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Full Case Details
‘It is procedural rules’, as this appeal proves, ‘which infuse
life into substantive rights, which activate them to make them effective’. Here, before us, is
what looks like a pedestrian quasi-criminal litigation under Section 133 CrPC, where the
Ratlam Municipality – the appellant – challenges the sense and soundness of the High Court’s
affirmation of the trial Court’s order directing the construction of drainage facilities and the
like, which has spiralled up to this Court. The truth is that a few profound issues of processual
jurisprudence of great strategic significance to our legal system face us and we must zero in
on them as they involve problems of access to justice for the people beyond the blinkered
rules of ‘standing’ of British-Indian vintage. If the centre of gravity of justice is to shift, as the
Preamble to the Constitution mandates, from the traditional individualism of locus standi to
the community orientation of public interest litigation, these issues must be considered. In that
sense, the case before us between the Ratlam Municipality and the citizens of a ward, is a
pathfinder in the field of people’s involvement in the justicing process, sans which as Prof.
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 can compel a statutory
body to carry out its duty to the community by constructing sanitation facilities at great cost
and on a time-bound basis. At issue is the coming of age of that branch of public law bearing
on community actions and the court’s power to force public bodies under public duties to
implement specific plans in response to public grievances.
- The circumstances of the case are typical and overflow the particular municipality and
the solutions to the key questions emerging from the matrix of facts are capable of universal
application, especially in the Third World humanscape of silent subjection of groups of
people to squalor and of callous public bodies habituated to deleterious inaction. The Ratlam
municipal town, like many Indian urban centres, is populous with human and subhuman
species, is punctuated with affluence and indigence in contrasting coexistence, and keeps
public sanitation a low priority item, what with cesspools and filth menacing public health.
Ward No. 12, New Road, Ratlam town is an area where prosperity and poverty live as strange
bedfellows. The rich have bungalows and toilets, the poor live on pavements and litter the
streets 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-todo citizens protest, but the crying demand for basic sanitation and public drains fell on deaf
ears. Another contributory cause to the insufferable situation was the discharge from the
Alcohol Plant of malodorous fluids into the public street. In this lawless locale, mosquitoes
found a stagnant stream of stench so hospitable to breeding and flourishing, with no
municipal agent disturbing their stinging music at human expense. The local denizens, driven
by desperation, at long last, decided to use the law and call the bluff of the municipal body’s
bovine indifference to its basic obligations under Section 123 of the M.P. Municipalities Act,
1961 (the Act, for short). That provision casts a mandate: - 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
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of a Council to undertake and make reasonable and adequate provision for the
following matters within the limits of the municipality, namely –
(b) cleansing public streets, places and sewers, and all places, not being private
property, which are open to the enjoyment of the public whether such places are
vested in the Council or not; removing noxious vegetation, and abating all public
nuisances;
(c) disposing of night-soil and rubbish and preparation of compost manure from
night-soil and rubbish.
And yet the municipality was oblivious to this obligation towards human well-being and
was directly guilty of breach of duty and public nuisance and active neglect. The subDivisional Magistrate, Ratlam, was moved to take action under Section 133 Cr PC to abate
the nuisance by ordering the municipality to construct drain pipes with flow of water to wash
the filth and stop the stench. The magistrate found the facts proved, made the direction sought
and scared by the prospect of prosecution under Section 188 IPC, for violation of the order
under Section 133 Cr PC, 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 of this litigative zeal on cleaning up the street and constructing the drains
by rousing the people’s sramdan resources and laying out the city’s limited financial
resources, the people’s needs might have been largely met long ago. But litigation with
other’s funds is an intoxicant, while public service for common benefit is an inspiration; and,
in a competition between the two, the former overpowers the latter. Not where a militant
people’s will takes over people’s welfare institutions, energises the common human numbers,
canalises their community consciousness, forbids the offending factories from polluting the
environment, forces the affluent to contribute wealth and the indigent their work and thus
transforms the area into a healthy locality vibrant with popular participation and vigilance, not
neglected ghettos noisy with squabbles among the slimy slum-dwellers nor with electoral
‘sound and fury signifying nothing’. - The Magistrate, whose activist application of Section 133 Cr PC, for the larger purpose
of making the Ratlam municipal body 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 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 nallah is flowing
which is just in the middle of the main road i.e. New Road. In this stream (nallah)
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 nallah also produces filth which causes a bulk of
mosquitoes breeding. On this very southern side of the said road a few days back
municipality has also constructed a drain but it has not constructed it completely but
left the construction in between and in some of the parts the drain has not at all been
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constructed and because of this the dirty water of half constructed drain and septic
tank is flowing on the open land of applicants, where due to insanitation and due to
non-removing the obstructed earth the water is accumulated in the pits and it also
creates dirt and bad smell and produces mosquitoes in large quantities. This water
also goes to nearby houses and causes harm to them. For this very reason the
applicants and the other people of that locality are unable to live and take rest in their
respective houses. This is also injurious to health. - 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 boons and ‘lawless’ by long neglect, not leaders of the people in local selfgovernment. It may be a cynical obiter of pervasive veracity that municipal bodies minus the
people and plus the bureaucrats are the bathetic vogue – no better than when the British were
here! - We proceed on the footing, as we indicated even when leave to appeal was sought, that
the malignant facts of municipal callousness to public health and sanitation, held proved by
the magistrate, are true. What are the legal pleas to absolve the municipality from the court’s
directive under Section 133 Cr PC? That provision reads:
Section 133. (1) Whenever a District Magistrate or a Sub-Divisional Magistrate
or any other Executive Magistrate specially empowered in this behalf by the State
Government, on receiving the report of a police officer or other information and on
taking such evidence (if any) as he thinks fit, considers –
(a) that any unlawful obstruction or nuisance should be removed from any public
place or from any way, river or channel which is or may be lawfully used by the
public;
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
(ii) to prevent or stop the construction of such building, or to alter the disposal of
such substance;
or if he objects so to do, to appear before himself or some other Executive
Magistrate subordinate to him at a time and place to be fixed by the order, and show
cause, in the manner hereinafter provided, why the order should not be made
absolute. - So the guns of Section 133 go into action wherever there is public nuisance. The public
power of the magistrate under the Code is a public duty to the members of the public who are
victims of the nuisance, and so he shall exercise it when the jurisdictional facts are present as
here. “All power is a trust – that we are accountable for its exercise – that, from the people,
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and for the people, all springs, and all must exist.” Discretion becomes a duty when the
beneficiary brings home the circumstances for its benign exercise. - If the order is defied or ignored Section 188 IPC comes into penal play:
Whoever, knowing that, by an order promulgated by a public servant lawfully
empowered to promulgate such order, he is directed to obtain from a certain act, or to
take certain order with certain property in his possession or under his management,
disobeys such direction, and if such disobedience causes or tends to cause danger to
human life, health or safety, or causes or tends to cause a riot or affray, shall be
punished with imprisonment of either description for a term which may extend to six
months, or with fine which may extend to one thousand rupees, or with both. - There is no difficulty in locating who has the obligation to abate the public nuisance
caused by absence of primary sanitary facilities. Section 123, which is mandatory. - 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 Section 123 of the Act.
This alibi made us issue notice to the State which is now represented by counsel, Shri
Gambhir, before us. The plea of the municipality that notwithstanding the public nuisance
financial inability validly exonerates it from statutory liability has no juridical basis. The
criminal procedure code operates against statutory bodies and others regardless of the cash in
their coffers, even as human rights under Part III of the Constitution have to be respected by
the State regardless of budgetary provision. Likewise, Section 123 of the Act has no saving
clause when the municipal council is penniless. Otherwise, a profligate statutory body or
pachydermic governmental agency may legally defy duties under the law by urging in selfdefence a self-created bankruptcy or perverted expenditure budget. That cannot be. - Section 133 Cr PC is categoric, although reads discretionary. Judicial discretion when
facts for its exercise are present, has a mandatory import. Therefore, when the sub-Divisional
Magistrate, Ratlam, has, before him, information and evidence, which disclose the existence
of a public nuisance and, on the materials placed, he considers that such unlawful obstruction
or nuisance should be removed from any public place which may be lawfully used by the
public, he shall act. Thus, his judicial power shall, passing through the procedural barrel, fire
upon the obstruction or nuisance, triggered by the jurisdictional facts. The magistrate’s
responsibility under Section 133 Cr PC 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 Section 188 IPC. Therefore, the Municipal
Commissioner or other executive authority bound by the order under Section 133 Cr PC shall
obey the direction because disobedience, if it causes obstruction or annoyance or injury to any
persons lawfully, pursuing their employment, shall be punished with simple imprisonment or
fine as prescribed in the section. The offence is aggravated if the disobedience tends to cause
danger to human health or safety. The imperative tone of Section 133 Cr PC read with the
punitive temper of Section 188 IPC make the prohibitory act a mandatory duty.
172 - Although these two Codes are of ancient vintage, the new social justice orientation
imparted to them by the Constitution of India makes it a remedial weapon of versatile use.
Social justice is due to the people and, therefore, the people must be able to trigger off the
jurisdiction vested for their benefit in any public functionary like a magistrate under Section
133 Cr PC. 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 Article 38 of the Constitution. This brings Indian public law, in its processual
branch, in line with the statement of Prof. Kojima: “The urgent need is to focus on the
ordinary man – ne might say the little man…” Access to justice by Cappelletti and B. Garth
summarises the new change thus:
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 – or instance, insofar as the role of the adjudicator is
concerned – t is worth emphasizing at the outset that the core values of the more traditional
procedural justice must be retained. “Access to justice” must encompass both forms of
procedural justice. - Public nuisance, because of pollutants being discharged by big factories to the
detriment of the poorer sections, is a challenge to the social justice component of the rule of
law. Likewise, the grievous failure of local authorities to provide the basic amenity of public
conveniences drives the miserable slum-dwellers to ease in the streets, on the sly for a time,
and openly thereafter, because under Nature’s pressure bashfulness becomes a luxury and
dignity a difficult art. A responsible municipal council constituted for the precise purpose of
preserving public health and providing better finances cannot run away from its principal duty
by pleading financial inability. Decency and dignity are non-negotiable facets of human rights
and are a first charge on local self-governing bodies. Similarly, providing drainage systemsnot pompous and attractive, but in working condition and sufficient to meet the needs of the
people – cannot be evaded if the municipality is to justify its existence. A bare study of the
statutory provisions make this position clear. - In this view, the magistrate’s approach appears to be impeccable although in places he
seems to have been influenced by the fact that “cultured and educated people” live in this area
and “New Road, Ratlam is a very important road and so many prosperous and educated
persons are living on this road”. In India ‘one man, one value’ is the democracy of remedies
and rich or poor the law will call to order where people’s rights are violated. What should also
have been emphasised was the neglect of the Malaria Department of the State of Madhya
Pradesh to eliminate mosquitoes, especially with open drains, heaps of dirt, public excretion
by humans for want of lavatories and slums nearby, had created an intolerable situation for
habitation. An order to abate the nuisance by taking affirmative action on a time-bound basis
is justified in the circumstances. The nature of the judicial process is not purely adjudicatory
nor is it functionally that of an umpire only. Affirmative action to make the remedy effective
is of the essence of the right which otherwise becomes sterile. Therefore, the court, armed
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with the provisions of the two Codes and justified by the obligation under Section 123 of the
Act, must adventure into positive directions as it has done in the present case. Section 133
CrPC authorise the prescription of a time-limit for carrying out the order. The same provision
spells out the power to give specific directives. We see no reason to disagree with the order of
the magistrate. - The High Court has taken a correct view and followed the observations of this Court
in Govind Singh v. Shanti Sarup where it has been observed:
We are of the opinion that in a matter of this nature where what is involved is not
merely the right of a private individual but the health, safety and convenience of the
public at large, the safer course would be to accept the view of the learned
Magistrate, who saw for himself the hazard resulting from the working of the bakery. - We agree with the High Court in rejecting the plea that the time specified in the order
is unworkable. The learned Judges have rightly said:
It is unfortunate that such contentions are raised in 1979 when these proceedings have
been pending since 1972. If in seven years’ time the Municipal Council intended to remedy
such a small matter, there would have been no difficulty at all. Apart from it, so far as the
directions are concerned, the learned Magistrate, it appears, was reasonable. So far as
direction No. 1 is concerned, the learned Magistrate only expected the Municipal Council and
the Town. Improvement Trust to evolve a plan and to start planning about it within six
months; the learned Magistrate has rightly not fixed the time-limit within which that plan will
be completed. Nothing more reasonable could be said about direction No.1. - Before us the major endeavour of the Municipal Council was to persuade us to be
pragmatic and not to force impracticable orders on it since it had no wherewithal to execute
the order. Of course, we agree that law is realistic and not idealistic and what cannot be
performed under given circumstances cannot be prescribed as a norm to be carried out. From
that angle it may well be that while upholding the order of the magistrate, we may be inclined
to tailor the direction to make it workable. But first things first and we cannot consent to a
value judgment where people’s health is a low priority. Nevertheless, we are willing to revise
the order into a workable formula the implementation of which would be watch-dogged by
the court. - We make the further supplementary directions which we specifically enjoin upon the
municipal authority and the State Government to carry out. - We direct the Ratlam Municipal Council 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 Section 133 CrPC, to abate the nuisance so
caused. Industries cannot make profit at the expense of public health. Why has the
magistrate not pursued this aspect? - The Municipal Council shall, within six months from today, construct a
sufficient number of public latrines for use by men and women separately, provide
water supply and scavenging service morning and evening so as to ensure sanitation.
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The Health Officer of the Municipality will furnish a report, at the end of the sixmonthly term, that the work has been completed. We need hardly say that the local
people will be trained in using and keeping these toilets in clean condition. Conscious
cooperation of the consumers is too important to be neglected by representative
bodies. - The State Government will give special instructions to the Malaria Eradication
Wing to stop mosquito breeding in Ward 12. The sub-Divisional Magistrate will
issue directions to the officer concerned to file a report before him to the effect that
the work has been done in reasonable time. - The municipality will not merely construct the drains but also fill up cesspools
and other pits of filth and use its sanitary staff to keep the place free from
accumulations of filth. After all, what it lays out on prophylactic sanitation is a gain
on its hospital budget. - 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 subDivisional Magistrate of wilful breach by any officer. - We are sure that the State Government will make available by way of loans or grants
sufficient financial aid to the Ratlam Municipality to enable it to fulfil its obligations under
this Order. The State will realise that Article 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. Cappilletti holds
good for India when he observes:
Our judicial system has been aptly described as follows:
Admirable though it may be, (it) is at once slow and costly. It is a finished product of
great beauty, but entails an immense sacrifice of time, money and talent.
This “beautiful” system is frequently a luxury, it tends to give a high quality of justice
only when, for one reason or another, parties can surmount the substantial barriers which it
erects to most people and to many types of claims.
Why drive common people to public interest action? Where directive principles have
found statutory expression in Do’s and Dont’s the court will not sit idly by and allow
municipal government to become a statutory mockery. The law will relentlessly be enforced
and the plea of poor finance will be poor alibi when people in misery cry for justice. The
dynamics of the judicial process has a new ‘enforcement’ dimension not merely through some
of the provisions of the criminal procedure code (as here), but also through activated tort
consciousness. The officers in charge and even the elected representatives will have to face
the penalty of the law if what the Constitution and follow up legislation direct them to do are
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defied or denied wrongfully. The wages of violation is punishment, corporate and personal.
We dismiss this petition subject to the earlier mentioned modifications.
