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Judgment
R.C. Lahoti, J.
The right to life enshrined in Article 21 of the Constitution of India cannot be reduced to mere animal existence. It means something much more than just physical survival. The right to life includes the right to live with human dignity-observed their Lordships in Francis Coralie v. Union Territory of Delhi AIR 1981 SC 746. The widening horizons of right to live with human dignity guarantee man to live as a human being and not as an animal. The obligation of the State and its agencies/instrumentalities to ensure the fulfilment of that fundamental right, the basic human right, though projected numberless times by the Apex Court, repeatedly reflected in several pronouncements of several High Courts of this Country, is yet to be seen in its right perspective and full vision. This is what is reflected by the present petition.
A sizeable geographical region out of the territorial limits forming part of the Municipal Corporation, Gwalior is represented by the Petitioners herein. The localities are Jiwaji Nagar, Mohan Nagar, Mayur Nagar, Mayur Market and Suresh Nagar. They form part of Municipal Corporation Ward No. 17. Dr. A. S. Ingle, the Petitioner No. 1 is the Secretary of Jiwaji Nagar Grihnirman Sahkari Sanstha Maryadit, a society registered under the M. P. Societies Registration Act, 1960. K. K. Sharma, the Petitioner No. 2 is the Secretary of Suresh Nagar Sudhar Samiti, Khushiram Sharma, the Petitioner No. 3 is the Secretary of Mohan Nagar Sudhar Samiti. B. P. Gupta, Petitioner No. 4 represents the inhabitants of Mayur Nagar and Mayur Market localities. The four citizens while knocking the doors of this Court have disclosed their identities not only in person but also as representatives of the citizens - inhabitants of the several localities referred to hereinabove as also the owners of immovable properties situated in these areas. They proposes to canvass a cause constitutionally recognised, judicially explored and so dear to each and every conscious human being.
There is some dispute as to whether or not the five localities referred to hereinabove do form part of Ward No. 17 of the Municipal Corporation limits. What is not disputed is that so much part of them as admittedly forms part of the Corporation limits originated in two parts Part are the colonies developed by Gwalior Vikas Pradhikaran (hereinafter referred to as GDA for short), the Respondent No. 4 herein, and part are the colonics developed by a private coloniser. Firm Gwalior Land Deals and Finance (hereinafter referred to as the Coloniser for short), the Respondent No. 5 herein. It is also not disputed that in all the localities the houses have come up wherein the human souls are taking shelters. The Petitioners allege that although the Municipal Corporation, Gwalior has imposed property tax and started taking steps, also coercive steps at times, for effecting recovery there of but the traffic is one way. The Municipal Corporation has utterly failed in providing the following civil amenities which it is constitutional by and statutorily obliged to perform:
(1) Lighting public streets, places and buildings;
(2) Cleaning public streets, places, sewers and places not being private property, which are open to the enjoyment of the public, whether such spaces are vested in the Corporation or not; removing noxious vegetation and abating all public nuisances;
(3) Disposing of nightsoil and rubbish and, if so deemed desirable, preparation of compost manure from nightsoil and rubbish;
(4) Removing obstructions and projections in public streets and places, and in spaces not being private property which are open to the enjoyment of public whether such spaces are vested in the Corporation or the Government;
(5) Constructing latrines, urinels, drains sewars, providing public facilities for drinking water, watering public streets and places;
(6) The management and maintenance of all Municipal Water Works and the construction and maintenance of new work and means for providing a sufficient supply of suitable water for public and private purposes;
(7) The erection in proper and convenient situations on municipal land of water closet closet accommodation urinals and other conveniences for the public and the maintenanae and the cleansing of the same;
(8) Taking measures to prevent the outbreak, spread or recurrence of infectious diseases;
(9) The maintenance of public park, gardens, recreation grounds, public places and open spaces in existence and vested in the Corporations.
Documents have been filed on behalf of the Petitioners to show that time and again they have been raising protest inviting attention of the authorities concerned towards the performance by the Municipal Corporation of its obligations. The Ministers, the Presidents the Chairman have time to time acknowledged the correctness of the grievance raised by the Petitioners inviting attention of the Corporation to see that the grievance were vindicated but nothing has been done till this day which may be called a solace. On the statement of facts, the Petitioners have prayed for duel relief:
(i) The Municipal Corporation Gwalior be restrained from imposing property tax from the inhabitants of the five localities and property owners thereof until the performance of the statutory obligations of the Municipal Corporation in the localities and towards the inhabitants and property owners thereof;
(ii) the Municipal Corporation, Gwalior be also directed to perform and discharge the duties (referred to in para 3 above).
The G. D. A. and the Coloniser, as could only have been expected, have each come up with the plea that it had done all that was expected to have been done by it and having satisfied itself of the statutory obligations having been discharged by it, the Municipal Corporation happily accepted the hand over of the colonies to it; included the colonies in the Corporation limits; and now the G. D. A. and the coloniser are away from the cobweb of the law-spider; the Court cannot touch them nor require them to perform any obligation any more.
The Municipal Corporation has come out with several pleas, the substance whereof appears to be nothing beyond this much:
(i) That the private coloniser had virtually played a fraud upon the Municipal Corporation while handing over the colonies to it; it managed to have the road area of the colonies declared as public roads u/s 330 (1) of the M. P. Municipal Corporation Act, 1956 although the pre-requisities of the provisions were not satisfied; the coloniser having not fulfilled his obligations as to development work before handing over the colonies. (ii) The Municipal Corporation is short of funds; it is yet to receive the amount of compensation from the State Government assessed as against the abolition of octroi which used to be earlier recovered by the Municipal Corporation providing a substantial part of its revenue; the GDA also managed in having the roads of these localities: forming part of the colonies developed by it, declared as Public streets without fulfilling its obligation of constructing roads and other development work.
The stand taken in the return is spelled but from the documents annexed with the return filed by the Municipal Corporation, the gist whereof has been set out in the memo of written submissions dated 13-9-1991. It is reiterated that the private coloniser had made a fool of the public through the then Municipal Commissioner by manipulating papers so as to secure a hand over of the colonies to the Municipal Corporation though the lay out was not sanctioned and there were various other obligations of the coloniser as to the development of roads and Nalis which were not fulfilled and yet the process of hand over of the colonies and notification of public streets was secured mostly on papers.
What we have stated hereinabove is summary of material and relevent facts and averments culled outfrom the plethora of pleadings. There has been a rush of petitions, interlocutory applications, returns, re-joinders and additional returns. We have been able to wriggle out of the jungle and jumble of pleadings with the assistance of the learned for the parties who have also taken pains in preparing and submitting their summarised submissions in the form of written memoranda which contain the highlights of their respective cases. We are satisfied that the summarised statement of facts made in the proceeding paragraphs would suffice for an effective disposal of petition.
The petition itself has been swinging in the archives of this Court since 1984. We cannot resist betraying shock to our conscience that the State and the Municipal Corporation have chosen to offer a contest to the Petitioners'' prayer being allowed and continued to stand by their defence instead of granting any relief to the Petitioners. If only the Respondents would have been alive to their statutory morales there would have been no occasion for deciding the petition as the Petitioners'' grievances should have stood redeemed by this time.
The Petitioners have filed a number of documents with their petition, the genuineness whereof has not been disputed during the course of hearing. It will be useful to make a resume of the relevant documents.
(1) Annexure P/1 is a D. O. letter written by Shri Sumersingh, the then Deputy Chairman of G. D. A. to the Commissioner, Municipal Corporation. The contents of the letter show that in the month of January 1983 the sewer line of the locality was checked; there was a gutter flowing through the locality but silt deposits had obstructed the flow of water through it; the so called roads were full of pits and ditches; the drains by the sides of the houses were yet to be constructed. The contents of the letter also show that the G. D. A. had deposited an amount of Rs. 1920/- on 31-3-1981 with the Municipal Corporation towards its share of development charged. The letter also claims that with effect from 23-3-1981 the colony was transferred to Municipal Corporation passing on the responsibility of maintaining the same.
(2) Annexure P/2 is a statement showing the details of a total amount of Rs. 2,78,611/- having been deposited by Jiwaji Grihnirman Samiti, Gwalior with G. D. A. towards development charges.
(3) Annexure P/5 is a letter dated 2-1-1981 written by the Chairman Suresh Nagar Sudhar Samiti to the Administrator, Municipal Corporation inviting the attention of the latter to extremely unsatisfactory state of affairs relating to sanitation and habitation and inviting in details the attention of the latter to the sewer lines, drains, roads and lighting arrangement all absent or inadequate.
(4) Annexure P/6 is the copy of letter dated 20-5-1982 written by the Member of Parliament, Gwalior to the Secretary, Suresh Nagar Sudhar Samiti referring to the correspondence made by him with the Administrator, Municipal Corporation which had revealed to him that the unhappy state of affairs relating to the roads and drains was attributable to the default of the coloniser in discharging his obligations towards development work.
(5) Annexure P/8 is letter dated 2-6-1982 written by the Member, 20-Point Programme Committee to the Administrator, Municipal Corporation informing that the sewer line of the locality was virtually unserviceable.
(6) Several other documents annexed with the petition are memoranda from one or more of the Petitioners to the Municipal Corporation, Gwalior referring to the existence of the grievances raised in the petition and pressing for their redressal.
(7) Annex. P/19 is copy of a letter dated 16-1-1985 written by the then Deputy Mayor to the Municipal Commissioner. The contents of the letter reveal that the Deputy Mayor having himself visited the locality had found that the coloniser having not discharged his statutory obligations, the residents of the locality were facing serious inconvenience and it was surprising how the Municipal Corporation had accepted the hand over of the colonies.
The pleadings, and the documents annexed with the petition lead to irresistible inference that the factual averments made in the petition are correct. In fact, during the course of hearing, none of the Respondents seriously disputed the factual position and their principal defence has remained founded on shifting of responsibility by one on the other of them.
The Corporation, Respondent No. 1, is also impleaded as represented by the Mayor and the Commissioner, respectively the Respondents No. 2 and 3 also by the Administrator, the Respondent No. 7 who came to be appointed during the pendency of the petition on account of the Council having been superseded. They are all governed by M. P. Municipal Corporation Act, 1956. We do not propose to burden our order by reproducing several provisions of that Act. Enough if we refer to Part-V of the Act dealing with public health, safety and convenience. Several Chapters included in that part deal with public conveniences such as municipal drains, conservancy, sanitary provisions, water supply, drainage water and water mains, public health and safety, also on restraint of infections and infectious diseases. In a nutshell, the Legislature has contemplated through these provisions almost all that would be needed to be performed by the Municipal Corporations to achieve the fufilment of the fundamental right of dignified human living by the residents of Municipal Corporation Limits. The Corporation has been vested with powers, wide in scope and ambit, enabling the definite fulfilment of its statutory obligations. Section 66 of Municipal Corporation Act provides for the obligatory duties of Council as distinguished with discretionary duties listed in Section 67. The resume of these provisions leaves no manner of doubt that what has been complained of by the Petitioners and what they expected to be performed by the Municipal Corporation through this petition (see paras 3 and 4)above are ordinarily the statutory obligations of the Municipal Corporation
State of Himachal Pradesh and Another Vs. Umed Ram Sharma and Others, was a case where the residents of hilly area wanted existence of roads in reasonable conditions, the right was embraced into their right to life in cotext of the constitutional provisions. Their Lordships interpreted Art 21 as embracing not only physical existence of life but the quality of life. Their Lordships accepted it as a proposition well settled for residents of hilly areas that access to road is access to life itself. Their Lordships further observed:
Accordingly, there should be road for communication in reasonable conditions in view of our Constitutional imperatives and denial of that right would be denial of the life as understood in its richness and fulness by the ambit of the Constitution.
In Vikram Deo Singh Tomar Vs. State of Bihar, their Lordships said:
We live in an age which recognises that every person is entitled to a quality of life consistent with his human personality. Their right to live with human dignity is the fundamental right of every Indian citizen.
Looking to the facts alleged by the Petitioners we are definitely of the opinion that the right of the citizens, inhabitants and property owners represented by the Petitioners in the localities in question, enshrined in Article 21 of the Constitution and entitling them to live as human beings within the Corporation limits has certainly been violated consistently and with impunity They do not have the sewer lines from which the filthy water may flow out. If the roads are not there, the question of cleaning them does not there, the question of cleaning them does not certainly arise. They do not have street lights so installed as to provide illumination essential to safety and convenience. Public health and safety are suffering tormented torture. The only defence offered is paucity of funds and dispute inter se either between the Corporation and the G. D. A. both public authorities or between the private coloniser, the latter having made a fool of the former, may be fraudulently. None of the defence can be set upto block the road to reliefs to the Petitioners. We propose to dispose of the first defence by demolishing it and the second by issuing suitable directions so as to protect the Corporation also if it has been made a scape-goat, wiltingly unwittingly, by connivance or convenience, by a coloniser sharpwitted or unscrupulous may be.
We are reminded of the land mark decision of the Apex Court in Municipal Council, Ratlam Vs. Vardichan and Others, An executive Magistrate acting u/s 133 Cr. P. C. took care of serious nuisance posed to public health by issuing directions for the enforcement of the duties of the Council. With zigzag orders, at the ladder of superior jurisdictions, the matter reached the Apex Court. Having referred to the duties of the Municipal Council statutorily contemplated, their Lordships observed:
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 u/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 municipalily that notwithstanding the public nuisance financial inability validly exonerates it from statutory liability has no judicial basis. The Code of Criminal Procedure operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under Part III of the Constitution have to be respected by the State regardless of budgetary provision. Likewise. S. 123 of the Act has no saving clause when the municipal council is penniless. Otherwise, a profligate statutory body or pachydermic governmental agency may legally defy duties under the law by urging in self-defence a self-created bankruptcy or prevented expenditure budget. That cannot be.
Their Lordships completety repelled the defence of paucity of funds, issuing certain directions to make the compliance with the orders workable by mandating the Corporation and its authorities to carry out all the directions which were not merely the right of a private individual but the health, safety and convenience of the public at large. Their Lordships made the following further observations also:
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 is 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.
We close the topic of paucity of funds by referring to L.K. Koolwal Vs. State of Rajasthan and Others, In more or less identical facts and circumstances, having referred to pari materia provisions contained in the Rajasthan Municipalities Act, 1959, the Court observed:-
It will not be out of place here to mention that Chapter VI deals with three of duties of the Municipality namely, primary duty, secondary functions and special duty. Cleaning public streets, places and sewers, and all spaces not being private property which are open to the enjoyment of the public, whether such spaces are vested in the Board or not, removing noxious vagetation and all public nuisances are the primary duties of the Municipality. Furthermore, it provides that it is the primary duty of the Municipal Council to remove filth, rubbish, night-soil, odour or any other noxious or offensive matter. The primary duties will have to be performed by the Municipal Board and there cannot be any plea whether the funds are available or not. It is for the Municipality to see how to perform the primary, duties and how to raise resources for the performance of that duty. In the performance of primary duty on excuse can be taken and can be directed also as it is primary, mandatory and obligatory duty to perform the same.
x x xx x x
.....it is not the duty of the Court to see whether the funds duties of the Municipality are fulfilled. Municipality cannot say that because of the paucity of staff they are not in a position to perform the primary duties. If the Legislature or the State Govt. feels that the law enacted by them cannot be implemented then the Legislature has liberty to scrap it, but the law which remains on the statutory books will have to be implemented particularly when it relates to primary duty.
The Municipal Corporation cannot be allowed to take shelter behind the plea tantamounting to saying that it is denying the inhabitants of the locality their rights because convenience or connivance of the then officers had resulted in befooling or defrauding the Corporation by a coloniser or G. D. A. whatever might have been the state of knowledge of the Corporation officials earlier, at least the shrieks of the Petitioners raised in this petition as back as in the year 1984 should have arousen the Corporation and its officials from their deep slumber, causing them to spring in action by discharging their statutory obligations towards the Petitioner and at the same time initiating the proceedings against the G.D. A. or the coloniser by taking steps at securing performance of statutory obligations of the two. Assuming that the process of handing over was permitted to be performed by blinking at their scrutiny, the Corporation is still at liberty to get alert if the Corporation might feel still handicapped, care is being taken by us to see that none stands to gain by avoidance of law and/or by taking benefit of its own faults and defaults.
During the course of hearing, our attention was invited to the provisions of M. P. Town Improvement Trust Act, 1960, M. P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 and Section 172 M. P. Land Revenue Code, 1959 along with the Rules made thereunder to contend that the G. D. A. and the private coloniser had failed in discharging their statutory obligations. We do not propose to record any specific finding on that contention for two reasons. Firstly, adequate material has not been brought on record to arrive at a satisfactory finding. This is apart from the fact that in exercise of our writ jurisdiction, we cannot enter into disputed questions of fact. Secondly, we feel that better care shall be taken of the said contention, by the directions which we are going to make in the operative part of this order.
Before we may pronounce our directions, let us dispose of the contention of the Petitioners that they should be absolved of the necessity of paying the property tax, also restraining the Municipal Corporation for taking steps for recovery of property tax inasmuch as the Corporation had failed in fulfilling its mandatory and discretionary functions. Heavy reliance has been placed on a Single Bench decision of Delhi High Court in Man Mohan Tuli v. Delhi Municipality AIR 1983 Delhi 152, Man Mohan''s case (Supra) was a case of complete absence of civic amenities in the locality where the properties were situated and that fact made the High Court of Delhi restraining the recovery of property tax unless and until the Corporation had performed its functions. The present one is not a case where we may record a finding from the material placed on record that the Corporation had completely failed in providing any civil amenities in the locality. For the present we feel that the two obligations should be left to be performed independently of each other. The localities represented by the Petitioners should pay the property tax independently of the performance of the obligations which we are mandating by our writ to be performed by the Municipal Corporation, Gwalior. At the same time, the Municipal Corporation, Gwalior must be asked to perform its statutory obligations independently of the fact whether the property tax has been paid or realised in full or not. Before closing, we make it clear that we should not be read as having formed an opinion that we cannot or that we would never restrain the Municipal Corporation from recovering the property tax unless and until it carries out its statutory obligations directed by this order to be carried out by the Municipal Corporation. We postpone that order to be made on a suitable occasions in future, on adequate material being produced before us and on the Respondents being clearly found guilty of breach of performance of their statutory functioning and the writ issued by us.
The petition is allowed. It is directed that:
(i) The Municipal Corporation, Gwalior shall construct roads and sewer lines to provide street lights where there are none and to provide additional street lights where those already available are at distance, so as to see that the roads and the streets remain adequately illuminated during night hours; construct public latrines and urinals at suitable sites so as not to cause any nuisance to the citizens. The Corporation shall take care to that it discharges all its statutory obligations contemplated in part v. and allied provisions of the Municipal Corporation Act, 1956 towards the inhabitants of the locality so that no cause for grievance survives.
(ii) We appoint a committee consisting of the Oustrict Judge, Gwalior and two advocates of this Court namely Sarva Shri Baboolal Bhargava and K.N. Gupta to carry out inspections of the five localities referred to hereinabove and submit a report to this Court every three months finding out whether the directions of this Court are being carried out or not.
(iii) For every inspection carried out by the said committee each member would be entitled to a token fee of Rs. 100/- per inspection which shall be paid equally by the Petitioners and the Corporation.
(iv) The State Government shall, within two months from today, appoint a senior officer not below the rank of Collector, to hold an enquiry into the matters relating to the handing over of the colonies by the GDA and Coloniser the Respondents No. 4 and 5 to the Municipal Corporation, Gwalior of the colonies presently included in the five localities above said and to find out whether the G.D A. and the coloniser had complied with all the formalities and discharged their all the obligations under the law before handing over the colonies to the Municipal Corporation, Gwalior. The appointment of the officer shall be brought to the notice of this Court by informing the Additional Registrar. The enquiry shall be completed within a period of three months from its commencement. The Municipal Corparation, Gwalior, the G.D.A., the coloniser and the Petitioners or their representatives shall have opportunity of participation at the enquiry. If it is found that the GDA or the Coloniser had failed in discharging their all or any of the obligations, the Municipal Corporation shall nevertheless be obliged to perform those obligations even at present because it has committed the folly of accepting the handing over and it must bear the brunt of the sin but the expenses incurred by the Municipal Corporation in performing those obligations shall be available to be recovered from the GDA and the coloniser proportionately with their respective defaults as fixed at the enquiry.
(v) the Municipal Corporation, Gwalior must commence compliance with the directions made hereinabove within a period of three months from today.
Before parting, we heed only remind the Respondents of the law laid down by their Lordships in Ratlam Municipality''s case (Supra):
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 Code of Criminal Procedure (as here), but also through activated tort consciousness. The officers in charge and even the elected representatives will have to face the penalty of the law if what the Constitution and follow-up legislation direct them to do are defied or denied wrongfully. The wages of violation is punishment, corporate and personal.
Disposed of accordingly. No costs.
Let copies of the order be supplied to the Additional Advocate General, Gwalior and Standing Counsel for the Municipal Corporation, Gwalior within a week so as to expedite compliance.