97

MUNICIPAL COUNCIL, RATLAM

v.

SHRI VARDHICHAND & ORS.

July 29, 19so

I

[V. R. KRISHNA IYER AND 0. CHINNAPPA REDDY· JJ.]

Code of Criminal Procedure 1973, s. 133 & M. P. Municipalities Act 1961,

s. 123-Municipa/ity not providing sanitary facilities and construction of public

conveniences for slum dwellers-Whether Courts

can compel municipal body

to carry

out its duty to the community to provide amenities and' abate

nuisance.

The residents

(r~spondents) of a prominent residential locality of the

A

B

c

Municipality (petitioner) in their complaint under s. 133 Criminal Procedure D

Code to the Sub-Divisional Magistrate averred that the Municipality had failed

despite several pleas, to meet its basic obligations, like provision

of sanitary

facilities on the roads, public conveniences for slum dwellers who were

using

the road for that purpose, and preventio~ of the discharge from the nearby

Alcohol Plant of maladorous fluids into the public street, and that the

Municipality was oblivious to the statutory obligation envisaged in

s. 123 M.

P.

Municipalities Act, 1961.

The Municipal Council contested the petition on the ground that the

owners of houses had gone to that locality on their own choice, fully aware

of the insanitary conditions and therefore they could not complain. It also

pleaded financial difficulties in the construction of drains and provision

ot

amenities.

The Magistrate found the facts

prove~, artd ordered the municipality to

provide the amenities and to abate the nuisance ·by constructing drain pipes

with flow of water to wash the filth and stop the stench

and that failure would

entail prosecution under

s. 188

I.P.C. ·

The order of the Magistrate was found unjustified by the , Sessions Court,

'but upheld by the High Court.

In the Special Leave

Petition by the Municipality to this Court on the

question whether a Court can

by

affirmative action compel a statutory body

to carry out its duty to the community by constructing sanitation facilities

at great cost and on a time-bound basis.

HELD : 1. Wherever there is a public nuisance, the presence of s. 133

Criminal

Procedure Code must be felt and any contrary opinicn is contrary

E

F

G

to the Jaw. [112D] H

2. The public power of the Magistrate under the Code is a public duty

to the members of the public who are victims

of the

nuisanc.i and so he shail

exercise, it when the jurisdictional facts arc present. [1070]

A

B

98 SUPREME COURT REPORTS [1981) 1 S.C.R.

3. The Magistrate's responsibility under s. 133 Cr.P.C. is to order removal

of such nuisance

within a time to be fixed

in the order. This is a public duty

implicit in the public power to be exercised on behalf of the public and pursuant

to a public proceeding. Failure to comply with

the direction will be visited

with a punishment contemplated by

s. 188

I.P.C. [109C-D]

4. The Municipal Commissioner or other executive authority bound by

the order under s. 133 Criminal Procedure Code shall obey the direction_

because disobedience, if causes obstruction or annoyance or injury to any

p~rsons lawfully pursuing their employment, shall be punished with simple

imprisonment or fine

as prescribed in the section. The offence is

aggrav~ted

if the disobedience tends to cause danger to human health or safety.

[109E]

5. Public nuisance, because of pollutants being d:ischarged by big factories

to the detriment of the poorer sections, is a challenge to the social justice

C component of the rule of law. [1

lOC] •

D

E

F

G

H

6. The imperative tone of s. 133 Criminal Procedure Code read with

the punitive temper of

s. 188

l.P.C. make the prohibitory act a mandatory

duty. [109~]

7. The Criminal Procedure Code operates against statutory bodies and

others regardless

of the cash in their coffers, even as human rights under

Part

III of the Constitution have to be respected by the Stai:e regardless of budgetary

provision. [108H] ,

8. Section 123 M. P. Municipalities Act 1961 has no saving clause when

the municipal council is penniless. [108H],

9. Although the Cr.P.C. and l.P.C. are of ancient vintage the new social

justice orientation imparted to them by the Constitution of India makes them

a remedial weapon of versatile use. Social Justice is due to the people and,

therefore, the people must qe able to trigger off the jurisdiction vested for their

benefit

in any public functionary like a Magistrate under s. 133 Criminal Procedure Code. In the exercise of such power, the judiciary must be informed

by the broader principle of access to justice necessitated by the conditions of

developing countries and obligated by Art.

38 of the Constitution.

[109F-G]

10. A responsible municipal council constituted for the precise purpose ot

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

l11cal self-

goveming bodies. Similarly, providing drainage systems :10t pompws 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.

[llOE]

l l. The Court, armed with the provisions of the two Codes and justified \.--

by the obligation under s. l 23 of the Act, must adventure into positive directions

as it has done in the present case. Section

133

Criminal Procedure Code

authorises

the prescription of a time-limit for carrying out the order. The

same provision spells out the power to give specific directives.

[lllA-B]

Govind

Singh v. S1zanti Sarup, [1979] 2 SCC 267, 279 referred to.

12. The state· will realise that Art. 47 makes it a paramount principle

of governance that steps are taken for the improvement of public health .as

amongst its' primary duties. The municipality also will 8lim its buJget on

•

.'.MUNICIPAL COUNCIL v. SHRI VARDHICHAND (Krishna Iyer. J.) 99

1ow priority items and elitist projects to use the savings oh sanitation and

public health.

[114C]

13. Where Directive Principles have found statutory expression in Do's

and Don'ts. the court will

not

sit idly by and allow municipal government to

become a statutory mockery. The law will relentlessly be enforced and· the

plea of poor finance will be poor alibi when people

in misery

cry for justice.

The dynamics of the judicial process have a new 'enforcement' dimension not

merely through some of the provisions of the Criminal Procedure Code (as

'here) but also through activated tort consciousness. The officers in charll,e

iand even the elected representatives will have to face the penalty of the law

if what the Constitution and follow up legislation direct them to do are defied

or denied wrongfully. J'he wages of violation is punishment, corporate and

::Personal. [114G-115A]

[The Court approved a scheme of construction work to be undertaken by

.the Municipality for the elimination of the insanitary conditions and directed

ihat the work be commenced within two months and that the Magistrate

'inspect the progress of the work every three months and ,see that it is

iimplemented.

[113 D-114 BJ

:CRIMINAL APPELLATE JURISDICTION: Special Leave Petition (Crl.)

A

B

c

No. 2856 of 1979. D

From the Judgment and O~der dated 6-8-1979 of the Madhya

Pradesh High Court in Crl. Revision No. 392/76.

Sobhag Mal Jain and S. K. Jain for the Petitioner.

C. S. Chhazed, Miss Manisha Gupta and M. S. Gupta for

Respondents

1-5.

S. K. Gambhir for the State.

The Order of the Court was delivered by

KRISHNA IYER, J.-'It is procedural rules', as this appeal proves,·

''which infuse life into substantive rights, which activate them to make

them effecHve'. Here, before us, is what looks like a pedestrian

quasi-criminal litigation under

s. 133 Cr.P.C., where the Ratlam

Municipality-the appellant-challenges the sense and soundness of

the

High Court's affirmation of the trial court's order directing the

.construction of drainage facilities and the like, which has spiralled up

to this Court. The truth is that a few profound issues of processual

jurisprudence of great strategic significance to our legal system face us

and we must zero-in on them as they involve problems of access to

justice for the people beyond the ·blinkered rules of 'standing' of British

.iindian vintage. If ·the centre of gravity of justice is to shift, as the

Preamble to the Constitution mandates, from the traditional

iindividualism 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

E

F

G

H

A

B

c

D

E

F

G

100 SUPREME COURT REPORTS [1981] 1 S.C.R.

a ward, is a path-finder in the field of people's involvement in the

justicing -process, sans which

as

Prot Sikes points out,(') the system

!may 'crumble under the burden of its own insensitivity'. The key

question

we have 'to answer is whether by affirmative action a court lean compel a statutory body to carry out its duty to the community

by constructing sanitation facilities at great wit and on a time-bound

basis. At issue

is the coming of age of

that branch of public law

bearing on community actions and the court's power to force public

bodies under public duties to implement specific plans in response to­

public grievances.

The circumstances of the case are typical and overflow the

par.ticular municipality and the solutions to the key questions emerging

from the matrix of facts are capable of universal application, especially·

in the Third World humanscape of silent subjection of groups of people·

to squalor and of callous public bodies habituated to deleterious:

inaction. The Ratlam municipal town, like many Indian urban centres,.

is populous with

1

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 cess-pools and filth

menacing public health. Ward No. 12, New Road, Ratlam town

is an area where prosperity and poverty live as strange bedfollows.

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 bask

sanitation and public drains fell on deaf ears. :Another contribmory

cause to the insufferable situation was the discharge from the Alcohol<

Plant of malodorous fluids into the public street. In this lawless

locale, mosqtiHoes 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 obliga.tions.

under s. 123 of the M. P. Municipalities Act, 1961 (the Act, for short).

That provision casts a mandate :

123. Duties of Council.-(1) In addition to the duties.

H 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-

(l)Melvyn P. Sikes, Administration of Injustice.

)

I __.._

MUNICIPAL. COUNCIL. v. SHRI VARDHICHAND (Krishna Iyer. J.) 101

undertake and make reasonable and adequate provision for the

following matters within the limits of the Municipality, namely:

xx xx xx

(b) cleansing public streets, places and sewers, and all places,

not being private :property, which are open to the enjoyment

of the public whether such places are vested in the Council

or not; removing noxious vegetation, and abating aU public

nuisances:

(c) disposing of

night-soil and rubbish and preparation of

compost manure from night-soil and rubbish.

And yet the municipality

was obvious to this obliga1ion towards

Jmman 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.

1to abate the nuisance

by ordering the municipality to construct drain pipes with

flow

of

wate~ to wash the1 filth and stop the stench. The Magistrate found

the facts proved, made the direction sought and scared

by the prospect

of prosecution under

s. 188

I.P.C., for violation of ·the order under

s. 133 Cr.P.C., the municipality rushed from court to court till, at

last, years after, it reached this Court as the last refuge of lost causes.

Had the municipal council and

its executive officers spent half this

litigative zeal on cleaning up the street and constructing the drains by

rousing the people's

sramdan resources and laying out the city's

limited financial resources, the people's needs might have been iargely

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 ~hettoes noisy

with squabbles among the slimy slum-dwellers nor with electoral

'sound and fury signifying nothing.'

The Magistrate, whose activist applica'tion of

s. 133

Cr.P.C., for

the larger purpose of making the Ratlani municipal body to do its duty

and abate ·the nuisance by affirmative action, has our appreciation.

He has summed up the concrete facts which may be usefully quoted

in portions :

"New Road, Ratlam, is a very important road and so many

prosperous and educated persons are living on this Road. On

A

c

E

F

.G

102

A

B

E

.F

·G

H

SUPREME COURT REPORTS [1981] 1 S.C.R.

the southern side of this Road some houses are· situated and

behind •these houses and attached to the College boundary, the

Municipality has constructed a road and this new Road touches

the Government College and its boundary. Just in between the

said area a dirty Nala

is flowing which is just in the middle of

the main road i.e. New Road.

In this stream (nala) many a

time dirty and filthy water of Alcohol Plant having chemical and

obnoxious smell, is also released for which the people of that

locality and general public have to face most obnoxious smell.

This Nala also produces

filtl;i 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. Thi~ water

also goes to nearby houses and causes harm to them.

For this

very reason the applicants and the other people of that

locaUty

are unable to live and take rest in their respective houses. This

is also injurious ·to health".

There are more dimensions to the environmental polluti011 which

the magistrate points

out:

"A large area of this locality is having slums where no facility

of lavatories

is supplied by the municipality. Many such

people live in these slums who relieve their lateral dirt on the

bank of drain or on the adjacent land. This way an open latrine

is created by these people. This creates heavy dirt and

mosquitoes. The drains constructed in other part of this Mohalla

are also not proper it does not

flow the water properly and

it creates the water obnoxious. The Malaria Department of the

State of M.P. also pays no attention in this direction. The

non­

applicants have not managed the drains, Nallahs and Naliyan

properly and due to incomplete construction the non-applicants

have left no outlet for the rainy water. Owing to above reasons

the water. is accumulated on the main road, it passes through

living houses, sometimes snakes and scorpions come out and this

obstruct the people to pass through this road. This also causes

financial loss to the people of this area. The road conslructed

by Nagarpalika is on a high level and due to this, this year more'

1

. MUNICIPAL COUNCIL v. SHRI VARDHICHAND (Krishna Iyer, J.j 103

water entered the houses of this locality and it caused this year

more harm and loss

to the houses also. This way all works done

by the non-applicants i.e. construction of drain, canal and

road come within the purview of public nuisance. The

non­

applicants have given no response to the difficulties of the

applicants, and non-applicants are careless in their duties towards

the public, for which without any reason the applicants are facing

the intolerable nuisance.

In this relation the people of this

locality submitted their returns, notices and given their personal

appearance also

·to the non-applicants but the non-applicants are

shirking from their responsibilities and try to avoid their duty by

showing other one responsible for the same, whereas all the non­

applicants are responsible for the public nuisance."

Litigation is traumatic and so the local people asked first for muni­

cipal 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

~hich 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 dosed 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

ll1anner and use such means so that the

mosquitoes may be eradicated completely from the said Iocality."

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

c

D

E1

order against non-applicants No. 1 and 2 u/s 133 of Cr. P.C~ (Old H

.Code). In this 'order all the nuisances were described (which were

there in their main application) and the court dire<:J:ed to• remove·

104 SUPREME. COURT REPORTS [1981] 1 S.C.R.

A all the nuisances within 15 days and if the non-applicants have

any objection or dis-satisfaction against the order then they must

file it on the next date of hearing in the

court."

B

c

D

E

F

G

xx xx xx

"The applicants got examined the following witnesses in their

evidence and after producing following documents they closed their

evidence."

xx xx xx

"No evidence has been produced by the non-applicants in spite

of giving them

so many opportunities. Both the parties heard

and I have also inspected the

site."

xx xx. xx

"The non-applicant (Municipal Council) has sought six times

to produce evidence but all in vain. Likewise non-applicant

(Town Improvement Trust) has also produced no evidence."

The Nallah comes into picture after the construction of road

and bridge.

It has shown that Nallah is property of Nagarpalika

according to Ex.p.

10. Many applications were submitted t"

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 t"

attract the attention of Municipal Council and the Town

Improvement Trust but the non-applicants always tried to throw

the responsiHility on one another shoulder.

xx xx xx

It is submitted by non-applicant (Municipality) that the said.

Nallah belongs to whom, it

is

still disputed i.e. whether it belongs

to non-applicant

1 or 2. Shastri Colony is within the area of

Town Improvement Trust. The Nagarpalika (non-applicant No. 1)

is financially very weak. But Municipal Council is not careless

towards its duties.

Non-applicant (Town Improvement Trust) argued that primary

1

responsibility lies with the Municipal Council only. There is no "r

drainage system.

At the end of it all, the Court recorded :

H ............... after considering all the facts I come to this

conclusion that the said dirty Nallah

is in between

tl~e main road

of Ratlam City. This dirty Nallah

affects the Mohalla of New

-----------------

I

)

i

}\,

MUNICIPAL COUNCIL v. SHRI VARDHICHAND (Krishna Iyer. J.) 105

Road, Shastri Colony, Volga Talkies and it is just in the heart

-0f the city. This is tae v~.y 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 caus~s the obstruction to

the pedestrians.

xx xx· xx

It is also proved by the evidence given by the applicants that

from time to time the Power Alcohol factory which is situated

outside the premises of the Municipal Council and

it flows its dirty

.and filthy water into the said Nallah, due to this also the obnoxious

-smell is spreading throughout the New Road or so it is the bounden

duty of the Municipal Council and 1he Town Improvement Trust

to do the needful in this respect.

xx xx· xx

The dirty water which flows from the lavatories and urinals

<lf 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 saicl

locality:

In this area many a places have no drainage system and if

there is any drain it has no proper flow and water never passes

through the drain properly.

That causes the accumulation of water

and by the time it becomes dirty and stink and then jt produces

_

mosquitoes there.

The Magistrate held in the end :

Thus after perusing the evidenfe 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

applic~nts have taken no steps. whatsoever to remove ·all these

public nuisances.

.

He issued the following order

wWch was wrongly found unjustified

by the Sessions Court, but rightly upheld by the High Court :

A

' '

B

c

D

E

F

G

H

A

B

c

D

E

F

G

H

106 SUPREME COURT REPORTS [1981] 1 S.C.R.

-----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:

0) 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 be•tween 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) Accordipg

10 para 13 a few places are described which

are either having the same drains and the other area is having n<>

drain and due to this the water stinks there; so the Municipal

Council and the Town Improvement Trust must r.onstruct the ·

proper drainage system and within their own premises where i\iere

is no drain it must be constructed i=ediately and all this work

should be completed within six months.

(3) The Municipal Council should construct drains from the /)ail 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 channe!lised and it may stop

stinking ana it should have a proper flow so that the water may

go easily towards the main Nallah.

All these drains should be

constructed completely within six months by the

•Municipal

Council. ·

· (4) The places where the pits are in existence the same should · ·

be covered with ·mud so that the water may not accumulate in

those pits and it may not breed mosquitoes. The Municipal

Council must complete this work within two months. -

A notice under Section 141 of the Criminal Procedure Code

(Old Code) may be issued to the non-applicants Nos.

1 and 2 so

that all the works may be carried out within the stipulated period.

Case is hereby finalised.

Now that we have a hang of

,the case we may discuss the merits,

legal and factual. If the factual findings are good-and we do not

re-evaluate them in the Supreme Court except in exceptional

cases­

one wonders whether our municipal bodies are functional irrelevances,

banes rather than booms and 'lawless' by long neglect, not leaders of · the people in local self-government. It may be a cynical obiter of

pervasive veracity that municipal bodies minus the people and plus the

bureaucrats are the bathetic

vogue-no better than when the British

were here:

1

(

(

L.

•·

MUNICIPAL COUNCIL v. SHRI VARDHICHAND (Krishna Iyer, /.) I 0 7

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 obsolve the municipality from the court's

directive under

s. 133 Cr.P.C. ? That provision reads:

A

s. 133(1) whenever a District Magistrate or a Sub-Divisional

B

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

tie 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

c

D

E

fixed by the order, and show cause, in the manner F

hereinafter provided, why the order should not be made

absolute.

So the guns of s. 133 go into action wherever there is public

nuisance. The public power of the Magistrate under the Code

is a

public duty to the members of the

public who are victims of th5

nuisance, and so he shall exercise i:t when the jurisdictional facts are

· present as here. "All power is a trust-that we are accountable for

its exercise-that, from the people, and for the people, all springs, and

all must exist."(

1

) Discretion becomes a duty when the beneficiary

brings home the circumstances for its benign exercise.

G

If the order is defied or ignored, s. 188 I.P.C. comes into

penal H

play:

(I) Vivian Grey, Bk. VI Ch. 7, Benjamin Disraeli.

8-646 S.C. India/80

ios SUPREME COURT REPORTS [1981] 1 s.c.R..

A 188. Whoever, knowing that, by an order promulgated by a

B

c

D

E

F

G

H

public servant lawfully empowered to promulgate such order, he

is directed to obtain from a certain act, or to take certain order

with certain property in

his possession or under

his management,

disobeys such direction ·

and if such disobedience causes or tends to cause danger to

human life health or safety, or causes or tends to cause a riot or

affray, shall be punished with imprisonment of either description

for a term which may extend

to six months, or with fine which may

extend to one thousand rupees, or with both.

There is no difficulty in

locating who has the obligation to abalte

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

I

matters within the limits of the MunicipaHty, namely: -

(a) ................ ..

(b) cleansing public streets, places and sewers, and all places

not being private property, which are open to the

enjoyment of the public whether such places are vested

in the Council or not; removing noxious vegetation, and

abating all public nuisances; •

(c) disposing of night-soil and rubbish and preparation of

compost manure from night-soil and rubbish.

The statutory setting being thus plain, the municipality cannot

extricate itself from

its responsibility. Its

plea is not that the facts are

wrong but that the law is not right because the municipal funds being

insufficient

it cannot carry out the duties under s. 123 of the Act. This

'alibi' made us

issue notice to the State which is now represented by

counsel, Shri Gambhir, before us. The plea of the municipality that

notwithstanding the public nuisance financial inability validly exone'rates

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

' MUNICIPAL COUNCIL v. SHRI VARDHICHAND (Krishna Iyer, J.) l 09

statutory body or pachydermic governmental agency may legally defy

duties under the law by urgirig in self-defence a self-created bankruptcy

Qr perverted expenditure budget. That cannot be.

Section 133. Cr.P.C. is categoric, although reads discretionary.

Jm;licial discretion when facts for its exercise are present, has a

mandatory import. Therefore, when t)le 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 remove.d

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,

trigg<;red by

the jurisdictional facts. The Magistrate's responsibility under

s. 133 Cr.P.C. is to order removal of such nuisance within a time to be fixed

in the order. This is a public duty implicit in the public power to be

exercised on behalf of the public and pursuant to a public proceeding.

Failure to comply with the direction

will be visited with a punishment

contemplated by

s. 188

l.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 ill the Section. The offence is aggravated if the dis·

obedience tends to cause danger to human health or. safety. Tho

imperative tone of s. 133 Cr.P.C. read with the punitive temper ot

s. 188 I.P.C. make the prohibitory act a mandatory duty.

Although these

two Codes are of ancient vintage, the new social

justice orientation imparted to them by the Constitution of India makes

it a remedial weapon of versatile use.

Social justice is due to tho

people and, therefore, the people must be able to trigger off the

jurisdiction vested for their benefit in any public functionary like. a

Magistrate under

s. 133

Cr.P.C. In the exercise of such power, the

judiciary must

be informed by the broader principle of access to justice

necessitated by the conditions of developing countries and obligated by

Art.

38 of

the Constitution. This brings Indian public law; in its

processual branch, in lipe with the statement of Prof. Kojima: (I) "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

)

(') Access to Justice Vol. 1, A

·world Survey,' ed. by M. Cappelletti & 'B'.

Garth, p. 68.

(2) I bid p. 68·69.

B

c

D

E

F

'

G

H

I

B

c

D

E

F

G

H

110 SUPREME COURT REPORTS [1981] J S.C.R.

"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 tnust

be retained.

"Access to justice" must encompass both

. forms of procedural justice."

Public nuisance, because of pollutants being discharged by big

factories

to the detriment of the poorer sections, is a challenge to the

social justice component of the rule of

law. Likewise, the grievous

failure of local authorities to provide the basic amenity of public

conveniences drives the miserable slum-dwellers

to ease in the streets,

on the

sly for a time, and openly thereafter, because under Nature's

pressure, bashfulness becomes a luxury and dignity a difficult

art. A

responsible municipal council constituted for the precise purpose.

of

preserving public health and providing better finances cannot run away

from its principal duty by pleading financial inability. Decency and

dignity are non-negotiable facets of human rights and are a first charge

on local self-governing bodies. Similarly, providing drainage systems­

not pompous and a'ttractive, but in working condition and sufficient to

meet the needs of the people-<annot be evaded if the municipality is

to justify its existence. A bare study of the statutory provisions makes

this position clear.

In this view, the Magistrate's approach appears to be impeccable

although in places

he seems to have been influenced by the fact that

"cultured and educated people" live in this area and "New Road,

Ratlam" is a very important road and so many prosperous and educated

persons are living

on this road. In India 'one man, one value' is the

democracy of remedies and rich or poor the law will call

to order where

people's rights are violated. What should also have been emphasised

was the neglect of the Malaria Department of the

State of Madhya

Pradesh

to eliminate mosquitoes, especially with open drains, heaps of

dirt, public excretion

by humans for want of lavatories and slums

nearby, had created an intolerable situation for habitation. An order

to abate the

~uisance by taking affirmative action on a time-bound basill

is justified in the circumstances. The nature of the judicial process

is not purely adjudicatory nor is it functionally that of an umpire only ..

··~.

..,,,,

MUNICIPAL COUNCIL v. SHRI VAltDIIlCHAND (Krishna Iyer, J.) 11·1

Affirmative action to make the remedy effective is of the essence of

the right which otherwise becomes sterile. Therefore, the court, armed

with

the

provisions of the two 'Codes and justified by the obligation

under

s. 123 of the Act, must adventure into positive directions as it

has done in the present case. Section

133

Cr.P.C. authorises the

prescription of a time-limit for carrying out the order. The same

provision spells out the power

to give specific directives. We see no

reason to disagree with the order of the Magistrate.

The High Court has taken a correct

view and followed

the

observations of this Court in Govind Singh v. Shami Sarup(l) 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 workin.1t 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

appein-s, 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 sii: 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.

I."

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.

(I) [1979) 2 S.C.C. 267 at 269.

A

B

c

D

E

F

G

H

A.

B

c

D

E

F

G

SUPREME COURT REPORTS · [1981] 1 S.C,R.

Luckily, no such contention was advanced before us. The request

for further time for implementation

o1 the Magistrate's order was

turned down by the High

Court since no specific time-limit was accepted

by the municipality for fulfilment 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 snon as

possible had no meaning. The High Court observed: . .

"Such assurances, it appears, are of no avail as tmfortunately

these proceedings for petty little things like clearing of dirty water,

dosing the pits and repairing of drains have taken more than seven

years and if these seven years are not sufficient to dc:i the needful,

one could understand that by granting some more time it could

not be done."

The High Court was also right in rejecting the Additional Sessions

Judge's recommendation to quash the Magistrate's order on the

impression that

s. 133

Cr.P.C. did not provide for enforcement of civic

rights. Wherever there is a public nuisance, the presence of

s. 133 Cr.P.C. must be felt and any contrary opinion is contrary to the law.

In short, we have no hesitation in upholding the High Court's view

of the law and affirmation

of

the Magistrate's order.

Before

us the major endeavour of the municipal council was

to

persuade us to be pragmatic and not to force impracticable .orders on

it since it had no wherewithal to execute the order. Of course, we

;agree that law is realistic and not idealistic and what cannot be

performed under given circumstances cannot be prescribed as a norm

to be carried o_ut. 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_prfority. Nevertheless,

we are willing to revise the order into a workable formula the

implementation of which would be watch-dogged by the court.

Three proposals have been put forward before

us in regard to the

estimated cost of the scheme

as directed by the Magistrate. The

Magistrate had not adverted

to the actual cost of the scheme nor the

reasonable time that would

be taken tb execute it. As stated earlier

it is necessary to ascertain how far the scheme i's feasible and how

heavy the cost

is

lik-ely 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.

H . . Three schemes placed before us, together with. tentative estimates

of the costs, have been looked in'o by us. Judges are laymen 'aha

cannot put on expert airs. That was why we allowed. the municipality

l

:: ;~!J!'IIGH';AL COUNCIL y. SHRI', YARDHICIMND (Krishna .Iyer, /.) 113

and the respondents to produce before us schemes prepared by expert

engineers

so that we may modify the directions issued by the Magistrate

suitably.

Scheme 'A' is stated to cost an estimated 'amount of Rs. 1.016

crores. The State Government has revised this proposal and brought

down the cost.

In our view, what is important is to see that the worst

aspects of the insanitary conditions are eliminated, not that a showy

scheme beyond the means of the municipality must be undertaken and

half done. From that angle

we approve scheme 'C' which costs only

around Rs. 6 lakhs.

We fix a time limit of one year for completing

execution of the work according to that scheme.

We further direct

that the work shall be begun within two months from to-day and the

Magistrate shall inspect the progress of the work every

three months

br:oadly to be satisfied that the order is being implemented bona fide .

. Breaches will be visited with the penalty of s. 188 1.P.C.

We make the further supplementary directions which we

specifically enjoin upon the municipal authority and the State

Government to · carry · out.

1. We direct the Ratlam Municipal Council (RI) 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.

8. 133 I.P.C., to abate the nuisance so caused. Industries

can:not 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 bv me·n

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 th.at 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 neglecteq 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 coritenied to file a teportbefore him to the effect

thai the work has been done in reasonable time ..

.:r :1. 4. The municipality .wiU :notmerely constrµct the ,.c,lraigs but also

fill up c'esspoois 'and other pits of filth an,d use Its sanitary

B

c

D

E

F

G.

H

A

B

c

D

E

F

G

H

114 SUPREME COURT REPORTS [19811 i s.c.R.

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 wilful breach by any officer.

We are sure that the State Government wili make available by

way of loans or grants sufficient financial aid to the Ratlam Municipality

to enable

it to fulfil its obligations under this order. The State will realise that Art. 47 makes it a paramount principle of

governance that steps are taken 'for the improvement of public health

as amongst its primary duties'. The municipality also will slim its

budget on low priority items and elitist projects to

use the savings

on sanitation and public health. It is not our intention that the ward

which has woken up to its rights alone need be afforded these elementary

facilities.

We expect all the wards to be benefited without

litigation. The pressure of the judicial process, expensive and dilatory,

is neither necessary nor desirable if responsible bodies are responsive

to duties. Cappelletti holds good for India when he observes: (

1

)

"Our judicial system has been aptly described as follows :

Admirable though it may be, (it)

is at once slow and costly.

It

is a finished product of great beauty, but entails an immense

sacrifice of time, money and talent.

This

"beautiful" system is frequently a luxury; it tends to give a

high quality of justice orily when, for one reason or another, parties

can surmount the substantial barriers which it er<:cts t0 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 cfficers in charge and even the elected representatives will have

(I) Access to Justice-A World Survey, Vol. I, ed. M. Cappelletti & B.

Garth, p. 123-124.

l

MUNICIPAL COUNCIL v .. SHRI VAROHICHAND (Krishna Iyer, J.) 115

to face the penalty of the law if what the Constitution and follow-up A

legislation direct them to do are defied or denied wrongfully. The

wages of violation is punishment, corporate and personal.

We dismiss this petition subject to the earlier mentioned

modifications.

N.V.K. Petition dismissed.

B