Aparna Kashyap vs State of H.P. and Others

P.C. Balakrlshna Menon, C.J.—This writ petition is brought by Kuman Aparana Kashyap, a resident of village Totu, a suburb of Shimla and situated within the areas of Gram Panchayats Totu and Chailly. The Petitioner seeks directions to the respective panchayats impleaded as Respondents No. 3 and 4 to extend civic amenities to the residents of Totu obligated u/s 18 of the Himachal Pradesh Panchayati Raj Act, 1968. The directions sought for include making provision for adequate water-supply; to improve sanitary conditions; to provide for drainage and sewerage system, to improve the existing roads and path-ways and also to construct public latrines and urinals for the use of the public. Far more serious, according to the Petitioner, is the nuisance caused by the deposit of garbage and rubbish by the Municipal Corporation of Shimla, impleaded as the second Respondent in the writ petition, on the road-side close to the housing colony of the employees of the H.P.S.E.B. The second Respondent, Municipal Corporation is depositing its waste and garbage on the road-side at Totu. It emits foul gases and a bad stink affecting public health and hygiene. It causes environmental pollution and has already damaged the beautiful conifer trees standing in the area. The locality is now prone to epidemic diseases. The area is infested with flies and mosquitoes. The Petitioner has produced a news-item appearing in the Indian Express dated 20th August, 1988, as Annexure P-1. The news item highlights the deplorable state-of- affairs due to the deposit of garbage and waste by the second Respondent. Municipal Corporation on the road-side area near the Totu Bazar. The relevant part of the news-item is extracted below

More than 5000 residents of Totu, a township on the Shimla-Bilaspur Highway, are living in slum tike conditions with a constant threat of the outbreak of some epidemic. A spot close to this township is being used as Shimla''s garbage dumping ground. The entire area is filled with a foul smell and breeds flies and other insects.

The residents are sore with the Shimla Municipal Corporation which has been assuring them that a plant to destroy the garbage would be set up soon, the situation has also created a pollution problem for which the State Government and the Pollution and Environment council have done nothing tangible. In fact all the activity of the council is limited to holding occasional meetings and issuing press notes.

The dumping of the city''s waste along the highway has also threatened the 10 sq. km. forest area which is shrinking day by day. The civil authorities, the Forest Department the highway wing of the Public Works Department, all seem to be unmindful of the situation created by this garbage dump. The road does not have parapets and PWD workers resent working near the spot because of the foul smell......

The first Respondent, the State of Himachal Pradesh in its affidavit-in-reply dated 24th October, 1988, has absolved itself of any responsibility to maintain health and hygiene of the residents of Totu, leaving the entire burden on the Gram Panchayats of Totu and Chailly. It is also stated that a proposal for inclusion of Totu and the adjoining area into the Municipal Corporation of Shimla is under the consideration of the Government but could not take final shape due to resource constraints. The second Respondent, Municipal Corporation of Shimla in its affidavit dated 27th October, 1988 has stated that water-supply to Totu area was undertaken by the Municipal Corporation and the supplies were effected through a 2" G.I. pipe connected to a spring source near Totu-Tawi. The supply system was damaged at the time of construction of the Totu Road in 1980-82 and thereafter water-supply is carried on through another pipe-line extending it to Bioleauganj. For the reason of the increase in the population in the area, sufficient supply of water can be assured only after a proposed augmentation scheme is implemented. It is further stated that the Municipal Corporation could find no other place for dumping its garbage. It has stepped up the work of construction of an incinerator for burning the garbage and would be completed before 30th November, 1988. It is also stated that the incinerators at Shankli, Nabha, Krishna Nagar and Summer Hill are also being repaired. The third and fourth Respondents, Gram Panchayats Totu and Chailly have also filed affidavits-in-reply where they have referred to the steps taken for improving sanitary conditions and providing civic amenities in the Totu Area. The Totu Parichayat has also stated that it had been objecting to the deposit of garbage by the Municipal Corporation on the road-side near Totu Bazar but the protest had no effect and the Corporation continues to dump its garbage in the panchayat area. By order dated 5th October, 1988, the Director, Town and Country Planning, Himachal Pradesh, was impleaded as the fifth Respondent in this writ petition. He has filed an affidavit-in-reply dated 22nd October, 1988. He refers to an interim development plan published under the H.P. Town and Country Planning Act, 1977; that had come into force in 1979. The Plan makes an over-all assessment of the population projections and requirement of utilities and amenities. It is, however, stated that the Town and Country Planning Department is only a planning organization and the implementation of the plan proposal is required to be under-taken by the Municipal Corporation within the municipal area and the Development Authority created u/s 40 of the Act in respect of the development scheme prepared by the said authority. It refers to paragraph 9-4 of the Interim Development Plan which reads as follows:

Garbage disposal: The present system of garbage disposal along the State Highway is not good. This creates vulture nuisance and obnoxious gases. It is, therefore, important that incineration plants in all important localities are installed or the garbage is dumped in the trenches.

It is also stated that the Planning Department had suggested to the second Respondent, Municipal Corporation of Shimla to locate a proper site for disposal of garbage.

...As per interim order passed by this Court dated 5th October, 1988, the following directions were given to the second Respondent, Municipal Corporation of Shimla and the 3r and 4th Respondents, panchayats respectively:

.....The learned Counsel for the second Respondent-Municipal Corporation fairly states that the spot where the garbage is being dumped presently is within about 500 yards of the residential portion of the Township and that it may be creating environmental pollution. He states that certain short-term and long-term measures are under contemplation to remedy the situation. The Court is of the view that it is essential to provide dumping site for the rubbish away from the, Township and indeed away from any other place inhabited by the public. Under the circumstances, the second Respondent-Municipal Corporation is directed to consider the matter and to place on the record of the case its concrete proposal for a new dumping site for throwing the garbage of the city of Shimla The third and the fourth Respondent-Panchayats, who are exercising jurisdiction over different portions of the Township, cannot also be oblivious of the administrative duties cast upon them u/s 18 of the Himachal Pradesh Panchayati Raj Act, 1968. Those duties contemplate the making of arrangements by the Panchayats for carrying out the requirements of the Sabha area in respect, inter alia, of matters such as public health, sanitation, lighting of public places, lying out of new roads, path-ways and maintenance of existing ones etc The Panchayats cannot possibly take the plea that financial disability totally exonerates them from their statutory duty. True it is that Section 18 provides for the performance of these duties "within the limits of the funds at its disposal." However, when the health, safety and convenience of the public at large is involved, the local authority can approach the State Government to make available by way of grants or loans sufficient financial aid to enable the local authority to fulfill its duties and obligations under the Act. The provision of drainage, sewerage, adequate water supply and public latrines appears to be the prime necessities and there is no reason why they should not be provided without undue delay The Respondents-Panchayats will, therefore, place on record, after due consideration, their proposals providing the requisite facilities to the inhabitants of the Township on a time-bound basis.

The third and fourth Respondents had filed additional affidavits giving details of the steps taken for improving civic amenities in the area. Even though the steps taken are not altogether satisfactory, the respective Panchayats had been alerted in respect of the basic requirements of the area and some provisions had been made for its improvement. The Pradhan of the fourth Respondent- Panchayat has filed an affidavit dated 4th May, 1989 wherein it is stated that the District Panchayat Officer, Shimla had by Armexure R-7 letter dated 12n April 1989, informed the respective panchayats of the allotment of certain funds for the improvement of the area. The letter Annexure R-7 shows that a sum of Rs. 20,000/- had been sanctioned to the Gram Panchayat Totu by the Government for ensuring proper supply of electricity and water and for maintaining proper sanitation. The letter further shows that a total sum of Rs. 43,000/- had been sanctioned to the Gram Panchayat Chailly for improvement of the area. The affidavit, however, discloses that the sanctioned amount had not been released and whatever improvements had been effected was with the limited resources of the respective panchayat.

The improvement in regards to civic amenities will be of little effect in this area unless the main cause of nuisance by the deposit of garbage is removed forthwith. The Commissioner of the second Respondent, Municipal Corporation, has filed additional affidavits dated 30th December, 1988, 23rd March 1989, 5th August, 1989 and 1st December 1989. In all these affidavits, it is stated that in spite of efforts, the Municipal Corporation has not found out an alternative site for the deposit of its garbage. In the affidavit dated 30th December, 1988, it is stated that the incinerator at Totu had started functioning from 1st December, 1988 but in a subsequent affidavit dated 1st December, 1989 it is stated that the incinerator is not working properly and the Municipal Corporation is contemplating the installation of another incinerator that can be operated with light diesel oil. It is also stated that a Delhi firm has promised to send its Engineer for inspecting the site and to suggest the right kind of burner that could be installed for burning the garbage. The affidavit further refers to the possibility of a Czechoslovakian expert visiting Shimla for discussion regarding the feasibility of installing a mechanical incinerator. Apart from these imponderables referred to in the affidavits, of the Municipal Commissioner, we have not been told of any effective steps taken to abate the nuisance.

The second Respondent-Municipal Corporation has no right to dump its garbage in the neighboring panchayat area. Counsel for the second Respondent when specifically asked was not able to give any answer as under what right the Municipal Corporation is throwing its refuse into the Totu area of the third and fourth Respondents panchayats. The Pradhan of the Totu Panchayat in his affidavit has referred to the protests by the Panchayat against the action of the second Respondent Municipal Corporation but the protests had not been heeded to and the panchayat area is converted into a dumping ground for the city garbage. It is not disputed that the deposit of garbage is a health hazard for the residents of the locality. It emits a foul smell and has become a breeding ground for flies and mosquitoes. The Interim Development Plan that had come into force in 1979 makes mention of the gravity of the nuisance as it attracts vultures and also emits obnoxious gases. The averments in the petition relating to the environmental pollution and the great harm done to the conifer trees are not denied by the Respondents. Annexure P-l, the news item published in the Indian Express has clearly brought to light that the dumping of the city''s waste has threatened the 10 sq. miles of the forest area and it has started shrinking day by day. The environmental pollution of such a magnitude if allowed to continue will seriously affect even the eco. system and would have far reaching adverse consequences.

Man should be conscious of the need to preserve the eco.-system to protect life on earth. The depredation of forests and wild life had gone to such an extent that many forms of life are becoming extinct and special protection is afforded to the endangered species. The earth has a name ''KSHMA'' which would mean forbearance and patience but even forbearance and patience have a limit and we should be aware that we have already gone far beyond the limits. The ancient man lived in tune with nature and was a part of the nature itself. He was quite happy and contended with the bounties of nature for all enjoyments in life. He lived a nomadic life and worshiped-nature itself and its different aspects as his sustainer, protector and God. Alvin Toffler in his "The third Wave" studies the progress of humanity in three broad eras; (i) Nomads settled down on agriculture land, built houses married and raised families and that culminated in the agricultural revolution of the ancient vintage. That process continued for 10,000 years; (ii) There was a shift about 300 years ago and that started the industrial revolution; (iii) we are now at the beginning of another revolution where there is decentralization in every walk of life-decentralised polity, decentralised economy, decentralised religion. The concept of leadership is changing. No one can be a leader by yielding force. A leader hereafter will be one who uses and radiates consciousness; the consciousness of life, harmony and unity.

Harmony and unity are to be the guiding forces for man''s survival on earth. The present generation is not entitled to exhaust the resources of nature. He is only a trustee for the generations to follow. It has been reported that the ecological imbalances brought about by the greed of man have already affected living conditions adversely. It is now fairly well established that life exists only on the earth and if conditions are worsened, this MOTHER EARTH itself may, in course of time, become a dead planet, barren and lifeless. The reports of ecological experts indicate that earth''s temperature is on the increase, apparently for the reason of the large scale depredation of the forests all over the world. Further increase in earth''s temperature would result in the melting of the deposits of snow on the Himalayas and other mountain ranges which would ultimately result in the drying up of all the perennial rivers that had hither to serve humanity in many fold ways. Man''s early settlements were on the banks of rivers and those rivers supplied water, so essential for sustenance of life on earth. One can only imagine the plight of man if water becomes a rare commodity. Even now the ground water table has gone down considerably and there is evidence of the receding of water resources in our country itself. Every effort should, therefore, be made to preserve the ecological system and nothing should be done to create any imbalance. Large scale landslides have also become common and that can be prevented only by preserving, protecting and expanding the existing forests.

Article 48A of our Constitution enacts that the State shall Endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. Article 51A imposes as one of the fundamental duties on every citizen, the duty to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living beings. The Supreme Court in M.C. Mehta Vs. Union of India (UOI) and Others, directed the closure of tanneries discharging effluents to the river Ganga without setting up primary-treatment-plants as the effluents polluted the waters of the river. The decision quotes the proclamation adopted by the United Nations Conference in 1972 on Human Environment. A few passages of the proclamation are extracted below for ready reference:

Man is both creature and moulder of his environment which gives him physical sustenance and affords him opportunity for intellectual, moral, social and spiritual growth. In the long and tortuous evolution of the human race on this planet a stage has been reached when through the rapid acceleration of science and technology, man has acquired the power, to transform his environment in countless ways and on an unprecedented scale. Both aspects of man''s environment, the natural and the man made, are essential to his well being and to the enjoyment of basic human rights-Even the right to life itself.

XXX XXX XXX XXX XXX XXX XXX A point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environmental consequences. Through ignorance or indifference we can do massive and irreversible harm to the earthly environment on which our life and well being depend. Conversely, through fuller, knowledge and wiser action, we can achieve for ourselves and our posterity a better life in an environment more in keeping with human needs and hopes. There are broad vistas for the enhancement of environmental quality and the creation of a good life. What is needed is an enthusiastic but calm state of mind and intense but orderly work. For the purpose of attaining freedom in the world of nature man must use knowledge to build in collaboration with nature a better environment. To defend and improve the human environment for present and future generations has become an imperative goal for mankind a goal to be pursued together with and in harmony with, the established and fundamental goals of peace and of world-wide economic and social development.

The proclamation has cautioned against the discharge of toxic substances or of other substances emanating heat in large quantities or concentrations as to exceed the capacity of environment. The States were required to take all possible steps to halt such discharges of toxic substances and to prevent-pollution of the atmosphere, water and the sea. The proclamation affirms also the responsibility of the State to ensure that the activities of exploitation of their own resources are controlled in order to see that no damage is caused to the environment of its own or of other States or areas beyond the limits of its jurisdiction.

Even though there are legislations against environmental pollution, not much had been achieved with respect to the preventive steps. The water (Prevention and Control of Pollution)Act, 1974 was passed by the Parliament in 1974 to provide for the prevention and control of water pollution and for establishment, with a view to carrying out the purposes of the Act, of Boards for the prevention and Control of water pollution. Section 24 of the Act prohibits the use of any stream or well for disposal of polluting matter etc. The expression stream is defined in Section 2(j) as including river, water course whether flowing or for the time being dry, inland water whether natural or artificial, subterranean waters, sea or tidal waters to such extent or as the case may be to such point as the State Government may by notification in the official Gazette, specify in that behalf. The Act contemplates the establishment of a Central Board and the state Boards. The functions of the Central-Board and the State Boards are delineated in Sections 16 and 17 respectively. One of the functions of the State Board is to inspect sewage or trade effluents, the works for its purification and the system for the disposal of sewage or trade effluents. The Parliament has also passed the Environment (Protection) Act, 1986 (Act 29 of 1986) and that Act has come into force w. e. f. November 19, 1986. Section 3 of the Act confers power on the Central Government to take all such measures for the purpose of protecting and improving the quality of the environment and to prevent, control and abate environmental pollution. ''Environment'' includes water, air and land and the interrelationship which exists among and between water, air and land and human beings, other living creatures, plants, micro organisms and property. Section 3(2)(iv) of the Act empowers the Central Government to lay down standards for emission or discharge of environmental pollutants from different sources whatsoever. Section 5 empowers the Central Government to issue directions to any person, officer or authority and such person officer or authority is bound to comply with such directions. The power to issue directions includes the power to direct the closure, prohibition or regulation of any industry, operation or regulation of the supply of electricity or water or any other service. Section 9 imposes a duty on every person to take steps to prevent or mitigate the environmental pollution. Section 15 contains provisions relating to penalties that may be imposed for the contravention of any of the provisions of the Act or (he direction issued there under.

M.C. Mehta''s case (supra) refers to these enactments and states that notwithstanding these provisions, no effective steps have been taken to prevent the discharge of affluent into the river Ganga. It was after considering the gravity of the environmental pollution caused by the discharge of affluent that the Supreme Court directed the closure of the tanneries that had failed to set up Primary Treatment Plants before affluent are discharged into the river Ganga.

The Supreme Court in Rural Litigation and Entitlement Kendra, Dehradun and Others Vs. State of U.P. and Others, had directed the closure of limestone quarries in the Mussoorie Hill ranges to prevent environmental pollution.

The Second Respondent Municipal Corporation has no right to deposit its garbage in the Totu Area falling within the jurisdiction of Totu and Chailly Panchayats On the material placed and not disputed, before us, we are satisfied that the deposit of garbage in the Totu area has resulted in atmospheric pollution, injuriously affecting public health and also environmental pollution affecting the nearby forests. Inspire of the opportunities given to the second Respondent, Municipal Corporation, at various stages of this writ petition, no effective steps had been taken to prevent the atmospheric and environmental pollution. We, therefore, direct the second Respondent-Municipal Corporation, Shimla, to forthwith stop depositing the city''s garbage in the Totu area.

The Supreme Court in Municipal Council, Ratlam Vs. Vardichan and Others, , made the following observations at page 1629:

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 Article 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 systems-not pompous and attractive, but in working condition and sufficient to meet the needs of the people-cannot be evaded if the Municipality is to justify its existence. A bare study of the statutory provisions makes this position clear.

The Supreme Court in that case held that where there existed a public nuisance in a locality due to open drains, heaps of dirt, pits and public excretion by humans for want of lavatories and consequential breeding of mosquitoes, the court could require the Municipality u/s 133 of the Code of Criminal Procedure read with Section 123 of the U.P. Municipalities Act to abate the nuisance by taking affirmative action on a time-bond basis. It is also held that the Municipality could not take the plea that notwithstanding the public nuisance financial inability validly exonerated it from the statutory liability. The Supreme Court gave some additional directions to the Municipality as well as the State Government to take immediate action to prevent the affluent from the alcohol plant flowing into the street. The municipality was also directed to construct sufficient number of public latrines for use of men and women separately and to provide water supply and scavenging service. Directions were also issued to the State Government to take appropriate steps through its malaria eradication wing to stop mosquitoes breeding. Further directions were also issued to the municipality to construct drains and fill up cess-pools and keep the place free from accumulating filth.

A Division Bench of the Bombay High Court in Citizens Action Committee, Nagpur Vs. Civil Surgeon, Mayo (General) Hospital, Nagpur and Others, following the decision in Municipal Council, Ratlam (supra) gave direction to the municipality concerned to provide for civic amenities and sanitation to the residents within the Nagpur Municipal area.

Respondents No. 3 and 4 in their respective affidavits-in-reply have referred to the steps taken for improvement of civic amenities and for restoring sanitation in the Totu Area. The fourth Respondent in his affidavit has mentioned about the allotment of certain funds by the State Government referred to in Annexure R-7 letter of the District Panchayat Officer, Shimla District. The first Respondent is directed to disburse the allotted funds to the respective panchayats within three months from today if the funds are not already disbursed. Respondents No. 3 and 4 are directed to carry out the purposes of the allotments as expeditiously as possible. They are also directed to restore sanitary conditions in the Totu area by making sufficient number of public latrines and urinals and providing for proper drainage. We have no doubt that any deficiency in funds for these basic requirements will be made good by the State Government.

The writ petition is allowed as indicated above. The second Respondent-Municipal Corporation will pay the costs of the Petitioner. Advocate''s fee Rs. 1,000/-.