
Petition allowed.
(# bold emphasis is added by indlaw editors.)
Molvi Masood Ahmad and Another v State of J. and K. and Others.

Jammu And Kashmir High Court
24 October 1996
Case Analysis
Bench G. D. SHARMA
Where Reported 1996 Indlaw JK 48; AIR 1997 J&K 75

Keywords: Affirmative Action

Consumer Education And Research Centre And Others v Union Of
India And Others1995 Indlaw SC 1501, (1995) 3 SCC 42, (1995)
SCC (L&S) 604, AIR 1995 SC 922, AIR 1995 SCW 759, 1996 (72)
FLR 479, JT 1995 (1) SC 636, 1995 LabIC 1368, 1995 (2) LLJ
768, 1996 (2) LLN 1, 1995(1) SCALE 354, [1995] 1 S.C.R. 626,
1995 (1) UJ 648
1980 SC 1622, 1980 (6) ALR 601, 1980 (86) CRLJ 1075, 1980
CrLR(SC) 543, [1981] 1 S.C.R. 97

Jammu And Kashmir High Court
24 October 1996
Molvi Masood Ahmad and Another
State of J. and K. and Others.
Case No : O. W. P. No. 68 of 1995.

Bench : G. D. SHARMA
Citation : 1996 Indlaw JK 48, AIR 1997 J&K 75
: - The residents of Nund-reshi Colony, Bemina, Srinagar (through their representatives
namely, Molvi Masood Ahmad and Mst. Haleema Parveen) have prayed for the issuance of writ
of mandamus commanding the respondents to provide them the facilities of drainage and
roads as well as uninterrupted supply of electricity and potable drinking water. Their case is
that at the time of laying out the said colony, respondent No. 1 had undertaken the liability to
make available all the above said amenities but till date this promise has not been fulfilled. On
the contrary, the colony has been allowed to become a breeding ground for mosquitoes and
other bacteria borne diseases. Various representations were made from time to time to the
concerned authorities but they bore no ameliorative effect. The petitioners have contended
that they have a fundamental right to live a meaningful life and they should be treated at par
with the inhabitants of other colonies such as of "Krishna Nagar Colony, Jammu" who are not
denizens, like the petitioners in their dwellings.
2. In terms of the court order dated 24-7-1995, the Executive Engineer, UEED Srinagar was
directed to make spot inspection and explore the possibility of laying out a plan to drain out
the pooled water. The prepared scheme turned out to be truncated and on 21-9-1995, the
Chief Engineer, UEED, Srinagar (respondent No. 6) along with Administrator Municipal
Committee, Srinagar were directed to appear in person in the court and give their assessment
of the situation. The Executive Engineer, UEED, Srinagar was again directed to show
compliance to the court directions. Simultaneously, the Administrator Srinagar Municipality
was authorised to convene a meeting of the concerned Heads of Departments including the
Chief Engineer, UEED and the Vice-Chairman of the Srinagar Municipality to devise an action
plan and redress the grievances in question immediately. The compliance report was to be
submitted in the court within three weeks. Accordingly, the Administrator Srinagar Municipality
(Mr. G. N. Kanth) had the meeting with the following officers :
1. Chief Engineer, UEED Department;
2. Chief Engineer, Electricity;
3. Mr. M. A. Nazim, Executive Engineer, Master Plan, Water Supply Division, Srinagar;
4. Mr. Basharat Ahmad, SDA representing Vice-Chairman Srinagar Development Authority.
3. The report of the said committee states that "the Nund-reshi Colony" is under the control
and management of Srinagar Development Authority and all the infrastructures have to be
provided by it. The Srinagar Development Authority vide its No. SDA/Ve/4998-99 dated 19-3-
1992 had already requested the Housing and Urban Development Department to provide
rupees 129 lakhs for laying out the drainage in the said colony and this cost has now escalated
to rupees two crores. This is not the singular case which requires such treatment but the city
of Srinagar is agog to consume clossal amounts running into hundred of crores of rupees to
ameliorate the nauseating sanitary conditions of other similar colonies. A special treatment in
favour of the petitioners ,will be a lopsided and loquacious affair. Respondent Administrator
Municipality personally, also appeared in the Court stated that paucity of funds is the
stumbling block for providing all the requisite amenities.
4. Respondent No. 5 has filed the objections and contended that whole area of the locality in
question has been fully electrified. The facility of supplying the electric current to the
consumers has been made available which can be availed of alter fulfilling the required
formalities. The registered electricity connections number only 320 against the permissive
capacity of 900 KVA supply which establishes pilferage by some unscrupulous residents. The
petitioners have no fundamental right to claim any of the reliefs and as such the petition is not
maintainable.
5. Mr. S. T. Hussain, the learned counsel appearing for the petitioners has contended that right
to road is an access to live and is thus a fundamental right as guaranteed under Art. 21 of the
Constitution of India. The petitioners herein are being denied to live a meaningful and livable
life with human dignity to provide these facilities. In support of his contention he has cited the
case of Consumer Education and Research Centre v. Union of India,1995 Indlaw SC 1501,
wherein it is held that the expression "life" as found in Art. 21 of the Constitution does not
connote mere animal existence or continued drudgery through life, it includes right to
livelihood, better standard of life, hygienic conditions in work place and leisure. Expanded
connotation of life would mean tradition and cultural heritage of the persons concerned.
6. The counsel appearing for the respondents have conceded the assertions of the petitioners.
According to them, the respondents have no objection in case all the reliefs claimed are
granted.
7. During the proceedings, the court had appointed a committee of the concerned high ranking
officials to evaluate the grievances of the petitioners who have come up with a report that the
amenities claimed by the petitioners are of such a nature which are sought for by the other
inhabitants of the city of Srinagar. Financial constrains occurring in the budgetary allotments
are proving stumbling blocks for the redressal of the complaints. All the inhabitants are to be
treated at the equal footing and the petitioners case cannot be considered in isolation.
8. Considering the case of the parties in its true perspective it can be said with no manner of
doubt that respondents are under constitutional obligation to provide all the necessary facilities
to the petitioners ,which make their existence meaningful and livable. Decency and dignity are
non-negotiable facets of human rights and are first charge on the concerned respondents.
Providing drainage and road system not pompous and attractive, but in working condition and
sufficient to meet the needs of the people cannot be evaded if the concerned authorities have
to justify their existence. Similarly, basic grievous amenity of access to potable water is not a
luxury but a prerequisite to sustain life. Any plea of financial inability or discriminatory
treatment raised by any concerned authority pales into insignificance because human rights
granted under Part III of the Constitution have to be respected by the State regardless of
budgetary provision. Otherwise, a pachydermic governmental agency may legally defy duties
under the law by urging in self defence a self created bankruptcy or perverted expenditure
budget.
9. The Apex Court had an opportunity to consider the case of Municipal Council, Ratlam v.
Vardhichand,1980 Indlaw SC 164 : 1980 Indlaw SC 164), which had arisen under S.133 of the
Cr.P.C, and S, 123 of the Municipalities Act wherein the following observations were made for
carrying out the statutory public duties :
"Where there existed a public nuisance in a locality due to open drains, heaps of dirt, pits and
public excretion by humans for want of lavatories and consequential breeding of mosquitoes;
the Court would require the Municipality under S. 133 of the Cr. P.C, and in view of S. 123 of
the Municipalities Act to abate the nuisance by taking affirmative action on a time bound
basis. When such order was given, the Municipality could no take the plea that notwithstanding
the pubic nuisance financial inability validity exonerated it from statutory liability. The Cr.P.C
operates against statutory bodies and others regardless of the cash in their coffers, even as
human rights under Part II of the Constitution have to be respected regardless of budgetary
provision."
10. The ratio decidendi of the above stated cases applies in all fours to the facts of the present
case. In this view of the matter, the writ petition is accepted and the respondents are directed
to provide the amenities claimed by the petitioners within reasonable limits within a period of
six months. The petition is disposed of accordingly along with connected CMPS.
Petition allowed.
Dr B. L. Wadehra v Union of India and Others

Supreme Court of India
01 March 1996
Case Analysis
Bench Kuldip Singh, S. Saghir Ahmad
Where Reported 1996 Indlaw SC 2561; (1996) 2 SCC 594; 1996 (2) AD(SC) 478;
AIR 1996 SC 2969; 1996 (63) DLT 236; JT 1996 (3) SC 38;
1996(2) SCALE 514; [1996] 3 S.C.R. 80; 1996 (2) Supreme 402;
1996 (2) UJ 26
Case Digest Subject: Environment, Wildlife & Animal

Keywords: Sanitation
Summary: Constitution of India, 1950, arts. 21, 48 A and 51 A(g)
- New Delhi Municipal Council Act, 1994, ss. 11 and 12 - Delhi
Municipal Corporation Act, 1957, s. 42 - Environment - Pollution in
city - Statutory obligation of Municipal Corporation to scavenge
and clean city - Remissness in performance - Held, non-
availability of funds - Cannot be a ground - Directions to
Corporation regarding collection and disposal of garbage.
Cases Citing this Case Sai Nath Seva Mandal v State of Uttarakhand and others
2017 Indlaw UTT 115
Almitra H. Patel and another v Union of India, through Secretary,
Ministry of Health and Family, Welfare Government of India, New
Delhi and others
2016 Indlaw NGT 204
Motilal Rathore v State of M.P. and others
2016 Indlaw MP 308, 2016 (1) JabLJ 230, 2016 (1) MPLJ 715
Manoj Misra and another v Union of India, through Secretary
Ministry of Environment and Forests Delhi and others
2015 Indlaw NGT 133
Krishan Kant Singh and another v National Ganga River Basin
Authority and others
2014 Indlaw NGT 2
Court on its own Motion and others v State of Himachal Pradesh
Through Addl. Chief Secretary Forests, Govt. of Himachal Pradesh
and others
2014 Indlaw NGT 40

Nazmaben Saddambhai Shakarayani v State of Gujarat and others
2014 Indlaw GUJ 234
Rythu Seva Sangam, Yenamadurru, Represented By Its President,
Tirumala Venkata Ratnam v Bhimavaram Municipality,
represented by its Commissioner, Bhimavaram and others
2012 Indlaw AP 915, 2012 (5) ALD 551
Construction of Park at Noida Near Okhla Bird Sanctuary Anand
Arya and another v Union Of India & Ors
2010 Indlaw SC 1045, (2011) 1 SCC 744, 2011 (3) AWC 2551, JT
2010 (13) SC 403, 2010(13) SCALE 50
Center for Environment Protection Research and Development,
Indore v State of Madhya Pradesh and others
2007 Indlaw MP 272, 2007 ILR(MP) 475, 2007(2) M.P.H.T. 193
Suo Motu v Ahmedabad Muncipal Corpn and others
2006 Indlaw GUJ 523, 2006 (2) G.L.R. 1129
Citizens Forum, Maharashtra v State of Maharashtra and others
2005 Indlaw MUM 783, 2006 (3) MahLJ 133
2004 Indlaw RAJ 162, AIR 2005 RAJ 82, 2005 (2) RLW 1437
Amrik Singh and Others v Dda and Others
2003 Indlaw DEL 3, 2003 (5) AD(Del) 554, 2003 (106) DLT 199,
2003 (70) DRJ 315
Kapila Hingorani v State Of Bihar
2003 Indlaw SC 483, (2003) 6 SCC 1, 2003 (3) AWC 2344,
[2003] 116 Comp Cas 133, 2003 (5) ESC 203, 2003 (98) FLR
329, 2003 (3) JhrCR(SC) 127, JT 2003 (5) SC 1, 2003 (3) LLJ 31,
2003 (3) MLJ(SC) 1, 2003(4) SCALE 712, 2003 (4) SLR 541, 2003
(3) SLT 673, [2003] Supp1 S.C.R. 175, 2003 (4) Supreme 1
Almitra H. Patel and Another v Union of India and Others
2000 Indlaw SC 138, (2000) 2 SCC 679, AIR 2000 SC 1256, 2000
(2) CompLJ 1, JT 2000 (2) SC 341, 2000 (2) RCR(Civil) 12,
2000(1) SCALE 568, 2000 (2) SCJ 177, [2000] 1 S.C.R. 841,
2000 (2) SLT 234, 2000 (2) Supreme 583
Mohinder Lal v Saroj Kumari Verma Smt
2000 Indlaw SC 581, (2000) 2 SCC 6, AIR 2000 SC 676, JT 2000
(1) SC 154, 2000 (124) PLR 766, 2000 (1) RCJ 207, 2000 (1)
RCR(Rent) 158, 2000(1) SCALE 120, 2000 (2) SCJ 525, [2000] 1
S.C.R. 246, 2000 (1) SLT 244, 2000 (1) Supreme 94
1998 Indlaw KAR 363, AIR 1999 KAR 122, 1999 (1) KarLJ 689
Legislation Cited Constitution (Seventy-Third Amendment) Act, 1992


New Delhi Municipal Council Act, 1994
1 March 1996
Dr B. L. Wadehra
Union of India and Others
Case No : W.P. (C) No. 286 of 1994

Bench : Kuldip Singh, S. Saghir Ahmad
Citation : 1996 Indlaw SC 2561, (1996) 2 SCC 594, 1996 (2) AD(SC) 478, AIR 1996 SC 2969,
1996 (63) DLT 236, JT 1996 (3) SC 38, 1996(2) SCALE 514, [1996] 3 S.C.R. 80, 1996 (2)
Supreme 402, 1996 (2) UJ 26
Summary : Constitution of India, 1950, arts. 21, 48 A and 51 A(g) - New Delhi Municipal Council
Act, 1994, ss. 11 and 12 - Delhi Municipal Corporation Act, 1957, s. 42 - Environment - Pollution in
city - Statutory obligation of Municipal Corporation to scavenge and clean city - Remissness in
performance - Held, non-availability of funds - Cannot be a ground - Directions to Corporation
regarding collection and disposal of garbage.
The Judgment was delivered by: Kuldip Singh, J.

1. Historic city of Delhi - the Capital of India is one of the most polluted cities in the world. The
authorities, responsible for pollution control and environment protection, have not been able to
provide clean and healthy environment to the residents of Delhi. The ambient air is so much
polluted that it is difficult to breathe. More and more Delhi-ites are suffering from respiratory-
diseases and throat-infections. River Yamuna - the main source of drinking-water supply - is
the free dumping-place for untreated sewage and industrial waste. Apart from Air and Water
pollution, the city is virtually an open dust-bin. Garbage strewnall over Delhi is a common
sight. The Municipal Corporation of Delhi (the MCD) constituted under the Delhi Municipal
Corporation Act, 1957 (Delhi Act) and the New Delhi Municipal Council (the NDMC) constituted
under the New Delhi Municipal Council Act, 1994 (New Delhi Act) are wholly re-miss in the
discharge of their duties under law.
It is no doubt correct that rapid industrial development, urbanization and regular flow of
persons from rural to urban areas have made major contribution towards environmental
degradation but at the same time the Authorities - entrusted with the work of pollution control
- cannot be permitted to sit back with folded hands on the pretext that they have no financial
or other means to control pollution and protect the environment. Apart from Art. 21 of the
Constitution of India, which guarantees 'right to life', Articles 48A and 51A(g) of the
Constitution are as under:-.lsl
"48A. Protection and improvement of environment and safeguarding of forests and wild life.-
The State shall endeavor to protect and improve the environment and to safeguard the forests
and wild life of the country. 51(g)-to protect and improve the natural environment including
forests, lakes, rivers and wild life, and to have compassion for living creatures."
2. In this petition u/art. 32 of the Constitution of India, the petitioner - an advocate of this
Court - has sought directions to the MCD and the NDMC to perform their statutory duties in
particular the collection, removal and disposal of garbage and other waste.
3. This Court on December 16, 1994 passed the following order in the writ petition:-
"We direct the Municipal Corporation of Delhi, Delhi Administration and Delhi Development
Authority to place on record the list of all garbage dumping places and city garbage collection
centers within six weeks from today. It shall also be stated as to what steps are being taken
by these Authorities to keep these places clean and tidy. These Authorities shall also consider
the possibility of making it mandatory that the garbage etc. should be dumped at these places
in plastic/jute bags to be supplied by the Corporation at subsidized rates."
4. Mr. H.K. Handa, Executive Engineer MCD filed a short affidavit dated January 30, 1995
indicating that three statutory bodies function within their respective territories in the Union
Territory of Delhi, covering following areas:-
"(1) Municipal Corporation of Delhi 1399.26 Sq.Km.
(2) New Delhi Municipal Committee 42.40 Sq.Km.
(3) Delhi Cantonment Board 42.80 Sq.Km.
1484.46 Sq.Km."
5. At present about 4000 metric tons (MT) of garbage is collected daily by the MCD. The
disposal of the garbage is done mainly by 'Land Fill Method'. It is stated in the affidavit that at
present the total number of garbage collection centers are 1804 (337 dhalaos, 1284 dustbins,
176 open sites and 7 steel bins). The garbage collection trucks collect the garbage from the
collection centers and take it to the nearest Sanitary Land Fill (SLF) 19 Hospitals, 156
Dispensaries, 160 Maternity and Child Welfare Centers, 5 Primary Health Centers, and 14
clinics are functioning under the control of MCD. Except RBTB hospital, no other hospital etc,
has installed incinerator to burn the hospital-waste. It is highlighted in the affidavit that about
45% of the total population of Delhi is living in slums, unauthorised colonies and clusters.
There are about 4, 80,000 Jhuggies in Delhi. According to a rough estimate about 6 persons
stay in each jhuggi. They throw their garbage on the road or nearby dustbins.
6. Mr. S.C. Kumar, Executive Engineer has filed further affidavit dated July 13, 1995 on behalf
of the MCD. The collection and disposal of the garbage is done by the 'Solid Waste
Department' of the MCD. The sanitation staff employed for this purpose has been indicated in
the affidavit as under:-
"Municipal Corporation of Delhi has divided the entire area under its jurisdiction into 12 zones.
The Solid Waste Department is headed by Sanitary Suptd. (SS) in every zone, who inter alia,
is responsible for overall sanitation within his zone. On the supervisory level the SS is assisted
by Chief Sanitary Inspector (CSI), Sanitary Inspector (SI), Asstt. Sanitary Inspector (ASI) and
Sanitary Guide (SG). For containing the solid waste in Dhalaos and cleanliness safai
karamchari s (SK) are deployed on each dhalao and dustbin. The list of existing dustbins and
dhalaos is already on the records of this Hon'ble Court filed with additional affidavit."
7. The total number of sanitation staff of solid waste management is as follows:
1. Sanitary Superintendent : 21 Nos
2. Chief Sanitary Inspector: 30 Nos
3. Sanitary Inspector : 212 Nos

4. Asstt.Sanitary Inspector: 556 Nos
5. Sanitary Guide : 603 Nos
6. Safai Karamcharis : 38311 Nos"
Regarding construction of additional dhalaos it is stated as under: -

"The zonewise list of 1252 Nos. (approx) new dhalaos to be constructed and 708 nos. existing
dustbins/dhalaos to be repaired/renovated is attached at Annexure 'A' The completion of work
will, however, depend upon the availability of funds by Central Govt. & Delhi Govt. in
anticipation of receipt of additional funds short notice tenders in most of the zones have been
floated. A request for releasing funds to the tune of Rs.75.76 crores has already been sent to
Principal Secy. (UD) by Commissioner, MCD vide letter no. 486 dt. 5.6.95. This estimate will
also require revision in view of the drawing prepared by the Chief Architect, MCD for proposed
construction of dhalaos."
8. Mr. Kumar has further stated in his affidavit that composting is one of the solution for
disposal of garbage and getting soil conditioner through the process. According to him the
MCD compost plant at okhla had to be closed few years back since its running was not
financially viable. There is a proposal to revive the same. The Jagmohan Committee has
recommended for installation of 4 additional compost plants in Delhi. Regarding privatization,
it is stated as under:-
"As an effort to explore the alternative method, privatization of sanitation work is also being
considered to be adopted on trial basis. However final decision in this regard is yet to be
taken."
9. It is stated in the affidavit that orders for purchase of 200 trucks have been placed with
M/s. Ordnance Factory Jabalpur. Tenders for purchase of 35 suction machines, 50 front-end-
loaders have been received and are under process. It is stated that 11 more bulldozers are
required. It is further stated that 4 compactors of different capacities, 4 Nos. of poclain on
chain/tyre and some more tipper trucks are required.
10. Medical Officer of Health has filed affidavit dated May 12, 1995 on behalf of NDMC.
Regarding "door to door garbage collection" the affidavit indicates as under:-
"NDMC has introduced a scheme of door to door collection of garbage on experimental basis in
few colonies. Under this scheme, introduced on Ist may, 1994, NDMC is supplying 25
polythene garbage bags of 19" X 25" capable of holding about 10-12 kg. per month at the
subsidized price of Rs.15/- per house per month in the following areas.
1. North Avenue
2. South Avenue
3. D-I and D-II flats, Vinay Marg
4. C-I and C-II flats, Tilak Marg
5. Delhi Administration flats. Bhagwan Das Road
6. Pandara Road and Pandara Park
7. Ravinder Nagar and Bharti Nagar
The said garbage bags are connected on daily basis by our staff deployed and then deposited
in the nearby dust-bins for the purpose for further transporting them by our staff to the
dumping ground maintained by Municipal Corporation of Delhi. It is stated that not more than
40% of the residents under the scheme avails the benefit of the scheme it is specifically stated
that NDMC does not have any dumping ground within its jurisdiction."
11. It is stated in the affidavit that average of 300-350 tons of garbage is generated everyday
in the NDMC area. For the purpose of collection and disposal of garbage the area is divided
into 13 parts (circles). There are 49 Jhuggi - Jhompri clusters having 12500 jhuggies in the
NDMC area. There are 944 garbage collecting places (550 Trollies and 394 dustbins). The task
is undertaken by a fleet of 1423 permanent Safai Karamcharies, 600 Muster roll workers and
149 part time Safai Karamcharies.
12. This Court on September 15, 1995 passed the following order:-
"We have heard the petitioner and the learned counsel assisting us. Mr. Tusharia, Deputy
Director, Municipal Corporation of Delhi is personally present in Court. He has also assisted us.
Mr.H.K.Handa and Mr.S.C.Kumar, Executive Engineers, Municipal Corporation of Delhi have
filed an affidavit in these proceedings. According to the affidavit, Municipal Corporation of
Delhi has divided the area under its charge into 12 zones for the purposes of collection of
garbage. It is further stated that there are 1804 garbage collection points in the said area. The
garbage collection points consist of dhalaos, open sights and steelbins. Similarly, the area
under the control of NDMC has been divided into 13 zones where there are 944 collection
Points 394 arr masonry dustbins and 500 are trolies. It cannot be disputed that the collection
and disposal of garbage in the city of Delhi is causing serious problem. Statutory authorities
like MCD and NDMC have been created to control this problem. It is not for this Court to keep
on monitoring these problems. The officers who arc manning these institutions must realize
their responsibilities and show the end result. Keeping that in view, we issue the following
directions:
(1) We adjourn the hearing of this petition to October 12, 1995. On that day, the petitioner
and other learned counsel shall assist this Court regarding the statutory duties and functions
of various authorities in regard to the sanitation in the city of Delhi.
(2) During this period, the officers who are concerned with this problem shall consider the
various issues arising in this petition, at their own level and shall give the following information
to this Court on the next date of hearing:
(a) Final date by which there officers/authorities shall sort out the problem of collection and
disposal of the garbage in the city of Delhi. In that respect, we make it clear that from the
date which may be given by these authorities. not a drop of garbage is to be seen anywhere in
the city of Delhi on early morning each day. The whole of the work of garbage collection must
be completed over-night and the city is to be left absolutely clean for the residents for their
use;
(b) The authorities may, if they so wish, place before this Court the difficulties which are likely
to come up in their way. This Court with the assistance of authorities concerned- shall try to
solve the same. We make it clear that any direction finally given by this Court after hearing
the parties shall be binding and violation of any part of it shall attract the provisions of the
Contempt of Courts Act. Issues notice to the Secretary (Health), Delhi Administration,
especially for the purposes of seeking assistance regarding nursing homes and hospitals under
the control of Delhi Administration. To be listed on October 12, 1995."
13. Pursuant to the above quoted order Commander Mukesh Paul, Medical Officer of Health,
NDMC has filed affidavit dated October 10, 1995. It is stated in the affidavit that lack of civic
sense, lack of dustbins, absenteeism among the staff, logistic problems, multiplicity of
authorities, disposal of house hold garbage by the servants, problems of Jhuggi Jhompri
Clusters, floating population and for various other reasons, it is not possible to give the time
schedule regarding the cleaning of Delhi as directed by this Court. Various steps taken by the
NDMC to improve sanitation/garbage disposal have also been indicated. An additional affidavit
filed by Shri Anshu Prakash on behalf of NDNC indicates that the following measures for
speedy removal of garbage and for maintenance of effective sanitation have been
undertaken:- .1s1
a. Strengthening of Safaikaramchari workforce.
B Lifting and removal of garbage.
c. Regular inspection by Nodal Officers.

d. Manning of Dhalaos.
E. Door to door collection and NGO participation.
Mr. C.P. Gupta filed affidavit dated October 17, 1995 on behalf of MCD wherein he stated as
under:-
"It is, therefore, submitted that no specific date for making Delhi 'absolutely garbage free'
every morning can be given at this stage. Nevertheless, the endeavors of M.C.D. would be to
achieve the spirit of the orders passed by this Hon'ble Court."
14. Under Secretary, Ministry of Health, Government of India in his affidavit has stated that
Safdarjung hospital, Ram Manohar Lohia hospital and Lady Harding Medical college comprising
Kalavati hospital and Sucheta Kriplani Hospital are under the control and supervision of the
Ministry of Health, Government of India. Safdarjung hospital has installed incinerator with
waste disposal capacity of 230 kgs per hour. The said hospital generates about 2000-2500 kgs
of waste every day. It is stated that the incinerator functions in two shifts for 10 hours for 7
days a week. It is not clear from the affidavit whether the incinerator is in working condition or
out of order. The affidavit states that three vertical type incinerators have also been installed
by the Safdarjung hospital. Incinerators have not been installed in the other hospitals. It is
stated that proposal to install incinerators in RML hospital and Lady Harding Medical College is
under consideration.
15. According to the affidavit filed by Mrs. Satbir Silas, Joint Secretary (Medical and Public
Health) Government to National Capital Territory of Delhi, there are 13 hospitals which are
functioning under the control of the said Government. Lok Nayak Jai Parkash Narain Hospital
has no incinerator of its own. It is using the incinerator located in G.B. Pant hospital. There is
an incinerator in Guru Teg Bahadur Hospital with capacity of 125 kg per hour. The incinerator
is not enough to burn the entire hospital waste. It is stated that second incinerator at the cost
of Rs.44 lakhs is likely to be installed. Deen Dayal Upadhyay Hospital has installed an
incinerator with capacity of burning 85 kg of waste per hour. It is stated that the incinerator is
meeting the need of the hospital. G.B. Pant Hospital has two incinerators with capacity of 60
kg each. There are no incinerators in Civil Hospital, Nehru Memorial Medical College, Guru
Nanak Eye Centre, Lal Bahadur Shastri Hospital Rao Tulla Ram Memorial Hospital and Dr. N.C.
Joshi Memorial Hospital. The three remaining hospitals, namely, Babu Jagjivan Ram Memorial
Hospital, Sanjay Gandhi Memorial hospital and Maulana Azad Medical College have installed
incinerators.
16. Mr. C.B. Gupta has filed further affidavit (second) dated November 6, 1995 on behalf of
MCD wherein it is stated that on experimental basis, initially MCD proposes to introduce the
scheme of supplying plastic bags to the residents of Janakpuri, Shalimar Bagh, Jangpura
Extension, Preet Vihar, Sarita Vihar, Derawal Nagar and Jain Colony. It is stated by the learned
counsel appearing for the MCD that the administration is more than willing to take up the
challenge of cleaning the city in the right earnest. The NDMC has also filed a proposed scheme
which is in the following terms:
"That the NDMC as per the directions of this Hon'ble Court intends to improve sanitation in a
step-wise manner. Step I shall comprise of sweeping the roads/streets, collection of garbage
and its storage at designated and identified places. Step II shall comprise of lifting of the
garbage and its transportation to the M.C.D. dumping site at Gazipur. NDMC is also utilising
part of its garbage and horticulture waste for conversion into manure at Compost at Okhla."
17. Regarding Step I, as directed by the Hon'ble Court, the NDMC has selected for intensive
sanitation the following compact area consisting of the area around Parliament/Supreme
Court, Central Vista lawns and Circle No.6 starting from the entire Rajpath upto National
Stadium, C-Hexagan Road, Sher Shah Road cutting the mathura Road upto Subramaniam
Bharati Marg upto Southend Road, Aurangzeb Road, Moti Lal Nehru Marg including Maulana
Azad Road, Sunehri Masjid. On the other hand, site from National Stadium to part of C-
Hexagan, Central Vista Lawn and also two important markets i.e., Connaught Place and
Sarojini Nagar Located in NDMC area. Besides the important buildings as mentioned above,
there are 1076 houses in Pandara Road and Pandara Park including M.S. flats. Ravinder Nagar
has got 124 flats. Bapa Nagar has got 102 flats. Rest big bungalows are there. The Circle No.6
also includes the JJ clusters at Humayun Road and Darbanga House and also the Khan Market,
Lok Nayak Bhawan, Pandara Road Market, Prithvi Raj Market. The following number of major
restaurants/hotels are existing in this circle:
(i) Five Star Hotel 1
(ii) Three Star Hotel 1
(iii) Restaurants 20 it is proposed to deploy the work force in night shift also for effective
garbage removal in the area. Each and every household will be given polythene bag for
garbage collection and each household will be expected to place the bags filled with garbage at
designated collection points. In J.J. Clusters, the garbage will be collected at collection points
designated for this purpose; it may not be feasible give polythene bags for each jhuggi.
Additional collection points will be made wherever necessary to suit the convenience of the
public. All the collection points in the aforesaid areas will be effectively supervised by NDMC
staff to ensure that garbage is not littered around the collection points. Initially the polythene
bags will be given free of cost to the residents of aforesaid areas for one month by NDMC on
experimental basis. Thereafter the supply of bags at subsidised cost may also be considered by
the NDMC. NDMC has started door to door collection of garbage in polythene bags supplied by
NDMC in certain colonies in the aforesaid areas. It will be gradually extended to other colonies
also in consultation with the resident associations. The NDMC will also make efforts to find out
if any better alternative to the polythene bags could be provided for this purpose. Other State
Governments, Ministry of Environment, etc. will be contacted in this regard.
18. It would be useful to mention that the MCD has a very large force of Karamcharies working
for it. There are 38311 Safai Karamcharis. The MCD has more than 1400 Sanitary Inspectors
and other officials in that category. The total area which the MCD is supposed to keep clean
and tidy is 1399.26 Sq.Km. The simple arithmetic shows that there are 27 Safai Karamcharis
and one Sanitary Inspector for one Sq.Km. of area. We are of the view that with such a large
manpower at its disposal there can be no excuse with the MCD for not controlling the disposal
of garbage and keeping the city clean. The NDMC is still in a better position. It has 2172 Safai
Karamcharis and the area under its control is 42.40 Sq.Km. which means that it has 50
Karamcharis to wan one Sq.Km. There is no reason whatsoever why with such a huge
manpower at their command the MCD and NDMC cannot present a neat and clean Delhi to its
residents.
19. The MCD and NDMC have already started door to door collection of garbage on
experimental basis. It is stated that polythene bags are also being distributed in the selected
areas. We make it clear that the modalities in our interim orders from time to time have been
in the nature of suggestions. We, however, reiterate that the MCD and the NDMC must keep
the city clean by deploying all the means at their disposal. We are issuing binding directions in
this respect in the operative part of the judgment.
20. It would be useful at this stage to examine the relevant provisions of the Delhi Act.
"42, Obligatory functions of the Corporation- [Subject to the provisions of this Act and any
other law for the time being it shall be incumbent] on the Corporation to make adequate
provision by any means or measures which it may lawfully use or take, for each of the
following matters, namely:
(a) the construction, maintenance and cleaning of drains and drainage works and of public
latrines, urinals and similar conveniences;
(c) the scavenging, removal and disposal of filth, rubbish and other obnoxious or polluted
matters;
(e) the reclamation of unhealthy localities, the removal of noxious vegetation and generally
the abatement of all nuisances;
(o) the lighting, watering and cleaning of public streets and other public places;
(t) the laying out or the maintenance of public parks, gardens or recreation grounds, (wa) the
preparation of plans for economic development and social justice."
"43. Discretionary functions of the Corporation -
(b) The establishment and maintenance of, and aid, to libraries, museums, art galleries,
botanical or zoological collections;
(c) The establishment and maintenance of, and aid, to stadia, gymnasia, akharas and places
for sports and games;
(d) The planting and care of trees on roadsides and elsewhere;
(i) the providing of music or other entertainments in public places or places of public resort
and the establishment of theaters and cinemas;
(1) the construction and maintenance of
i) rest - houses,
ii) poor-houses,
iii) infirmaries,
iv) children's homes,
v) houses for the deaf and dumb and for disabled and handicapped children,
vi) shelters for destitute and disabled persons,
vii) asylums for persons of unsound mind;
(q) the provision for relief to destitute and disabled persons;
(s) the organization, construction, maintenance and management of swimming pools, public
wash houses, bathing places and other institutions designed for the improvement of public
health;
(z) the provisions of housing accommodation for the inhabitants of any area or for any class of
inhabitants; and (za) any measure not hereinbefore specifically mentioned, likely to promote
public safety, health, convenience or general welfare. 59 Functions of the Commissioner- Save
as otherwise provided in this Act, the entire executive power for the purpose of carrying out
the provisions of this Act and of any other Act for the time being in force which confers, any
power or imposes any duty on the Corporation, shall vest in the Commissioner who shall also-
107A. Constitution of Finance Commission- (1) The Administrator shall, as soon as may be,
within one year from the commencement of the Constitution (Seventy-third Amendment) Act,
1992 and thereafter at the expiration of every fifth year constitute a Finance Commission to
review the financial position of the Corporation and to make recommendations to the
Administrator as to, -
(a) The principle which should govern,-
(i) the distribution between the National Capital Territory of Delhi and the Corporation of the
net proceeds of the taxes, duties, tolls and fees leviable by the National Capital Territory of
Delhi which may be divided between them;
(ii) The determination of the taxes, duties tolls and fees which may be assigned to or
appropriated by the Corporation;
(iii) The grants-in-aid to the Corporation from the consolidated fund of the National Capital
Territory of Delhi. 108. Constitution of special funds-
(1) The Corporation shall, constitute such special fund or funds as may be prescribed by
regulations and such other funds necessary for the purposes of this Act as may be so
prescribed.
(2) the Constitution and disposal of such funds shall be effected in the manner laid down by
regulations.
353. Duty of owners and occupiers to collect and deposit rubbish, etc. It shall be the duty of
the owners and occupiers of all premises -
(a) To have the premises swept and cleaned;
(b) to cause all filth, rubbish and other polluted and obnoxious matter to be collected from
their respective premises and to be deposited at such times as the Commissioner, by public
notice prescribes, in public receptacles, depots or places provided or appointed u/s. 352 for the
temporary deposit or final disposal thereof;
(c) to provide receptacles of the type and in the manner prescribed by the Commissioner for
the collection therein of all filth, rubbish and other polluted and obnoxious matter from such
premises and to keep such receptacles in good condition and repair.
354. Collection and removal of filth and polluted matter-It shall be the duty of the owner and
occupier of every premises situate in any portion of Delhi in which there is not a latrine, or
urinal connected by a drain with a municipal drain, to cause all filth and polluted and
obnoxious matter accumulation upon such premises to be collected and removed to the
nearest receptacle or depot provided for this purpose u/s. 352 at such times, in such vehicle or
vessel by such route and with such precautions as the Commissioner may by public notice
prescribe.
356.Removal of rubbish, etc., accumulated on premises used as factories, workshops etc. -The
Commissioner may, if he thinks fit, (a) by written notice require the owner or occupier of any
premises used for carrying on any manufacture, trade or business or used as factory,
workshop, trade premises or market or in any way so that rubbish, filth and other polluted and
obnoxious matter are accumulated in large quantities, to collect all such rubbish, filth and
other polluted and obnoxious matter accumulating thereon and to remove the same at such
times and in such carts or receptacles and by such routes as may be specified in the notice to
a depot or place provided or appointed under section 352, or (b) after giving such owner or
occupier notice of his intention, cause all rubbish, filth and other polluted and obnoxious
matter accumulated in such premises to be removed, and charge the said owner or occupier
for such removal such fee as may, with the sanction of the Standing Committee, be specified
in the notice issued under clause (a)
357. Prohibition against accumulation of rubbish, etc.- No owner or occupier of any premises
shall keep or allow to be kept for more than twenty four hours or otherwise than in receptacle
approved by the Commissioner, any rubbish, filth and other polluted and obnoxious matter on
such premises or any place belonging thereto or neglect to employ proper means to remove
such rubbish, filth and other polluted and obnoxious matter from, or to clean, such receptacle
and to dispose of such rubbish, filth and other polluted and obnoxious matter in the manner
directed by the Commissioner, or fail to comply with any requisition of the Commissioner as to
the construction, repair, payment or cleaning of any latrine, or urinal on or belonging to the
premises.
465. General penalty- Whoever in any case in which a penalty is not expressly provided by this
act, fails to comply with any notice, order or requisition issued under any provision thereof, or
otherwise contravenes any of the provision of this Act shall be punishable with fine which may
extend to one hundred rupees and in the case of continuing failure or contravention with an
additional fine which may extend to twenty rupees for every day after the first during which he
has persisted in the failure or contravention.
469. Municipal magistrates- (1) The Government may appoint one or more [Metropolitan
Magistrates] for the trial of offences against this act and against any rule, regulation or bye-
law made thereunder and may prescribe the time and place at which such magistrate or
magistrates shall sit for the despatch of business.
486. Inspection - The Central Government [or the Government] may depute any person in the
service of government to inspect or examine any municipal department or office or any service
or work undertaken by the Corporation or any of the Municipal authorities or any property
belong in got the Corporation and to report thereon and the Corporation and every municipal
authority and all municipal officers and other municipal employees shall be bound to afford the
person so deputed access at all reasonable times to the premises and properties of the
Corporation and to all records, accounts and other documents the inspection of which he may
consider necessary to enable him to discharge his duties.
487. Directions by Central Government - (1) If [whether or receipt of a report or on receipt of]
any information or report obtained u/s. 485 of s. 486 or otherwise, the Central Government is
of opinion -
(a) That any duty imposed on the Corporation or any municipal authority by or under this Act
has not been performed or has been performed in an imperfect, insufficient or unsuitable
manner, or
(b) that adequate financial provision has not been made for the performance of any such duty,
it may direct the Corporation or the municipal authority concerned, within such period as it
thinks fit, to make arrangements to it satisfaction for the proper performance of the duty, or
as the case may be, to make financial provision to its satisfaction for the performance of the
duty and the Corporation or the municipal authority concerned shall comply with such
direction."
21. Provided that, unless in the opinion of the Central Government the immediate execution of
such order is necessary, it shall before making any direction under this section give the
Corporation or the municipal authority concerned an opportunity of showing cause why such
direction should not be made
488. Power to provide for enforcement of direction under section 487- If, within the period
fixed by a direction made under sub-s. (1) of section 487, any action the taking of which has
been directed under that sub section has not been duly taken, the Central Government may
make arrangements for the taking of such action and may direct that all expenses connected
therewith shall be defrayed out of the Municipal Fund."
22. Similarly, NDMC is governed by the New Delhi Act. Sections 11, 12, 53, 261, 263, 264,
265, 266, 267 & 375 are some of the provisions of the New Delhi Act which are pari materia to
the relevant provisions of the Delhi Act. It is clear from various provisions of the Delhi Act and
the New Delhi Act that the MCD and the NDMC are under a statutory obligation to scavenge
and clean the city of Delhi. It is mandatory for these authorities to collect and dispose of the
garbage/waste generated from various sources in the city. We have no hesitation in observing
that the MCD and the NDMC have been wholly remiss in the performance of their statutory
duties. Apart from the rights guaranteed under the Constitution the residents of Delhi have a
statutory right to live in a clean city. The courts are justified in directing the MCD and NDMC to
perform their duties under the law. Non availability of funds, inadequacy or inefficiency of the
staff, insufficiency of machinery etc. cannot be pleaded as grounds for non-performance of
their statutory obligations.
23. In Ratlam Municipality vs. Vardhichand AIR 1980 SC 1622 the question before this Court
was whether the order of the trial court as upheld by the High Court directing the Ratlam
Municipality to draft a plan within six months for the removal of nuisance caused by the open
drains and public excretion by the nearby slum dwellers could be sustained. This Court
speaking through Krishna Iyer,J. dismissed the appeal of the municipality and held as under:
25. In the light of the facts and circumstances noticed above and also keeping in view the
suggestions made by the learned counsel assisting us in this petition, we issue the following
directions:-
"1. We approve the experimental schemes placed before this Court by MCD and NDMC
whereunder certain localities have been selected for distribution of polythene bags, door to
door collection of garbage and its disposal."
26. We direct the MCD through Commissioner appointed u/s. 54 of the Delhi Act and all other
officers of the MCD (particularly Mr. Narang and Mr. Tirath Raj. Joint Directors) to have the
city of Delhi scavenged and cleaned every day. The garbage/waste shall be lifted from
collection centers every day and transported to the designated place for disposal. All
recepticals/collection centers shall be kept clean and tidy every day. The garbage/rubbish shall
not be found spread around the collection centers and on the roads.
27. We issue similar directions to the NDMC through S/Shri Baleshwar Rai, Administrator, Lal
Chand, Chief Sanitary Inspector, Dr.G.S. Thind, Deputy Medical Officer of Health and Dr. V.N.
Reu, Chief Medical Officer.
2. We direct Government of India, through Secretary, Ministry of Health, Government of
National Capital Territory of Delhi through Secretary, medical and Public Health, MCD through
its Commissioner and NDMC through its Administrator to construct and install incinerators in
all the hospitals/nursing homes, with 50 beds and above, under their administrative control.
This may be done preferably within nine months. A responsible officer of each of these
authorities shall file an affidavit in this Court within two months indicating the progress made
in this respect.
3. We direct the All India Institute of Medical Sciences, New Delhi through its Director to install
sufficient number of incinerators, or an equally effective alternate, to dispose of the hospital
waste. To indicate the progress made in this respect.
4. We direct the MCD and NDMC to issue notices to all the private hospitals/nursing homes in
Delhi to make their own arrangements for the disposal of their garbage and hospital waste.
They are asked to construct their own incinerators. In case these hospitals are permitted to
use facilities (for collection, transportation and disposal of garbage) provided by the MCD and
NDMC then they may be asked to pay suitable charges for the service rendered in accordance
with law.
5. We direct the Central Pollution Control Board and the Delhi Pollution Committee to regularly
send its inspection teams in different areas of Delhi/New Delhi to ascertain that the collection,
transportation and disposal of garbage/waste is carried out satisfactorily. The Board and the
Committee shall file the reports in this Court by way of an affidavit after every two months for
a period of two years.
6. We direct the Government of the National Capital Territory of Delhi to appoint Municipal
Magistrates (Metropolitan Magistrates) u/s. 469 of the Delhi Act and S. 375 of the New Delhi
Act for the trial of offence under these Acts. Residents of Delhi be educated through
Doordarshan and by way of announcements in the localities that they shall be liable for penalty
in case they violate any provisions of the Act in the matter of collecting and disposal of
garbage and other wastes.
7. We direct the Doordarshan through its Director General to undertake a programme of
educating the residents of Delhi regarding their civic duties under the Delhi Act and the New
Delhi Act. This shall be done by making appropriate announcements, displays on the
television. The residents of Delhi shall be educated regarding their duties under Sections 354,
356 and 357 of the Delhi Act and similar duties under the New Delhi Act. They shall also be
informed about the penalties which can be imposed u/s. 465 of Delhi Act and similar provisions
under the New Delhi Act. The MCD and the NDMC shall also have announcements made by
way of public address system in various areas in Delhi informing the residents of their duties
and obligations under the Delhi Act and the New Delhi Act.
8. The MCD has placed order for the supply of about 200 Tippers with the Ordinance Vehicle
Factory, Jabalpur (Government of India) in May, 1995. The Tippers have not as yet been
supplied. We direct Secretary, Ministry of Defence Production, Government of India to have
the Tippers supplied to the MCD as expeditiously as possible and preferably within three
months. The Secretary shall file an affidavit in this Court within six weeks indicating the
progress made in this respect.
9. The MCD has indicated that three SLF sites have already been approved by the Technical
Committee of the DDA but the same have not been handed over to the MCD by the
Development Commissioner, Government of NCT of Delhi. Since Bhatti mines are situated
within the ridge area, we do not permit the same to be utilised for the disposal of the solid
waste as at present. We, however, direct the Development Commissioner, Government of NCT
Delhi to hand over the two sites, near Badarpur on Jaitpur/Tejpur Quiry Pits and Mandi village
near Jaunpur Quiry Pits. The sites shall be handed over to the MCD within three months. The
Development Commissioner shall file an affidavit in this Court before March 31, 1996
indicating the progress made in this respect.
10. The compost plant at Okhla be revived and put into operation. The MCD shall start
operating the plant, if not already operating, with effect from June 1, 1996. The MCD shall also
examine the construction of four additional compost plants as recommended by Jag Mohan
Committee. The MCD shall file an affidavit in this Court within six weeks indicating the
progress made in re-starting the Okhla compost plant and in the construction of four new
plants.
11. The MCD shall not use the filled-up SLFs for any other purpose except forestry. There are
twelve such sites including Rajiv Gandhi Smriti Van. We direct the MCD to develop forests and
gardens on these 12 sites. The work of afforestation shall be undertaken by the MCD with
effect from April 1, 1996. An affidavit shall be filed by the end of April indicating the progress
made in this respect.
12. The MCD and NDMC shall construct/install additional garbage collection centers in the form
of dhalaos/trolley/steelbins within four months. An affidavit in this respect shall be filed by a
responsible officer of each of these authorities within two months indicating the progress.
13. We direct the Union of India and NCT Delhi Administration through their respective
appropriate Secretaries to consider the requests from MCD and NDMC for financial assistance,
in a just and fair manner. These Governments shall consider the grant of financial assistance
to the MCD and NDMC by way of subvention or any other manner to enable these authorities
to fulfil their obligations under law as directed by us.
14. After some time it may not be possible to dispose of garbage and solid-waste by 'SLF'
method due to nonavailability of sites. We direct the NCT Delhi Administration through its Chief
Secretary and also the MCD and NDMC to join hands and engage an expert body like NEERI to
find out alternate method/methods of garbage and solid waste disposal. The NCT Delhi
Administration shall file affidavit in this Court within two months indicating progress made in
this respect modalities in our interim orders from time to time have been in the nature of
suggestions. We, however, reiterate that the MCD and the NDMC must keep the city clean by
deploying all the means at their disposal. We are issuing binding directions in this respect in
the operative part of the judgment.
28. It would be useful at this stage to examine the relevant provisions of the Delhi Act.
"42, Obligatory functions of the Corporation- [Subject to the provisions of this Act and any
other law for the time being it shall be incumbent] on the Corporation to make adequate
provision by any means or measures which it may lawfully use or take, for each of the
following matters, namely:
(a) the construction, maintenance and cleaning of drains and drainage works and of public
latrines, urinals and similar conveniences;
(c) the scavenging, removal and disposal of filth, rubbish and other obnoxious or polluted
matters;
(e) the reclamation of unhealthy localities, the removal of noxious vegetation and generally
the abatement of all nuisances;
(o) the lighting, watering and cleaning of public streets and other public places;
(t) the laying out or the maintenance of public parks, gardens or recreation grounds, (wa) the
preparation of plans for economic development and social justice."
"43. Discretionary functions of the Corporation -
(b) the establishment and maintenance of, and aid, to libraries, museums, art galleries,
botanical or zoological collections;
(c) the establishment and maintenance of, and aid, to stadia, gymnasia, akharas and places
for sports and games;
(d) the planting and care of trees on roadsides and elsewhere;
(i) the providing of music or other entertainments in public places or places of public resort
and the establishment of theaters and cinemas;
(1) the construction and maintenance of
(i) rest - houses,
(ii) poor-houses,
(iii) infirmaries,
(iv) children's homes,
(v) houses for the deaf and dumb and for disabled and handicapped children,
(vi) shelters for destitute and disabled persons,
(vii) asylums for persons of unsound mind;
(q) the provision for relief to destitute and disabled persons;
(s) the organization, construction, maintenance and management of swimming pools, public
wash houses, bathing places and other institutions designed for the improvement of public
health;
(z) the provisions of housing accommodation for the inhabitants of any area or for any class of
inhabitants; and (za) any measure not hereinbefore specifically mentioned, likely to promote
public safety, health, convenience or general welfare.
59. Functions of the Commissioner- Save as otherwise provided in this Act, the entire
executive power for the purpose of carrying out the provisions of this Act and of any other Act
for the time being in force which confers, any power or imposes any duty on the Corporation,
shall vest in the Commissioner who shall also- 107A. Constitution of Finance Commission- (1)
The Administrator shall, as soon as may be, within one year from the commencement of the
Constitution (Seventy-third Amendment) Act, 1992 and thereafter at the expiration of every
fifth year constitute a Finance Commission to review the financial position of the Corporation
and to make recommendations to the Administrator as to, -
(a) The principle which should govern,-
(i) the distribution between the National Capital Territory of Delhi and the Corporation of the
net proceeds of the taxes, duties, tolls and fees leviable by the National Capital Territory of
Delhi which may be divided between them;
(ii) the determination of the taxes, duties tolls and fees which may be assigned to or
appropriated by the Corporation;
(iii) the grants-in-aid to the Corporation from the consolidated fund of the National Capital
Territory of Delhi.
108. Constitution of special funds-
(1) The Corporation shall, constitute such special fund or funds as may be prescribed by
regulations and such other funds necessary for the purposes of this Act as may be so
prescribed.
(2) the Constitution and disposal of such funds shall be effected in the manner laid down by
regulations.
353.Duty of owners and occupiers to collect and deposit rubbish, etc. It shall be the duty of
the owners and occupiers of all premises -
(a) to have the premises swept and cleaned;
(b) to cause all filth, rubbish and other polluted and obnoxious matter to be collected from
their respective premises and to be deposited at such times as the Commissioner, by public
notice prescribes, in public receptacles, depots or places provided or appointed u/s. 352 for the
temporary deposit or final disposal thereof;
(c) to provide receptacles of the type and in the manner prescribed by the Commissioner for
the collection therein of all filth, rubbish and other polluted and obnoxious matter from such
premises and to keep such receptacles in good condition and repair.
354. Collection and removal of filth and polluted matter-It shall be the duty of the owner and
occupier of every premises situate in any portion of Delhi in which there is not a latrine, or
urinal connected by a drain with a municipal drain, to cause all filth and polluted and
obnoxious matter accumulation upon such premises to be collected and removed to the
nearest receptacle or depot provided for this purpose u/s. 352 at such times, in such vehicle or
vessel by such route and with such precautions as the Commissioner may by public notice
prescribe.
356.Removal of rubbish, etc., accumulated on premises used as factories, workshops etc. -The
Commissioner may, if he thinks fit,
(a) by written notice require the owner or occupier of any premises used for carrying on any
manufacture, trade or business or used as factory, workshop, trade premises or market or in
any way so that rubbish, filth and other polluted and obnoxious matter are accumulated in
large quantities, to collect all such rubbish, filth and other polluted and obnoxious matter
accumulating thereon and to remove the same at such times and in such carts or receptacles
and by such routes as may be specified in the notice to a depot or place provided or appointed
under section 352, or
(b) after giving such owner or occupier notice of his intention, cause all rubbish, filth and other
polluted and obnoxious matter accumulated in such premises to be removed, and charge the
said owner or occupier for such removal such fee as may, with the sanction of the Standing
Committee, be specified in the notice issued under clause (a)
357. Prohibition against accumulation of rubbish, etc.- No owner or occupier of any premises
shall keep or allow to be kept for more than twenty four hours or otherwise than in receptacle
approved by the Commissioner, any rubbish, filth and other polluted and obnoxious matter on
such premises or any place belonging thereto or neglect to employ proper means to remove
such rubbish, filth and other polluted and obnoxious matter from, or to clean, such receptacle
and to dispose of such rubbish, filth and other polluted and obnoxious matter in the manner
directed by the Commissioner, or fail to comply with any requisition of the Commissioner as to
the construction, repair, payment or cleaning of any latrine, or urinal on or belonging to the
premises. 465. General penalty- Whoever in any case in which a penalty is not expressly
provided by this act, fails to comply with any notice, order or requisition issued under any
provision thereof, or otherwise contravenes any of the provision of this Act shall be punishable
with fine which may extend to one hundred rupees and in the case of continuing failure or
contravention with an additional fine which may extend to twenty rupees for every day after
the first during which he has persisted in the failure or contravention.
469. Municipal magistrates- (1) The Government may appoint one or more [Metropolitan
Magistrates] for the trial of offences against this act and against any rule, regulation or bye-
law made thereunder and may prescribe the time and place at which such magistrate or
magistrates shall sit for the despatch of business.
486. Inspection - The Central Government [or the Government] may depute any person in the
service of government to inspect or examine any municipal department or office or any service
or work undertaken by the Corporation or any of the Municipal authorities or any property
belong in got the Corporation and to report thereon and the Corporation and every municipal
authority and all municipal officers and other municipal employees shall be bound to afford the
person so deputed access at all reasonable times to the premises and properties of the
Corporation and to all records, accounts and other documents the inspection of which he may
consider necessary to enable him to discharge his duties.
487. Directions by Central Government - (1) If [whether or receipt of a report or on receipt of]
any information or report obtained u/s. 485 of s. 486 or otherwise, the Central Government is
of opinion -
(a) that any duty imposed on the Corporation or any municipal authority by or under this Act
has not been performed or has been performed in an imperfect, insufficient or unsuitable
manner, or
(b) that adequate financial provision has not been made for the performance of any such duty,
it may direct the Corporation or the municipal authority concerned, within such period as it
thinks fit, to make arrangements to it satisfaction for the proper performance of the duty, or
as the case may be, to make financial provision to its satisfaction for the performance of the
duty and the Corporation or the municipal authority concerned shall comply with such
direction."
29. Provided that, unless in the opinion of the Central Government the immediate execution of
such order is necessary, it shall before making any direction under this section give the
Corporation or the municipal authority concerned an opportunity of showing cause why such
direction should not be made 488.Power to provide for enforcement of direction under section
487- If, within the period fixed by a direction made under sub-s. (1) of section 487, any action
the taking of which has been directed under that sub section has not been duly taken, the
Central Government may make arrangements for the taking of such action and may direct that
all expenses connected therewith shall be defrayed out of the Municipal Fund.
30. Similarly, NDMC is governed by the New Delhi Act. Sections 11, 12, 53, 261, 263, 264,
265, 266, 267 & 375 are some of the provisions of the New Delhi Act which are pari materia to
the relevant provisions of the Delhi Act. It is clear from various provisions of the Delhi Act and
the New Delhi Act that the MCD and the NDMC are under a statutory obligation to scavenge
and clean the city of Delhi. It is mandatory for these authorities to collect and dispose of the
garbage/waste generated from various sources in the city. We have no hesitation in observing
that the MCD and the NDMC have been wholly remiss in the performance of their statutory
duties. Apart from the rights guaranteed under the Constitution the residents of Delhi have a
statutory right to live in a clean city. The courts are justified in directing the MCD and NDMC to
perform their duties under the law. Non availability of funds, inadequacy or inefficiency of the
staff, insufficiency of machinery etc. cannot be pleaded as grounds for non-performance of
their statutory obligations.
31. In Ratlam Municipality vs. Vardhichand AIR 1980 SC 1622, the question before this Court
was whether the order of the trial court has upheld by the High Court directing the Ratlam
Municipality to draft a plan within six months for the removal of nuisance caused by the open
drains and public excretion by the nearby slum dwellers could be sustained. This Court
speaking through Krishna Iyer,J. dismissed the appeal of the municipality and held as under:
order. The State will realise that Art. 47 make it a paramount principle of governance that
33. In the light of the facts and circumstances noticed above and also keeping in view the
suggestions made by the learned counsel assisting us in this petition, we issue the following
directions:-
1. We approve the experimental schemes placed before this Court by MCD and NDMC
whereunder certain localities have been selected for distribution of polythene bags, door to
door collection of garbage and its disposal.
34. We direct the MCD through Commissioner appointed u/s. 54 of the Delhi Act and all other
officers of the MCD (particularly Mr. Narang and Mr. Tirath Raj. Joint Directors) to have the
city of Delhi scavenged and cleaned every day. The garbage/waste shall be lifted from
collection centers every day and transported to the designated place for disposal.
35. All recepticals/collection centers shall be kept clean and tidy every day. The
garbage/rubbish shall not be found spread around the collection centers and on the roads.
36. We issue similar directions to the NDMC through S/Shri Baleshwar Rai, Administrator, Lal
Chand, Chief Sanitary Inspector, Dr.G.S. Thind, Deputy Medical Officer of Health and Dr. V.N.
Reu, Chief Medical Officer.
2. We direct Government of India, through Secretary, Ministry of Health, Government of
National Capital Territory of Delhi through Secretary, medical and Public Health, MCD through
its Commissioner and NDMC through its Administrator to construct and install incinerators in
all the hospitals/nursing homes, with 50 beds and above, under their administrative control.
This may be done preferably within nine months. A responsible officer of each of these
authorities shall file an affidavit in this Court within two months indicating the progress made
in this respect.
3. We direct the All India Institute of Medical Sciences, New Delhi through its Director to install
sufficient number of incinerators, or an equally effective alternate, to dispose of the hospital
waste. to indicate the progress made in this respect.
4. We direct the MCD and NDMC to issue notices to all the private hospitals/nursing homes in
Delhi to make their own arrangements for the disposal of their garbage and hospital waste.
They be asked to construct their own incinerators. In case these hospitals are permitted to use
facilities (for collection, transportation and disposal of garbage) provided by the MCD and
NDMC then they may be asked to pay suitable charges for the service rendered in accordance
with law.
5. We direct the Central Pollution Control Board and the Delhi Pollution Committee to regularly
send its inspection teams in different areas of Delhi/New Delhi to ascertain that the collection,
transportation and disposal of garbage/waste is carried out satisfactorily. The Board and the
Committee shall file the reports in this Court by way of an affidavit after every two months for
a period of two years.
6. We direct the Government of the National Capital Territory of Delhi to appoint Municipal
Magistrates (Metropolitan Magistrates) u/s. 469 of the Delhi Act and S. 375 of the New Delhi
Act for the trial of offence under these Acts. Residents of Delhi be educated through
Doordarshan and by way of announcements in the localities that they shall be liable for penalty
in case they violate any provisions of the Act in the matter of collecting and disposal of
garbage and other wastes.
7. We direct the Doordarshan through its Director General to undertake a programme of
educating the residents of Delhi regarding their civic duties under the Delhi Act and the New
Delhi Act. This shall be done by making appropriate announcements, displays on the
television. The residents of Delhi shall be educated regarding their duties under Sections 354,
356 and 357 of the Delhi Act and similar duties under the New Delhi Act. They shall also be
informed about the penalties which can be imposed u/s. 465 of Delhi Act and similar provisions
under the New Delhi Act. The MCD and the NDMC shall also have announcements made by
way of public address system in various areas in Delhi informing the residents of their duties
and obligations under the Delhi Act and the New Delhi Act.
8. The MCD has placed order for the supply of about 200 Tippers with the Ordinance Vehicle
Factory, Jabalpur (Government of India) in May, 1995. The Tippers have not as yet been
supplied. We direct Secretary, Ministry of Defence Production, and Government of India to
have the Tippers supplied to the MCD as expeditiously as possible and preferably within three
months. The Secretary shall file an affidavit in this Court within six weeks indicating the
progress made in this respect.
9. The MCD has indicated that three SLF sites have already been approved by the Technical
Committee of the DDA but the same have not been handed over to the MCD by the
Development Commissioner, Government of NCT of Delhi. Since Bhatti mines are situated
within the ridge area, we do not permit the same to be utilised for the disposal of the solid
waste as at present. We, however, direct the Development Commissioner, Government of NCT
Delhi to hand over the two sites, near Badarpur on Jaitpur/Tejpur Quiry Pits and Mandi village
near Jaunpur Quiry Pits. The sites shall be handed over to the MCD within three months. The
Development Commissioner shall file an affidavit in this Court before March 31, 1996
indicating the progress made in this respect.
10. The compost plant at Okhla be revived and put into operation. The MCD shall start
operating the plant, if not already operating, with effect from June 1, 1996. The MCD shall also
examine the construction of four additional compost plants as recommended by Jag Mohan
Committee. The MCD shall file an affidavit in this Court within six weeks indicating the
progress made in re-starting the Okhla compost plant and in the construction of four new
plants.
11. The MCD shall not use the filled-up SLFs for any other purpose except forestry. There are
twelve such sites including Rajiv Gandhi Smriti Van. We direct the MCD to develop forests and
gardens on these 12 sites. The work of afforestation shall be undertaken by the MCD with
effect from April 1, 1996. An affidavit shall be filed by the end of April indicating the progress
made in this respect.
12. The MCD and NDMC shall construct/install additional garbage collection centers in the form
of dhalaos/trolley/steelbins within four months. An affidavit in this respect shall be filed by a
responsible officer of each of these authorities within two months indicating the progress.
13. We direct the Union of India and NCT Delhi Administration through their respective
appropriate Secretaries to consider, the requests from MCD and NDMC for financial assistance,
in a just and fair manner. These Governments shall consider the grant of financial assistance
to the MCD and NDMC by way of subvention or any other manner to enable these authorities
to fulfil their obligations under law as directed by us.
14. After some time it may not be possible to dispose of garbage and solid-waste by 'SLF'
method due to nonavailability of sites. We direct the NCT Delhi Administration through its Chief
Secretary and also the MCD and NDMC to join hands and engage an expert body like NEERI to
find out alternate method/methods of garbage and solid waste disposal. The NCT Delhi
Administration shall file affidavit in this Court within two months indicating progress made in
this respect.
Order accordingly
Dr. K.C. Malhotra v State of Madhya Pradesh and Others

Madhya Pradesh High Court
INDORE BENCH
07 May 1993
Case Analysis
Bench DUBEY, S. K. DUBEY, S. K. CHAWLA, JJ
Where Reported 1993 Indlaw MP 97; AIR 1994 MP 48; 1994 MPLJ 40

Keywords: Public Interest Litigation, Affirmative Action, Right To
Work
Summary: Constitution - Socio-Economic - Constitution of India,
1950, arts. 21,39,47 - Public Interest Litigation - Affirmative
action - Fundamental right - Petitioner/medical practitioner by
profession, filed PIL annexing with petition newspaper cuttings of
1991 and 1992 to demonstrate that for want of performing the
primary and obligatory duties by Municipal Corporation, due to
open drain, filthy water, heaps of dirt and contaminated water and
rubbish, there was spread of epidemic of cholera, resulting in
deaths of 12 children in 1991 and also deaths in 1992 - Petitioner
prayed for issuance of directions to State and Municipal
Corporation, to take all necessary measures to eradicate menace -
Whether fundamental right under art. 21 of Constitution entitled
to live as human beings was curtailed - Held, Public health and
safety cannot suffer on any count and all steps were to be taken
as art. 47 of Constitution for improvement of public health as
among its primary duties - All necessary measures shall be taken
to keep up - Respondents, Public Health Engineering Department
and Corporation should see that pipe line of drinking water was
not contaminated at places where they were joined in l pipe lines -
Duty of the State and its instrumentalities to educate not only
inhabitants of locality, but members of the society to live with
appropriate awareness and to taken all measures so that water
and environment might not be polluted - Petition allowed.

M.C. Mehta v Union Of India And Ors.1991 Indlaw SC 889, (1992)
1 SCC 358, AIR 1992 SC 382, AIR 1991 SCW 2989, JT 1991 (4)
SC 531, 1991(2) SCALE 1182, [1991] Supp2 S.C.R. 378
C.E.S.C. Ltd. Etc. v Subhash Chandra Bose And Ors.1991 Indlaw

SC 364, (1992) SCC (L&S) 313, (1992) 1 SCC 441, AIR 1992 SC
573, AIR 1992 SCW 202, 1992 (64) FLR 248, JT 1991 (6) SC 373,
1992 LabIC 332, 1992 (1) LLJ 475, 1992 (1) LLN 353, 1991(2)
SCALE 996, 1992 (3) SLR 16, [1991] Supp2 S.C.R. 267, 1992 (1)
UJ 111
Vikram Deo Singh Tomar v State Of Bihar1988 Indlaw SC 775,
(1988) Supp SCC 734, (1989) SCC (Cr) 66, AIR 1988 SC 1782,
1988 BBCJ 109, 1989 CRLR 750, JT 1988 (3) SC 186, 1988(2)
SCALE 325, [1988] Supp1 S.C.R. 755, 1988 (2) UJ 404
State of Himachal Pradesh and Anr v Umed Ram Sharma and
Others1986 Indlaw SC 659, (1986) 2 SCC 68, AIR 1986 SC 847,
1986(1) SCALE 182, [1986] 1 S.C.R. 251, 1986 (1) UJ 478
Francis Coralie Mullin v Administrator, Union Territory of Delhi and
Others1981 Indlaw SC 117, (1981) SCC (Cr) 212, (1981) 1 SCC
608, AIR 1981 SC 746, [1982] 52 Comp Cas 554, 1981 (87) CRLJ
306, 1981 CrLR(SC) 437, 1981 MLJ 331, 1981(1) SCALE 9,
[1981] 2 S.C.R. 516
1980 SC 1622, 1980 (6) ALR 601, 1980 (86) CRLJ 1075, 1980
CrLR(SC) 543, [1981] 1 S.C.R. 97
1992 (1) MPJR 93

Madhya Pradesh High Court
INDORE BENCH
7 May 1993
Dr. K.C. Malhotra
State of Madhya Pradesh and Others
Case No : M.P. No.1019 of 1992.

Bench : DUBEY, S. K. DUBEY, S. K. CHAWLA, JJ
Citation : 1993 Indlaw MP 97, AIR 1994 MP 48, 1994 MPLJ 40
Summary : Constitution - Socio-Economic - Constitution of India, 1950, arts. 21,39,47 - Public
Interest Litigation - Affirmative action - Fundamental right - Petitioner/medical practitioner by
profession, filed PIL annexing with petition newspaper cuttings of 1991 and 1992 to demonstrate
that for want of performing the primary and obligatory duties by Municipal Corporation, due to
open drain, filthy water, heaps of dirt and contaminated water and rubbish, there was spread of
epidemic of cholera, resulting in deaths of 12 children in 1991 and also deaths in 1992 - Petitioner
prayed for issuance of directions to State and Municipal Corporation, to take all necessary
measures to eradicate menace - Whether fundamental right under art. 21 of Constitution entitled
to live as human beings was curtailed - Held, Public health and safety cannot suffer on any count
and all steps were to be taken as art. 47 of Constitution for improvement of public health as
among its primary duties - All necessary measures shall be taken to keep up - Respondents, Public
Health Engineering Department and Corporation should see that pipe line of drinking water was
not contaminated at places where they were joined in l pipe lines - Duty of the State and its
instrumentalities to educate not only inhabitants of locality, but members of the society to live with
appropriate awareness and to taken all measures so that water and environment might not be
polluted - Petition allowed.
The Judgment was delivered by : DUBEY, J.

1. DUBEY, J.:- Petitioner, who is a medical practitioner by profession, has preferred this
petition by way of public interest litigation annexing with the petition newspaper cuttings of
1991 and 1992 to demonstrate that for want of performing the primary and obligatory duties
by the Municipal Corporation, Gwalior and Public Health and Public Health Engineering
Departments, in the locality of Pardi Mohalla, of State of Madhya Pradesh, due to open drain,
filthy water, heaps of dirt and contaminated water and rubbish, there was spread of epidemic
of cholera, resulting in deaths of 12 children in 1991 and also deaths in 1992. Therefore, the
petitioner prays for issuance of directions to the State and the Municipal Corporation, Gwalior,
to take all necessary measures to eradicate the menace.
2. Municipal Corporation in its return denied the averments and stated that the safai
Karmacharies of the Municipal Corporation regularly clean and remove the heaps of rubbish
under the supervision of the supervisory staff. Water is regularly bleached and the public
lavatories are regularly cleaned. Chlorine tablets are mixed up with the water and they are
distributed amongst the members of the public. There is timely spraying of D.D.T. and
phenyle. Nalla was also cleaned in August, 1992. It being an old nalla, open from the rear
side, there is continuous flow of water without any blockade. If because of rainy season, any
blockade or obstruction is created in the nalla, Corporation takes immediate steps to remove
the blockade. In the year 1992, no death was reported because of cholera or gastro entritis.
3. The averments were denied on behalf of the State and it was submitted that all preventive
steps were taken including vaccination against cholera, distribution of chlorine tablets, R. H.
packets through the Civil Dispensaries Janakganj and Phalka Bazar and Mobile Units. Regular
steps were taken for cleaning drinking water. It is stated that P.H.E. takes all steps to ensure
that water in the pipe line is not in any manner contaminated or becomes infectious. Drinking
water of the hand-pump installed by the Municipal Corporation was not found fit for human
consumption, hence, the Municipal Corporation was directed to close the said pump. Public
Health Engineering Department laid a pipe line of 150 mms which was joined to the water tank
of Jayendraganj for distribution of drinking water to Pardi Mohalla through taps.
4. The petitioner filed a rejoinder in this Court making various counter-allegations. This Court,
when the matter came up for hearing, on 9-9-1992, requested Shri A.M. Naik and Shri K.N.
Gupta, Advocates of this Court to inspect the spot and to give the report. Both learned
Advocate made an inspection in the presence of Health Officer of the Municipal Corporation
and Executive Engineer and Assistant Engineer of the Public Health Engineering Department
and submitted their report.
5. From the report, it is clear that the nalla is open about 50 in length and thereafter, it is
underground till it opens into Swarnarekha nalla. Towards the west side, there are several
houses situated in Adarsha Colony at Gwalior with their drains opening in the nalla. There are
four public latrines, which were found to be clean. The public excreta was found at various
points at the open nalla and the houses towards east. No obstruction was found in the flow of
the water through the nalla. Towards south of the underground nalla six more public latrines
were found clean. The pipeline of drinking water of the P.H.E. Department, was not found open
at any point. At the time of inspection, no leakage or mixing of the sewage water in the P.H.E.
line was found. However, in case of heavy rains or flood, the Commissioners observed, that
there is a likelihood of accumulation of filthy water and the water of open taps was ultimately
likely to be mixed up with the water supplied by the P.H.E. A sketch map was also annexed
with the report.
6. During the course of hearing, it was submitted by the respondents that except the members
of the Pardi community, there are other inhabitants of various castes and communities in the
locality. There was no complaint of any sort or any death was reported either in the year 1991
or 1992 because of cholera or gastro entritis but, the deaths were reported of the children of
Pardi community because of their eating habits as they eat meat or flesh of birds without
properly cleaning the same.
7. India is a welfare State governed by the Constitution which holds a place of pride in the
hearts of its citizens. It lays a special emphasis on the protection and well-being of the weaker
sections of the society and seeks to improve their economic and social status on the basis of
Constitutional guarantees spelled out in its provisions. We live in an age which recognises that
every person is entitled to a quality of life consistent with his human personality. The right to
live with human dignity is the fundamental right of every Indian citizen. And, so in the
discharge of its responsibilities to the people, the State has to provide at least the minimum
conditions ensuring human dignity. See Vikram Deo Singh Tomar v. State of Bihar,1988
Indlaw SC 775. The right to life enshrined in Art. 21, cannot be restricted to mere animal
existence. It means something much more than just physical survival. The right to life includes
the right to live with human dignity and all that goes along with it, namely, the bare
necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities
of reading, writing and expressing oneself in diverse forms, freely moving about and mixing
and commingling with fellow human beings. See, Francis Coralie v. Administrator, Union
Territory of Delhi,1981 Indlaw SC 117 : 1981 Indlaw SC 117).
8. The Supreme Court, while dealing with the case of Workers of C.E.S.C. Limited v. Subhash
Chandra Bose, 1991 Indlaw SC 364: 1991 Indlaw SC 364), discussing Arts. 22 to 25 of the
Universal Declaration of Human Rights, 1948 and Arts. 21 and 39(e) of the Constitution of
India, in para 32 observed, "The term health implies more than absence of sickness. Medical
care and health facilities not only protect against sickness but also ensures stable manpower
for economic development. Facilities of health and medical care generate devotion and
dedication to give the workers' best, physically as well as mentally, in productivity. It enables
the worker to enjoy the fruit of his labour, to keep him physically fit and mentally alert for
leading a successful, economic, social and cultural life. The medical facilities are, therefore,
part of social security and like gilt-edged security, it would yield immediate return in the
increased production or at any rate reduce absenteeism on grounds of sickness, etc. Health is
thus a state of complete physical, mental and social well being and not merely the absence of
disease or infirmity. In the light of Arts. 22 to 25 of the Universal Declaration of Human Rights,
International Convention on Economic, Social and Cultural Rights, and in the light of socio-
economic justice assured in our Constitution, right to health is a fundamental human right to
workmen. The maintenance of health is a most imperative constitutional goal whose realisation
requires interaction of many social and economic factors"
.
9. In respect of civil amenities and discharge of its primary/obligatory duties, the Supreme
Court had an occasion to examine the case in Ratlam Municipal Council v. Vardhichand,1980
Indlaw SC 164 : 1980 Indlaw SC 164) arising out of the proceedings under S. 133, Cr.P.C. and
in paras 12 and 16 of the judgment, their Lordships observed that where there existed a public
nuisance in a locality due to open drains, heaps of dirt, pits and public excretion by humans
for want of lavatories and consequential breeding of mosquitoes, the Court could require the
Municipality under Sec. 133 of the Cr.P.C. and in view of Sec. 123 of the Municipalities Act to
abate the nuisance by taking affirmative action on a time-bound basis. When such order was
given, the Municipality could not take the plea that notwithstanding the public nuisance,
financial inability validly exonerated it from statutory liability.
10. In another public interest litigation in case of State of H.P. v. Umed Ram,1986 Indlaw SC
659, where the residents of hilly area wanted existence of roads in reasonable condition, the
right was embraced to their right to life in the context of the constitutional provisions. Their
Lordships interpreted Art. 21 as embracing not only physical existence of life, but the quality of
life. Their Lordships observed that for the residents of hilly areas, access to road is access to
life itself. Accordingly, there should be road for communication in reasonable conditions in view
of our Constitutional imperatives and denial of that right would be denial of the life.
11. The defence of illiteracy and not living in healthy conditions of the inhabitants who belong
to the weaker sections of the society will not come in the way for that and also the State has
to take steps to educate them to live in a proper healthy conditions and for that the State and
its instrumentalities and the members of the society have to take all steps to ensure that the
members of the down-trodden strata are given full education in that behalf.
12. Recently, in another public interest litigation in the case of M. C. Mehta v. Union of
India,1991 Indlaw SC 889 : 1991 Indlaw SC 889) in para 3 of the report their Lordships held
that in order that human conduct may be in accordance with the prescription of law it is
necessary that there should be appropriate awareness about what the law requires and there
is an element of acceptance that the requirement of law is grounded upon a philosophy which
should be followed. In para 5 of their judgment, their Lordships observed that we are in a
democratic polity where dissemination of information is the foundation of the system. Keeping
the citizens informed is an obligation of the Government. It is equally the responsibility of
society to adequately educate every component of it so that the social level is kept up.
13. A Division Bench of this Court in a public interest litigation on behalf of Citizens and
Inhabitants of Ward No. 17, Municipal Corporation, Gwalior v. Municipal Corporation, Gwalior,
1992 (1) MPJR 93, while examining the complaint of not providing basic and civic amenities
had an occasion to examine the provisions of Part V of the M.P. Municipal Corporation Act,
1956, which deal with public health, safety and conveniences and the obligatory and
discretionary duty, of the Municipal Corporation, observed that several provisions included in
that part deal with public conveniences such as municipal drains, conservancy, sanitary
provisions, water supply, drainage water and water mains, public health and safety, also on
restraint of infections and infectious diseases. In a nutshell, the Legislature has contemplated
through these provisions almost all that would be needed to be performed by the Municipal
Corporations to achieve the fulfillment of the fundamental right of dignified human living by
the residents of Municipal Corporation limits. The Corporation has been vested with powers,
wide in scope and ambit, enabling the definite fulfilment of its statutory obligations. S. 66 of
Municipal Corporations Act provides for the obligatory duties of Council as distinguished with
discretionary duties listed in S. 67. The resume of these provisions leaves no manner of doubt
that what has been complained of by the petitioners and what they expected to be performed
by the Municipal Corporation are ordinarily the statutory obligations of the Municipal
Corporation.
14. In the background of the law laid down by the Supreme Court, looking to the facts which
have come in this case, we are of the opinion that inhabitants of the locality may be of
backward class or weaker sections of the society or community at large have got a
fundamental right under Art. 21 of the Constitution entitling them to live as human beings in
the area which is in the limits of the Municipal Corporation. There must be a separate sewage
line from which the filthy water may flow out. The nalla must be covered and there should be
proper lavatories for public conservancy which should be regularly cleaned. Public health and
safety cannot suffer on any count and all steps are to be taken as Art. 47 makes it a
paramount principle of Government that steps are taken "for the improvement of public health
as among its primary duties".
15. We have no doubt that if the directions given by us hereinbelow and other steps are
honestly and sincerely carried out, it will be possible to improve the life conditions of the
members of the weaker sections of the society which would ensure social justice to them so
that they be able to have fresh and non-contaminated water which is not polluted and may be
able to breath fresh air of social and economic freedom.
16. Therefore, in our opinion, to keep up the health and security of the inhabitants of the
locality, it would be appropriate to issue following directions:
(a) The open nalla shall be covered before the advent of the rainy season and if for the
circumstances beyond the control, the nalla could not be covered within the said time, the
Corporation and the P.H.E. shall take all steps to ensure that potable water is not
contaminated and polluted. Flow of water remains continuous from the nalla till it is covered.
All necessary measures shall be taken to keep up the nalla clean. In any case, the open
portion of the nalla shall be covered by the next rainy season.
(b) The respondents, Public Health Engineering Department and the Corporation shall see that
the pipe line of drinking water is not contaminated at the places where they are joined in the
pipe lines. More latrines shall be constructed to cope up with the need of the inhabitants. In
any manner, all arrangement shall be done before the rainy season starts. There shall be
vaccination against cholera and other epidemic diseases, distribution of chlorine tablets and
other medicines to keep up the health and safety of the inhabitants above board and free from
cholera and other similar types of diseases.
(c) It shall be the duty of the State and its instrumentalities to educate not only the
inhabitants of the locality, but the members of the society to live with appropriate awareness
and to take all measures so that water and environment may not be polluted.
17. In the light of the above directions, the petition is disposed of. Respondents to pay the
costs of this petition to petitioner, which we quantify Rs. 1, 000/-.
18. Before parting with records of the case, we place on record our appreciation to Shri K.N.
Gupta and Shri A. M. Naik, Advocates who have rendered their valuable assistance by
inspecting the spot and placing their report on record.
Petition allowed.
Citizens of Bundi and Others v Municipal Board, Bundi and Others

JAIPUR BENCH
31 August 1987
Case Analysis
Bench G. M. LODHA
Where Reported 1987 Indlaw RAJ 156; AIR 1988 RAJ 132
Case Digest Subject: Civil Procedure; Practice & Procedure

Keywords: Public Nuisance
Summary: Constitution - Code of Civil Procedure, 1908, O.22 r.3
- Rajasthan Municipalities Act, 1959, ss.98, 101 -Auction of plots -
Easementary rights - Allotments - Enlightened citizens of 'B' filed
suits for protection of public park area of city 'B' - Municipal Board
started auctioning plots out of public park for construction of
shops as commercial proposition - Citizens felt deprived of
valuable amenities of public park - Civil litigation resulted in
contest between enlightened citizens and Municipal Board - Lower
Court detained that land used for play ground but no easmentary
right - First Appellate Court confirmed finding of Trial Court that
plaintiffs have right to file suit - Whether all places left out or
reserved by Semi-Govt. institutions can be deprived from status
of park from public place and land of that area can be sold.
Held, object appears to be that whenever a city or town or a
village develops and several persons start residing in that area,
they require some space in between for collective use under
contrast to individual occupation and for collective purpose. State
is to protect and safeguard public health and environments as per
Constitution. No hesitation in accepting it in interest of all
concerned including petitioners, because after all they are
interested in development of 'B' City and further adding to its
beauty and development. No hesitation in accepting that area
known as Chogan or Azad Park, last being latest nomenclature of
which is in dispute is a public place in which people of 'B' in
general have been exersising customery rights of recreation,
entertainments, games, meetings and public functions. Rights
would not be infringed by respondents in future except to extent
of marketing complex which has been provided by Municipality
which has been approved by Govt. in year 1973 as per site plan
produced in Court below. No further interference of any kind
would be made by respondents including municipal board or other

functionaries and permanent injunction prayed for in nature is
granted against respondents. Appeal dismissed.
M.C. Mehta And Anr v Union Of India And Ors.1986 Indlaw SC

259, (1987) SCC (L&S) 37, (1987) 1 SCC 395, 1987 (1) ACC 157,
AIR 1987 SC 1086, 1987 (3) CompLJ 99, JT 1987 (1) SC 1,
1986(2) SCALE 1188, [1987] 1 S.C.R. 819
L. K. Koolwal v State of Rajasthan and Others1986 Indlaw RAJ
129, AIR 1988 RAJ 2
Ganga Sahai v Suraj Prasad and Others1986 Indlaw RAJ 163, AIR
1986 RAJ 212
Bandhua Mukti Morcha v Union of India and Others1983 Indlaw
SC 192, (1984) 3 SCC 161, (1984) SCC (L&S) 389, AIR 1984 SC
802, 1984 CrLR(SC) 517, 1984 LabIC 560, 1984 (2) LLN 60,
[1984] 2 S.C.R. 67
1980 SC 1622, 1980 (6) ALR 601, 1980 CRLJ 1075, 1980
CrLR(SC) 543, [1981] 1 S.C.R. 97
Municipality of Taloda v Charity Commissioner and Others1967
Indlaw SC 221, AIR 1968 SC 418, 1968 (70) BomLR 332, 1968
MahLJ 435, 1968 MPLJ 318, [1968] 1 S.C.R. 652
Cases Citing this Case Smt. Pushpa v Municipal Council, Jodhpur and Others.
1999 Indlaw RAJ 201, AIR 2000 RAJ 85
All Gramwasi of Fatehnagar Nagarpalika v Nagarpalika,
Fatehnagar and Another.
State of Rajasthan and Others v Inhabitants of Bundi City
Legislation Cited Code of Civil Procedure, 1908

Code of Civil Procedure, 1908 O. 22 r. 3
Rajasthan Municipalities Act, 1959
Rajasthan Municipalities Act, 1959 s. 98
Rajasthan Municipalities Act, 1959 s. 101
JAIPUR BENCH
31 August 1987
Citizens of Bundi and Others
Municipal Board, Bundi and Others
Case No : Civil Second Appeals Nos. 156, 171 and 206 of 1980
Bench : G. M. LODHA
Citation : 1987 Indlaw RAJ 156, AIR 1988 RAJ 132
Summary : Constitution - Code of Civil Procedure, 1908, O.22 r.3 - Rajasthan Municipalities Act,
1959, ss.98, 101 -Auction of plots - Easementary rights - Allotments - Enlightened citizens of 'B'
filed suits for protection of public park area of city 'B' - Municipal Board started auctioning plots out
of public park for construction of shops as commercial proposition - Citizens felt deprived of
valuable amenities of public park - Civil litigation resulted in contest between enlightened citizens
and Municipal Board - Lower Court detained that land used for play ground but no easmentary
right - First Appellate Court confirmed finding of Trial Court that plaintiffs have right to file suit -
Whether all places left out or reserved by Semi-Govt. institutions can be deprived from status of
park from public place and land of that area can be sold.
Held, object appears to be that whenever a city or town or a village develops and several persons
start residing in that area, they require some space in between for collective use under contrast to
individual occupation and for collective purpose. State is to protect and safeguard public health
and environments as per Constitution. No hesitation in accepting it in interest of all concerned
including petitioners, because after all they are interested in development of 'B' City and further
adding to its beauty and development. No hesitation in accepting that area known as Chogan or
Azad Park, last being latest nomenclature of which is in dispute is a public place in which people of
'B' in general have been exersising customery rights of recreation, entertainments, games,
meetings and public functions. Rights would not be infringed by respondents in future except to
extent of marketing complex which has been provided by Municipality which has been approved by
Govt. in year 1973 as per site plan produced in Court below. No further interference of any kind
would be made by respondents including municipal board or other functionaries and permanent
injunction prayed for in nature is granted against respondents. Appeal dismissed.

Peoples development through ensuring "environmental purity" public parks, chowks, chogans,
play grounds wide streets, roads, squares, and public open spaces for community gardens,
physical exercises, games, festivals, meetings, functions are to be safeguarded for perpetual
public se and making them inalienable. Safeguards for them contained in constitutional
mandates of Arts.47, 48 and 51 and Municipal, U.I.T. Panchayat and easementary laws,
whether to be undermined and scrapped for commercial benefits of colonisers, housing
societies and even Municipalities or state authorities, is the pivot of legal debate in this "public
interest litigation".
2. These are three connected appeals Nos. 156/80, 171/80 and 206/80 in which the
enlightened citizens of Bundi in widen public interest for protecting a public park area of the
city of Bundi, have filed these suits. The Municipal Board started auctioning the plots out of the
public park for construction of shops as a commercial proposition. The citizens felt that they
are being deprived of the valuable amenities of public park where people gather for public
meetings, social religious and political and entertainment, etc., since last several years.
3. The civil litigation resulted in a contest between the enlightened citizens, who claimed that
the civil body should not auction this important, valuable and useful land of the public for
commercialisation and pecuniary benefits. The Municipal Board on the contrary contested both
factually and legally this proposition.
4. The finding of the lower court is that although meetings are held and land is used for play
ground etc., but there is no easementary right.
5. The first appellate court held that there must be an easementary right by prescription and
further the villagers right can be curtailed or altered. It was also held that the plaintiffs are
required to prove that they have been enjoying such rights since times immemorial without
any obstruction and interruption and as of right without taking permission.
6. The first appellate court held that it is true that religious meetings and political meetings
and entertainment programmes and games, etc., have been held in this Azad Park quite for
some time, but mostly with the permission of the Municipal Board. The court then held that so
far as games are concerned, the game of Gulli Danda or lavendar, etc., in the present age
cannot be said to create a just and proper right, because they do not add to the beauty or
progress of the city. It was then held that there are cabins on the road sides which are to be
removed and as only 1/30th part of the Azad Park would be utilised for it, it would not reduce
the major dimensions of the Azad Park nor it would reduce the substantial user of the Azad
Park for citizens. In view of the above, the first appellate court confirmed the finding of the
trial court on the relevant issues. Both the lower courts have said that the plaintiffs have a
right to file the suit.
7. During the pendency of the appeal some of the defendants have died and their legal
representatives have not been brought on record. In this respect applications have been filed
by the respondents on 30-10-1980. Mr. Sharma and Mr. Jain argued that the entire suit
abates, but I am of the opinion that in a dispute of this nature the citizens have challenged the
Municipal Board's interference in civic rights and the amenities, the suit as a whole can never
abate. It should not be forgotten that we are in an era where the Supreme Court has
repeatedly held that the doctrine of locus standi and further the old obsolete adversary system
of litigation of lis between the parties have undergone radical changes. The new era horizons
and dimensions of public litigation have been recently given still new dimensions by the
Supreme Court in 1986 Indlaw SC 259 (M.C. Mehta v. Union of India) where social action
litigation for compensation has been held to be maintainable even without formal suits. In para
5 their Lordships have held that the earlier view of Bandhua Mukti Morcha in 1983 Indlaw SC
192 also requires modification.
8. In Bandhua Mukti Morcha's case two Hon'ble Judges out of three held that letters addressed
to individual justices should not be entertained, and even in public interest litigation, they
must be addressed to the court or the Chief Justice and his companion Judges. This judgement
was followed by this court in a Full Bench case Ganga Sahai v. Suraj Prasad reported in 1986
RAJLR 550 : 1986 Indlaw RAJ 163.
9. The Constitutional Bench of five judges in Mehta's case (1986 Indlaw SC 259) (supra) held
as under :
"We do not think that it would be right to reject a letter addressed to an individual justice of
the court merely on the ground that it is not addressed to the court or to the Chief Justice and
his companion Judges. We must not forget that letters would ordinarily be addressed by poor
and disadvantaged persons or by social action groups who may not know the proper form of
address. They may know only a particular judge who comes from their State and they may
therefore address the letters to him. If the court were to insist that the fetters must be
addressed to the court or to the Chief Justice and his companion judges, it would exclude from
the judicial kena large number of letters and in the result, deny access to justice to the
deprived and vulnerable Sections of the community. We are therefore of the view that even if
a letter is addressed to an individual judge of the court, it should be entertained, provided of
course it is by or on behalf of a person in custody or on behalf of a woman or a child or a class
of derived or disadvantaged persons. We may point out that now there is no difficulty in
entertaining letters addressed to individual justice of the Court, because this court has a Public
Interest Litigation Cell to which all letters addressed to the Court or to the individual justices
are forwarded and the staff attached to this cell examines the letters and it is only after the
scrutiny by the staff members attached to this Cell that the letters are placed before the Chief
Justice and under his direction, they are listed before the court. We must, therefore, hold that
letters addressed to individual justice of the court should not be rejected merely because they
fail to conform to the preferred form of address. Nor should the court adopt a rigid stance that
no letters will be entertained unless they are supported by an affidavit. If the Court were to
insist on an affidavit as a condition of entertaining the letters, the entire object and purpose of
epistolary jurisdiction would be frustrated because most of the poor and disadvantaged
persons will then not be able to have easy access to the court and even the social action
groups will find it difficult to approach the court. We may point out that the court has so far
been entertaining letters without an affidavit and it is only in a few rare cases that it has been
found that the allegations made in the letters were false. But that might happen also in cases
where the jurisdiction of the Court is invoked in a regular way."
In this very judgement their Lordships observed in para 2 as under :-
"If this court is prepared to accept a letter complaining of violation of the fundamental right of
an individual or a class of individuals who cannot approach the Court for justice, there is no
reason why these applications for compensation which have been made for enforcement of the
fundamental right of the persons affected by the oleum gas leak under Art.21 should not be
entertained. The Court while dealing with an application for enforcement of a fundamental
right must look at the substance and not the form. We cannot, therefore, sustain the
preliminary objection raised by Mr. Diwan."
10. The judgement of M.C. Mehta's case (1986 Indlaw SC 259) (supra) thus not only expands
the horizons and dimensions of the public interest litigation by entertaining third party's
application for compensation without there being regular application for compensation by the
bereaved families or injured persons or adversely affected persons; but further by opening the
gates of the Supreme Court and other High Courts in entertaining letters addressed by
disadvantaged, disabled, women and children, etc., to Judges in their individual names, poor,
ignorant, downtrodden, sufferers of injustice have been allowed to enter "Temples of Justice"
without formal dress, flowers, rituals and chanting of mantras.
11. Obviously to this extent the Full Bench judgement of this Court stands impliedly overruled
and the Bandhua Majdoor Morcha's (1983 Indlaw SC 192) judgement on this particular specific
point watered down and modified.
12. That being so, so far as abatement question is concerned it would affect only those
particular defendants who died and whose legal heirs have not been brought on record and in
whose favour allotments of land have been made and permission granted but not the citizens
civic right as a whole.

13. I, therefore, hold that the suit would not abate as a whole, but it would abate against the
following persons who have expired and whose legal representatives have not been brought on
record :-
1. Respondent 4, Amir Chand.
2. Respondent 18, Gopal Das.
3. Respondent 2, Kodan Mal.
4. Respondent 40, Gopal Lal.
5. Respondent 10, Chandan Mal.
6. Respondent 46, Bhanwarlal.
14. Now corning to the merits of the case.
15. Mr. N.L. Jain and Mr. G.G. Sharma assisted by Mr. S.K. Jain argued that a public park can
only be declared under the provisions of Rajasthan Parks Act, 1956. According to them no
notification has been issued for this Azad park as a public park and, therefore, though in
common parlance it is known as a park which was earlier known as a Chogan park and later on
Azad Park, but it is not a park within the meaning of this Act No. 21 of 1956.
16. Mr. Rastogi on the contrary submitted that this Act is meant for those parks which are
guarded and maintained at the Government expense and not for those parks which are
guarded and maintained by the local Government institutions like U.I.T. or Municipal Board or
District Board or Panchayat, etc.
17. Now Sub-Sec. (2) of S.2 defines a park as under :-
"(2) 'Park' means any park or garden declared to be a public park under this Act as well as any
Zoo within any public park so declared."
18. Section 3 provides the procedure how a public park is to be declared. Section 4 is for
control and practice and function and duties of the Superintendent and S.5 prohibits the acts
which are not to be done. There are rules framed under it which are known as Rajasthan Public
Parks Rules, 1959. There is a schedule attached to these rules, which shows that 30 parks
have been declared as public parks and so far as Bundi is concerned, there is none.
19. The question which has been raised by Mr. N.L. Jain about the concept of a public park
under the law limited to the above Act raises a very important question of law, because
admittedly in Rajasthan there are hundreds of towns and villages which may run into
thousands where small areas are left apart by the Local Self Government Institutions like the
Municipal Board or District Board or U.I.T. or Housing Board or Panchayats for the purpose of
providing fresh air, ensure hygienic conditions and open land for the recreation of the children
for exercise, walking, community meetings and festivals, etc. Whether all such places left out
or reserved by the Semi-Government institutions can be deprived from the status of a park
from the public place and the land of that area can be sold at the whim, caprice or desire of a
particular person who happens to be a Sarpanch or Chairman or an Executive Officer or a
Secretary or Commissioner or other office bearer of that society, is certainly a matter which
requires much more extensive and intensive legal debate. Therefore, I would like to consider
the case as one of the public place, whether it is called a park or a Chogan or a street or a
path or a way or a chowk or square. Public place or an area of land left over by the local
authorities for the user of the community as a whole which may include any of the above
activities normally cannot be liquidated by the authority concerned on the ground of allotment
for houses or shops or Government Offices or commercial purposes.
20. The object appears to be that whenever a city or town or a village develops and several
persons start residing in that area, they require some space in between for collective use
under contrast to individual occupation and for collective purpose like games or meetings or
festivals and entertainments, etc.

21. It would be a dereliction of duty by the State if an interpretation is taken that only those
public parks which are declared to be such in the schedule would be treated as public parks
and in a State which is having a population of more than three crores that in so many cities,
towns and villages the public parks declared are only 32 and that too only is confined to eight
cities or towns, which means that in Rajasthan as a whole in this twentieth century, the urban
improvement and development has resulted in curtailing, limiting and reducing public parks
which were thousands and are thousands to only 30 and that too limited to 8 cities and towns.
I would not adjudicate it because for all intents and purposes from whatever I am going to say
hereafter it is avoidable and therefore should be avoided for some more serious legal debate
and adjudication.
22. In my opinion, whether a place is a park or a chowk or a public square is not very material
so long as under the provisions of either the Municipal Act or Panchayat Act or Easements Act
or any other law a citizen either himself or on behalf of the people of that area can legitimately
claim that the peaceful enjoyment of the amenities of the community as such hitherto enjoyed
by them should not be interfered with by anyone including the local authority or the State. The
provisions ensuring such peaceful enjoyment are common in various laws. The Municipal Law
expressly prohibits sale of public lands or streets or public places, and I have held it to be so in
the case reported in Kishna Devi v. Vishnu Mitra, 1982 AIR(RAJ) 281.
23. In support of this view Mr. Rastogi has placed reliance upon S.92 of the Municipal Act, and
Arts.47, 48 and 51-A of the Constitution, and the various decisions. The relevant extracts are
as follows :-
1. 1987 (1) RAJLR 334 : 1986 Indlaw RAJ 129, L.K. Koolwal v. State of Rajasthan.
2. AIR 1986 SC 180, Olga Tellis v. Bombay Municipal Corporation.
3. 1967 Indlaw SC 221, Municipalities Talodo v. The Charity Commissioner, Bombay.
4. 1980 Indlaw SC 164, Municipal Council, Ratlam v. Verdhichand.
5. 1984 AIR(NOC) 137 (Him Pra), Yogenderlal Sharma v. Municipal Corporation, Shimla.
24. My following observations may be noticed in Kishna Devi v. Vishnu Mitra, 1982 AIR(RAJ)
281, paras 13, 15 and 16 of which read as under :-
"I am in agreement with the submission of Shri Panwar that when civil Courts are required to
deal with the alleged encroachment on public streets, sanitary lanes, public roads, public
parks, or public chowks, which are always left open by the city planning authorities in order to
ensure property hygienic conditions about the light, air, sanitation then the civil Courts should
insist on enforcement of such public rights in which the people, as a whole are very much
concerned and affected. In those cases, individual rights should yield to public rights and
individual interested litigations should be treated as subsidiary and secondary and in a given
case yield to the public interest. In my view, this is solemn duties of the civil Court to protect
public rights and to come down heavily against the efforts sometimes even the public
authorities, who, on account of ulterior motives or vested interests or ignorance or corruption,
alienate the public health and public hygiene and public sanitation to vested interests of
individuals who purchase them on the strength of coins."
(15). "It is also a matter of regret and concern that even when the Urban Improvement Trust
has directed 5Ft. space at least, to be kept open, yet the first appellate Court has refused the
injunction as a whole."
(16). "As I am convinced that the first appellate Court has failed to consider material
documents consisting of Urban Improvement Trust's sub-division plan and affidavits of the
parties and the orders of Urban Improvement Trust and the provisions of the Municipal Act
regarding public streets. I am of the opinion that the impugned order should be set aside and
the first appellate Court should be directed to reconsider the entire matter again the dispose of
the appeal afresh after hearing the parties. The first appellate Court would be at liberty to
inspect the site in order to ascertain allegations of existence of a wall of Ramola Mohalla, which
is in contradictions to a public lane. In such matters of civil rights of people in the civil Courts
should not shirk responsibility of inspecting the site in order to appreciate the documents and
affidavits and to impart the effective, prompt and ready justice, which can inspire confidence
amongst the-litigants and the people as a whole. All said and done the administration of
justice and judiciary which has been assigned this sacred task should inspire confidence in
people as a whole for whom it exists in the net analysis of our federal Constitution, judiciary
exists for the people and not vice versa.
The State is to protect and safeguard public health and environments as per the Constitution
of India :-
Article 47 reads as under :-
"Duty of the State to raise the level nutrition and the standard of living and to improve public
health. The State shall regard the raising of the level of nutrition and the standard of living of
its people and the improvement of public health as among its primary duties and, in particular
the State shall endeavour to bring about prohibition of the consumption except for medicinal
purposes of intoxicating drinks and of drugs which are injurious to health."
II art. 48-A
"Protection and improvement of environment and safeguarding of forests and wild life. The
State shall endeavour to protect and improve the environment and to safeguard the forests
and wild life of the country ?
III Art.51 : "Fundamental duties - It shall be the duty of every citizen of India-"
"(g) to protect and improve the natural environment including forests, lakes, rivers and wild
life, and to have compassion for living creatures :
(i) to safeguard public property and to adjure violence"
The M. Board is trustee of such public property, as per the provisions of Rajasthan
Municipalities Act, 1959, which reads as under :-
Section 3(24) : "Public Place" means a space, not being private property which is open to the
use or enjoyment of the public whether such space is vested in the board or not;
Section 3(26) : ''Public Street' means any street"
Section 3(32) : " 'Street' means any road-bridge, foot-way lane, square, court, alley or
(Emphasis added)
passage accessible, whether permanently or temporarily, to the public or any portion of the
public, whether a thoroughfare or not, and includes on either side -"
Section 92(2) "Power to acquire and hold property - (1) Every board may acquire and hold
property both movable and immovable whether within or without the limits of the
municipalities."
(2) All property of the nature hereinafter in this Section specified and not being specially
reserved by the State Government shall vest in and belong to the board, and shall together
with all other property of whatsoever nature or kind not being specially reserved by the State
Government, which may become vested in the board, be under its direction, management and
control and shall be held and applied by it as trustee subject to the provisions and for the
purposes of this Act, that is to say -
Section 92(2)(a) :
"All public city or town walls, gates, markets, slaughter-houses, nature, night soil, deposits
and public buildings of every description, which have been constructed or are maintained by
our municipal fund;
(e). such Government lands within a municipality as the State Government may by general or
special order vest in the municipal board;
(f). ail public streets and the pavements, stones and other materials thereof, and also all trees
erections, materials, implements and things provided for such streets; and
(g). all Government buildings and all private lands building transferred to it by gift or
otherwise.
Section 98 : "Duties of boards - It shall be the duty of every board to make reasonable
provision for the following matters within the municipality under its authority namely :-
(c). Clearing public streets, places and sewers and a spaces, not being private property which
are open to the enjoyment of the public whether such spaces are vested in the board or not,
removing noxious vegetation and obtaining all public nuisances;
(g). removing obstructions and projections in public streets or places and in spaces, not being
private property which are open to the payment of the public, whether such spaces are vested
in the board or belong to the State Government." (Emphasis added)
Section 101 "Secondary powers of expenditure of Boards at their discretion provide out of the
municipal property and fund, either wholly or partly, for -
(b). constructing, establishing, maintaining, or contributing to the maintenance of public parks,
gardens", libraries, museums, reading rooms, radio receiving stations, lunatic asylums, halls,
officers, dharamshalas, rest houses, encamping grounds and other public buildings and
places :
The U. I. Trust also is required to protect public streets, Chowks etc. as per Rajasthan Urban
Improvement Act, Section 42, which reads as under :-
"Transfer to Trust, for purposes of scheme of building or land vested in Municipal Board :
Whether any building, or any street, square or other land or any part thereof which is vested
in Municipal Board, is required for executing any scheme, the Trust shall give notice
accordingly to the Chairman of such Board, and such building street, square land or part shall
thereupon vest in the Trust subject in the case of any building, to the payment to the said
Board of such sum as may be required to compensate it for actual loss resulting from the
transfer thereof to the Trust.
Section 43 :
(1). The State Government may, by notification in the Official Gazette and upon such terms
and conditions as may be agreed upon between it and the Trust, place at the disposal of the
Trust all or any improved and unimproved lands in the urban area for which the Trust has been
constituted and which may be vested in the State (known and hereinafter referred to as Nazul
lands) for the purposes of improvement in accordance with a scheme framed and sanction
under this Act.
Section 44. Transfer of private street or square to trust for purposes of scheme (1) Whenever
any street or square or part thereof which is not vested in the Municipal Board is required for
executing any scheme, the Trust shall cause to be affixed in a conspicuous place in or near
such street, square or part, a notice signed by the Chairman.
Section 45; Provision of drain or water work to replace another situated on land vested in the
Trust under S.42 or S.43 or S.44 - (1) When any building or any street, square or other land,
or any part thereof has vested in the Trust under S.42 or S.43, S.44 no drain or water work
therein shall vest in the Trust until another drain or waterwork as the case may be if required
has been provided by the Trust, to the satisfaction of the Municipal Board in place of the form
or drain or waterwork.
Section 50 : Vesting in Municipal Board of street laid out or altered and open spaces provided
by the trust under scheme - (1) whenever the Municipal Board is satisfied.
The following have also protected public rights in public land, Chowk, park etc. AIR 1983
(NOC) 56 (Kant) p. 28.
Head Note B "Karnataka Municipal Corporation Act, 1976 (14 of 1977) Ss.174 175 and 176 -
Land granted by Government to Corporation for public garden or public park. Lease of land by
Corporation in favour of another person or for purpose of construction of theatre for exhibition
or dramas. Lease is illegal."
1984 AIR(NOC) 137 (Him Pra) p. 63.
Head Note B. "Himachal Pradesh Municipal Corporation Act (9 of 1980) Section 252 Powers of
State Government - Government cannot order use of municipal property for purpose other
than for which it was meant. Held, directions of Government empowering Commissioner to
allow use of ladies Park for public meetings, melas, exhibitions etc. are liable to be set aside."
Head Note A "Constitution of India, Art.226 Locus standi petition by resident of Simla for
direction to Simla Municipal Corporation to perform its statutory functions. Held, petition is
maintainable since no other alternative remedy can be adequate and efficacious."
Rajasthan Panchayat Act equally protects public land :-
Section 2(7) 'Public land; or 'Common Land' means land which is not in exclusive possession
and use of any individual but is used by the inhabitants of a Panchayat Circle commonly".
Section 2(8) 'Public Street means any road, street, bridge, lane, square, Court, alley or
passage which the public has a right to pass along and includes the drains or gutters on either
side and the land up to the defined boundary of any abutting property not withstanding the
projection over such land of any verandah or other super structure".
Section 88. "Panchyat property - (1) Subject to such reservation as may from time to time be
made by the State Government all property of the nature hereinafter in this Sub-Section
specified shall vest in and belong to a Panchayat, that is to say :-
(i). all common lands laying within the pavement, stones and other materials thereof and all
trees, erctions materials and implements provided therefore.
(Emphasis added)
(ii). all public gates, markets, buildings, tanks reservoirs wells, bridges, culverts, tunnels,
gutters, water works, water courses, lamps and lamp posts which have been constructed or
provided for, or are maintained out of the Panchayat fund;
(iii). all Government buildings and all private buildings and lands transferred to the Panchayat
by gift or otherwise; and
(iv). all Government lands lying within the abadi area of the Panchayat Circle."
Section 88 Sub-S. (3).
"All properties mentioned in Sub-Ss. (1) and (2) shall be under the direction, management and
control of the Panchayat and shall be held by it as trustee for the purposes of this Act."
The Apex Courts have always protected public rights in public places. 1980 Indlaw SC 164
Head Note.
"Where there existed a public nuisance in a locality due to open drains, heaps of dirt, pits and
public excretion by humans for want of lavatories and consequential breeding of mosquitoes,
the Court could require the Municipality under S.133 of the Cr. P.C. and in view of S.123 of the
Municipalities Act to abate the nuisance by taking affirmative act on a time-bound basis.
When such order was given, the Municipality could not take the plea that notwithstanding the
public nuisance financial inability validly exonerated it from statutory liability, 1980 Jab LJ
135 Affirmed".
Para 2, S.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."
Para 9. "All power is at trust that we are accountable for its exercise that from the people, and
for the people, all springs, and all must exist." (1) Discretion becomes a duty when the
beficiary brings home the circumstances for its being exercised."
Para 12 "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 judicial 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 prafligate 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".
Para 15 "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 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 system 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".
Para 24 "We are sure that the State Government will make available by way of loans or grants
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 sayings
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 or desirable if responsible bodies are responsive to duties. Cappelletti holds
good for Indian when he observes :-
"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.
(Emphasis added)
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 wilt have 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."
1972 AIR(Raj) 103 :
Head Note A : "all the property of the nature specified in S.51 vests in the Municipality and is
under its control on the specific condition that it shall be held and applied by it for the
purposes of the Act. It is not open to the Municipality to convert a part of a public highway into
a bazaar.
The Board can discontinue or close permanently any public street under S.113 (b) but that can
only be done for the purpose of the Act. So also Board may grant permission to occupy any
part of a street temporarily under S.114 but that too only for the purposes specified in that
Section and not for setting up a stall.
When the Act does not empower the Municipality to let, out portions of public highway for
putting up stalls for carrying on business no bye-laws could BE FRAMED UNDER S.129
authorising the Municipality to do so."
Para 7 : "The argument is that as public highway vests in the Municipality and as power has
been given under S.113 (b) to the Municipality to discontinue or close permanently any public
street. It was open to it to let out a part of the public highway to the stall holders. This
contention was repelled by the learned single Judge and rightly so in our opinion. All the
property of the nature specified in Section 51 vests in the Municipality and is under its control
on the specific condition that it shall be held and supplied by it for the purposes of the Act. It is
not open to the Municipality to convert a part of a public high way into a bazaar.
(Emphasis added)
Para 12 : "There was slight change in the language of the provision vesting certain properties
in Municipality. Under S.48(2) these properties vest in and belong to the Municipality and be
under its direction, management and control. But it has been made clear that these properties
shall be held and applied by it as trustee subject to the provisions and for the purposes of the
Act. The addition of the words and belong to did not make any difference to the power of the
Municipality which it had under S.51 of the Bikaner Municipal Act. In the Rajasthan Town
Municipalities Act it was made clear that the properties are held by the Board as trustee and
are to be applied by it for purposes of the Act. The Rajasthan Town Municipalities Act, 1951
was replaced by the Rajasthan Municipalities Act, 1959, the corresponding provisions are
contained in Ss.92(2)(f), 161 and 163. The language of these Sections is the same as the
language of the corresponding Sections of the Rajasthan Town Municipalities Act, 1951."
Para 13 : "We may mention here that it was not the case of the Municipality that part of the
public streets on which the stalls stand were not required for the purpose of the streets and
were therefore, let out on Tehbazari. No resolution of the Ganganagar Municipality was
produced embodying such a decision in respect of either of the two public streets." (Emphasis
added)
25. In the present case, the Municipal Board also in the reply, though in a guarded manner,
indirectly accepted that the land which is now being called as Azad Park was earlier being
called as Chogan and further from 1944 onwards it was given the nomenclature of a Chogan
park by the State and now that Chogan park is called by them as Azad Park. All the above
extracted laws and case laws, principles clearly show that a public chowk land, square, Chogan
or park for public use, cannot be sold by Municipality for augmenting revenue or commercial
purposes, as has been done in the instant case.
26. Now let us look at the admissions. Para 3 reads as under :-
[Matter in Hindi Omitted Ed]
27. Then again in para 4, the following admissions have been made by the Municipal Board :
[Matter in Hindi omitted - Ed.]
28. If we read the above admissions of the Municipal Board along with the statement of
Advocate Shri Ramchand Saxena of Bundi, it would be clear that he is residing Bundi, from
1933 and since then he has been observing this park for the use of public purposes for
religious functions and meetings etc. Even Yagyas are performed in addition to these functions
and meetings. The Municipal Board itself has constructed a stage for this purpose. Kabadi is
played in addition to Gulli Danda etc. and he has himself played it. He is 51 years of age and
has been open Maidan without boundary known as Chogan Maidan and then construction of a
boundary around it and calling it as Azad Park.
29. As I have mentioned earlier, whether we call it Chogan, square or Maidan or a park is not
very material from the point of view of the present case, as they are different forms and
manifestations of the basic concept of public use, public utility and public place for public
purposes. The mere fact that for holding public meetings political parties obtain permission
from the Municipal Board and cannot in any way minimise or diminish its general customary
user for public purposes which are multi-Purpose and many-fold, some of which are admitted
above.
30. The suit was filed somewhere in 1973, and we have got specifically evidence of its public
place use in thirties specifically and much earlier generally. Even the Municipal Board itself has
not come out with the case of place being used for any other purpose or earmarked for any
purpose. The very fact that the compound wall was constructed by the Municipal Board with a
stage and the statute of the late Prime Minister Mr. Nehru has been unveiled there
corroborates that people of Bundi in general without any caste, creed, or religion, use it
customarily as public place and the Chogan name or Azad Park name are consistent with this
purpose.
31. However, in spite of the above findings, I would not like to disturb the constructions which
have been made and the allotments which have already been made before the injunction was
granted by this court. In order to enhance social justice, I would not like to disturb the
allotments made the competent authorities and the constructions made so far, so that those
persons who have been allotted land and have paid the amount should not be left high and
dry. This is more so because, as rightly pointed out by the Municipal Board, these allotments
have been made for the purpose of reducing congestion on the road which the persons having,
which were impediment in the traffic also and were spoiling the plan development of Bundi
City.
32. Mr. N.D. Jain appearing for the Municipal Board also submitted very frankly and fairly that
except implementing the scheme of the shopping centres which have already been provided in
the map or site plan duly approved by the town planner, the Municipal Board would not like to
disturb this Azad Park in any way detrimental to the people or to be used. I am glad that a
very fair and reasonable preposition has been put, and I have no hesitation in accepting it in
the interest of all concerned including the petitioners, because after all they are interested in
development of Bundi City and further adding to its beauty and development.
33. I have, therefore, got no hesitation in accepting all the three appeals and holding that the
area known as Chogan or Azad Park, the last being latest nomenclature of which is in dispute
is a public place in which the people of Bundi in general have been exersising the customery
rights of recreation, entertainments, games, meetings and public functions. These rights would
not in any manner be infringed by the respondents in future except to the extent of the
marketing complex which has been provided by the municipality and which has been approved
by the Government in the year 1973 as per the site plan produced in the Court below. No
further interference of any kind would be made by the respondents including the municipal
board or other functionaries and a permanent injunction prayed for in the nature is granted
against the respondents.
34. The parties would bear their own costs throughout. As mentioned above, the suit is
dismissed, so far as the defendants respondents No. 4 Amir Chand, No. 18 Gopal Das, No. 2
Kodanmal, No. 40 Gopal Lal, No. 10 Chandanlal, and No. 46 Bhanwarlal are concerned as
having been abated on account of their death.
Dr. Mahesh R. Desai and Others v Ahmedabad Municipal Corporation and

Another.
Gujarat High Court
AHMEDABAD
26 September 1984
Case Analysis
Bench A.P. Ravani
Where Reported 1984 Indlaw GUJ 89; AIR 1986 GUJ 154

Summary: Tort – Practice & Procedure – Constitution of
India,1950, art.226 - Nuisance - Damage – Obligatory duty -
Petitioner were belonging to relatively affluent section of society
and was carrying occupation within same locality - Petitioners
were suffering special damage on account of nuisance caused
by hawkers, hutment dwellers and others - Hence, instant
Petitions – Whether.
Held, necessary parties directly to be affected are not joined in
petition. There is allegation of encroachment on Public Street by
traders, hawkers and some businessmen as well as by hutment-
dwellers. If prayer made in petition is granted, persons to be
affected by act would be persons who are alleged to have
encroached upon public land. These persons are not parties before
Court. If averments made in petition are correct, same may cause
some hardship to locality. But on that count remedy is not by way
of petition u/art.226 of the Constitution. Unless it is shown that
there are circumstances and there are resources for making
provision for better living of hutment-dwellers and Municipal
Corporation is intentionally not sparing resources for development
of poorer session of society and funds at disposal of Municipal
Corporation are being squandered away in some other
unnecessary and useless activity, no purpose would be served by
calling upon Municipal Corporation to take action which would
definitely harm to lot of poor. Therefore, if prayer is granted, it
would affect fundamental right of citizens to live. Petition
dismissed.
Ratio – It is obligatory duty of Municipality to take measures to
abate nuisance caused in locality due to existence of open drains,
pits and public excretion by hutment dwellers for want of
lavatories.

1980 SC 1622, 1980 (6) ALR 601, 1980 CRLJ 1075, 1980
CrLR(SC) 543, [1981] 1 S.C.R. 97

Gujarat High Court
AHMEDABAD
26 September 1984
Dr. Mahesh R. Desai and Others
Ahmedabad Municipal Corporation and Another.
Case No : Special Civil Appln. No.2567 of 1984.

Bench : A.P. Ravani
Citation : 1984 Indlaw GUJ 89, AIR 1986 GUJ 154
Summary : Tort – Practice & Procedure – Constitution of India,1950, art.226 - Nuisance -
Damage – Obligatory duty - Petitioner were belonging to relatively affluent section of society and
was carrying occupation within same locality - Petitioners were suffering special damage on
account of nuisance caused by hawkers, hutment dwellers and others - Hence, instant Petitions –
Whether.
Held, necessary parties directly to be affected are not joined in petition. There is allegation of
encroachment on Public Street by traders, hawkers and some businessmen as well as by hutment-
dwellers. If prayer made in petition is granted, persons to be affected by act would be persons who
are alleged to have encroached upon public land. These persons are not parties before Court. If
averments made in petition are correct, same may cause some hardship to locality. But on that
count remedy is not by way of petition u/art.226 of the Constitution. Unless it is shown that there
are circumstances and there are resources for making provision for better living of hutment-
dwellers and Municipal Corporation is intentionally not sparing resources for development of poorer
session of society and funds at disposal of Municipal Corporation are being squandered away in
some other unnecessary and useless activity, no purpose would be served by calling upon
Municipal Corporation to take action which would definitely harm to lot of poor. Therefore, if prayer
is granted, it would affect fundamental right of citizens to live. Petition dismissed.
Ratio – It is obligatory duty of Municipality to take measures to abate nuisance caused in locality
due to existence of open drains, pits and public excretion by hutment dwellers for want of
lavatories.

The petitioners belong to a relatively affluent section of the society. Petitioner No. 1 is a doctor
and runs Dhanlaxmi Urological Hospital in the locality of Juna Wadaj area of city of
Ahmedabad. One of the petitioners is a Trustee of a public trust known as Mahirachand. S.
Raheja (Radhaswamiwala) Social Centre. All the petitioners reside and/or carry on their
occupation in the locality of Juna Wadaj. The petitioners have averred that they are suffering
special damage on account of the alleged nuisance caused by hawkers, hutment dwellers and
others. However, the petition has a camouflage of public interest litigation inasmuch as the
petitioners claim the relief by which all the residents of the locality may be benefited. In
substance, the petition provides an illustration as to how the concept of "Public interest
litigation" can be twisted, distorted and then misused so as to deprive the numerous citizens of
their right to exist.
2. By this petition, the petitioners pray that the nuisance caused on account of encroachment
on the public street by hawkers, petty traders and other businessmen be directed to be
removed and abated by the respondent-Municipal Corporation. It is further prayed that the
nuisance on account of emission of smoke, passing of urine on public street by the hutment
dwellers who are residing in this area, be also directed to be removed and abated. The
petitioners further pray that the effluent water of the gutter overflows in the open. This causes
serious traffic problems and as it emits foul odour, it causes considerable difficulties and
renders the life of the persons residing in the locality quite uncomfortable and this type of
nuisance should also be directed to be removed. It is contended that it is the obligatory duty of
the Municipal Corporation under S. 63 of the Bombay Provincial Municipal Corporation Act
(hereinafter referred to as "the Act") to take measures to see that the encroachment be
removed and nuisance which is being caused to the petitioners and other residents of the area
be also removed and abated and the locality be kept clean and in hygienic condition. The
petitioners also rely upon the provisions of S. 231 of the Act and submit that the powers
conferred upon the municipal authorities under S. 231 are the powers coupled with duty and
the duty is cast under S. 63 of the Act to perform certain obligatory functions. If the Municipal
Corporation fails to perform its duties, so runs the argument, this Court should direct the
respondent-Municipal Corporation by a writ of mandamus to perform its obligatory duties
irrespective of the humanitarian considerations and consequences to the poor people residing
in the area.
3. The petition is liable to be rejected firstly on the ground that necessary parties directly to be
affected are not joined in the petition. There is an allegation of encroachment on public street
by the traders, hawkers and some businessmen as well as by hutment-dwellers. According to
the petitioners, if the encroachment is removed and they are directed to conduct themselves in
a particular fashion, the nuisance will be removed and the Municipal Corporation should be
directed to take this step. If the prayer made in the petition is granted, the persons to be
affected by the act would be persons who are alleged to have encroached upon public land.
These persons are not parties before this Court. In above view of the matter and also for the
following reasons the petition cannot be entertained; (1) As to whether there is encroachment
or not is a question of fact and it is difficult to ascertain in a petition under Art.226, of the
Constitution as to who has caused encroachment. This cannot be determined without recording
evidence and without allowing the parties to lead evidence. Normally this Court would not
adopt this course in a petition under Art.226. (2) The persons who are alleged to have made
encroachment and who are alleged to be residing in hutments are not parties in this petition.
Without hearing them no order which may adversely affect them can be passed. It may be
that they may not have encroached upon public land and they might be residing on a private
land which may be open, or they might be residing on public land for a number of years which
might have ripened into a right to lawful possession and ownership. These are questions of
fact which cannot be decided by affidavits and in absence of parties who are alleged to have
made such illegal encroachment.
4. As far as obligatory duty of the Municipal Corporation is concerned and the contention that
the humanitarian consideration should not weigh with the Court while deciding the legal issue,
I am afraid, the argument cannot be accepted. The persons who are alleged to have made
encroachment on public street and who are doing their business by selling eatables or by
carrying on repairing work and the persons who are residing in hutments are also the citizens
of this country. In fact, they constitute a major section of our population. They are also
entitled to right to live and right to exist and they also can claim the protection of fundamental
rights. While interpreting laws and implementing the laws or giving direction to implement
laws, the Court cannot be oblivious of the constitutional mandate given in Part IV of the
Constitution. Nobody carries on business on road or on pavement in unsecured position by his
choice. No one would like to remain at the mercy of policemen and at the mercy of municipal
employees. It is the socio-economic condition of the country that in big cities considerable
population is forced to live in this condition and is forced to earn livelihood by putting hard
labour in unsecured position. It may be public street and for it may be an open land belonging
to somebody else. It is in respect of these persons that constitutional mandate is given in Art
38 of the Constitution which reads as under:-
"38. State to secure a social order for the promotion of welfare of the people. - (1) The State
shall strive to promote the welfare of the people by securing and protecting as effectively as it
may a social order in which justice, social economic and political shall inform all the institutions
of the national life.
(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour
to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but
also amongst groups of people residing in different areas or engaged in different vocations."
It is the duty of the State to promote welfare of the people so as to secure as effectively as it
may, a social order in which justice social, economic and political is involved. The Court, which
cannot promote welfare measures, would be extremely slow and reluctant to pass any order
by which the normal condition of the poor people which is not better than animal existence is
further worsened. If the Court does so, the Court would be doing something against the
mandate of the Constitution, Law cannot be implemented or no authority acting under the
statute can be directed to act in such a way that it acts against the socio-economic interest of
the people and adversely affects their rights to exist.
5. Reference may also be made to the provisions of Art. 39A of the Constitution which directs
the State to secure the operation of the legal system so as to promote justice on the basis of
equal opportunity. Justice can be promoted not by passing certain directions by which the
socio-economic condition of the poorer persons of the society is further deteriorated.
6. It is true that if the averments made in the petition are correct, the same may cause some
hardship to the locality. But on that count the remedy is not by way of petition under Art. 226
of the Constitution. It would be better if an opinion is created and the executive authorities
who are charged with the duty to look after the welfare of the people and who are charged
with other duties, determine the order of priority and be conscious of the fact that there are
degrading conditions and their lot requires to be immediately improved. The remedy lies in
making the concerned authorities conscious about these facts and forcing them to take
measures for uplifting the level of economic standard of the poor people and for making
alternative arrangement for them. Unless it is shown that there are circumstances and there
are resources for making provision for the better living of the hutment-dwellers and the
authority concerned, in this case Municipal Corporation is intentionally not sparing the
resources for the development of the poorer session of the society and the funds at the
disposal of the Municipal Corporation are being squandered away in some other unnecessary
and useless activity, no purpose would be served by calling upon the Municipal Corporation to
take action which would definitely harm to lot of the poor.
7. The decision of the Supreme Court in the case of Ratlam Municipality v. Vardhichand
reported in 1980 Indlaw SC 164 has no application to the facts and circumstances of this case.
In that case the Municipality did not take measures to abate the nuisance caused in a locality
due to existence of open drains, pits and public excretion by hutment dwellers for want of
lavatories. The Municipal Council pleaded the insufficiency of funds. The Supreme Court held
that in such cases, insufficiency of funds is no justification for inaction by the Municipal
Council. There was no question of conflict between fundamental rights of numerous citizens
(i.e. right to life and right to exist in at least sub-human conditions) and the statutory right of
another section of citizens to get the "nuisance" abated so that they can live comfortably in a
clean atmosphere. In the instance case if the prayer as sought for is granted, it would affect
the fundamental right of the citizens to live. Therefore, reliance on this decision of the
Supreme Court is of no help to the petitioners.
8. In view of the above, the petition is rejected with no order as to costs. Notice discharged.
Municipal Council, Ratlam v Shri Vardhichand and Others

29 July 1980
Case Analysis
Bench A.C. Gupta, P.N. Shingal
Where Reported 1980 Indlaw SC 164; (1980) 4 SCC 162; (1980) SCC (Cr) 933;
AIR 1980 SC 1622; 1980 (6) ALR 601; 1980 CRLJ 1075; 1980
CrLR(SC) 543; [1981] 1 S.C.R. 97
Case Digest Subject: Municipalities & Local Governments; Tort

Keywords: Madhya Pradesh Municipalities Act, 1961
Summary: CrPC, 1973, s. 133 - Madhya Pradesh Municipalities
Act, 1961, s. 123 - Constitution, art. 38 - Penal Code, 1860, s.
188 - Tort - Nuisance in a locality - Due to open drains, pits and
public excretion in absence of lavatories - Jurisdiction of the
Court to require Officers of Municipality to abate it - Held, Court
can requirethem by affirmative action on time-bound basis on
pain of punishment u/s.188 of IPC, 1860 - Petition Dismissed.

Gobind Singh v Shanti Sarup1978 Indlaw SC 84, (1979) 2 SCC
267, (1979) SCC (Cr) 444, AIR 1979 SC 143, 1979 CRLJ 59,
[1979] 1 S.C.R. 806
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2000 Indlaw MUM 518, AIR 2000 BOM 444, 2000 (3) MahLJ 624,
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1993 Indlaw MP 97, AIR 1994 MP 48, 1994 MPLJ 40
1993 Indlaw MPLJ 127
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1991 SCW 2082, JT 1991 (3) SC 172, 1991(2) SCALE 131, [1991]
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Manubhai Pragaji Vashi v State of Maharashtra and Others
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Citizens of Bundi and Others v Municipal Board, Bundi and Others
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1985 Indlaw MPLJ 251
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Kasani Narayana and Others v Government of Andhra Pradesh
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K. Sudarsan and Others v Commissioner, Corporation of Madras,
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1983 Indlaw MAD 321, AIR 1984 MAD 292
Akhila Bharatiya Grahak Panchayat v A. P. State Electricity Board
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S.P. Gupta v Union Of India & Anr.

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Fertilizer Corporation Kamgar Union (Regd.), Sindri and Others

v Union of India and Others
(42) FLR 192, 1980 LabIC 1367, 1981 (1) LLJ 193, 1981 (1) LLN
288, 1981(3) SCALE 1137, [1981] 2 S.C.R. 52
Legislation Cited Code of Criminal Procedure, 1973

Indian Penal Code, 1860
Madhya Pradesh Municipalities Act, 1961
29 July 1980
Municipal Council, Ratlam
Shri Vardhichand and Others
Case No : CIVIL APPELLATE JURISDICTION: Civil Appeal No. 691 of 1970. Appeal by Special
Leave from the Judgment and Order dated 12-8-1969 of the Mysore High Court in Civil Revision
Petition No. 1322 of 1967.
Bench : A.C. Gupta, P.N. Shingal
Citation : 1980 Indlaw SC 164, (1980) 4 SCC 162, (1980) SCC (Cr) 933, AIR 1980 SC 1622, 1980
(6) ALR 601, 1980 CRLJ 1075, 1980 CrLR(SC) 543, [1981] 1 S.C.R. 97
Summary : CrPC, 1973, s. 133 - Madhya Pradesh Municipalities Act, 1961, s. 123 - Constitution,
art. 38 - Penal Code, 1860, s. 188 - Tort - Nuisance in a locality - Due to open drains, pits and
public excretion in absence of lavatories - Jurisdiction of the Court to require Officers of
Municipality to abate it - Held, Court can requirethem by affirmative action on time-bound basis on
pain of punishment u/s.188 of IPC, 1860 - Petition Dismissed.
The Judgment was delivered by : A. C. Gupta , J.

1. 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.
2. 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 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'.
3. 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.
4. 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.
5. 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.
6. 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).
7. 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 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.
8. 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.
9. 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.'
10. 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.

11. On 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.
12. 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".
13. 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.
14. 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 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.
15. 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."
16. 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 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."
17. 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
18. 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.
19. This dirty Nallah affects the Mohalla of New 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. He issued the following order which was wrongly found unjustified by the Sessions Court,
but rightly upheld by the High Court: 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.
25. A notice u/s. 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.
26. Now that we have a hang of the case we may discuss the merits, legal and factual. If the
factual findings are goodand we do not re-evaluate them in the Supreme Court except in
exceptional casesone 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: 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. ?
27. 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.
28. 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 exercisethat, 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: 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.
29. 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.
30. 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 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.
31. S. 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.
32. 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.
33. 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.
34. 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) "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."
35. 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 systemsnot pompous
and attractive, but in working condition and sufficient to meet the needs of the peoplecannot
be evaded if the municipality is to justify its existence. A bare study of the statutory provisions
makes this position clear.
36. 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 timebound 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.
37. 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. S. 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.
38. 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."
39. 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. Luckily, no such contention was advanced before us.
40. 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."
41. 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.
42. 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.
43. 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 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.
44. 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 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.
45. We are sure that the State Government will make available by way of loans or grants
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.
46. 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."
47. Why drive common people to public interest action ? Where Directive Principles have found
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.
48. We dismiss this petition subject to the earlier mentioned modifications.
Petition dismissed.

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29/09/2018 Delivery | Westlaw India

Westlaw India Delivery Summary

Request made by : IP USER

Client ID: inapu-1

© 2018 Thomson Reuters South Asia Private Limited

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Nazmaben Saddambhai Shakarayani

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The Judgment was delivered by : J. B. Pardiwala, J.

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M.C. Mehta And Anr v Union Of India And Ors.1986 Indlaw SC

P. J. Irani v State of Madras1961 Indlaw SC 69, AIR 1961 SC

T. C. Basappa v T. Nagappa and Another1954 Indlaw SC 39,

AIR 1954 SC 440, 1954 SCJ 695, [1955] 1 S.C.R. 250

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Delhi High Court

Jaipur Golden Gas Victims Association

Union of India and Others

Case No : W.P.(C) 6415/2006

The Judgment was delivered by : HON'BLE JUSTICE MANMOHAN

2003 III AD (Delhi) 321.

26. The FIR lodged by the police reads as under :-

S. NO. NAME OF DATE OF DATE REMARKS

1. Duli Chand 05/05/2004 13/5/2004 Father of

2. Babu Lal 07/04/2004 12/04/2004 All persons

3. Raju S/O Anna 07/04/2004 08/04/2004

4. Jai Devi 07/04/2004 08/04/2004

5. Tejwati 07/04/2004 10/04/2004

6. Jitender S/o 07/04/2004 19/04/2004

7. Anil 08/04/2004 10/04/2004

8. Suman Chand 07/04/2004 08/04/2004

9. Tej Pal 07/04/2004 08/04/2004

10. Doli 07/04/2004 08/04/2004

11. Raju 07/04/2004 08/04/2004