Bombay High Court
Shantaram Keshav Javadekar vs Pune Municipal Corporation And Ors. on 11 January, 2000
Equivalent citations: (2000)102BOMLR33
Author: S.S. Parkar
Bench: S.S. Parkar
JUDGMENT S.S. Parkar, J.
1. The petitioner who is a resident of Karve Nagar in Kothrud area in Pune Corporation City Limit had filed complaint on behalf of the public and moved the Magistrate's Court under Section 431 of the Bombay Provincial Municipal Corporations Act, 1949 for removal of nuisance caused by a garbage depot in Kothrud area which is a thickly populated residential area. This public spirited litigant, I am told, is an Advocate by profession and that probably speaks about the perseverance displayed by him in writing to the Pune Municipal Corporation for removal of this nuisance and thereafter taking the matter in the Court of the Magistrate and then fighting it from one Court to the other up to this Court.
2. The grievance made in the Court of the Judicial Magistrate First Class, Pune by filing Misc. Application No. 7 of 1985 was that the garbage storing depot was started in Kothrud on Pune-Mulshi Road in area spread over nearly 30 acres of land. It was originally at Bibwewadi from where it was shifted to the present site where hundreds of tons of garbage was deposited daily since more than 15 years. The garbage included dust, ashes, refuse, rubbish, trade refuse, carcasses of dead animals and other things. The Corporation had, with the help of the State Government, formed a Public Limited Company in order to start a manure plant to convert 'the garbage into manure but the said project had failed and the same is now closed. The disputed garbage depot at Kothrud is situated on the western side of Pune city from which direction the wind mostly blows. The area known as Kothrud and adjoining places like Erandavana and Karve Nagar are expanding and developing at rapid speed. The counsel on both sides across the bar have pointed out that the, name of Kothrud area of Pune city appears in the Guinnese Book of Records for the most rapid development and the highest number of construction in shortest period of time in any area, which speaks about the rate and the speed with which the development of the construction work in the said area is going on. It is undisputed that the said locality is purely residential area. It was alleged in the complaint that due to the garbage depot spread over an area of 30 acres of land on the Western side of Pune city in Kothrud, there is pollution of air, breeding of mosquitoes, flies and germs and spread of foul smell in the residential areas of Kothrud and adjoining areas which has created health hazards to the lakhs of people who are residing there. The problem is aggravated as the said garbage depot is situated on the western side of Pune City and, therefore, due to the direction of wind from western to eastern side, the localities of Kothrud, Hingane, Eraridavane, Gymkhana and Shivajinagar and most part of the city of Pune are facing nuisance and health hazards caused thereby. The complaint was, therefore, filed in the Magistrate's Court in the interest of the health of the people of Pune City seeking directions to shift the garbage depot to the eastern side of Pune city near Diva Ghat where there is no human habitation or to some other place beyond the municipal limits of Pune city on the eastern side. The said complaint was resisted on behalf of the Pune Municipal Corporation.
3. The complainant in support of his case examined five witnesses. After considering the material placed on record the learned J.M.F.C. was convinced that the circumstances existed for exercising powers under Section 431 of the Bombay Provincial Municipal Corporations Act and, therefore, by his reasoned order dated 29.3.1988 the learned Civil Judge, Junior Division and J.M.F.C., Pune directed the Corporation to stop the usage of the garbage depot and running of the manure plant and to take every step to abate nuisance and further directed the Pune Municipal Corporation to shift the garbage depot and manure plant to some other suitable place in consultation with the Town Planning Authority and other concerned De partrnents within six months from the date of the order and to make endeavour to see that in future new garbage depot will not cause any nuisance to the public.
4. Being aggrieved by the said decision and the directions issued by the Trial Court, the Pune Municipal Corporation took the matter in appeal to the Sessions Court, Pune by filing Criminal Appeal No. 228 of 1938. In the Sessions Court the appeal was heard by the learned Addl. Sessions Judge, Pune who by his judgment and order dated 28th August, 1996 allowed the appeal, set aside the order of the Magistrate and dismissed the complaint filed under Section 431 of the Act, inter alia, on the ground that notice Exhibit 12 served on the Corporation did not bear the date nor the acknowledgment was produced, though admittedly it was received by the Corporation, and that general statement was made about the creation of foul smell and no expert had been examined to show that the garbage was creating foul smell in the atmosphere. The petitioner, therefore, filed the present petition under Article 227 of the Constitution of India, and under Section 482 of the Cr. P.C. challenging the order of the Addl. Sessions Judge passed on 28th August, 1996, setting aside the order of the Trial Court.
5. In this Court the writ petition was admitted and rule was issued on 31st January, 1997, and hearing of the petition was expedited. In this petition reliance is also placed on the Survey Report carried out, by Dr. I.H. Zahid under the stewardship of Professor S.T. Tilak which was commissioned by the Ministry of Environment and Forests as reported in the Times of India issue of 9.8.96. As per the said report high degree of bio-pollutants were found in the areas around the garbage depot in Kothrud which was found to be as high as 27 per cent of the total air spora as against the normal limit of less than 2 per cent which was responsible for high incidence of allergic disorders, skin disorders such as eczema and rash and for causing asthma and respiratory disorders. Apart from that, the news paper reports creating hue and cry about the pollution arid the nuisance created by the Kothrud Garbage Depot have been annexed. On behalf of the respondents reply-affidavit dated 2nd January, 1997, of Dr. Anil Rawetkar, the Medical Officer of Health of Pune Municipal Corporation has been filed mostly denying the averments made in the petition and mentioning about some steps taken by the Corporation to alleviate the nuisance created by the existence of garbage depot in Kothrud area of Pune city.
6. I heard the counsel at length. On behalf of the petitioner Mrs. Agarwal took me through the orders of the two Courts below, the averments in the petition, the Annexures to the petition and the reply affidavit and contended that the Trial Court had rightly exercised the power under Section 431 of the Bombay Provincial Municipal Corporations Act, 1949 and there was no justification for the Addl. Sessions Judge to interfere with that order on flimsy ground. She took me through some of the decisions of the Supreme Court mainly to show that the Courts do have power to pass appropriate orders for the protection of environment and for preventing pollution.
7. As against that Mr. Mujumdar appearing on behalf of the Respondent-Corporation contended firstly that the Magistrate had no power to pass orders for shifting the garbage depot but only to suggest measures for abatement of the nuisance. Secondly he contended that nuisance was not proved by examining expert witnesses to show that there was pollution of the area or foul smell was spreading due to the existence of garbage depot. He further submitted that there is no written rule that the garbage depot must be situated outside the city limits or residential area and that the garbage depot cannot be situated on the western side of the city. He pointed out to me from the reply affidavit filed on behalf of the Corporation some of the measures taken by the Corporation to alleviate or reduce the nuisance caused by the garbage depot and in particular the creation of another garbage depot at Uruli Devachi which is on the eastern side of Pune outside the Pune city in an area spread over 45 acres of land as a result of which the quantity of garbage deposited at Kothrud Depot has been reduced to 1/2 of the quantity earlier deposited there. It is also stated in the affidavit that Gamagxine powder and other insecticides are sprayed over the garbage depot to avoid foul smell and reduce the breeding of flies and mosquitoes. It is also stated in the affidavit that though formerly carcasses of dead animals were dumped into the said depot, it is now stopped since last two years. In para 8 of the said reply affidavit it is further stated that Respondent No. 1 Corporation has entered into an agreement on 16.9.1996 with M/s. Western Paques (India) Ltd. authorising the latter to install their plant, for the purpose of manufacturing electricity from the garbage/solid waste brought into the depot which would reduce the nuisance complained of by the petitioner. Lastly Mr. Mujumdar produced a copy of letter dated 10th January, 2000 addressed to him by the Deputy Health Officer Pune Municipal Corporation, contents of which are as follows:
P.M.T, had already stop (stopped) the dumping of garbage at Paud (Kothrud) Kachara Depo. P.M.C. had requested for suitable land to shift Kachara Depo to the State Government which is under consideration.
Copy of the said letter is taken on record and marked as "X" for identification. According to Mr. Mujumdar in view of the said letter the grievance of the complainant-petitioner does not exist and, therefore, the petition should be dismissed,
8. After considering the material brought on record and perusal of Section 431 and Section 292 of the Bombay Provincial Municipal Corporations Act, 1949, I have no manner of doubt that the order passed by the Trial Court cannot be faulted and the Sessions Court had interfered with the said order on absolutely flimsy grounds. Section 431 of the Bombay Provincial Municipal Corporations Act, 1949 reads as follows:
(1) Any person who resides in the City may complain to a Magistrate of the First Class having jurisdiction therein of the existence of any nuisance or that in the exercise of any power conferred by Sections 156, 157, 175, 176, 177, 249 or 292 more than the least practicable nuisance had been created.
(2) Upon receipt of any such complaint, the Magistrate after making such inquiry as he thinks necessary may, if he sees fit, direct the Commissioner -
(a) to put in force any of the provisions of this Act or any rule, regulation or by-law or to take such measures as to such Magistrate shall seem practicable and reasonable for preventing, abating, diminishing or remedying such nuisance;
(b) to pay to the complainant such reasonable costs of and relating to the said complaint and order as the said Magistrate shall determine, inclusive of compensation for the complainant's loss of time in prosecuting such complaint.
(3) Subject to the provisions of Section 432 it shall be incumbent on the Commissioner to obey every such order.
(4) Nothing in this Act contained shall interfere with the right of any person who may suffer injury or whose property may be injuriously affected by any act done in the exercise of any power conferred by Sections 156, 157, 175, 176, 177, 249 or 292 to recover damages for the same.
The above provision confers power on the Magistrate to exercise jurisdiction if there existed any nuisance and secondly with a view to exercise any power conferred by any of the Sections mentioned in Sub-section 1 of Section 431 if the Magistrate is satisfied, after making such enquiry as he thinks necessary, about the existence of nuisance or circumstances mentioned, in any of the provisions referred to therein to issue directions to the Commissioner for preventing, abating, diminishing or remedying the nuisance complained of. The measures which are adopted or directions given by the Magistrate have to be practicable and reasonable.
9. Under Section 292 of the said Act the Magistrate has also power to direct the Commissioner to provide or appoint in proper and convenient situations public receptacles, depots and places for the temporary deposit or final disposal of, inter alia, dust, ashes, refuse and rubbish, trade refuse, carcasses of dead animals and excrementitious and polluted matter which the Commissioner is empowered or obliged to do under Section 292 of the said Act. Section 292 reads as under:
The Commissioner shall provide or appoint in proper and convenient' situations public receptacles, depots and places for the temporary deposit or final disposal of -
(a) dust, ashes, refuse and rubbish;
(b) trade refuse;
(c) carcasses of dead animals;
(d) excrementitious and polluted matter.
Provided that the said matters shall not be finally disposed of in any place or manner in which the same have not heretofore been so disposed of, without the sanction of the Corporation or in any place or manner which the State Government thinks fit to disallow.
10. Relying on the proviso to Section 292 of the Act Mr. Mujumdar contended that the Magistrate had no power to direct the Commissioner to shift the garbage depot permanently and finally which cannot be done without the sanction of the Corporation or the State Government. I do not find any fallacy or illegality in the order passed by the Trial Court in as much as the complaint was not filed only against the Commissioner of the Pune Municipal Corporation but the Pune Municipal Corporation itself is made as Opponent No. 1 in the complaint filed by the petitioner and the direction is issued not only to the Commissioner but also to the Pune Municipal Corporation. The direction given by the order of the Magistrate dated 29.3.1988 is to take immediate action within its statutoiy power to stop usage of the garbage depot and running the manure plant and to take every step to abate the nuisance in any manner. Second portion of the order directs the opponents to shift the garbage depot to any suitable area in consultation with the Town Planning Authority and other concerned departments within a period of six months. The said order was passed by the Magistrate after being satisfied on the material produced before him that the existence of garbage depot in Kothrud created nuisance to the residents of the area which is thickly populated, due to the emanation of foul smell, breeding of mosquitoes, flies and germs which can be a great cause for spread of diseases particularly when the depot is situated on the western side of Pune City and the wind blows from west to east which is likely to carry the mosquitoes and germs of diseases and other flies to the residential areas. In this regard mention may be made to Section 133 of the Criminal Procedure Code which empowers the Magistrate to pass conditional orders for removal of unlawful obstruction or nuisance from any public place or from any way which is, inter alia, injurious to the health or physical comfort of the community. The Magistrate has power to pass order to prevent the nuisance caused in the locality which may necessitate shifting of the depot.
11. The Trial Court has referred to and relied on the oral evidence of witnesses examined on behalf of the complainant. The complainant petitioner as P.W. 1 has deposed that garbage depot is situated in 30 acres of land at Kothrud. As the said garbage depot is situated on the western side of Pune city, particles of waste, foul smell and mosquitoes which arc breeding in the garbage depot are spread over the area due to the direction of wind which blows from west to east. The complainant has also examined Manisha Paranjape as P.W. 2 who is the resident of the said locality. She has deposed that many vehicles carrying garbage to the garbage depot cause great nuisance to the residents because of the falling of the particles of the garbage from the vehicles and spread of the foul smell in the area. According to her the garbage depot has become breeding round for flies which may create health hazards. P.W. 3 is Ratnakar Bodhane who is an Architect residing in the adjoining area in Erandavana, Pune. He has deposed that garbage depot situated on Paud Road in Kothrud area being on the western side of Pune City is causing air pollution due to the flow of wind from western side to eastern side in Kothrud, Erandavana and Hingane areas where large number of residential Oats are constructed and occupied by the members of the public. He has also deposed that traffic problem is created due to the existence of garbage depot in the area on Karve and Paud Roads causing air pollution and harbouring of stray dogs in the area. P.W. 4, a medical practitioner and ex-Chairman of health committee of Pune Municipal Corporation by name Balwant Bhujbal deposed about the several complaints received from the members of the residential societies about the nuisance caused by the existence of mosquitoes, flies and polluted air due to the garbage depot situated on the western side of Pune city. He had also moved a resolution before the health committee to shift the garbage depot to eastern side of Pune city in order to prevent nuisance of air pollution and health hazards. According to him in the year 1985-86 a resolution was passed in the Standing Committee of the Corporation about the shifting of the garbage depot but the same was not implemented. Lastly the complainant has examined one Upendra Dhongade as P.W. 5 who was the Assistant Director of Town Planning, Pune. He has deposed that according to the prinpiple of town planning garbage depot should be located outside the limits of Municipal Corporation but within 5 miles and the same should not be located in the direction of the wind. He has further deposed that the garbage depot at Kothrud is very much within the Corporation limits near the residential area and the same is situated on the western side of Pune city in the direction of wind which is likely to cause nuisance to the residents of the area due to emanation of foul smell and spread of flies endangering the health of the residents.
12. The term "nuisance" has been defined in Section 2(40) of the Bombay Provincial Municipal Corporations Act which runs as follows:
"Nuisance" includes any act, omission, place or thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing or which is or may be dangerous to life or injurious to health or property.
As per the above definition the term "nuisance" includes any act or omission or thing which causes or is likely to cause injury, danger or annoyance, inter alia, to the sense of smell or is or may be dangerous to life or injurious to health. Thus it is not necessary for the prosecution to prove that the act or omission on the part of the respondent-authorities has actually caused injury or danger but it is sufficient if the act or omission in question is likely to cause injury, danger or annoyance to the sense of smell or may be dangerous to life or injurious to health of the residents of the locality. The argument, therefore, of Mr. Mujumdar that no expert evidence has been led to show that the existence of garbage depot has as a matter of fact caused injury to the health of the people is devoid of any substance. The definition of the term "nuisance" itself shows that what is required to be shown to the Magistrate is that the act or omission in question is likely to cause injury or danger or may he injurious to the health of the residents. In public interest litigation of this type it is not expected of the complainant to lead expert evidence or produce factual data about the actual danger caused or nuisance resulted from the act or omission on the part of the authorities. It is common knowledge that existence of garbage depot where large quantity of garbage of the entire city of Pune is deposited since last several years, which is a place in the direction of the wind, is most likely to cause danger or injury to the health of the residents of the area who are in lacs. Neither the wording of the definition of the term "nuisance" contemplates nor is it prudent for the Court to wait to exercise the powers vested in it under Section 431 of the Act till after the danger is caused to the health of the residents due to the garbage depot near the residential locality. It may even be argued that the complainant must prove by factual data and the expert evidence that spread of diseases in the said area was due to the existence of garbage depot in the locality which is not warranted. In other words the respondents may take a stand that the complainant must establish a direct relationship between the existence of garbage and the spread of diseases or hazards to the health of the residents of the locality which, in my view, would only lead to nothing taut absurdity and negate the object and the spirit of the above provisions of the Act.
13. The petitioner has annexed to this petition as Exhibit "E" a Times of India report dated 19.8.96 about the results of the survey carried out by Dr. I.H. Zahid along with Professor S.T. Tilak commissioned by the Ministry of Environment and Forests, Government of India with regard to the impact of HI effect of the garbage depot in Kothrud area of Pune City on the resides of the locality. Instead of studying the report which was brought to the notice of the respondents by annexing a copy of the newspaper report to this petition and find solution to the problem, if was argued before me on behalf of the Respondent Corporation that it is only paper report which was annexed to the petition in this Court and was not before the Trial Court which passed the order against the respondents. This would only show that the Corporation is only interested in opposing the petition and the complaint filed in the Trial Court instead of adopting remedial measures for solution of the problem complained of. This Court cannot be oblivious to the fact that this is a public interest litigation filed by a public spirited citizen on behalf of the members of the public at large. One has to admire the perseverance, the patience and the tenacity of the petitioner who is reported to be an Advocate, to pursue the matter from one Court to another without having any personal interest in the matter. The report of the Commission appointed by the Ministry of Environment and Forests for surveying the effect of the disputed garbage depot in the area shows that there is large concentration of bio-pollutants as high as 27 percent of the total air sporairi the air as against normal limit of less than 2 per cent. It is further reported that the presence of these pollutants had proliferated due to the decaying rubbish and was responsible for high incidence of allergic disorders and contributed to various skin disorders such as eczema and rash, and for causing asthma and respiratory disorders. It was further reported that, in addition to pervasive stench, the concentration of household pests was also seen to be much higher in the said area than in other areas of the city. Instead of trying to get the copy of the report and remove the health hazards as reported to have been caused due to the existence of garbage depot, which must be known to the Respondent Corporation, complete ignorance about the said report is pleaded in this Court.
14. As stated earlier the Sessions Court has interfered with the order of the Trial Court on very flimsy grounds. When the complaint-letter Exhibit 12 was admittedly received by the Respondents, the Addl. Sessions Judge tried to find fault with the same on the ground that the said complaint did not mention the date and the acknowledgment was not produced when the addressee has admitted having received the letter of the complainant. Accepting the arguments advanced on behalf of the Respondent Corporation, the learned Addl. Sessions Judge has set aside the well reasoned order of the Trial Court by observing that the complainant and the witnesses have made general statements arid that the provisions of Town Planning Act were not there when the garbage depot was made. It is surprising that the Sessions Court has described the nuisance resulting from the garbage depot as trifling inconvenience which cannot be taken note of legally. In my opinion, the breeding of mosquitoes and germs of various diseases and flies is necessary consequence of garbage depot which exists for several years on the western side of the residential area in Kothrud. As argued by Mr. Mujumdar in this Court the Sessions Court has also observed that it would be very expensive for the Corporation to shift the garbage depot which, in my view, is no defence which can be countenanced,
15. It cannot be gainsaid that the Corporation exists for the service to the public, it is financed by public and it must render all services which are essential for the protection of health, life and comforts of the public. The object underlying Section 431 of the Act is to see that the Corporation takes measures for preventing, abating, diminishing or remedying the nuisance which is caused or is likely to be caused to the members of the public. Similar or even wider power has been vested with the Magistrate under Section 133 of the Criminal Procedure Code.
16. The reference may be made here to some of the decisions of the Supreme Court cited before me on behalf of the petitioner. In the case of Indian Council/or Enviro-Legal Action v. Union of India (1996) 5 SCC 281 : 1996 (4) J.T. 263 : 1996 (3) Scale 579 : 1996 (3) Sup. 741 the Supreme Court has emphasised the constitutional obligation of the Courts to protect the fundamental rights of the people by issuing directions for the protection of environment and prevention of pollution. In that case the Supreme Court has issued the directions for the purpose of proper implementation and enforcement of anti pollution laws. In the case of Ratlam Municipality v. Vardhichand AIR 1980 SC 1622 : 1981 (1) S.C.R. 97 : 1980 (4) SCC 162 : 1980 Cr. L.J. 1075 : 1980 C.A.R. 267 the Supreme Court had upheld the direction issued by the Magistrate under Section 133 of the Criminal Procedure Code requiring the Municipality to do its duty towards the members of public by removing the nuisance caused to the residents by stench and stink due to the open drains and public excretion by slum dwellers. Similarly in the case of Gobind Singh v. Shanti Sarup AIR 1979 SC 143 : 1979 (1) S.C.R. 806 : 1979 (2) SCC 267 : 1979 Cr. L.J. 159 : 1978 C.A.R. 371 the Supreme Court with some modifications upheld the order passed by the Magistrate under Section 133 of the Cr. P.C. where the grievance was made about the pollution caused in the locality due to the smoke emanating from the chimney of a bakery.
17. It was lastly argued by Mr. Mujumdar on behalf of the Respondent-Corporation that the petition should be dismissed as the Corporation has by now adopted remedial measures and stopped the dumping of garbage at the disputed garbage depot in Kothrud and instead the same is being deposited in garbage depot at Uruli Devachi situated on Solapur Road which is on the eastern side of Pune City outside the residential zone. It is stated in the affidavit that the garbage depot on Solapur Road is having an area of about 45 acres to meet the requirements of Pune City. Mr. Mujumdar states across the bar that since October, 1999 the garbage is not being deposited at all on the disputed site in Kothrud and the garbage of the entire Pune city is being deposited in the new depot on Solapur Road called Uruli Devachi and, therefore, he submits that no orders would be necessary in this petition. In this connection Mr. Mujumdar has produced a copy of the letter dated 10.1.2000 addressed to him by the Deputy Health Officer.
18. This petition seeks to challenge the order passed by the Addl. Sessions Judge, Pune on 28th August, 1996 in Criminal Appeal No. 228 of 1988 setting aside the order of the learned Magistrate dated 29.3.1988 passed in Misc. Application No. 7 of 1985. On the facts of the case and in view of the law the impugned order of the Sessions Court is liable to be set aside and that of the Trial Court ought to be restored.
19. In the result the petition is allowed and the order of the Addl. Sessions Judge, Pune passed on 28th August, 1996 in Criminal Appeal No. 228 of 1988 is hereby quashed and set aside and consequently the order of the learned J.M.F.C. dated 29.3.1988 is restored. The rule is made absolute accordingly. In view of the fact that the Respondent-Corporation has already opened another garbage depot at Uruli Devachi on Solapur Road and the garbage of entire Pune City is being deposited at the said discontinuing the use of the disputed depot at Kothrud, there is already compliance with the order passed by the Trial Court on 29.3.1988. It is hoped that the respondents shall make every endeavour and take appropriate steps in time in future to ensure that the new garbage depot will not cause any nuisance to the public hereafter.