Yoginder Lal Sharma vs Municipal Corporation Shimla and Others

V.D. Misra, C.J.—Shimla is known as the "Queen of Hills". A railway called the "Himalayan Queen" connects it with the rest of the country. There was a time when the people used to swear by the municipality of Shimla. In the recent past they started swearing at it. The conditions have indeed deteriorated. And this was despite the fact that the residences of all the Council of Ministers as well as the Governor are here. Perhaps the Hon''ble Ministers had no time to walk even on the Mall of this hill station. Over the years the roads fell into utter disrepair, the public conveniences became a nuisance because of their stink, stairs broke and became traps, and the filth could be seen at various places. The present condition is well described by Shri Ashok Chopra in an article entitled "O Simla" in the Sunday Statesman, July 3, 1983. He describes the condition thus:

"ANYONE who visits Simla for the first time is bound to be struck by two things about the place-it is silent, it is scenic. Its silence you can get nowhere else. When I say it is scenic I mean it wears the appearance of a stage setting such as One sees for example in the first act of a light opera....

So wrote, in 1945, Henry Sharp in his celebrated book, Goodbye India. He might as well have titled that particular chapter "Goodbye Simla". For Simla today is neither silent nor scenic. It has devoured its old gay colourful past, the easygoing ways of the Raj days, the commons, the not-so-commons, even the silent cool air. Everything about it seems changed. Just ten years ago it looked vulnerable and sensitive; today it is remote and indrawn. Were the Britons, the makers of this town, to revisit their summer capital one of these days they would miss more than a heartbeat seeing the mushroom growth of buildings of all shapes and sizes all over, the filth of the socalled posh areas, the neglected roads, the choked drains; in fine, the rapidly changing face of Simla which has little flavour left of its own.

Air thick with putrescence, kutcha lanes and by-lanes littered with human excreta and stinking cesspools formed by over flowing Wcs are a common sight in this once stately capital. Shops selling vegetables, fruits, eggs, meat, fish, snacks and even medicines are surrounded by heaps of garbage. The sight of dogs and mules greedily feasting over the rubbish with vegetable and fruit being sold opposite is sure to churn the hardest of stomachs.

It is precisely in these sub-human conditions that nearly one-third of Simla''s over-growing population lives. These areas are not exactly slums but then they are no better even if they continue to be known euphemistically by names left behind by the British.

Until as lately as 1955 the roads and streets of Simla were kept clean. During the summers the Mall was washed every day. Sanitary inspectors regularly visited hotels, restaurants, sweet shops and vegetable and meat markets to ensure supply of healthy foodstuff to the town. Bakeries were kept under watch. Garbage was regularly removed to incinerators around the town. Today none of these measures is in force. The sweepers are no longer required to sweep the roads before dawn. Garbage is dumped anywhere and everywhere. And it seems almost incredible that fortnightly tests used to be made until not long ago to ensure potability of water. The municipal staff perhaps consider it below their dignity to inspect markets. The sewers are perpetually choked. Horse-dung is spattered even along the posh shopping centre of The Mall."

We find that the things started deteriorating since 1966. A Full Bench decision of the Delhi High Court in Suraj Prakash v. State of Punjab and Ors. 1967 DLT 393, records the notification issued by the Local Government Department (Committees) dated May 16. 1966, published on May 17, 1966, recording the reasons for superseding the then Municipal Committee, Shimla. The reasons, amongst others, were that it has shown utter disregard in respect of proper maintenance of sanitary conditions of Shimla town; it has failed to improve the general conditions of the roads which were very bad; it has been very neglectful in preventing unauthorised cutting of trees which was extremely harmful in hilly areas; it has grossly abused its power in sanctioning construction of shops etc.

A word about the municipality of Shimla. The Himachal Pradesh Municipal Act, 1968 repealed the erstwhile Punjab Municipal Act. The then Municipal Committee, Shimla, was governed by it. The Himachal Pradesh Municipal Corporation Act, 1979 (Act No. 9 of 1980) (the Act), which received the assent of the President of India on 22nd August, 1980 and was published on 18th October, 1980, repealed and replaced the Himachal Pradesh Municipal Act, 1968 in addition to other Acts. It provided for a Corporation for the city of Shimla to be known as "the Municipal Corporation of Shimla". However, no elections to the municipal body were held ever since the Himachal Municipal Act came into force constituting the Municipal Committee of Shimla. In fact, ever since 1968 the Municipal Committees have been headed by the nominees of the State Government. Unfortunately the Himachal Pradesh Municipal Corporation Act did not alter the prevailing conditions. Over the last decade different political parties came to rule this State. It appears that all the political parties were united in one thing, that is, not to allow the citizens of Shimla to elect its municipal body. The result is that a Corporation, which was to be constituted u/s 4(3) of the Act, has not come into existence and all the powers and duties conferred and imposed on the Corporation are being exercised by the Commissioner in terms of Section 4(4) of the Act. Though Section 403 empowers the Government to supersede the Corporation, the need of supersession has not arisen since the Government has ensured that the Corporation is not constituted. After the supersession of the erstwhile municipal committee the body had been governed by Administrators, Many a time these Administrators have been holding other charges also in addition to their being the Administrator. One Shri D.P. Singh, Deputy Commissioner, Shimla, was holding a dual charge as Administrator, Municipal Committee, Shimla, from 27-1-1978 to 2-5-1978. Thereafter one Shri K.N. Kashyap, Deputy Commissioner, Shimla, was the Administrator from 14-9-1979 to 18-3-1980. Then Shri Dev Sarup, Deputy Commissioner, Shimla, was Administrator, Municipal Committee, Shimla, from 19-3-1980 to 16-4-1980. Lastly, Shri V.K. Ahluwalia, Managing Director, H.P. Tourism Development Corporation, also held the dual charge of Commissioner, Municipal Corporation, Shimla, from 17-4-1980 to 30-4-1981. It is pitiable indeed to see those very representatives of the people running the Government, who will cry themselves hoarse in the name of democracy if the legislative assembly is dissolved and President rule enforced, denying the people their democratic right over decades to run their municipalities because of petty political considerations. But we hasten to add that we have been assured that the present Government is considering the matter of conducting elections to constitute the Corporation of Shimla.

It has indeed taken very long for the citizens of Shimla to wake up from their slumber. They have now started realising that they have a right to force the Municipal Coiporation to perform its statutory duties. The present writ petition was filed in January, 1983. The Petitioner is one of the residents of Shimla. It is stated:

"...the city of Shimla has become a monument of domestic refuge, dirt and garbage because "of the neglect of the performance of the obligatory functions as also the discretionary functions to be discharged by the Municipal Corporation...the roads, lanes, and staircases all over Shimla are absolutely in a neglected condition. There are potholes even on the prestigious Mall Road what to say of the so called unfashionable centres of Lower Bazar, Middle Bazar, and neglected areas of Shimla... The stairs leading from Mall Road to Lower Bazar and from Lower Bazar to Cart Road are all absolutely broken and in uneven condition. There have been various instances when the residents of Shimla as also tourists have fallen and received injuries. The drains are all at several places clogged and at various places the filthy water passes over the stains. It is particularly so along with the house of the Petitioner in Alley No. 3...The Petitioner and some other residents of that locality have requested the Corporation a number of times to repair the same but ho heed was paid to the same. They even sent a registered letter requesting to repair the stairs which had been damaged by the Municipal Corporation years back by laying down sewerage line. The registered representation sent on 28-5-1982 has not even been replied by the Municipal Corporation, Shimla, what to say of the repairs of the stairs...Instead of cleaning the drains, scavenging and removing the filth and dirt in the four incinerators which had been installed by the Municipal Corporation, Shimla, the rubbish is allowed to be stocked all over the city."

A grievance is made of the conditions of the public latrines, urinals, and other simlilar conveniences. It is averred that the condition of the Lower Bazar during the day is so bad that the ambulances or the fire brigade cannot even move in case of need. The Municipal Corporation is stated to have parted with the Ladies Park to enable the Deputy Commissioner to allow holding of various political functions and melas etc. The hiring of the erstwhile Band Stand on the Ridge along with parks to the H.P. Tourism Development Corporation is also assailed on the ground that the Municipal Corporation had no jurisdiction to do so. It is also averred:

"...the Corporation is spending extravagantly on beautifying its building and furnishing the Town Hall and the office of the Commissioner and the other officers...The Town Hall has been lavishly furnished with carpets, decorative chairs as also Commissioner''s/Administrator''s office. Large amounts are being spent on changing the railings of the city when there were permanent cement concrete pillars to which wooden railings had been fixed which had stood all these years. The stairs leading to the Municipal Corporation building were in a good condition but they have been tiled with Kota stone tiles whereas the Corporation has not even the funds to complete the laying up of the remaining tiles from the Mall to the Shivalaya Temple in the Middle Bazar along the Fire Brigade Building. It may not be out of place to mention that two phillanthropists of Shimla had donated those tiles but the same were not fixed for over an year and the Corporation has not completed the uncompleted work."

Directions to the Municipal Corporation are prayed for to force it to perform its statutory functions.

In reply the Municipal Corporation denied that the conditions were as bad as stated by the Petitioner. However, it is assured that it is trying to perform its duties according to the monetary resources available to it. It is also submitted that the repair work is in progress everywhere. It is stated that earnest efforts will be made to keep the town clean. The incinerators were stated to be under repair and it was promised that these would be put in use in the very near future. Facilities for Children Park and Ladies Park were also promised.

During the course of proceedings various miscellaneous applications were moved by the Petitioner as a result of which at one stage the Himachal Pradesh Tourism Development Corporation (the Tourism Corporation) as well as the State were made parties. We may also record that during the course of proceedings the Municipal Corporation carried out some works expeditiously. By new a major portion of the roads has been repaired, stairs mended and the conditions of the public conveniences improved. The drains have been cleared and cleaned and a great improvement effected in the drain pipes. Two incinerators have since started functioning. We may also record that during the course of proceedings the present Commissioner, Shri B.K. Chauhan, took over on 27-4-1983 and he worked hard to show the results. We were also informed that a grant of rupees twenty-five lakhs had been made by the State Government for the loads and another sum of five lakhs was also granted to the Municipal Corporation. This was also due to the fact that there were important changes in the State Government.

We may first dispose of the objection raised by some of the Respondents that this Court has no jurisdiction to go into the matter. It is submitted that the Petitioner has no locus standi to move the present petition. In any case, it is submitted, that the Petitioner should have recourse to the proceedings to the civil and criminal laws in the subordinate courts to have redress of his grievances.

It is unfortunate indeed that despite the pronouncements by the Supreme Court in. various cases about the jurisdiction of the courts in public interest litigation, the jurisdiction of the court is still being challenged. It is also very unfortunate that some responsible but ignorant persons have been criticising the conduct of this Court in entertaining the present petition and passing various interim orders directing the Municipal Corporation to carry out its statutory duties, and have started asking whether the Court will order the pavement of their streets in their villages. They have also criticised the conduct of the Court in converting the letters into a petition. Some of these misguided persons claim themselves to know the law. They have also criticised this Court for trying to go to the level of populism and trying to become a drum beater of economic and social justice.

While repelling similar criticism of the conduct of courts, the Supreme Court in People''s Union for Democratic Rights and Others Vs. Union of India (UOI) and Others, said:

"There is a misconception in the minds of some lawyers, journalists and men in public life that public interest litigation is unnecessarily cluttering up the files of the court and adding to the already staggering arrears of cases which arc pending for long years and it should not, therefore, be encouraged by the court. This is, to our mind, a totally perverse view smacking of elitist and status quoist approach. Those who are decrying public interest litigation do not seem to realise that courts are not meant only for the rich and the well-to-do, for the landlord and the gentry, for the business magnate and the industrial tycoon, but they exist also for the poor and the down-trodden, the have-nots and the handicapped and the half-hungry millions of our countrymen. So far the course have been used only for the purpose of vindicating the rights of the wealthy and the affluent. It is only these privileged classes which have been able to approach the courts for protecting their vested interests. It is only the moneyed who have so far had the golden key to unlock the doors of justice. But, now for the first time the portals of the court are being thrown open to the poor and the down-trodden, the ignorant and the illiterate, and their cases are coming before the courts through public interest litigation which has been made possible by the recent judgment delivered by this Court in Judges'' Appointment and Transfer case.

Millions of persons belonging to the deprived and vulnerable sections of humanity are looking to the courts for improving their life conditions and making basic human rights meaningful for them. They have been crying for justice but their cries have so far been in the wilderness....No State has a right to tell its citizens that because a large number of cases of the rich and the well-to-do are pending in our courts, we will not help the poor to come to the courts for seeking justice until the staggering load of cases of people who can afford, is disposed of. The time has now come when the courts must become the courts for the poor and struggling masses of this country. They must shed their character as upholders of the established order and the status quo. They must be sensitised to the need of doing justice to the large masses of people to whom justice has been denied by a cruel and heartless society for generations; The realisation must come to them that social justice is the signature tune of our Constitution and it is their solemn duty under the Constitution to enforce the basic human rights of the poor and vulnerable sections of the community and actively help in the realisation of the constitutional goals. This new change has to come if the judicial system is to become an effective instrument of social justice, for without it, it cannot survive for long. Fortunately, this change is gradually taking place and public interest litigation is playing a large part in bringing about this change. It is through public interest litigation that the problems of the poor are now coming to the forefront and the entire theatre of the law is changing. It holds out greater possibilities for the future."

The Supreme Court in S.P. Gupta Vs. President of India and Others, (also known as Judges'' Appointment and Transfer case) observed:

...it is essential to the maintenance of the rule of law that every organ of the State must act within the limits of its power and carry out the duty imposed upon it by the Constitution or the law. If the State or any public authority acts beyond the scope of its power and thereby causes a specific legal injury to a person or to a determinate class or group of persons, it would be a case of private injury actionable in the manner discussed in the preceding paragraphs. So also if the duty is owed by the State or any public authority to a person or to a deteiminate class or group of persons, it would give rise to a corresponding right in such person 01 determinate class or group of persons and they would be entitled to maintain an action for judicial redress. But if no specific, legal injury is caused to a person or to a determinate class or group of persons by the act or omission of the State or any public authority and the injury is caused only to public interest, the question arises as to who can maintain an action, for vindicating the rule of law and setting aside the unlawful action or enforcing the performance of the public duty. If no one can maintain an action for redress of such public wrong or public injury, it would be disastrous for the rule of law, for it would be open to the State or a public authority to act with impunity beyond the scope of its power or in breach of a public duty owned by it. The courts cannot countenance such a situation where the observance of the law is left to the sweet will of the authority bound by it, without any redress if the law is contravened. The view has, therefore, been taken by the Courts in many decisions that whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury.

(Emphasis supplied).

It was also observed:

"It is for this reason that in public interest litigation-litigation undertaken for the purpose of redressing public injury, enforcing public duty, protecting social, collective, ''diffused'' rights and interests or vindicating public interest, any citizen who is acting bona fide and who has sufficient interest has to be accorded standing ...The judge who has the correct social perspective and who is on the same wavelength as the Constitution will be able to decide, without any difficulty and in consonance with the constitutional objectives, whether a member of the public moving the court in a particular case has sufficient interest to initiate the action."

The jurisdiction of this Court to issue an appropriate writ, directions or orders, directing persons to carry cut their statutory duties has never been in doubt ever since the Constitution was enforced. It is the right of every affected person to come to the court to ask for relief and wherever the court is convinced of the cause, the court will, nay it is the duty of the court, to issue appropriate orders. The Municipal Corporation of Shimla is a statutory body. The law has cast various duties and obligations on this Corporation. It will indeed be a mockery of law if the statutory body will be able to claim that it has the right not to perform its duties and this Court has no jurisdiction to issue any writ for the enforcement of its duties. It is true that under the previous Municipal Act as well as the present Act a prevision has been made for the supersession of an elected municipal body as an exception. But in the case of city of Shimla this exception seems to have become a rule since 1968. For all these years, the Government swearing in the name of democracy has consistently refused to grant these democratic rights to the citizens of Shimla. Since the Government is considering granting these rights now, we say nothing more.

We may now refer to some of the cases cited at the Bar on this question.

In R. Varadarajan Vs. Salem Municipal Council and Another, the Petitioner challenged the validity of a resolution passed by the Municipal Committee allotting a place at the junction of particular roads for the purpose of erecting statue of the late Chief Minister of the State of Tamilnadu. While repelling the objection about the locus standi of the Petitioner and the jurisdiction of the court, the court relied upon the following observations of Tyabji, J., in Toman v. Municipality of Sholapur ILR (1898) 22 Bom. 646:

"These authorities seem to me to show very clearly, first that the Plaintiff''s can sue in their individual capacity if they are sufficiently interested in the municipal fund, and secondly, that any interest however, smallis sufficient to entitle them to do so."

The following observations of Alagirisami, J., in another case of Madras were quoted:

"The result of these decisions may be stated to be that where a Corporation or a statutory body acts in excess of its statutory powers and misapplies its funds, a shareholder of the Corporation or a rate-payer is entitled to maintain a writ to prevent the Corporation or the local authority from acting beyond the scope of its authority."

In 85 Calcutta Weekly Notes 816, the court ruled:

"...if the authorities failed to perform their statutory duties in removing the obstruction on the public path, the High Court can be moved in its constitutional writ jurisdiction and the High Court has a right to command the concerned authorities by writ in the nature of Mandamus for removing such obstruction."

In Municipal Council, Ratlam Vs. Vardichan and Others, the Appellant approached the Supreme Court challenging the decision of the High Court affirming the trial court''s order directing the drainage facilities and the like. Krishna Iyer, J., in his characteristic language, speaking for the court observed thus:

"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 path-finder in the field of people''s involvement in the justicing process, sans which as Prof. Sikcs points out, (1) the system may ''crumble under the burden of its own in sensitivity''. 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."

While repelling the contention of the municipality that it had no funds to carry out its statutory duties and that it cannot be forced to do so, it was observed:

"The statutory setting bring thus plain, the municipality cannot extricate itself from its responsibility. Its plea is not that the facts arc 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 municipality that notwithstanding the public nuisance financial inability validly exonerates it from statutory liability has no juridical basis. The Code of Criminal Procedure operates against statutory bodies and other 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 pachy-dermic governmental agency may legally defy duties under the law by urging in self-defence a self-created bankruptcy or perverted expenditure budget. That cannot be."

The Supreme Court called upon the parties to place the schemes and the tentative estimates of costs. After looking into the matter, a time bound direction was given to the municipality. The State was reminded of its duties under Article 27 "for the improvement of public health as amongst its primary duties". The municipality was also directed to slim its budget on low priority items and elitist projects to use the savings on sanitation and public health. The Court expected of the municipality that all the wards should be benefited without litigation forcing the persons to approach the court. It was made plain that the remedy is not only through the provisions of the Code of Criminal Procedure but also by other methods by observing thus:

"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."

We have, therefore, no hesitation in rejecting the preliminary objections and holding that the present petition is maintainable since no other alternative remedy can be said to be adequate and efficacious.

Streets, Drains and Toilets:

Chapter III of the Act lays down the functions of the Corporation. Section 43 of this Chapter lays down the ''Obligatory functions of Corporation''. The relevant part of this section reads:

"It shall be incumbent on the Corporation to make adequate provision by any means or measures which it may lawfully use or take for each of the following matters, namely-

(a) the construction, mainterance and cleaning of drains and drainage works and of public latrines, urinals and similar conveniences;

xx xx xx xx (c) the scavenging, removal and disposal of filth, rubbish and other obnexious or polluted matters;

xx xx xx xx (f) the construction, maintenance, alteration and improvements of public streets, bridges, culverts, causeways and the like;

(m) the lighting, watering and cleaning of public streets and other public places;

(n) the removal of obstructions and projections mor upon streets, bridges, and other public places;

xx xx xx xx (q) the laying out or the maintenance of public parks, gardens or recreation grounds;".

Among the discretionary functions of the Corporation u/s 44 Clause (s) the Corporation may in its discretion provide as a whole or in part for:

"The organisation, construction, maintenance and management of swimming pools, public wash houses, bathing places and other institutions designed for the improvement of public health;"

Chapter VII of the Act relates to the revenue and expenditure. Section 75 relates to the constitution of Corporation fund. Sub-section (2) of this section expressly lays down in unambiguous terms that the "Corporation Fund shall be held by the Corporation in trust for the purposes of this Act subject to the provisions herein contained." Chapter VIII relates to taxation. Functions of the Commissioner in respect of public streets are enumerated in Section 224.

Sub-section (1) of this section reads:

"(1) The Commissioner shall, from time to time, cause all public streets vested in the Corporation to be levelled, metalled or paved, channelled, altered or repaired, and may widen, extend or otherwise improve any such street or cause the soil thereof to be raised, lowered or altered or may place and keep in repair fences and posts for the safety of foot-passengers...."

Section 242 prohibits projections upon public streets. It reads:

"(1) Except as provided in Section 243, no person shall erect, set up, add to, or place against or in front of any premises any structure or fixture which will-

(a) overhang, jut or project into, or in any way encroach upon and obstruct in any way the safe or convenient passage of the public along any street; or

(b) jut or project into or encroach upon any drain or open channel in any street so as in any way to interfere with the use or proper working of such drain or channel or to impede the inspection or cleansing thereof.

XX XX xx xx"

Section 243 relates to the powers of the Commissioner to give written permission about projections over streets. Sub-section (2) of this section empowers the Commissioner at any time by a notice require the owner''or occupier of any building to remove a verandah, balcony, sun-shade, weather frame or the like up in accordance with the provisions of any law and such owner or occupier shall be bound to take action accordingly but shall be entitled to compensation for the loss caused to him by such removal and the cost incuvred thereon. Section 247 empowers the Commissioner to remove anything deposited or exposed for sale in contravention of the Act. It reads:

"The Commissioner may, without notice, cause to be removed-

(a) any stall, chair, bench, box, ladder, bale or other thing whatsoever placed, deposited, projected, attached or suspended in, upon, from or to any place in contravention of this Act;

(b) any article whatsoever hawked or exposed for sale on any public street or in any other public place in contravention of this Act and any vehicle, package, box or any other thing in or on which such article is placed."

Under Section 388 a Corporation is enjoined upon to maintain a sufficient police establishment for police requirements within the city and for the performance of the duties imposed on it by the Act, unless the Corporation is relieved of this obligation by the Government.

It is not denied before us that it is the bounden duty of the Corporation u/s 43 to construct, maintain and clean the drains, the public streets, toilets and ether conveniences. One of the reasons advanced for the failure to perform this duty was the lack of finances. It was pointed out to us that from time to time various sources of collecting revenue by the Corporation had dried up because of the various policies and decisions taken by the Government. As already stated, the present Government has since released substantial amounts to the Corporation to perform its duties. Repairs on the roads are in full swing. Of course, it will take time before it is completed. Similarly tremendous improvement has been achieved in the maintenance of public latrines, cleaning of drains, and improvement of drain pipes. Incinerators have started working. Our attention has been drawn to the fact that the present Commissioner Shri B.K. Ghauhan, who took over charge as Commissioner of the Corporation and has been working hard to restore Shimla to its pristine glory, has been able to get financial grants from the Central Government and other agencies for conversion of dry latrines in the city into flush latrires. We are informed that the Municipal Corporation is granting a subsidy to the extent of 75% to the owners of houses for such conversion. The work is stated to have already started from Kaithu and is now going on in Lower Bazar, Shimla. We do commend the Municipal Corporation for this achievement. The work of repairing the stairs is practically complete and we are assured that the repairing of the roads will be fully completed within six months. We are conscious of the fact that over the years the municipality in Shimla seems to exist only in name with the result that every law was violated with impunity by all the resourceful persons which has also resulted into serious encroachments on the public roads, ft is, therefore, bound to take sometime before things are improved.

We find that the provisions in the Municipal Corporation Act are very exhaustive on all subjects. The duties of the Corporation arc expressly laid down. Sufficient provisions exist for ensuring welfare of the residents. However, they have been observed only in the breach.

A grievance has also been made that though the municipality had previously provided for bathing places but since of late these have been converted into shops (Naya Bazars) which have been rented out. The additional affidavit of 17-9-1983 filed by the Deputy Secretary (LSG) to the Government states that the bathing places in Shimla could not be profitably used because of lack of supply of water and so these were converted into shops (Naya Bazars) about 15 years ago to serve more people. It is very unfortunate that the defence is based on Corporation''s failure to perform its obligatory functions of supplying water to the citizens. Instead of constructing bathing places, which is one of the discretionary functions of the Corporation, the existing ones were converted into shops. We do realise that the construction of a thing is difficult but the maintenance of a thing which exists should not pose serious problems. In any case such a facility for the poor should not have been done away with. We direct the Corporation that within the next one year it shall provide for at least two bathing places for the poor and the workers in Shimla.

A grievance has been made that the Corporation has failed to ensure that the Lower Bazar is kept free from various types of projections, obstructions and encroachments with the result that during the day even the ambulances cannot move in that Bazar to help the sick. Of this fact we can take judicial notice. This Bazar is the one which is frequented by everyone in Shimla. The shopkeepers are in the habit of displaying their goods on a part of the street. Some of them are in the habit of setting up projections during the day for the same purpose. Some also store their goods on the toad. Unauthorised hawkers are in such abundance that at places it becomes difficult even to walk. We were informed that some of the shopkeepers have the backing of some political persons and, therefore, nothing can be done. It is unfortunate indeed that the Corporation has failed to keep this Bazar clear of the encroachments etc. The authorities must remember that a very substantial part of population of Shimla lives near about this Bazar and in case of need it is impossible for the needy to be removed to the hospital etc. God forbid if at any time a fire breaks out in this overcrowded place since all the houses and shops arc of wood and there will be a very heavy loss of life. It is, therefore, necessary to keep this Bazar clear in order to ensure that the ambulances as well as the fire brigade can easily move. We have already referred to Section 242 of the Act which prohibits projections upon the streets and the powers of the Commissioner to remove all obstructions. We direct the Commissioner to start performing his duties to keep this Baznr clear of all projections etc. in order to ensure the free movements of ambulances and the fire brigade. Again,) the malady has existed for a long time, we will expect the (Commissioner to ensure that within the next one month this Bazar is cleared of all obstructions.

Ladies Park:

Shimla has a park known as "Ladies Park". It is situated just off the Mall below the Christ Church. It is quite a spacious flat place. A tablet, of which a photograph has been placed on record, shows that this park was opened by Rajkumari Amrit Kaur on 8th July, 1934 and it was named as "Municipal Park for Women and Children". A letter dated 10-6-1983, written by the Commissioner of the Municipal Corporation to the Secretary (LSG") for permission to use Ladies Park, gives a brief history of this Park. It is stated that it was in the year 1934-35 that a sum of Rs. 95,000/- was spent for purchasing the place from the management of one ''Hotel Sunday''. It was for "opening a park for women and chilldren". The Park was constructed and maintained by the Municipal Committee, Shimla, till 1978. This Park is in the central vicinity of the town and is very useful for ladies and children. There are two buildings in this Park where sewing and knitting centers for ladies are housed. There used to be a creche for the children. During pre-in dependence period no public or religious functions used to be allowed in this Park. After independence permission was allowed on very rare occasions. On Shimla becoming the capital of Himachal Pradesh, several requests used to be received for holding Government, political, and religious functions. On certain occasions permission was allowed and on other occasions it was not allowed. It was also stated that the permission for the use of Ladies Park was being granted by the Municipal Corporation upto 1978. But after 2-5-1978, the Deputy Commissioner used to grant permission in terms of the Government letter dated 2-5-1978. The Commissioner complains that whenever the public functions are held, plants and flowers, which are being maintained by the Corporation, are badly damaged and beauty of the Park is spoiled. The permission has been granted from time to time by the Deputy Commissioner to various private enterprises also for running exhibitions, melas etc. at this Park where games of skill are held and loudspeakers are used which result in nuisance to the normal and calm atmosphere of the town. He stales that the citizens of Shimla had been representing that no functions, melas and rallies be held in iris Park. The Commissioner writes to say that now the Corporation has decided that in future no permission should be given for private functions, melas, exhibitions etc. in this Park and so the matter may be reconsidered by the Government so that this Park is used exclusively for ladies and children.

During the course of hearing we had issued notice to the Deputy Commissioner, Shimla, as well as to the State. The Deputy Commissioner filed a detailed reply in which, as usual, he challenges the maintenance of the writ petition on the ground that the Petitioner has no legal enforceable light 1o maintain the writ petition and that he has not exhausted alternative remedies available to him. Since the Deputy Commissioner had filed a reply in answer to a miscellaneous petition, we had by a detailed order dated 1st September, 1983 rejected the contentions. As the question of maintainability of the petition has already been dealt by us, we need not go into the question again. We may, however, record that the Deputy Commissioner points out about the existence of a grievance cell in his office and the existence of a State grievance committee headed by the Hon''ble Chief Minister. He also refers to a Citizens Council of Shimla in which the leading citizens of Shimla, heads of various religious and voluntary organisations and all district level officers have been nominated. It was contended that the Petitioner represents his own point of view only. No amount of committees constituted by the executive for administrative purposes can be a substitute for an elected representative body. Evidently this Citizens Council was formed by the Deputy Commissioner since there is no other elected body of citizens of Shimla. The Deputy Commissioner goes on to say that he has been rightly granted power by the Government for using Ladies Park since he is the District Magistrate for maintaining law and order in the town. He specifically states: "even otherwise the administrative determination of exercise of powers by officers as authorised by the Government cannot be questioned much less revised by the Hon''ble Court." We will reproduce a part of our earlier order in respect of the last objection raised by the Deputy Commissioner about the jurisdiction of the Court:

"The Deputy Commissioner is entitled to have his views like any other citizen or any other bureaucrat, but we never expected him to be so irresponsible to use such a language. He should know that even the ''administrative determination'' of exercise of powers by officers as authorised by the Government can be questioned and it is for the Court to determine about the legality of the power and whether it has been exercised bona-fide or not. Such like unfortunate views of this Deputy Commissioner seem to have given rise to certain problems between the Municipal Corporation and the Deputy Commissioner."

It is admitted by all concerned that the possession of the Ladies Park is with the Municipal Corporation. We may record that it is not the solitary or personal view of the present Petitioner that the Ladies Park should be exclusively opened only to the ladies and children and it should not be used for public meetings, melas, and rallies etc. Under our directions the Municipal Commissioner held a meeting of the residents of Shimla representing various professions. All the persons present made a unanimous demand for the Ladies Park being reserved for ladies and children only. The representatives of the Hotels and Restaurants Association as well as the President of Sri Gum Singh Sabha of Shimla were also present. These two bodies have been allowed to intervene. They are represented by Mis. Pratima Malhotra, Advocate. They wanted that the Ladies Park should be allowed for holding melas etc. Why they have now taken a somersault is best known to them. The Hotels and Restaurants Association wants the melas to be held in the Ladies Park so that their trade flourishes as the tourists are attracted by these functions. We had specifically asked Mrs. Pratima Malhotra if this Association ever moved a little finger for the beautification of this town to attract the tourists. Their only contribution was stated to be of meeting some officials. It was stated that they also contributed Rs. 20,000/- last year and Rs. 25,000/- this year towards the expenses of the Summer Festival. This festival is held every year by the Deputy Commissioner Shimla and he might have raised this subscription from this Association also in addition to subscriptions/donations from other persons. But the Summer Festival is held on the Ridge and not in the Ladies Park. It appears that this Association seems to have no regard to either the beautification of Shimla or the welfare of the residents of this town and is only interested in their money spinning efforts at all costs.

During the course of arguments our attention was drawn to various representations which had been made during the pendency of this writ petition to the Hon''ble Chief Minister in respect of the use of the Ladies Park. Photostat copies of the same have been placed on the record. These are Annexures P-8, P-9, P-11 and P-13. Annexure P-11 is by the All-India Women''s Conference, Shimla Branch. Annexures P-8, P-9 and P-12 are by the persons residing not only on the Mall and near about places but also by persons teaching in the University. They include Advocates, Doctors and Shopkeepers. They have requested that recreation facilities to children in the Park be restored immediately and no meetings or melas be allowed to be held. They have also requested that no loudspeakers be allowed to be played in the Park as it is a nuisance. Evidently the Deputy Commissioner seems to have no inkling about what the feelings of the public at large are. Once the Petitioner moved the Court the residents have become alive to their rights and are out to enforce the same against irresponsible highhanded acts of the bureaucracy. Our attention has also been drawn to various letters to the Editor which have been appearing in the press from time to time. On 6th October, 1981 some lawyers wrote a letter to the Indian Express about the restoration of ''Daulat Singh Park'' (we will refer to it presently). One Dr. Sagar Sharma wrote a letter to the Editor of the same paper on September 7, 1983 appreciating the changes which had come in the Municipal Corporation which had improved various amenities and asking for the restoration of the Ladies Park.

This Ladies Park seems to have come to be used for meetings etc. because of absence of an elected municipal body. Before we advert to it, we will straightaway dispose of the objections that there is no alternative place in Shimla where melas and public functions can be held. It has been pointed out to us, and it is not disputed by anyone, that on 20th October, 1967 Guru Govind Singh''s weapons were displayed on the Ridge for a day; in 1972 Sai Baba addressed devotees on the Ridge; and between 1978-79 Shri Morarji Desai, the then Prime Minister, and Shri Atal Behari Vajpayee, the then Minister for External Affairs, addressed public meetings on the Ridge. Meetings were also addressed by the then Prime Minister on 25th January, 1971. Summer Festivals are regularly held on the Ridge. Army functions were also held at this place. Inter-State Volley-ball matches were also played at this place. We are also informed that the skating rink, which is on the other side of the Ridge, can also be used for the meetings, melas, etc. Similarly, place is available at what is known as ''Burnt Subzi Mandi''. It is, therefore, not correct to say that there is no other place available in Shimla. After all Ladies Park was not allowed for a very long time for such melas, public meetings, etc. and there is no reason why it should not be used only for the purpose for which it was acquired.

We may at this stage repeat that one of the obligatory functions of the Corporation u/s 43 of the Act is the laying out or maintaining of the public parks, gardens or recreation grounds. Ladies Park is practically the only park available in Shimla which can be used by the ladies and the children. There is no park in this town which can be used by men folk. But then the open places on the Ridge are most of the time used by the people for relaxation. In these circumstances it was the bounden duty of the Corporation to maintain the Ladies Park and not allow it to be used for any other purpose. As already stated, the Corporation has decided not to allow this Park for meetings, rallies, melas etc.

According to the affidavit of the Deputy Commissioner the Government wrote a letter dated 2-5-1978, to the Deputy Commissioner and the then Administrator of the Municipal Corporation stating that in future the permission to general public to hold meetings, etc. in the Ladies Park shall be given by the Deputy Commissioner, Shimla, (Annexure-RC). The Executive Officer of the Municipal Corporation vide letter dated 21-7-1978 (Annexure-RD) wrote to the Deputy Commissioner that the Municipal Corporation had passed a resolution taking decision that the Ladies Park is to be used for holding public meetings. This letter states the rent which was to be paid for the use of this Park. The Deputy Commissioner was informed that the institutions should correspond and obtain permission from the Municipal Corporation for the use of this Park. We are informed that at that time some persons had been nominated by the Government to assist the Administrator and it is this body which had taken the decision to allow the use of the Park. Keeping in view the earlier letter of the Government this Administrator could not but fall in line with the decision of the Government of the day. Another letter from the Deputy Secretary (Local Self Department) to the Deputy Commissioner dated 15-6-1979 (Annexure-RE) bans the use of the Ridge for public functions, celebrations etc. and states that such functions, celebrations etc. should be allowed to be held in the Ladies Park. It also states: "More space be provided in this Park. If necessary, the stalls etc. existing there be removed for this purpose." The Deputy Commissioner has also placed before us copies of some letters asking for permission of the use of the Ladies Park. These show that the practice was to request the Executive Officer of the Municipal Corporation for permission. The permission used to be given subject to the Deputy Commissioner''s agreeing to it on account of the maintenance of the law and order in the city which was within the latter''s exclusive jurisdiction. It appears that by the lapse of time the Deputy Commissioner reversed the procedure. Annexure-RH is a letter issued by the Deputy Commissioner on 1st October, 1980 granting permission to the General Manager, Punjab Book Centre, Chandigarh, permitting Ladies Park for exhibition during the Summer Festival between 30th May to 9th June, 1981. A copy of this letter is endorsed to the Executive Officer, Municipal Corporation, Shimla. It is obvious that the Deputy Commissioner without bothering to find out whether the Municipal Corporation is agreeable to such use, unilaterally granted the permission for the use of the Park and directed the deposit of the fee with the Municipal Corporation, of course, he forwarded a copy of the letter to the Executive Officer of the Municipal Corporation.

Now, we will analyse the legal position. We asked the learned Adv. General to point out the provision of law under which the Government could pass orders for the use of Ladies Park. He points out Section 247. It gives powers to the Deputy Commissioner to suspend any resolution or order of Committee if in his opinion "the resolution, order or act is in excess of the powers conferred by law or contrary to the interests of the public or likely to cause waste or damage of municipal funds or property, or the execution of the resolution or order, or the doing of the act, is likely to lead to a breach of the peace, to encourage lawlessness or to cause injury or annoyance to the public or to any class or body of persons." Section 251 empowers the State Government as well as the Deputy Commissioner acting under the orders of the State Government to require that the proceedings of the Committees shall be in conformity with law and with the rules in force under any enactment for the time being applicable to this State generally or the areas over which the committees have authority. The State Government has also been given discretion to use all powers necessary for the performance of this duty and "may among other things by order in writing, annul or modify any proceedings which it may consider not to be in conformity with law or with such rules as aforesaid, or for the reasons which would, in its opinion, justify an order by the Deputy Commissioner u/s 247." General powers have been conferred on the State Government over its officers by Section 252- It lays down that the State Government shall have power of reversing or modifying any order of any officer of the State Government passed or purporting to have been passed under this Act, if it considers it to be not in accordance with the said Act or the rules Or to be for any reason inexpedient. All these provisions of law show that the State Government has no right to order the use of the municipal (property for a purpose other than for which it was meant. It may be repeated that the only powers vested in the Deputy Commissioner as well as the State is to ensure that the Corporation acts within the jurisdiction conferred on it by law. To correct the actions of the Corporation is one thing but to specifically order it to allow the use of its property for a particular purpose is another. As we have not been shown any provision in the Himachal Pradesh Municipal Act, 1968 or in the Himachal Pradesh Municipal Corporation Act empowering the State Government to issue orders for the use of property for a purpose other than that for which it was meant, we must strike down -the directions given by the State Government empowering the Deputy Commissioner to allow the use of the Ladies Park for public meetings, melas, exhibitions, rallies etc. The Municipal Corporation is directed not to allow the use of this Park for public meetings, exhibitions, rallies, melas etc. It is, however, clarified that it will be open for the women to organise functions in this Park in connection with the welfare of the women and children.

Daulat Singh Park:

This Park is situated on the Ridge. It is small in area and is triangular in shape. It is on both sides of the old Band Stand which has now been converted into a restaurant called ''Ashiana'' by the Tourism Corporation. Notice was issued to this Corporation. Mr. Rakeshwar Lal Sood, Advocate, has appeared for it. This Corporation has also put in a detailed reply. As one faces the ''Ashiana'', on the right hand is the bust of Mahatma Gandhi on a pedestal and on the left is a statue of a Himachali girl pouring water from a pitcher. It is not disputed that it is known as ''Daulat Singh Park''. It is also not in dispute that this Park was named in the memory of General Daulat Singh, who died in a helicopter crash. The Park had benches and always open to the public. We may straightaway record that there is no other Park which is available to the residents of Shimla. Mr. Rakeshwar Lal Sood states that there was another triangular Park on the Mall next to the statue of Lala Lajpat Rai. This parkhas been enclosed and a big fountain has been installed in it by the municipality. Admittedly this is not open to the public. Whenever this fountain works, the wind sprays the water all around depending on the direction of the wind.

The Petitioner states that the Daulat Singh Park has now been closed to the public and made a part of the Goofa restaurant. Iron cages and benches have been placed on the left hand portion of the park. The Tourism Corporation has given it the name of "Cages" and the public has been deprived of the use of this park. The reply of the Tourism Corporation is that "the lawn portion has not been enclosed by the replying Corporation so as to debar the entry of any person, much less children. On the other hand, the lawns have been further improved and the flower beds have been laid out and the fountains have been made after the Tourism Corporation took over Daulat Singh Park, and children can now enjoy the lawn and park in a better manner considering the fact that the Tourism Development Corporation now provides decent meals and snacks, near the Park in its two Restaurants. It also provides the facility of soft drinks, fruit juices and ice-cream and pastries etc. etc. which are readily and easily available to children and other tourists in the area of the park itself." We are constrained to remark that the reply to the extent that this portion is available to the people and children is absolutely wrong. It has been stated at the Bar by various lawyers that nobody is allowed to enter the park and rest a while unless he places an order with the Restaurant. Even if a person wants to get himself photographed in that park, a fee of Rs. 2/- is being charged. We can take judicial notice of this fact since Ridge is the place which is frequented by us also. In this Summer the whole place was covered by a Shamiana by the restaurant to serve eatables. Only last evening we noticed that no one is allowed to use the park. In the face of these facts the contention of Mr. Rakeshwar Lal Sood that the right of admission is not reserved by the Tourism Corporation and the people have a right to enjoy the park as long as they like without placing any order with the restaurant, is, to say the least, a figment of his imagination.

A photostat copy of a letter about Daulat Singh Park published in the Indian Express dated 6th March, 1981 has been placed before us. This letter is written by some of the prominent Advocates of this Court. Since it is a short letter, we will rather reproduce it verbatiam It reads:

"Daulat Singh Park, Shimla was opened in the memory of the late General Daulat Singh on the Ridge, The Mall. Shimla, but the General was soon forgotten and the Park underwent changes from time to time. In the beginning, on one side of the band-stand, a statue of a lady pouring water from an earthen pot was installed and then the place was handed over to Himachal Tourism which brought about complete destruction of the Park with the sole object of making money from the restaurant which it named Goofa. Now another restaurant is in the offing and there is nothing left relating to the memory of the late General. Is this the way we remember our Generals and heroes? Will the State Government look into this and do something to resotre the honour which the town and the State had once bestowed on the General who was very popular among the people of this town".

The letter speaks for itself and concisely portrays the conduct of the Municipal Corporation as well as the State Government. Itis futile for Mr. Rakeshwar Lal Sood to contend that there was no park and only an open space was just named as Daulat Singh Park. Photographs of the Band Stand have been placed before us. These also show the existence of the lawn. How this lawn came to be occupied by the Tourism Corporation, shows land grab Tourism Corporation style. This Corporation has placed a copy of "the minutes (of the meeting) held in the office of the Deputy Commissioner, Municipal Corporation, Shimla on 2-1-1981 to finalise the rent in respect of the premises known as Goofa Restaurant, Band-Stand, and lawn besides softy cabin in Daulat Singh Park." This meeting was attended by one Shri Pritpal Singh, General Manager of the Tourism Corporation, and the Deputy Commissioner, Municipal Corporation, Shimla. It gives the following history of the Goofa Restaurant. Below the Band Stand was a basement which was being used as a store. The then Municipal Corporation by a resolution dated 17-4-1973 decided to give the basement to the then Tourism Department of the Government. We are informed by Mr. Rakeshwar Lal Sood that the department had to increase the height of the ceiling by digging so that it could be converted into a restaurant with a toilet for the customers. It was agreed that the Tourism Department would be considered in occupation of this portion with effect from 1-5-1975 since between 1973-75 it was under renovations. It also appears from these minutes that the Tourism Corporation unauthorisedly constructed the softy cabin on the lawn. It was once demolished but it was reconstructed. This illegal occupation of a part of the lawn by putting up a softy cabin is sought to be regularised by these minutes. In pursuant (sic) to these minutes dated 2-1-1981, no lease deed has been executed. A copy of the lease deed (Annexure-B) dated 2nd January, 1978 has been placed before us by the Tourism Corporation. It was entered into by the Executive Officer on behalf of the then Municipal Corporation and signed by its Secretary whereas the Area Manager of the Tourism Corporation signed it on behalf of that Corporation. This lease deed relates to the Goofa Restaurant. It reserves a rent "of Rs, 18,000/- and Rs. 6,000/- for lawn P.A. w.e.f. 1-1-1978 to be paid by the tenth of each month in advance." According to the terms of this lease deed the right of renewal was with the Municipal Corporation. The renewal was required to be in writing. In case of failure of the observance of the terms the lessee (Tourism Corporation) was liable to be evicted. Admittedly the Tourism Corporation never paid any rent till recently when this Court observed that the Tourism Corporation in all fairness should pay the dues to the Municipal Corporation to enable the latter to carry out its civic responsibilities.

Now, on 2-1-1981 (Annexure-A) Mr. V.K. Ahluwalia was the Commissioner of the Municipal Corporation in addition to his being the Managing Director of the Tourism Corporation. It is evident that Mr. Ahluwalia preferred the latter at the expense of the former. He was obviously more interested in the Tourism Corporation than in the civic affairs since he was holding a temporary charge of the Municipal Corporation.

It is not disputed before us that it was the mandatory duty of the Municipal Corporation to construct oi maintain public parks, gardens or recreation grounds. As already stated, the only small park which was available for the public was this Daulat Singh Park. By handing it over to the Tourism Corporation the public has been deprived of its use. The Municipal Corporation thus committed a breach of its obligatory functions. In these circumstances we must restore Daulat Singh Park to the public and take it out of the hands of the Tourism Corporation. We grant one month''s time to the Tourism Corporation to remove its cages. The Municipal Corporation is directed to put up conspicuous boards at the entrances of this part displaying the name "Daulat Singh Park" and also mentioning the fact that it is maintained by the Municipal Corporation.

Mr. Rakeshwar Lal Sood drew our attention to the fact that there is a small children''s park below Daulat Singh Pari; towards the Mall. He informs us that the children are allowed to use it on payment of an entrance fee. If that is so, we must record our dismay at the conduct of the Municipal Corporation which ensures that only the children of the rich can use the park and the children of the poor are denied this pleasure. In our social democratic set up where the Government is at pains to provide more facilities for the weaker sections, it is unfortunate that the poor be denied the existing facilities. We hope that the Municipal Corporation will, in the near future, remove this restriction on the poor children to use this park by abolishing the entry fee, if any.

Ashiana, Goofa:

Mr. Kapil Dev Sood, learned Counsel for the Petitioner, has been at pains to persuade us that the Band-Stand should be restored and the present lestaurant ''Ashiana''be ordered to be removed. He has placed before'' us various photographs which show the Band-Stand before it was converted into ''Ashiana'' restaurant. The photographs also show the lawn which was contiguous to the Band-Stand on both sides. One can see that the lawn was enclosed. It is the contention of Mr. Kapil Dev Sood that a valuable property has been handed over to the Tourism Corporation for a song and that the Municipal Corporation has failed in its duties to even charge the market rent of this place. Mr. Rakeshwar Lal Sood, learned Counsel for the Tourism Corporation, has vehemently contended with the help of certain facts and figures to show that a reasonable rent is being paid.

Our attention has also been drawn to various provisions of the Himachal Pradesh Municipal Act, 1968. Section 51 of this Act relates to the application of municipal funds which, inter alia, requires the funds to be used for: "(h) the planting and preservation of trees; and the establishment and maintenance of public parks and gardens;" and "(l) all acts and things which are likely to promote the safety, health, welfare or convenience of the inhabitants, or expenditure whereon maybe declared by the Committee, with the sanction of the State Government, to be an appropriate charge on the municipal fund". Practically similar provisions have been shown to exist in the Himachal Pradesh Municipal Corporation Act. We made it plain to the learned Counsel for the parties that it is not possible for us to decide this question in the present proceedings since proper foundation has not been laid. We, therefore, refrain from deciding this question. It is clarified that this question can be raised in separate appropriate proceedings.

Loudspeakers:

The Petitioner alleges that the loudspeakers are being used indiscriminately and so loudly that these have become a nuisance. Civil Writ Petition No. 252 of 1983 has been filed by three Petitioners against the District Magistrate and the State making the same grievance. A return has been filed by the Deputy Commissioner. The Deputy Commissioner states that the permission to use the loudspeakers is being granted under the Himachal Pradesh Instruments (Control of Noises) Act, 1969.

The Himachal Pradesh Instruments (Control of Noises) Act, 1969, governs the use of the loudspeakers. The word "instrument" has been defined in Section 2(c) as meaning: "a loudspeaker, an amplifier, and such other apparatus for the play of sounds as may be declared to be an instrument under this Act by the Government." Section 3 lays down the restrictions on the instrument. It reads:

"No person shall use or operate any instrument in or upon any premises at such pitch or volume as to be audible beyond the precincts thereof except under the written permission of the District Magistrate or any officer authorised by him, in this behalf and under such conditions as may be attached to it."

Section 4 prescribes the limits on the use of an instrument. Persons are prohibited from using an instrument between ten o''clock in the night and six o''clock in the morning except with the written permission of the District Magistrate or any other officer authorised by him in this behalf. Section 6 provides the penalties of six months imprisonment or a fine which may extend to one thousand rupees or both for contravening the provisions of the Act. Section 7 makes the offences cognizable. Under a notification, dated 25th March, 1971, radios, gramophones, tape-recorders, and bands have been declared as instrument under the Act.

It is evident from Section 3 that no licence is required to operate an instrument upon any premises as long as it is operated at such pitch or volume that it is not audible beyond the precincts of such premises. It is only when an instrument is used in such a fashion that it becomes audible beyond the premises that the permission is necessary. It is for these reasons that various religious institutions'', schools and others do not need any licence for operating the instrument as long as they ensure that these do not become audible outside their premises.

A copy of the form in which the office of the Deputy Commissioner is issuing licences for the loudspeakers is Annexure-RKL. It lays down that the permission shall be void if the place of loudspeaker is situated within 100 metres from a hospital. It shall also be void if it is used within 100 metres of any College, School, University or Government Offices during working hours. The use of loudspeakers is completely prohibited on any part of the Mall Road. The police is to stop its use if any noise is created by the loudspeakers.

Though the conditions imposed on the use of the loudspeakers are laudable indeed; these are mostly being observed in the breach. We may also record that in our court room many a time we have to stand the noise of the loudspeakers used by religious institutions. It appears that some religious institutions are bent on instilling the fear of God in the society by using the loudspeakers in such a way that these can be heard over the maximum part of the town. This being a hilly town, the sound also travels a long distance. It seems that in their zeal the religious institutions are following the principle of'' home delivery service''. Annexure-RJ, which is a copy of the proceedings of the meeting of the citizens of Shimla held in the room of the Deputy Commissioner on 6th May, 1983, reveals that a representation was made by some citizens to the Government regarding the playing of loudspeakers, ft was decided that the loudspeakers should be played at a low pitch so that students and others are not disturbed. It is, therefore, not correct to say that no violation has been reported.

Despite clear provisions of law, unfortunately the loudspeakers are being misused. Obviously the authorities concerned fail to enforce the law. The offences being cognizable, the police is required to take cognizance of the same the moment the offence is being committed within their presence. Since the offences of misusing the loudspeakers can only be detected by the sense of hearing, it is the duty of the police to take action the moment a case is made out. The police is not required to wait for a citizen to come forward to lodge a report of any cognizable offence before they swing into action. We find that the District Magistrate has pointed out that the citizens are required to lodge a report with the police and if the police does not take any action, they should go to the Magistrate and file a complaint since the Magistrate will take cognizance of the same u/s 190 of the Code of Criminal Procedure. It only shows that the District Magistrate does not attach the importance to this problem which it deserves. Had he applied his mind, he would not have failed to realize that having recourse to the Magistrate may be an exercise in futility since the loudspeakers are mostly used only for a limited time by different persons. For example, it is not practicable for a student who is preparing for his examination or for a person who is sick to move the court for the remedy. For such like situations it is expected of the police to swing into action quickly and not to wait for the individuals to lodge the reports. We are also conscious of the fact that most of the individuals tolerate this noise pollution because of the fear of offending the religious sentiments of others. The Deputy Commissioner has not specifically denied the allegations of the Petitioners that patients in the Ripon Hospital are disturbed by the loudspeakers and the bands which are played at odd hours near the religious places on the Cart Road. His only reply is that according to the conditions "the permission is automatically null and void if there is any hospital within 100 metres." We expect the Deputy Commissioner to show more responsibility. He should apply his mind before granting permissions for the use of loudspeakers. In other words, he should himself apply the conditions which are stated in the form by refusing to grant the permission if the loudspeaker is to be used within 100 metres of a hospital, or of any school, college, or University or Government offices during the working hours of the latter.

We, therefore, direct the authorities concerned, including the Deputy-Commissioner, Shimla, and the police to comply with the law in ensuring that there is no violation of the Himachal Pradesh Instruments (Control of Noises) Act, 1969, and the conditions under which licenses are granted.