Gujarat High Court
Ilaben vs State
Author: A.L.Dave
Bench: A.L.Dave
WPPIL/122/2011 10/ 10 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No. 122 of 2011 ========================================================= ILABEN PATHAK & 1 - PETITIONER Versus STATE OF GUJARAT & 13 - RESPONDENT ========================================================= Appearance : MS AMEE YAJNIK for PETITIONER : 1 - 2. MR KAMAL TRIVEDI, ADVOCATE GENERAL with MR. P.K. JANI, GOVERNMENT PLEADER and MS. SANGITA VISHEN, AGP for RESPONDENT : 1 - 4,7 - 12, 14, MR ASIM PANDYA for HL PATEL ADVOCATES for RESPONDENT : 3, NOTICE SERVED for RESPONDENT : 4 - 6. MRS VD NANAVATI for RESPONDENT : 5, DS AFF.NOT FILED (N) for RESPONDENT : 6, MS DHARMISHTA RAVAL for RESPONDENT : 0.0.0 ========================================================= CORAM : HONOURABLE THE ACTING CHIEF JUSTICE MR. A.L.DAVE and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 18/10/2011 ORAL ORDER
(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR. A.L.DAVE) We have heard learned Counsel Mr. P.G. Desai appearing for the Municipal Corporation and learned Advocate General representing the State.
2. An attempt is made to indicate that vast steps have been taken to clean the environment in the Civil Hospital.
3. We find that the photographs produced by the Corporation does not support its version that steps are taken to clean the uncleaned areas. Photographs depict heaps of garbage where fumigation is claimed to have been done, instead of lifting the garbage and cleaning the premises before fumigation.
4. The attempt made by the authorities does not meet with our earlier queries as to why directions given by this Court in the year 2006 vide judgment and order passed in a suo-motu petition (SCA No. 14128 of 2005), reported in 2006 GLH 148 have not been complied with and what steps have been taken against personnel who are responsible for not following the directions, and whether any steps are taken against such erring personnel.
5. We would therefore, expect both the State as well as the Municipal Corporation to come out with details on following aspects and state why directions as given in the aforesaid judgment and order dated 15.2.2006 in SCA No. 14128 of 2005 have not been followed. For ready reference, we quote the directions:-
"7. Now, in view of the aforesaid, it appears to us that the following directions are required to be given to the various civic bodies :-
I. Directions to the hospitals run by the management administered by the Government, semi-Government or local civic bodies, having 30 or more beds :
i. Regular scavenging of the entire complex and collection of garbage to be done and the entire complex including the compound to be maintained clean and garbage free.
ii. Installation of litter boxes/containers at different points in adequate number.
iii. Prompt and efficient drainage to be maintained to prevent accumulation of water during monsoon and to discharge domestic effluent.
iv. To prohibit smoking and chewing tobacco/pan, Gutka, etc. in the hospital premises and to display the warning at conspicuous places in the hospital and the violation of it should be visited with fine.
v. To construct and instal incinerators in all such hospitals and nursing homes or to have equally effective alternative arrangement.
vi. Government to issue notification covering all such hospitals/nursing homes other than the Government, Semi-Government hospitals and hospitals run by the civic bodies like Municipal Corporations and Municipalities to make their own arrangement to construct and instal incinerator or to have equally efficient arrangement for the disposal of the garbage and the hospital waste. Such notification to be issued and adequate publicity be given to it as expeditiously as possible and in any case not later than 30th April, 2006.
vii. Upon the Government issuing such notification, the AMC should give notices to all such hospitals as mentioned in clause vi.
viii. Gujarat Pollution Control Board [GPCB] to make regular inspection of the hospitals of both the categories once in three months and to place the inspection report on the record of this petition.
ix. In case the private hospitals are permitted to use facilities, namely, collection, transportation and disposal of garbage and hospital waste provided by the Government/civic body hospitals, the management of the private hospitals to be asked to pay suitable charges for the service rendered in accordance with law.
II. So far the civic bodies are concerned, we issue the following directions :-
i. We direct that they shall construct proper drainage net-work and to regularly carry out its cleansing and de-silting operation, especially immediately prior to commencement of the monsoon season to avoid its choking and the resultant accumulation of water.
ii. To provide public latrines, urinals and similar conveniences with modern facility and to maintain them clean and in proper conditions.
iii. To evolve a proper cell for regularly scavenging the streets, removal and disposal of garbage and solid waste and other obnoxious and polluted matters.
iv. To erect adequate number of garbage collection centres and to have adequate number of pick up vans with adequate number of garbage collectors.
v. To see that the solid waste and garbage are not thrown or littered outside the collection centres.
vi. Area-wise collection centres to be created.
vii. AMC to introduce phase-wise distribution of garbage bags per family for disposal of the domestic garbage. Such bags to be emptied either at the collection centres or directly in the pick up vans and to be returned for re-use.
viii. To construct pavement on both the sides of the roads which can prevent water logging, dust and to avoid throwing of solid waste by the public.
ix. They should ensure that the provisions relating to the sanitation and public health are properly complied with by the officials and the various duties are discharged efficiently.
x. The civic authorities to designate Competent Officers not lower than of the rank of Sanitary Superintendent or equivalent post to levy and recover charges and from any person littering or violating the provisions of the Acts, bye-laws and regulations relating to sanitation and public health. For this purpose the authorities concerned should prepare and publish for the information of the public at large the scale of such charges, costs as may be levied and recovered in respect of the diverged acts of commission/omission. Such Officers may be conferred with the authority to collect the fine on the spot.
xi. Local authorities including the Railway to take appropriate steps for preventing encroachment or unauthorized occupation on public land for the purpose of dwelling resulting in creation of slum. The local authorities also should take appropriate steps to improve the sanitation in the existing slums till they are removed and the land is re-claimed.
xii. Local authorities to take pre-monsoon, mid-monsoon and post monsoon measures regularly every year to ensure that health and sanitation are adequately maintained in the city during monsoon and post monsoon months.
A Pre-monsoon measures to be undertaken from February -
a. Steps to be taken for cleaning underground drainage line and storm water drains to be de-silted, repairs of leaking pipelines to be undertaken. All garbage to be removed with a view to avoid accumulation of wet solid waste during monsoon.
b. Sprinkling/spraying effective insecticides to prevent mosquito breeding.
c. To give adequate publicity to the measures/precautions to be taken by the public to prevent mosquito breeding and to avoid accumulation of water on private properties.
B. Mid-monsoon measures :-
a. Monsoon normally starts in the 3rd week of June. All adequate steps to tackle the situation due to the heavy rains to be taken. Water from water logged areas to be removed as soon as possible, especially the water logging in low lying areas.
b. Sprinkling/spraying effective insecticides to prevent mosquito breeding.
c. To give adequate publicity to the measures/precautions to be taken by the public to prevent mosquito breeding in the accumulation of water on private properties.
C. Post monsoon measures :-
a. To remove all the muds and slush and garbage. The catch-pits to be cleaned regularly to control mosquito breeding in water logged areas.
b. To establish effective public grievance redressal mechanism at the ward level, zonal level and city level.
c. To take steps to prosecute persons responsible for causing nuisance endangering public health and also to resort to other remedies as provided under the Acts for the abatement of the nuisance.
xiii. Over and aforesaid directions prescribed for the civic bodies, the municipalities and the Panchayats forming part of AUDA and the concerned municipalities should see that the stretch of open land as also the service roads on both the sides of SG Highway is kept clean and garbage free.
xiv. The municipalities and the panchayats to see that the drain and disposal of the domestic effluent and the night waste are properly done. They should also appoint agencies to create the cesspools at subsidized rates till such time the alternative arrangement to the cesspool is made.
III. Directions to the Railway Department :-
i. It is directed to see that the area under its jurisdiction is not converted into dumping solid waste and garbage. It should take adequate measures to prevent such creation of nuisance by the public.
ii. To regularly scavenge the area under it falling in the City and the AUDA limits and to keep it clean and free from garbage.
IV. Directions for the Police Department :-
i. To dispose of unclaimed seized vehicles lying in the police station or police station compounds unless they are needed for the purpose of any trial in the Court and where there is no possibility of any owner coming forward to claim the possession.
ii. To prosecute under the provisions of the Penal Code the persons causing nuisance and doing any such activity which pollutes the sanitation or causes hazard to the public health.
V. Directions to AUDA :-
i. AUDA to monitor the cleansing operations in the areas under it.
ii. To re-section Gota - Godhavi canal.
iii. To see that during monsoon the Kharikat canal does not overflow.
iv. To give notices to the restaurants and the party plot owners if they are found to throw their solid waste on the open land on the sides of the SG Highway.
VI. Directions to the Education Department :-
To carry out regular inspection of the premises of the schools keeping in view the aspects of sanitation and the health of the students. In case of any non-compliance with the sanitary provisions by the school management, adequate steps including even the criminal prosecution to be taken against them and no leniency to be shown in such matters.
VII. Directions to the Government :-
i. To provide all required assistance including finance to the civic bodies to carry out the aforesaid directions.
ii. To provide zone-wise dumping sites for the disposal of garbage and solid waste.
iii. To provide medical assistance in the event of outbreak of monsoon diseases and to render all assistance to the civic bodies to curb the menace of such diseases.
iv. As stated above, the Officer of Bopal Gram Panchayat brought to our notice the difficulties faced by the residents of that area for want of drainage facility and even proper alternative arrangement for disposal of the domestic effluent, the night soil and during monsoon, the rain water. The cesspools within short time reached the absorbing capacity and they start overflowing. This has happened on account of indiscriminate grant of NA Permissions and the resultant construction activity without there being proper sanitation facility, road facility and transport facility, etc. It was also brought to our notice that because of the judgment of this Court rendered in Special Civil Application No. 5735 of 2004 the authorities are unable to refuse NA Permission. We have perused the said judgment. In the said case all these factors were never brought to the notice of the learned Single Judge who gave the said judgment. It is solely confined to the facts of the said case. However, considering the peculiar situation that is being created in Bopal, especially in monsoon, certain directions are required to be given. We have already highlighted the facts that have come to our notice from time to time in the present proceedings since they are alarming and require consideration at the Government side. The Government has to be alarmed to the dismay state of facilities for sanitation as reflected from the stand taken by the District Development Officer, District Panchayat, Ahmedabad, the Bopal Gram Panchayat and the AUDA. During discussion, the stand taken by various authorities can be summarized as under :-
(1). There has been haphazard development in Bopal which obstructs even laying down of internal drainage pipeline.
(2). The AUDA is not prepared to provide drainage connection to its main pipeline, inter-alia on the ground that Bopal Panchayat is not part of the Ahmedabad Urban Development Area, the pipes laid by AUDA has no further capacity to receive effluent from the said area and that a long term provision may have to be contemplated if the AUDA were to undertake this exercise.
(3). NA permission and Building Use permission have been granted without verification about sanitation facilities to be provided for in the residential buildings, cesspools are not maintained and are not provided for. During rain fall this year Bopal was worst affected area and required attention by those on whom responsibility lay under various statutes on the subject.
(4). Bopal Panchayat claims that it has no financial resources for providing sanitation facility by laying down pipe lines. It is suggested by AUDA that it is not possible to do so having regard to the topography of the area and that if the pipe lines were to be laid, it would require discharge of effluent some where away 10 to 15 Kms., from Bopal. The revenue collection from taxes levied are not enough to meet with the requirement. It has been suggested by their Counsel that the provisions of the Town Planning Act may be applied and Area Development Authority be set up and development plan be framed for the area. Of-course, the State Government shall consider the suggestion that has come on behalf of Bopal Panchayat.
(5). The State Government is vitally concerned since through local self Government it has to ensure quality of life of the people i.e. at-least pollution free atmosphere. In the back drop of above facts, we would be justified if the following directions are given :-
i. The State Government through the Secretary, Urban Development Department, the Secretary, Panchayat and the Secretary Health, are directed to consider the remedial measures to be taken for chaotic situation brought about because of apathy of the concerned local authority in the planned development of Bopal Township. The Government must come out with remedial measures within the time frame so that before the on-set of next monsoon i.e. 1st of June, 2006, the cesspools are properly maintained and are provided for, if not provided, and/or that internal pipe lines are laid for the discharge of the domestic effluent.
ii. The Government should also consider as to whether NA Permissions in future would aggravate the worsening of the situation that the residents of Bopal are facing and till such time the proper remedial measures are taken for discharge of domestic effluent, no further grant of NA Permissions should be made under the provisions of the Bombay Land Revenue Code.
8. We earnestly hope that whatever the directions that have been given are properly complied with regularly and with all sincerity. The issue involved in this litigation is very sensitive and concerning the health and life of the citizens. It is a matter of utmost dismay and regard that with every monsoon there are number of casualties on account of drainage diseases like Falciparum, Dengue, Hepatitis-B, etc. Unless and until the public awareness is created and proper civic sense is inculcated, such problems are bound to remain. But at this juncture, the role of the civic bodies becomes very important and they should strive to see that even that even during monsoon and thereafter the cleanliness is properly maintained and the measures with regard to sanitation, hygiene and public health are properly taken so that innocent citizens and especially the children do not be the victim of such dreaded diseases and lose their lives. The authorities also should educate the people well in time even by door-to-door campaign during pre-monsoon period and also during the monsoon to prevent any indifferent attitude of the people towards maintenance of cleanliness and unnecessary water accumulation on private properties, which could provide ideal breeding places for the mosquitoes generating diseases like Dengue, Malaria, Falciparum, etc. They should also give adequate publicity on every means of media. The public authorities have to carry out all these duties which have been prescribed in the Act, the Rules and the Bye-laws with all earnestness and sincerity and in right spirit. They cannot avoid discharge of such duties on the pretext that there are no adequate means available with them, the problem is of enormous magnitude and with limited sources it is not possible to tackle the problem, that there are financial constraints, etc. .... ...."
6. Both the State and the Municipal Corporation will indicate to us as to what action is taken against the Officers responsible for non-compliance of the directions of this Court and the details of those officers who can be held responsible for contempt of this Court.
7. Both the State Government and the Corporation will come out with an action plan with details of the steps being taken for cleanliness on the Civil Hospital campus and other areas of the Municipal Corporation, for compliance of the above directions.
8. Corporation as well as the State will also furnish to this Court the details of the Agency to whom cleanliness contract was given in last 3 years, the amount of charges paid to them and action, if any, taken against such agency for negligence.
9. GPCB shall place on record the details of the record of the visits paid by its officers in the Civil Hospital campus since 2006 to ensure compliance of the directions given to the Pollution Control Board.
S.O to 16.11.2011.
(A.L. Dave, Actg. C.J.) (J.B. Pardiwala, J.) */Mohandas