RESPONSE OF HIGH COURTS TOWARDS PUBLIC NUISANCE

vis-à-vis ENVIRONMENTAL PROTECTION

(Term paper towards fulfillment of the assessment in the subject of Environmental Law)

Submitted By: Submitted To:

Mridul Gupta Ms. Mononita Kundu Das
Roll No. 411 Faculty of Law
Semester – VII (UG)

National Law University, Jodhpur

Summer Session
(July – November 2009)
 Page |2

TABLE OF CONTENTS

S Particulars Page
No. No.
1. Research methodology 3
2. Introduction 5
3. Public Nuisance: Provisions Under IPC And CrPC 6
4. Air Pollution 8
 PC Cherian v. State of Kerela 8
 K. Ramakrishnan and Anr. v. State of Kerala and Ors. 10
5. Noise Pollution 12
 Bankelal Gupta v. Anand Saxena 12
6. Polluter Pays Principle 14
 Indian Asthama Care Society and Anr. v. State of Rajasthan and Ors. 14
7. Precautionary Principle 16
 Sujatha v. Prema
8. Water Pollution 18
 Siromani Mittasala, Chairman, Paryavarana Parirakshaka Parishad v. 18
President, Brindavanam Colony, Welfare Association
9. Conclusion 20
 Page |3

RESEARCH METHODOLOGY

Subject: Environmental law

Area: Public nuisance

Topic: Response of High Courts towards public nuisance vis-à-vis environmental protection.

Research questions

a. What are the statutory provisions dealing with public nuisance and remedy for the same?
b. What are the judicial remedies available before the High Courts in cases of public
nuisance causing environmental pollution?
c. What are the judicial precedents and how the High Courts have met out justice in cases of
public nuisance vis-à-vis environment?

REFERENCES

Books
1. Shyam Diwan & Armin Rosencranz, Environmental Law And Policy In India (Oxford
University Press, New Delhi, Second edn., 2004)
2. CM Jariwala, Environment and Justice (APH Publishing Corporation, 2004 edn.)

Cases

Subhash Kumar v. State of Bihar AIR 1991 SC 420.........................................................................4

K.K. Kochuni v. State of Madras, AIR 1959 SC 725............................................................................4
Vallikadar Assainar v. P.K. Moideenkutty1999 Cr L.J. 4228..........................................................5
Municipal Council Ratlam v. Vardhichand AIR 1980 SC 1622......................................................6
 Page |4

Gobind Singh v. Shanti Swarup AIR 1979 SC 143...........................................................................6

State of M.P. Vs. Kedia Leather and Liquor Ltd AIR 2003 SC 3236.............................................6
PC Cherian v. State of Kerela1981 Ker LT 113................................................................................7
Ram Autar v. State of U.P AIR 1962 SC 1794..................................................................................8
K. Ramakrishnan and Anr. v. State of Kerala and Ors. AIR1999Ker385......................................9
Shantistar Builders v. Narayan Khimalal Totame AIR 1990 SC 630...................................................10
Bankelal Gupta v. Anand Saxena 2008CriLJ1772..........................................................................11
R.L. & E. Kendra, Dehradun v. State of U.P. MANU/SC/0043/1985...........................................12
Indian Asthama Care Society and Anr. v. State of Rajasthan and Ors. RLW2008(1)Raj742.....13
Sujatha v. Prema 2005CriLJ3262......................................................................................................15
Vellore Citizens Welfare Forum v. Union of India and Ors MANU/SC/0686/1996...................15
A.P. Pollution Control Board v. Prof. M.V. Nayudu MANU/SC/0032/1999...............................16
Siromani Mittasala, Chairman, Paryavarana Parirakshaka Parishad v. President, Brindavanam
Colony, Welfare Association 2002(2)ALT356............................................................................17
Venkatappa v. Louis ........................................................................................................................17
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INTRODUCTION

A public nuisance may be defined as an unreasonable interference with the general right of the
public. Because a public nuisance interferes with a public right it is not tied to interfere with the
enjoyment and use of property; and remedies against public nuisance are therefore available to
every citizen.1

Judicial remedies before the High Court

1. High Courts derive power under article 226 of the Constitution of Indian to issue writs in
the nature of mandamus, certiorari or prohibition in cases of public nuisance w.r.t
environmental pollution. The Supreme Court in the case of Subhash Kumar v. State of
Bihar2 interpreted Article 21 to include the right to a wholesome environment.
The court may also issue directions and orders to vindicate the petitioner’s rights. The
court may issue declaratory relief3, issue an injunction or quash the impugned action
without recourse to a specific writ.
a. A mandamus would lie against a municipality that fails to construct sewers and
drains, clean streets and clear garbage.
b. A state pollution control board may be compelled to take action against an industry
discharging pollutants beyond permissible level.
2. Public interest litigations to deal with public grievances over human right violations.
3. Section 4824 of the CrPC – inherent powers of High Court.
4. Revisions and appeals under CrPC and CPC.

1
Shyam Diwan & Armin Rosencranz, Environmental Law And Policy In India (Oxford University Press, New
Delhi, Second edn., 2004) p. 112
2
AIR 1991 SC 420
3
K.K. Kochuni v. State of Madras, AIR 1959 SC 725
4
482. Saving of inherent power of High Court.
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders
as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any court or
otherwise to secure the ends of justice.
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PUBLIC NUISANCE: PROVISIONS UNDER IPC AND CrPC

Section 268 of the Indian Penal Code defines public nuisance as

Public nuisance:--A person is guilty of a public nuisance who does not act or is guilty of an
illegal omission which causes any common injury, danger or annoyance to the public or to the
people in general who dwell or occupy property in the vicinity, or which must necessarily cause
injury, obstruction, danger or annoyance to persons who may have occasion to use any public
right.
A common nuisance is not excused on the ground that it causes some convenience or advantage.

However the penalty provided in cases of public nuisance, for which punishment is not provided
elsewhere is merely Rs. 200 under section 2905 of the IPC. For instance in cases where public
nuisance is caused by loud and continuous noises that affect human health and comfort of those
dwelling the neighborhood, the penalty would be merely Rs. 200. Hence making a complaint
under section 190 of the CrPC before the magistrate to initiate prosecution under section 290
would be rendered useless.
Here an independent, speedy and summary remedy is provided by section 133 of the CrPC. This
section empowers a magistrate to pass a conditional order for removal of a public nuisance
within a fixed period of time.

Scope of section 133, CrPC

However it is important to note that the section uses the words ‘conditional order’ to denote a
preliminary order. In the case of Vallikadar Assainar v. P.K. Moideenkutty6 the Kerela High
Court held that the order may be made final only after giving the opposite party sufficient
opportunity to be heard. It was held that an order closing a polluting factory is illegal where no
conditional order was first issued.7
5
290.     Punishment for public nuisance in cases not otherwise provided for: -- Whoever commits a public
nuisance in any case not otherwise punishable by this Code, shall be punished with fine which may extend to two
hundred rupees.
6
1999 Cr L.J. 4228
7
CM Jariwala, Environment and Justice (APH Publishing Corporation, 2004 edn.) p. 134
 Page |7

Furthermore the Supreme Court in the case of Municipal Council Ratlam v. Vardhichand8
interpreted the language of section 133 to impose a mandatory requirement on the magistrate to
issue a conditional order rather that a discretionary one as the section appears to suggest.

However the magistrate may not pass a final order which exceeds the conditional order in scope.
In the case of Gobind Singh v. Shanti Swarup9 the conditional order requireda baker to demolish
within 10 days an oven and chimney that emitted smoke injurious to the health and physical
comfort of the people living in the proximity. In the final order the magistrate went beyond the
conditional order and completely prohibited the baker from carrying on his trade. The Supreme
Court found the final order far too broad and narrowed its scope to require the baker to demolish
the oven and chimney within a month. The baker was allowed to practice his trade.

Have special laws repealed section 133

A misgiving in the judiciary that the special legislations like the Water (Prevention and Control
of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 have
impliedly repealed, Section 133 of the CrPC was cleared by the Supreme Court in State of M.P.
Vs. Kedia Leather and Liquor Ltd10. It was held: “While as noted above the provisions of Section
133 of the Code are in the nature of preventive measures, the provisions contained in the two
Acts are not only curative but also preventive and penal. The provisions appear to be mutually
exclusive and the question of one replacing the other does not arise”

8
AIR 1980 SC 1622
9
AIR 1979 SC 143
10
AIR 2003 SC 3236
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AIR POLLUTION

PC Cherian v. State of Kerela11

Factual background
i. A preliminary order passed by the Sub Divisional Magistrate against the petitioner in Cr.
R.P. No. 284 of 1978 under Section 133 of the Code stated that information had been
received that the petitioner was engaged in mixing rubber with carbon on a voluminous,
scale in his factory, that the buildings in which the mixing operations were being carried
out were not adequately ventilated, with sufficient devices to prevent the carbon black
from escaping into the atmosphere, that in the absence of precautionary measures the
carbon black spread in the atmosphere and used to get deposited in the neighbouring
locality, where there are a large number of residential houses and a Church very close to
the factory.
ii. The petitioner was required to stop the carbon mixing process on or before 23-3-1978 or
to appear before the Court on the same day and show cause why the order should not be
enforced. A similar order was passed against the petitioner in Cr. R.P. No. 328 of 1978.
Both the petitioners filed objections.

Environmental issue involved

The Kerela HC considered whether carbon particles (‘carbon black’) emitted from two rubber
factories amounted to an actionable nuisance under section 133 of CrPC.

Judgment and reasons

Adducing of evidence
Although the petitioners denied that their factories were responsible for the deposit of carbon
black in the neighbourhood, there are documents produced which clearly make out a case of
pollution at their instance. There is also evidence that the petitioners undertook to defray the
expenses incurred by the St. Joseph's Church for removal of the carbon deposits on the walls of

11
1981 Ker LT 113
 Page |9

the Church. In the face of the above evidence the findings in the two cases that carbon black was
emanating from the factories of the petitioners contaminating the atmosphere and was causing
deposits of carbon in the neighbourhood.

Dissemination of carbon particles causes public nuisance

It was the contention of the petitioners that carbon has no toxic effect on human body and
dissemination of carbon is not a public nuisance. The court held that it is sheer common sense
that if the atmosphere gets contaminated with carbon particles, visible or invisible there is every
risk that they would get themselves deposited on the bodies, and get into the respiratory organs
of the people residing in the neighbourhood.
The Supreme Court remarked in Ratlam Municipality v. Vardhichand12:
"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."
The court opined that to hold that the deposit of carbon black in the instant cases is a public
nuisance; it need not necessarily be a hazard to the health of the people.
There is no scope for doubt that deposit of carbon black on the clothes of the residents which
make them soiled, and their deposit on food articles would cause annoyance to their owners.
An argument raised by the petitioners was based on the decision in Ram Autar v. State of U.P.13,
that the stoppage of work of the factories would deprive the workers thereof their means of
livelihood. The court held that this decision has no application in the present cases because the
danger that the general public outweighs the advantage in the form of jobs for a few persons and
that too under threat of hazards to their own health.
Hence the High Court upheld the order of the Magistrate
However it was left open to the petitioners to restart the work of service mixing of carbon after
introducing gadgets or equipments which would prevent dissemination of carbon black into the
atmosphere.
The Criminal Revision Petitions were accordingly dismissed.

12
AIR 1980 SC 1622
13
AIR 1962 SC 1794
 P a g e | 10

K. Ramakrishnan and Anr. v. State of Kerala and Ors.14

Factual Background
There was a petition filed highlighting the public health issue of the dangers of passive smoking
and in which prayers were made to declare that smoking of tobacco in any form, whether in the
form of cigarette, cigar, beedies or otherwise in public places is illegal, unconstitutional and
violative of Article 21 of the Constitution of India; issue a writ in the nature of mandamus or
such other writ commanding the respondents to take appropriate and immediate measures to
prosecute and punish all persons guilty of smoking in public places treating the said act as
satisfying the definition of 'public nuisance' as defined under Section 268 of the Indian Penal
Code.

Judgment and reasons

The court while discussing the ill effects of smoking made the following observations:
1. Around one million people die every year in India from tobacco-related diseases,
according to the Indian Medical Association. Cigarette smokers have been proven to have
a 70 per cent higher chance of dying earlier than non-smokers
2. Nonsmokers involuntarily inhale the smoke of nearby smokers, a phenomenon known as
passive smoking [environmental tobacco smoking (ETS)]. Wives, children and friends of
smokers are a highly risk-prone group. Inhalation of sidestream smoke by a non-smoker
is definitely more harmful to him than to the actual smoker as he inhales more toxins.
This is because sidestream smoke contains three times more nicotine, three times
more tar and about 50 times more ammonia. Passive smoking (because of smoking by
their fathers) could lead to severe complications in babies aged below two.
3. It was pointed out that in India hospital admission rates are 28 per cent higher among the
children of smokers. These children have acute lower respiratory infection, decreased
lung function, increased eczema and asthma and increased cot deaths.
4. For non-smokers, the major source of carbon monoxide is from passively inhaled
cigarette smoke. According to a 1998 report of the American Health Association, quoted

14
AIR1999Ker385
 P a g e | 11

by the judges, there are nearly 40,000 deaths caused by the effects of passive smoking in
the U.S. every year.
5. Because of lapses on the part of the authorities concerned in creating awareness of the
dangers of passive smoking innocent people are unwittingly made to inhale noxious
environmental tobacco smoke (ETS) and consequently became victims of various deadly
diseases.
6. A wide meaning should be given to the expression 'life' to enable a man not only to
sustain life but to enjoy it in a full measure. The sweep of right to life conferred by
Article 21 of the Constitution is wide and far-reaching so as to bring within its scope the
right to pollution free air and the right to decent environment.15

Order
Public smoking of tobacco in any form whether in the form of cigarettes, cigars, beedies or
otherwise, is illegal, unconstitutional and violative of Article 21 of the Constitution of India. The
District Collectors of all districts of the State of Kerala were directed to promulgate an order
under Section 133 (a) CrPC, prohibiting public smoking within one month from the date of the
order and direct the Director General of Police to issue instructions to prosecute all persons
found smoking in public places by filing a complaint before the competent magistrate.
Tobacco smoking in public places falls within the mischief of the penal provisions relating to
"public nuisance" as contained in the Indian Penal Code and also the definition of "air pollution"
as contained in the statutes dealing with the protection and preservation of the environment, in
particular the Air (Prevention and Control of Pollution) Act, 1981.

15
Shantistar Builders v. Narayan Khimalal Totame AIR 1990 SC 630
 P a g e | 12

NOISE POLLUTION

Bankelal Gupta v. Anand Saxena16

Factual Background

1. On 3-3-05, the respondents Nos. 1 and 2, made a complaint before S.D.M., Tahsil,
Huzur, District Rewa to the effect that the flour and oil mills, being run in a densely
populated area, were causing nuisance to the public at large as not only the dust and
obnoxious smell emanating from the crushing machine and the oil spill were creating an
adverse effect on the health of people living in the vicinity but were also formidable
sources of noise-pollution.
2. Taking cognizance of the alleged public nuisance, the S.D.M. issued notice to the
petitioners. In reply, they submitted that the mills were in operation for a period of more
than 7 years and none of the other inhabitants of the locality was, in any way, aggrieved
by the running of the mills there. According to them, it was due to a personal grudge only
that their neighbours-respondents Nos. 1 and 2, had made a false complaint.
3. After giving opportunity to parties, SDM, directed petitioners remove or close mills
which caused nuisance. Against SDM's order the appellant filed revision petition which
was dismissed. Hence the present petition

The appellants raised the following contentions

(i) The impugned proceedings under Section 133 of the Code were absolutely unwarranted, as
only some of the members of the locality were having problem with the operation being carried
out in the mills for a considerable period of more than 7 years.
(ii) The area, where these mills were installed, was not notified as a residential area exclusively.
(iii) The Revenue Inspector in his spot inspection report had categorically mentioned that the
operation of the mills was not causing any discomfort.

16
2008CriLJ1772
 P a g e | 13

(iv) Most of the witnesses produced by the complainants/respondents Nos. 1 and 2, In support of
the allegations made, were not the residents of the locality.

Judgment and reasons

Regarding the first contention the court pointed out that the flour mill was installed in the year
1998, whereas the oil mill was commissioned in the year 2005 and the complaint was made by
the respondents Nos. 1 and 2 on 3-3-2005 only.
Further, the fact the nuisance was objected to by a comparatively smaller number of neighbours
also had that no bearing on its nature. In the case of R.L. & E. Kendra, Dehradun v. State of
U.P.17, the Supreme Court has already held that a complaint by only one person would not
change the nature of nuisance.
Learned Additional Sessions Judge had referred to the report dated 17-5-05 wherein Regional
Officer of M.P. Pollution Control Board, Rewa, had indicated that the noise level was more
than the standard prescribed. It was in this report only that he had proposed an appropriate
action for removal of public nuisance. Hence, the contention that the entire locality had not
raised objection against the nuisance had no merit or substance.

Regarding the contention by counsel for the petitioners questioning the correctness of report of
the Regional Officer on the ground that it was not clarified as to whether the level of noise had
increased due to running of the mills or on account of heavy vehicular traffic passing through the
adjoining Highway, the court stated that it would not be possible to examine these technical
aspects of the matter at this juncture. The fact remains that running of the mills is not only in
violation of the M.P. Noise Pollution Control Rules, but is also causing discomfort to some
of the residents of the same locality.

Hence the petition was dismissed.

17
MANU/SC/0043/1985
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POLLUTER PAYS PRINCIPLE

Indian Asthama Care Society and Anr. v. State of Rajasthan and Ors.18

Facts
1. Finding sachets of Gutkha, Tobacco and Pan Masala lying scattered at public places, the
petitioners have approached this Court with the request to invoke 'The Pollutor pays
Principle'19 and impose fine on the manufacturers of Gutkha, Tobacco and Pan Masala.
2. Petitioners urged that sachets are made of plastic which is one of the major toxic
pollutants, therefore the respondents No. 3 to l5 and other manufacturers of Gutkha,
Tobacco and Pan Masala should be restrained from selling their products in sachets. The
contention of respondents No. 3 to l5 however is that no pollution is being caused by the
sachets.

Pollution from plastic

1. The major chemicals that go into the making of plastic are highly toxic and pose serious
threat to living beings of all species on earth. Some of the Constituents of plastic such as
benzene and vinyle chloride are known to cause cancer
2. Recycling of plastic is associated with skin and respiratory problems, resulting from
exposure to and inhalation of toxic fumes, especially hydrocarbons and residues released
during the process. The recycled plastic degrades in quality and necessitates the
production of more new plastic to make the original product.
3. Plastic waste clog the drains and thus hit especially urban sewage systems. The plastic
waste being dumped into rivers, streams and seas contaminate the water, soil, marine life
and also the very air we breathe. Choked drains provide excellent breeding grounds for
disease causing mosquitoes besides causing flooding during the monsoons.

18
RLW2008(1)Raj742
19
The "pollutor pays principle" implies that the absolute liability to harm the environment extends upon the pollutor
not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. The
principle provides that where the environment has been damaged/degraded on account of pollution, the pollutor
would be liable to compensate the individual sufferers and to pay the cost of restoring the damaged ecology.
 P a g e | 15

4. Plastic bags and other plastic garbage thrown into the ocean kill as many 1 million sea
creatures every year.

In view of the above observations the court came to the conclusion that public nuisance, because
of plastic pollution to the detriment of the people, is a challenge to the social justice component
of the rule of law.

Directions issued:
(i) The Chief Secretary, State of Rajasthan, within two months from date of order, shall get the
sachets of Gutkha, Tobacco and Pan Masala (sold and consumed in Rajasthan) examined by
Forensic Science Laboratory and to enquire as to whether sachets contain plastic material.
(ii) If the FSL report discloses that the sachets contain plastic material, the respondents No. 3 to
l5 and other manufacturers shall pay pollution fine to the Chief Secretary as follows:
________________________________________________________
Turnover of unit for the period Amount of fine
from 1-4-2006 to 31-3-2007
_________________________________________________________
Upto Rs. 1,00,000/- Rs. 30,000/-
Between Rs. 1,00,000/- and 3,00,000/- Rs. 60,000/-
Between Rs. 3,00,000/- and 10,00,000/- Rs. 1,50,000/-
Between Rs. 10,00,000/- and 50,00,000/- Rs. 7,00,000/-
Between Rs. 50,00,000/- and Rs.l Crore Rs. 12,00,000/-
and more
_________________________________________________________
(iii) The respondents No. 3 to 15 and other manufacturers of Gutkha, Tobacco and Pan Masala
are restrained from using plastic material in the sachets of Gutkha, Tobacco and Pan Masala.

(iv) The respondents No. 3 to 15 and other manufacturers shall comply in letter and spirit the
provisions contained in the Cigarettes and Other Tobacco Products (Prohibition Advertisements
and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 which
came into force w.e.f. February 11, 2007.
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PRECAUTIONARY PRINCIPLE

Sujatha v. Prema20

Facts
1. Respondents are conducting a tyre reconditioning unit by name and style "City Tyres" in
situated in a residential area and very close to the residential house of petitioner causing
serious health hazardous to the members of the family of the petitioner, she approached
the SDM, Alappuzha for an appropriate order to stop the functioning of the Unit.
2. The Sub Divisional Magistrate passed a conditional order under Section 133 of the Code
of Criminal Procedure to stop the functioning of the unit and even after giving ample
opportunities respondents failed to adduce evidence or to prove that satisfactory Air
Pollution Control measures as stipulated by the Pollution Control Board were taken,
made the conditional order absolute under Section 138 (2). Respondents challenged that
order before the Sessions Court.
3. The learned Additional Sessions Judge holding that it is for the petitioner to adduce
evidence in support of the claim that there is nuisance, set aside the order of the Sub
Divisional Magistrate and remitted the case back to the Sub Divisional Magistrate.
4. Hence the present petition filed under Section 482 of the Code challenging that order.

Contention of the Petitioners

The onus of proof is on the respondents to show that the functioning of the Unit does not cause
any air pollution or nuisance and the burden was wrongly cast on the petitioner and though Sub
Divisional magistrate properly appreciated the facts, the order was set aside without any basis
and therefore the order of the learned Sessions Judge has to be quashed.
Judgment and reasons
The court cited the Precautionary Principle and the Polluter Pays Principle envisaged by the
Apex Court in Vellore Citizens Welfare Forum v. Union of India and Ors.21,

20
2005CriLJ3262
21
MANU/SC/0686/1996
 P a g e | 17

The "Precautionary Principle - in the context of the municipal law - means:

The "onus of proof" is on the actor or the developer/industrialist to show that his action is
environmentally benign.
The law has been further widened and emphasised in A.P. Pollution Control Board v. Prof. M.V.
Nayudu22, The Apex Court held:-
..the said "precautionary principle" in its turn, has led to the special principle of burden of proof
in environmental cases where burden as to the absence of injurious effect of the actions
proposed, -- is placed on those who want to change the status quo. This is often termed as a
reversal of the burden of proof, because otherwise in environmental cases, those opposing the
change would be compelled to shoulder the evidentiary burden, a procedure which is not fair.
Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a
less polluted state should not carry the burden of proof and the party who wants to alter it,
must bear this burden.

In light of the above judgments it was held that the burden is definitely on the respondents to
establish that the functioning of the Unit is not causing any nuisance as alleged by the petitioner
and shown by the report of the Environmental Engineer. The finding of the learned Additional
Sessions Judge that the burden is on the petitioner is not correct. In view of the Precautionary
Principle and the onus of burden as laid down by the Apex Court, the finding of the learned
Additional Sessions Judge was set aside and the Sub Divisional Magistrate directed to dispose
the case in accordance with law expeditiously.

22
MANU/SC/0032/1999
 P a g e | 18

WATER POLLUTION

Siromani Mittasala, Chairman, Paryavarana Parirakshaka Parishad v. President,

Brindavanam Colony, Welfare Association23

Facts
1. The Chairman of Paryavarana Parirakshana Parishad, Kavali addressed letter to the
Hon'ble the Chief Justice of High of A.P. on 16.8.2000. It was stated therein that the said
Parishad filed W.P. No. 929 of Court 1999 before this Court, that though an order was
passed therein to establish Sewage Treatment Plant (STP) to Brindavan Colony, Kavali,
the same was not done and that nearly 27,000 people are using drinking water from
Papireddy tank which is being polluted. The same was treated as Writ Petition
2. The General Secretary of citizens welfare committee, Kavali addressed another letter to
this Court complaining that there is no drainage/sewerage system maintained by
municipality and that the whole sewage is being let out into Papireddy tank which is
situated in south-west corner of Kavali. The whole Papireddy tank is silted and it is full
of drainage water.

Rival contentions
 Kavali Municipality said that they have no funds to construct a STP. The Counsel for the
Municipality has made attempt to show that there is no statutory obligation on the
Municipality to construct STP.
 On the other hand, the Association says that they are paying huge amount as property tax
and therefore it is the duty of the Municipality to provide drainage/sewage treatment.
Judgment and reasons
The pollution arising from sewage water into a surface water resources is species of pollution
especially in connection with municipal administration. In the case of Venkatappa v. Louis24 it

23
2002(2)ALT356
24
MANU/AP/0092/1986
 P a g e | 19

was held that any prior existence of nuisance does not relieve the offender from a charge of
public nuisance.
Findings and conclusions of the court
Brindavan Colony has not denied the allegation that they are letting out untreated sewage into
municipal underground pipeline in violation of provisions of Sections 148 of the Municipalities
Act, which makes mandatory to make payment to municipal council for discharging of drainage
from private premises by connecting house drains to municipal drains. The action on the part of
the municipality in allowing the drainage water to flow into Papireddy tank even violates
provisions in Chapter 5 of Part V of the Municipalities Act as well as Water Act.25
Regarding lack of finances as contended by the municipality the court regarded it as an
unappreciable argument and stated No Municipality has a right to allow sewage water into
drinking surface water resources and no such Municipality can be heard that they have no funds
as it is violative of article 2126.

The petitions were disposed off with the following directions:

i. The State Government shall constitute a Committee immediately to prepare necessary
plans and steps and monitor supply of safe drinking water to residents of Kavali
ii. Director of Municipalities and Kavali Municipality to take immediate necessary steps to
prevent the flow of both treated and untreated sewage into Papireddy tank and other
surface water resources
iii. Kavali Municipality to initiate action immediately against all those people who are letting
out sewage and drainage onto public roads and public places
iv. Government of A.P. to issue necessary directions to all the municipalities and municipal
corporations to initiate necessary steps for construction of adequate Sewage Treatment
Plants

25
As per Section 2(g) of the Water Act sewage effluent means effluent from any sewerage system or sewage
disposal works and includes sullage from open drains. Any contamination of water or such alteration of the physical,
chemical or biological properties of water or such discharge of any sewage into water whether directly or indirectly
to create nuisance or render water harmful or injurious to public health or safety is defined as pollution for the
purpose of the Water Act.
Section 24 of the Water Act prohibits use of stream or well for disposal of polluting matter.
Section 25(1)(b) of the Water Act prohibits any person including municipality to bring into use any new or altered
outlet for the discharge of sewage without the consent of the Pollution Control Board.
26

The case of Ratlam Municipality v. Vardhichand, MANU/SC/0171/1980 was cited for the same.
 P a g e | 20

CONCLUSION

An exhaustive study of the powers of the High Court in dealing with matters of public nuisance
and exercise of such powers in the interest of environmental protection and a citizen’s right to
life through various statutory provisions as well as case laws reveals that High Courts of various
states have been able to utilize their powers effectively and efficiently.

Section 133 and section 144(power of DM to issue order in urgent cases of nuisance or
apprehended danger) are undoubtedly the two most important provisions to dish out a speedy and
useful remedy in cases of public nuisance. But often cases involving substantial questions of
environment related to public nuisance need to be brought up before the higher authorities such
as the High Courts and Supreme Court. The Ratlam Municipality case can be unequivocally
quoted as the most important judicial precedent by the Supreme Court recognizing public
nuisance as opposed to social rule of law.

The High Courts have consistently taken up contemporary issues of pollution like smoking in
public places, plastic pollution, water pollution as meted out remedy as required under the facts
and circumstances. Furthermore the High Courts are a vital tool for recognizing of fundamental
rights under Article 226 which grants power to High Courts much wider than is granted by A 32
to the Supreme Court. While Supreme Court guarantees only fundamental rights protection
under its writ jurisdiction, the High Court becomes the torch bearer for enforcing a fundamental
right as well as a legal right, under which it may merely issue directions as seen in various cases,
to provide a quick and effective remedy.

Hence the fundamental right to freedom, equity and adequate conditions of life permitting life of
dignity and well being has been solemnly accepted as a responsibility by the High Courts to
protect and improve the environment for present and future generations.