GURU GOBIND SINGH INDRAPRASTHA

UNIVERSITY

ENVIRONMENT LAW ASSIGNMENT

BBA LLB (5TH SEMESTER)

Submitted To: Submitted By:

Dr. M Sakthivel Kanupriya Chawla

(01216503517)
 Municipal Council, Ratlam vs Shri Vardhichand & Ors

FACTS:

The residents(respondents) of New Road, Ratlam were victims of extremely inadequate basic
public sanitation facilities, fluid discharge of a local alcohol plant and overflow of storm
water to the street. This resulted in various types of septic fluids flowing openly and
constantly in the street, and consequently the street’s sanitation was extremely poor to the
point where the conditions were unlivable.

Resident of informal settlements sought to hold the Municipality(appellant) of Ratlam

accountable to its obligation to protect by ending a public health nuisance caused by pollution
discharged by a nearby alcohol plant and to its obligation to fulfil by providing sanitation
facilities aimed in part at reducing public health risks associated with waste collecting in
water near the residents homes. The complaints to the Municipality by the residentswere
disregarded,

the Respondents thereafter sought, and were awarded, an order from the Sub Divisional
Magistrate compelling the Municipality to construct an adequate drainage system to reduce
and manage septic and other liquid waste and DDT spraying to control the threat of Malaria,
all to be completed within specified time limits. In the Sessions Court, the Municipality
claimed its financial resources were inadequate to comply with the order; on this basis the
Magistrate’s order was set aside. The High Court upheld the Magistrates Order.

ISSUE

The main issue present in the case was whether by affirmative action a court could 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.
LEGISLATIONS

1. Article 38, The Constitution of India, 1950

Article 38(1) provides that the State shall strive to promote the welfare of the people by
securing and protecting social, economic and political justice.

The Constitution (44th Amendment) Act, 1978 insterted clause (2) in Article 38. It provides
that the State shall strive to minimize the inequalities of income and endeavour to eliminate
inequality in status, facilities and opportunities, not only amongst individuals, but also among
groups of people residing in different areas or engaged in different vocations. The new clause
aims at equality in all spheres of life.

Article 38 is a directive to the Government, and it reaffirms what has been declared in the
Preamble of the Constitution, viz., the function of the Republic is to secure, inter alia, social,
economic and political justice. Article 38 thus not only envisages legal justice, but also socio-
economic justice as well.

2. Article 47, The Constitution of India, 1950.

Article 47 imposes a duty upon the State to raise the level of nutrition and the standard of
living of its people and the improvement of public health. In particular, the State should bring
about prohibition of the consumption except for medicinal purposes of intoxicating drinks
and of drugs which are injurious to health.

Lately, the Supreme Court has read Articles 47 and 21 together, and has culled therefrom the
obligations on the State to provide better health services to the poor.
 3. Section 133, The Code of Criminal Procedure, 1973

This section provides for a rough and ready procedure to be used in urgent cases for removal
of public nuisances. The object behind Section 133 of the Code is to prevent public nuisance
and involves a sense of urgency in the sense that if the magistrate fails to take recourse
immediately irreparable damage would be done to the public. It applies when the nuisance is
in existence. No order duly made by a Magistrate under this section shall be called in
question in any civil court.

According to Section 12 of the Indian Penal Code, the word “public” includes any class of
the public or community; but that class must be numerically sufficient to be designated “the
public”. Therefore, if a particular individual or his family is only affected by the nuisance,
such nuisance cannot be considered to be a public nuisance and hence its removal from any
public place cannot be ordered under Section 133. It has been held that a place in order to be
public must be open to the public, i.e., a place to which the public have access by right,
permission, usage or otherwise.

4. Section 141, The Code of Criminal Procedure, 1973

Section 141 speaks of procedure on order being made absolute and consequences of
disobedience. The Section states that when an order has been made absolute under
section 136 or section 138, the Magistrate shall give notice of the same to the person against
whom the order was made, and shall further require him to perform the act directed by the
order within a time to be fixed in the notice, and inform him that, in case of disobedience, he
will be liable to the penalty provided by section 188 of the Indian Penal Code, 1860.

Further, if such act is not performed within the time fixed, the Magistrate may cause it to be
performed, and may recover the costs of performing it, either by the sale of any building,
goods or other property removed by his order, or by the distress and sale of any other
movable property of such person within or without such Magistrate’s local jurisdiction and if
such other property is without such jurisdiction, the order shall authorise its attachment and
sale when endorsed by the Magistrate within whose local jurisdiction the property to be
attached is found.
No suit shall lie in respect of anything done in good faith under this section.

5. Section 188, The Indian Penal Code, 1860

This Section provides for disobedience to order duly promulgated by public servant. It states
that whoever, knowing that, by an order promulgated by a public servant lawfully
empowered to promulgate such order, he is directed to abstain from a certain act, or to take
certain order with certain property in his possession or under his management disobeys such
direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or
injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, be
punished with simple imprisonment for a term which may extend to one month or with fine
which may extend to two hundred rupees, or with both

Further, 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.

6. Section 123, The Madhya Pradesh Municipalities Act, 1961

This 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:

XXX

(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
PETITINER ARGUMENTS:

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 spiraled up to the Court.

Ratlam’s municipality argued that,

1) the residents chose to live where there are no facilities, and

2) the authorities lacked the funds necessary to construct what was required to comply.

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 was contended 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.

Ratlam’s municipality that there were financial difficulties in the construction of drains and
provision of amenities also pleaded it.
It’s plea is that the facts are not 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 M. P. Municipalities
Act of 1961. These obligations include the provision of sanitary facilities and the prevention
of street contamination from a nearby alcohol plant. However, it has been contended that the
municipality does not possess the financial resources to fulfill this responsibility.

CLAIM OF RESPONDENTS:

Respondents alleged that the Municipality had failed to meet its obligations to provide for
public health including by failing to abate pollution and other hazardous waste from
impacting their homes.

Specifically, the Respondents sought a halt to pollution runoff from a nearby alcohol plant,
mitigation of open waste that collected in open cess pools and poorly drained areas,
mitigation of malaria resulting from standing water, and the creation of sanitary facilities to
prevent the flow of human waste into their neighbourhood.
DECISION OF THE COURT:

The Court held that the Respondents had standing in the matter. At the heart of the matter
was a public health issue and the legal responsibility for it. Standing was thus based on the
interests of social justice in Indian society referenced from the Constitution, particularly the
Preamble and Article 38.

In upholding the lower court’s decision in favour of the residents, the Supreme Court
considered the case in the context of collective rights and the public interest. It also took into
consideration substantive equality between wealthier and poorer residents of the municipality
and the obligation of municipal authorities to abate public nuisances.

In its reasoning the Supreme Court explained the situation: ‘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 well-to-do citizens protest, but the crying demand for basic
sanitation and public drains fell on deaf ears’.

The Court expressed its appreciation for the Magistrate’s decision to order the Municipality
to undertake action. The Court held that the power of the Magistrate under the Code of
Criminal Procedure s. 133, forms ‘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’.
The Municipality could therefore not extricate itself from its responsibility.

The Court furthermore held that the Municipality’s alleged financial inability does not take
away its liability. ‘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 their budgetary provision’.

The Court furthermore held that 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.’ Therefore, ‘providing
drainage systems – not pompous and attractive, but in working condition and sufficient to
meet the needs of the people – cannot be evaded if the Municipality is to justify its existence’.
The Supreme Court upheld the High Court’s view affirming the Magistrate’s order.

The Supreme Court ordered the Municipal Council to immediately abide by its obligation to
protect by halting pollution from the alcohol plant flowing into the community. It also
ordered the Council to immediately begin to take steps to meet its obligation to fulfil by
providing a sufficient number of public latrines for use by men and women separately, to
provide water supply and scavenging service morning and evening to ensure sanitation, and
required the Municipal authorities to meet this obligation within six months of the Court’s
order.

The Court added that if its order was not implemented municipal authorities could face
criminal sanctions as well as hold them in contempt of court. The Court also ordered the State
Government to give special instructions to the responsible body for malaria eradication to
stop the mosquito breeding in this area within a reasonable time.

The Court held that it had the authority to require the Municipal Council to adopt a specific
scheme toward meeting its obligations under the order. Justification for “affirmative action
on a time-bound basis” was on the basis of the severe circumstances, such as the significant
lack of managing malaria concerns. Therefore the Court was obliged to behave as more than
a mere “umpire” or ‘“adjudicator.”

The Court also held that the Municipality if resources were limited, it needed to prioritize
mitigation of such public health nuisances over low priority items and elitist projects, request
loans and grants from State Government, and use the savings in the area of public health
expenditures that will be realized by implementing the Court’s order.
ANALYSIS

Residents of a locality within limits of Ratlam Municipality tormented by stench and stink
caused by open drains and public excretion by nearby slum-dwellers moved the Magistrate
under S. 133 of the Criminal Procedure Code to require the Municipality to do its duty to
towards the members of the public. The Magistrate gave directions to the Municipality to
draft a plan within six months for removing of the nuisance. In the appeal, the Sessions Court
reversed the order. The High Court approved of the order of the Magistrate and subsequently
the case came before the Supreme Court.

The key issue raised before this court was whether by affirmative action a court could 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.

According to S. 123 of the M.P. Municipalities Act 1961, the Council had the duty to
undertake adequate provisions within its Municipality with regard to the cleansing of public
areas, disposing of rubbish and abating of all public nuisances.

However, the Municipality raised the contention that the municipal funds were insufficient
and therefore it could not carry out the duties under S. 123 of the Act. Notwithstanding the
public nuisance the financial inability validly exonerated it from the statutory liability.

The Court agreed that what could not be performed under given circumstances could not be
prescribed as a norm to be carried out. Therefore, it was willing to revise the order of the
Magistrate into a workable formula, the implementation of which would be watch dogged by
the court. It consequently made orders regarding the prevention of effluents flowing into the
street, the construction of a sufficient number of public latrines and construction of drains. It
expressed its confidence that the State Government would make available by way of loans or
grants sufficient financial aid to the Ratlam Municipality to enable it to fulfill its obligations
under this order. The Municipality would also slim its budget on low priority items and elitist
projects to use the savings on public health and sanitation. Thus, the court directed the
municipality to comply with the directions and held that the paucity of funds shall not be a
defence to carry out these basic duties

The court held that a responsible municipal council constituted for the precise purpose of
preserving public health and providing better finances could not run away from its principal
duty by pleading financial inability

This decision of the court distinctly laid down that ddecency and dignity were non-negotiable
facets of human rights and were a first charge on local self-governing bodies. Similarly,
providing drainage systems- not pompous and attractive, but in working condition and
sufficient to meet the needs of the people- could not be evaded if the municipality was to
justify its existence.