Utpal Barbara (Wing Commander) vs State of Assam and Others

D. Biswas, J.—This application under Article 226 of the Constitution of India has been preferred by the Petitioners for issuance of an appropriate writ to quash the order dated 5.6.98 passed by the Addl. District Magistrate, Kamrup, Guwahati in exercise of powers u/s 144 of the Code of Criminal Procedure banning the use of polythene bags throughout the District of Kamrup.

According to the Petitioner, they are proprietors of different firms operating factories for manufacture and supply of polythene bags throughout the State of Assam after obtaining licences/No Objection Certificate from the competent authorities, namely, Gauhati Municipal Corporation. District Industries Centre and Assam Pollution Control Board. The impugned order imposing ban on the use of polythene bags has adversely affected the business of the Petitioners infringing upon the right of the Petitioner to carry on trade and business.

The Respondent No. 2 (The Secretary of Pollution Board, Assam, Guwahati) and Respondent No. 3 (The Additional District Magistrate, Kamrup, Guwahati) have filed separate affidavit-in-opposition challenging the writ petition on the ground of locus standi of the Petitioners to invoke the jurisdiction of this Court under Article 226 of the Constitution and reiterating the correctness and validity of the order assailed in this writ petition.

It would appear from the pleadings reproduced above that this Court is required to examine the following questions:

(1) Whether the writ Petitioners have locus standi to prefer this writ petition? and

Wednesday, March 30, 2011 (2) Whether the Addl. District Magistrate exceeded his jurisdiction u/s 144 of the Code of Criminal Procedure in passing the impugned order banning the use of polythene bags?

Before the above questions are dealt with, let ushave a lode into the impugned order reproduced below:

ORDER

Whereas is has been made to appear to me that the large scale use of polythene bags creates environmental pollution as these bags do not melt or disappear in the soil and almost all people without any consideration or thought, have thrown the polythene bags in the drains which has blocked he normal flow of drain water causing serious water-logging problem particularly in the city of Guwahati as well as in the District of Kamrup.

And the above act on the part of people already caused serious and imminent danger to hygiene of public lives and grave concern for and irreparable damage to environment at unspecified places of the district of Kamrup including the city of Guwahati at unspecified time;

And whereas several social and nongovernmental organisations involved in the field of upliftment of standard of public life and eradication of environmental pollution have raised their voices for banning use of polythene bags as a definite step towards protection of the environment and above all, remedy of many problems afflicting hygenic condition of public life for use of plastic packets by statements in the newspapers and submitting memorandum and report has also been received from the Commissioner, Guwahati Municipal Corporation in this respect vide GCS/3/98-99/Part-I/39, dt. 4.5.98.

And whereas I am satisfied that on these objectives there is serious and imminent apprehension of danger to environment, public hygiene and tranquillity by such extensive use of polythene bags, I Shri S.K. Roy, ACS, Addl. District Magistrate, Kamrup, Guwahati, therefore, in view of die reasons noted above consider it expedient to pass prohibitory order in exercise of powers conferred upon me u/s 144 Code of Criminal Procedure, 1973, to ban the use of polythene bags throughout the Kamrup District with immediate effect.

I do further request and order that all the O. Cs of the Police Stations within Kamrup District shall be responsible for successful execution of the order.

If any person feels aggravated by this order, such person is at liberty to appear in the Court of the undersigned for any modification cancellation or rescinding of the order on any reasonable grounds as provided by law in force in the State.

Given under my hand and seal on this 5th day of June, 1998.

It would appear from the above order that improper disposal of the used polythene bags by the members of the public has blocked normal flow of drainwater causing serious water logging problem and resultant environmental pollution is the main ground for arriving at a conclusion that there is serious and imminent apprehension of danger to environment, public hygiene and tranquillity. The propriety and validity of the impugned order for the reasons cited by the Addl. District Magistrate will be considered hereinafter. Before that I would like to discuss the first point relating to locus standi of the Petitioners to prefer this petition under Article 226 of the Constitution.

Although the Article does not classify the persons entitled to invoke the jurisdiction of the Court under Article -226 of the Constitution, it is implicit that it has to be invoked to enforce a legal right. This right may be a personal or individual right of the Petitioner himself. Here, we may conveniently quote the decision rendered in Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, holding that in the context of locus standi to apply for a writ of Certiorari an applicant may ordinarily fall in any of the categories namely (1) person aggrieved, (2) stranger and (3) busybody or meddlesome interloper. In this case, we are concerned with the expression "person aggrieved" and to examine whether the Petitioners who are manufacturers of polythene bags can be termed as person aggrieved because of the promulgation of the impugned Notification.

The Petitioners have maintained in their writ petition that they had established factories with loan from different financial institutions, engaged workmen and have been operating their factories for supply of polythene bags to different markets in the State of Assam. It is further alleged that they have also obtained necessary licence/No Objection Certificate from different authorities. This part of the averments in the writ petition has not been controverted by the Respondents in their affidavit-in-opposition except that the no objection certificates from Pollution Board have not been obtained by all the Petitioners except the Petitioner No. 2.

Since the Petitioners had been engaged in the trade with necessary licences/certificates from the competent authorities, they have certainly acquired legal right to continue with their commercial activities in a lawful manner. Total of partial restriction can be imposed by an appropriate authority on this right of trade and commerce if they act contrary to provisions of law in this behalf. If the Petitioners except the Petitioner No. 2 have been operating their factories without a no objection certificate from the Pollution Board, in such an eventuality, the only course which will be available is either to move the Pollution Board or the other competent authority to take necessary action either to revoke or suspend the licences (issued to them to run the factories) only in accordance with relevant law. Want of no objection certificate from the Pollution Board in respect of some of the Petitioners cannot be a ground of justify encroachment upon their right to continue with business in exercise of power u/s 144 of the Code of Criminal Procedure which is an emergency power. The Petitioners felt aggrieved because the ban imposed on the members of the public has adversely affected their commercial activities. It is from this angle if the effect of the impugned order I considered, the Petitioners appear to have reasons to be aggrieved. Their right under Article 19(1)(G) has been clouded by the impugned order. That apart, they are also individually members of the public and they have also reasons to be prejudiced as such members. Therefore, the Petitioners can be termed as ''person aggrieved''. This, in my opinion, entitles the Petitioners to file their writ petition. The question regarding locus standi is answered accordingly.

Simultaneously, it is sought to clarify that a petition under Article 226 of the Constitution would lie challenging the legality of an order made u/s 144 of the Code of Criminal Procedure. In Gulam Abbas and Others Vs. State of Uttar Pradesh and Others, the Supreme Court interfered with an order passed u/s 144 of the Code of Criminal Procedure holding as follows:

24.... In our view, however, these aspects cannot make the order a judicial or quasi-judicial order and such an order issued u/s 144 of the present Code will have to be regarded as an executive order passed in performance of an executive function where no list as to any rights between rival parties is adjudicated but merely an order for preserving public peace is made and as such it will be amenable to writ jurisdiction under Article 32 of the Constitution. We would like to mention in this context that the power conferred upon Section 144 Code of Criminal Procedure, 1973 is comparable to the power conferred on the Bombay Police u/s 37 of the Bombay Police Act, 1951,-both the provisions having been put on the statute-book to achieve the objective of preservation of public peace and tranquillity and prevention of disorder and it has never been disputed that any order passed u/s 37 of the Bombay Police Act is subject to writ jurisdiction of the High Court under Article 226 of the Constitution of the ground that it has the effect of violating or infringing a fundamental right of a citizen. The nature of the power under both the provisions and the nature of function performed under both being the same by parity of reasoning an order made u/s 144 Code of Criminal Procedure 1973 must be held to be amenable to writ jurisdiction either under Article 32 or under Article 226 of the Constitution if it violates or infringes any fundamental right. The contention raised by Counsel for Respondents 5 and 6 therefore, has to be rejected.

The powers of the Supreme Court under Article 32 is not in derogation of the powers of a High Court under Article 226. It is pertinent to point out that the powers of the High Court under Article 226 of the Constitution are not confined to prerogative writs and the High Court in issuing directions, orders and writs under Article 226 of the Constitution may travel beyond the contents of the writ in appropriate cases and mould the relief. This extra-ordinary powers of the High Court may, therefore, be exercised to set aside an ultra vires executive order whether the writ of Certiorari is attracted or not.

Now, the question regarding propriety of the impugned order and the jurisdiction of the Magistrate passing the order will be dealt with. On the first Court, it has to be considered whether the situation was such so as to warrant a conclusion on the part of the district administration that the unregulated disposal of the polythene bags by the members of the public has given rise to imminent clanger to the public health and hygiene.

It has been argued by Mr. J.M. Choudhury, learned Counsel for the Petitioners that the polythene bags are in use since a long time and its unregulated disposal cannot cause an imminent danger to the health and hygiene of the public. According to him, the reasons cited by the district authorities in the impugned order that the unregulated and indiscriminate disposal of polythene bags causing blockade of drains with consequent pollution of the environment cannot be a ground for invoking powers u/s 144 of the Code of Criminal Procedure. According to him, the element of emergency was not there for invoking the extra-ordinary power.

The purpose for which the provisions u/s 144 of the Code of Criminal Procedure can be used has been clarified by the Apex Court and different High Courts. The Supreme Court in case of Gulam Abbas (supra) observed that in urgent cases of nuisance or apprehended danger, where immediate prevention or speedy remedy is desirable, a District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate specifically empowered by the State Government in this behalf, may by a written order stating the material facts of the case, issue necessary order under this Section. Similarly, in Acharya Jagdishwaranand Avadhuta and Others Vs. Commissioner of Police, Calcutta and Another, the Supreme Court held that the nature of the order u/s 144 Code of Criminal Procedure is intended to meet emergent situation and it is not intended to be either permanent or semi-permanent in character. In Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others, it has been held that this Section is concerned with freeing society from menace of serious disturbances of a grave character. It is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. That being so and if the annoyance has assumed sufficiently grave proportions as to bring the matter within interests of public order, the matter must fall within the restrictions provided by the Constitution itself as permissible. Similarly, in C.E. Mc Intosh v. Nirmal Chandra Sur and another, reported in AIR 1958 Ass 114, it has been held that exercise of powers under this Section are available only incase of imminent danger. In Jagdishwaranand v.Commissioner of Police. Calcutta (supra), it has been held that Parliament never intended the life of an order u/s 144 to remain in force beyond two months when made by a Magistrate. The scheme of that Section does not contemplate repeated orders which would otherwise amount to abuse of the power conferred by Section 144. According to the Supreme Court, the nature of the order u/s 144 is intended to meet emergent situation and the order u/s 144 is not intended to be either permanent or semi-permanent in character. In Chandra Nath Mukherjee v. Emperor, reported in AIR 1919 Cal 584, the Calcutta High Court set aside an order u/s 144 of the Code of Criminal Procedure on the ground that the dispute has been going on for sometime and there was no imminent danger to the public health in consequence of the act of closing of a culvert which admitted the drainage water.

Keeping in mind the various decisions rendered by the Supreme Court and the High Courts, the matter at hand has to be examined by this Court. The reasons apparent on the face of the order, are that the unregulated disposal of the used polythene bags thrown into drains in the city of Guwahati has blocked the normal flow of water causing water logging and environmental pollution. It is a fact that the polythene bags are in use throughout the country since a long time and it cannot be construed as ''imminent danger'' to the health and hygiene of the people. The reasons given in the impugned notification, in the opinion of this Court, do not appear to be a sound logic for arriving at a conclusion that the unregulated manner in which the polythene bags have been disposed of by the members of the public has suddenly caused "imminent danger" to the public health and security. In my opinion, the remedy available to the district administration or other authorities like Guwahati Municipal Corporation lies in taking proper steps to regulate the use and disposal of the polythene bags and not in imposing a total ban in its use. If, however, the district administration or the State Government considers that a total ban has to be imposed on the polythene bags, they may do so by taking resort to appropriate legislation. In this connection, we may refer to the Himachal Pradesh Non-Biodegradable Garbage (Control) Act, 1995 and the Sikkim Non-Biodegradable Garbage (Control) Act, 1997. Both the Himachal Pradesh Government as well as the Sikkim Government enacted appropriate legislation to regulate the disposal of non-biogradable garbage in public drains and open places. For that matter, it can be said that the State of Assam has to enact appropriate law to obviate the possibility of any danger to public health and hygiene.

It would further appear from the impugned order that the learned Additional District Magistrate in the impugned order cited blockade of the drains in the city of Guwahati as the main reason for "Issuing the prohibitory order". But this impugned order has been brought into force throughout the territorial limit of the district of Kamrup without proper justification. The application of this order beyond the limit of Guwahati city in a flash of concern for public health without recording adequate reasons does not inspire this Court to accept it as just and proper.

There is no second opihion that anything that affects or is likely to affect "public health", "hygiene" and tranquillity has to be abhored. For that matter what is needed is proper study to identify those objects and to plan ahead to obliterate those possible hazards before they surface as a menace. To tide up such eventuality, necessary laws will have to be enacted. Resort to temporary or emergency powers u/s 144 of the Code of Criminal Procedure cannot be a permanent solution to those problems. Use of polythene bags containing lead (toxic element) because of dye used as an ingredient may be dealt with u/s 144 of the Code of Criminal Procedure for a short period, but not in perpetuity. Moreover, this is not included as one of the reasons in the impugned order. If the recycling process is undertaken by. any of the manufacturers in violation of any law in force, the problem has to be dealt with under that law only. The "legislative intent" embodied in the language of Section 144 and as has been explained by the Apex Court in the cases referred to hereinbefore suggests that this power is available only to meet an ''imminent situation''. This essential requirement is missing in this case. Although this Court admires the rare flash of concern for public health, the requirement of law cannot be lost sight of. Considering all these aspects, this Court is of the opinion that the ''satisfaction'' arrived at by the learned Additional District Magistrate in issuing the impugned order cannot be justified in the given circumstances of this case. The order issued in exercise of powers u/s 144 Code of Criminal Procedure being ex-facie illegal has to be set aside. The argument advanced by Shri P. Pathak. learned Addl. Advocate General that the Petitioners should have availed the alternate remedy made available in Sub-section (7) of Section 144 Code of Criminal Procedure do not deserve any concession for the above reason.

In the result, the writ petition is allowed and the impugned order dated 5.6.98 is hereby set aside.