Harish Chandra vs Gorakhpur Development Authority & Ors.

Ravi S. Dhavan, J.—Some times local politics and petty squabbles can go to ridiculous propositions in the violation of civic sense, good neighbour conduct and regard for the convenience and tolerance of others. This is one such case. The petitioner complains that his neighbour, the respondent No. 3, as a matter of personal prestige, spills sullage and sewage from his old privy and latrine and discharge it infront of his house. Apparently when these two neighbours could not sort put their differences amongst them, the issue reached the local authorities. These were the Gorakhpur Development Authority, respondent No. 1 and the Nagar Mahapalika, Gorakhpur, the respondent No. 2. The Gorakhpur Development Authority functions under the U.P. Urban Planning and Development Act, 1973 and the Nagar Mahapalika Gorakhpur, under the U.P. Nagar Mahapalika Adhiniyam, 1959. As both these public bodies are incharge of city planning and its maintenance, they discharge public duties for the benefit of the public.

The petitioner complained to the Gorakhpur Development Authority of the inconvenience and the healthhazard, he was being subjected to by the respondent No. 3 from the discharge of the filth and sullage from an open service latrine infront of his house. The petitioner''s complaint was enquired into by the Gorakhpur Development Authority. A Junior Engineer gave a report. The essence of which is that the respondent No. 3 was in fact, discharging sewage and sullage off his latrine, infront of the petitioner''s house. The allegation against the respondent No. 3 is that he had constructed a service latrine as opposed to a flush latrine.

But this respondent contended before the Gorakhpur Development Authority that the old latrine had collapsed and he had merely reconstructed it. Thiss is not an issue before the Court as what concerns the Court is that raw sewage and sullage from this respondent''s service latrine is being so discharged irresponsibly in the locality. This shows that this respondent does not have any civic sense at all. The issue should have died after the order of Secretary, Gorakhpur Development Authority. This order is dated 27th November, 1981. In effect, the respondent No. 3 was directed to convert his service latrine into a flush latrine so that his privy does not act as a healthhazard and a nuisance to the members of the locality. Respondent No. 3 was given about one month''s time to under take the necessary changes for sanitation within and outside his house. Apparently, this respondent did not take the hint and was in a mood to pursue the matter urther as if to retain his service latrine and irevent the conversion of its into a flush latinc.

This was not a matter ii which this respondent should have filed an appeal before the Commissioner, orakhpur Division. This was appeal No. 45/G 1981, PhekuRam Yadav v. Gorakhpur Development Authority and another. The appellate order is itself peculiar. The respondent No. 3 did not succeed in whatever he sought. Before the learned Commissioner, Gorakhpur Division, the recorded an undertaking on his willingness to convert the service latrine into a flush latrine "in due course of time". Having recorded this undertaking the Commissioner, Gorakhpur Division, set aside the order of the Secretary, Gorakhpur Development Authorityand remanded the case for a decision afresh on certain observations made in this appellate order. Once the undertaking of respondent No. 3 had been recorded the issue should have died before the Divisional Commissioner in the appeal. The High Court is unable to agree with the learned Commissioner that he could not locate any provision under the U.P. Urban Planning & Development Act, 1973 that a person could be compelled to convert a service latrine into a flush latrine. The learned Commissioner, however, does observe that there may be other laws on this. Indeed there are other laws for this and even if there were not, the Constitution of India provides sufficiently to put an end to scavenging. As long as there will be service latrines the institution of scavengers will also exist shamefully.

The Gorakhpur Development Authority and the Nagar Mahapalika, Gorakhpur have not answered the writ petition by a counteiaffidavit. Likewise, the State of U.P. has also not filed a counteraffidavit. The single most contributing factor which even today promotes to this horrible concept of untouchability, is that society has not permitted manual scavenging as an institution to die by a one stroke effort 10 eliminate this abhorable practice by flush toilets.

The court mentions this aspect as the issue between the petitioner and the respondent No. 3 is whether a service latrine could exist or not. This issue continued in a revision under Section 41(3) of the U.P. Urban Planning and Development Act, 1973 before the State Government. The revision was filed by the petitioner against the Commissioner''s Order. The High Court cannot blame the petitioner for this because if the Commissioner had set aside the order of the Gorakhpur Development Authority and refrained from granting liberty to convert the service latrine to a flush latrine ''in due course of time'', the harassment, the inconvenience and the healthhazard in so far the petitioner or for that matter the people of the locality were concerned, would have ceased. To do some act ''in due course of time'' is as good as not doing it at all.

This revision before the State Government was heard before the Joint Secretary, Urban Development. The decision is dated 1285. On the ground that no affidavit of respondent No. 3 was to be found on record, the State Government was of the view that it is not possible to give any decision on merits and the petitioner was unsuited on the ground that with an incomplete record the matter cannot even be placed before the Secretary for his decision. The revision of the petitioner, in effect was rejected. The entire exercise of the petitioner''s complaint on his object that the respondent No. 3 be restrained from using a service latrine which the latter was obliged to convert into a flush latrine stood frustrated. To arrange for drainage, sewage and garbage removal is a public and statutory'' obligation of a municipality, no less of citizens of their civic obligations. Thus, the petitioner rightly filed this writ petition to seek performance of public obligations.

Since 1981 and today, 15 years have passed and the High Court is examining the issue whether the respondents were correct in offering resistance to convert a service latrine into a flush latrine, The two orders of the respondent authorities, one of the Divisional Commissioner dated 2561984 (AnnexureII) and the other of the State Government dated 121985 (AnnexureIII) have basically declined to interfere in the matter.

The State Administration and every local authority which is incharge of a local body, whether it is a City Corporation, Municipality or a Town Area Committee needs to be reminded that providing civic amenities is a statutory obligation. Besides, the discipline of continuing sanitation is also a public duty of those, who are invested with the charge of municipal functions. Since the matter before the Court relates to a City Corporation on matters relating to sanitation, the U.P. Nagar Mahapalika Adhiniyam, 1959, sufficiently provides for the disposal of sewage, water, closets, privies, urinals as also the inspection of them. The building regulations provide that the drainage and the sanitary arrangement will not effect the stability of tenements and the Mukhya Nagar Adhikari has been vested with sufficient authority to either demolish or to cause to be repaired any insanitary arrangement in the building. Failure to act will imply that the City Corporation is abdicating or not performing its public duty.

In case respondent No. 3 has not already converted his service latrine into a flush latrine as of date, then, as he has represented before the Court, he will do so within three months from today failing which the Nagar Mahapalika, Gorakhpur, or the Gorakhpur Development Authority, as the case may be, will have it converted within one month thereafter, at the expenses of this respondent.

In these circumstances the petition succeeds with the order of the Commissioner, Gorakhpur Division dated 2561984 and the State Government dated 121985 being quashed. The petitioner will be entitled to costs separately on this petition from respondent No. 3 and from the State of U.P. arrayed as respondent No.

The writ petition succeeds with costs as indicated.