Gujarat High Court
Lok Adhikarsangh vs State Of Gujarat & 2 on 9 February, 2015
Bench: Vijay Manohar Sahai, R.P.Dholaria
C/SCA/16930/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16930 of 2003
With
SPECIAL CIVIL APPLICATION NO. 8999 of 2008
With
SPECIAL CIVIL APPLICATION NO. 13911 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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LOK ADHIKARSANGH....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
Page 1 of 9
C/SCA/16930/2003 JUDGMENT
GIRISH PATEL ASSOC, ADVOCATE for the Petitioner(s) No. 1
MR. UTKARSH SHARMA, AGP, for the Respondent(s) No. 1 - 2
MR MITUL K SHELAT, ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 09/02/2015
ORAL JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR SAHAI) We have heard learned senior advocate Mr. Girish Patel assisted by learned advocate Mr. Manoj Shrimali for the petitioner and learned AGP Mr. Utkarsh Sharma appearing for the respondent State.
2. Writ petition No. 16930 of 2003 is filed by the petitioner for the following relief:
"(i) appointing a high level committee to investigate into the conditions of manual scavengers in the State of Gujarat and to submit immediately the report with all necessary recommendations and suggestions and also listing all those authorities and officers who are responsible and liable for the continuance of illegal practices;
(ii) directing the Government, Municipal Corporation and other authorities to take immediate steps for the discontinuance of the practice."
3. In Writ Petition No. 8999 of 2008, the following relief has been prayed by the petitioner:
(A) directing the respondents to immediately submit a Page 2 of 9 C/SCA/16930/2003 JUDGMENT report to the Hon'ble High Court describing in detail the various specific actions and steps taken by the local authorities in the State of Gujarat and by the Government itself for the early and immediate implementation of the various directives of the Hon'ble High Court.
(B) directing the respondents to take immediate steps including mandatory directions of the local authorities to implement the directives of the Hon'ble High Court and for that purpose, to frame a time schedule for the early and effective implementation of the various directives of the Hon'ble High Court and to submit the periodical reports to the Hon'ble High Court in this regard. (C) directing the respondents to pay effective compensation to the families of all those manhole workers who have died while working as per the list annexed herewith and also those who are not included in the list.
(D) directing the respondents to take immediate steps in regard to two specific directives, viz., introduction of technological system for cleaning the sewerage system and to abolish the contract labour system in the field of cleaning of sewerage system."
4. Writ petition No. 13911 of 2008 is based on newspaper report where the Court has taken suo motu action on the basis of the newspaper report about manual scavengers.
5. It is not disputed by learned counsel for the petitioner that a new Act named as "The Prohibition of Employment as Manual Scavengers and Their Rehabilitation Page 3 of 9 C/SCA/16930/2003 JUDGMENT Act, 2013" ("the Act" for short) is published in the Official Gazette on 19.9.2013 and it has come into force with effect from December, 2013. The grievance of the petitioner is that the practice of manual scavengers be stopped. The State Government in its affidavit in compliance of order dated 19.8.2014 filed through Under Secretary, Social Justice and Empowerment Department, Government of Gujarat, Sachivalaya, Gandhinagar, in paragraph Nos. 14 and 15 has stated as under:
"14. I say and submit that even prior to the New Act coming into force, the State of Gujarat, had considered the whole issue of manual scavenging very seriously and steps were taken and result of which is the recent survey which is annexed hereinabove. Therefore, as per the said survey at this point of time, State of Gujarat does not have manual scavengers. Therefore, on the basis of the above facts, reports, details etc., reasonable steps have been taken by the State of Gujarat and the same are taken even as on today in compliance of the judgement of the Hon'ble Apex Court in the year 2014 and also the New Act. I say and submit that in fact, concrete steps are being taken under the direct supervision of the respected Chief Secretary so that the whole issue does not go out of sight. I say and submit that even for the purpose of new act various very important suggestions were made by all the States and the State of Gujarat had a very important role in making such suggestions as called upon by the Center.
15. I say and submit that as far as the Act of 2013 is concerned, under the said Act the formation of various Committees has already been initiated one such Page 4 of 9 C/SCA/16930/2003 JUDGMENT Committee has been formed vide Government Resolution dated 10.10.2014 by the Panchayat Urban Housing & Urban Development Department. A new Resolution has been issued on 21.6.2014, whereby entering into the manhole has been prohibited. A new Resolution has been issued in accordance with M.S. Act - 2013 to form vigilance Committee by Panchayat Rural Housing and Rural Development Department and another Resolutions has been passed by Social Justice and Empowerment Department dated 10.10.2014 and 15.11.2014. As the Act has come into force in the year 2013 only, the whole process is in transition period and soon all the requirements as contemplated in the said Act would be completed. However, even otherwise as per the recent survey there is no manual scavenging being done in the State of Gujarat , which reflects the concrete steps being taken in the said direction. The State even otherwise is conscious about the said issue and it would continue to take proper steps till the desired results are not derived. Therefore, on the above facts and circumstances, concrete steps have been taken and the situation as on today is reasonably good as reflected from the recent report."
6. From the assertion made in paragraph Nos. 14 and 15 it appears that the State Government has stated that there are no manual scavengers in the State of Gujarat and directions of the Apex Court given in the year 2014 are being taken full care of and the Chief Secretary, Government of Gujarat, is supervising the matter and is making every effort to comply with the Act. By Government Resolution dated 10.10.2014 a Committee has been constituted. By a new Page 5 of 9 C/SCA/16930/2003 JUDGMENT Government Resolution dated 21.6.2014, entering into manhole has been prohibited. Various other Resolutions have been passed by the Government and steps have been taken to stop the practice of manual scavenging. Therefore, the grievance of the petitioner has come to an end and the Government of Gujarat has taken effective steps and is still going on taking effective steps and the process is continuing process.
7. In the affidavit in reply filed on behalf of respondent No. 5 - Navsarjan Trust in SCA No. 13911 of 2008, it has been stated in paragraph Nos. 12 to 15 as under:
"12. I state that Shri Natubhai Parmar, a senior member of the present respondent No. 5 trust had visited Surendranagar District. He had visited Wadhwan, Dudhrej and Sayla Municipalities. On visiting such Municipalities, he found as under:
(A) In Wadhwan Municipality in District Surendranagar, in Abolapaeera area to the madrasa there is in existence a dry latrine in Chichiban no vado, in complete violation of the provisions of the 2013 Act.
People of this area use this dry latrine to discharge pieces. The human excreta in the area was cleaned up by Radhadin Valmiki who works as a contract worker in Wadhwan Municipality. People of the area have complained to the authorities several times over about the need to demolish the dry latrine; however, the local authorities have refused to act. (B) In Dudhrej Municipality, District Surendranagar, in Machhi, (Fish) Market Area, there was open violation of the provisions of the 2013 Act. In this area, Bhadabhai Valmiki who is a permanent worker Page 6 of 9 C/SCA/16930/2003 JUDGMENT with the Municipality was found to be manually cleaning up human excreta.
(C) An area in Dudhrej Municipality, Nyaymandir where primary school No. 13 is located, persons are engaged on daily wage by the Municipalities to manually clean up human excreta.
(D) In Sayla town, District Surendranagar, a dry latrine exists next to Muli Darwaja area. Here also, the prohibited job of cleaning up human I carried out by manual scavengers employed by the local governing body.
In view of the above, it is clear that the manual scavenging exists in the State of Gujarat.
13. I state that recently on 18.12.2014, a newspaper report published in Times of India under the caption "sewer gas kills cleaner, two others" refers to the existence of manual scavenging. The incident occurred when Nilesh Chudasama (42) a sanitation worker entered the gutter line for cleaning. However, he felt suffocatd and started shouting out for help. Two brothers entered the manhole to rescue Nilesh Chudasama and they too felt suffocated. In the end all the three of them died."
14. On 29.4.2014, 4 persons employed by a company that has cleaning contract of the drainage network of Unjha were made to enter the drainage line without any protective equipment. As a result of which 2 persons died due to asphyxiation, 1 person was admitted in critical condition in the hospital and the other person though got asphyxiation was able to come out and seek help. The police registered a Page 7 of 9 C/SCA/16930/2003 JUDGMENT case of accidental death only."
15. Similar instances have also taken place at Gandhinagar; Kandla Port Trust, District Kutch; Virpur, District Mahisagar; Godhra; Kadi, where only accidental death reports have been filed."
8. Learned senior advocate Mr. Girish Patel has urged that in affidavit in rejoinder dated 16.1.2015 in paragraph No. 10 he has stated that the Minister in the Parliament has answered on 5.8.2014 along with data pointing out that in Gujarat number of latrines serviced manually were 2566. The assertion made in paragraph No. 10 of the rejoinder affidavit is reproduced as under:
"A question was raised before the Lok Sabha by a member viz. whether the Government has conducted a survey to ascertain number of dry toilets and number of manual scavengers in the country, if so, details and outcome thereof State-wise. The question was answered on the floor of the house on 5.8.2014 along with the data. The said table pointed out that in Gujarat number of latrines serviced manually was 2566. This is a statement made by the Minister on 5.8.2014 while the State Government claims to have conducted survey in 2013 and published in a report dated 7.1.2014 stating that there is no manual scavenging being done in the municipal areas of Gujarat. The AMC in reply does not give any details about the areas other than Municipality."
9. Learned AGP Mr. Utkarsh Sharma states that the Government will look into the statement made in paragraph No. 10 of the rejoinder affidavit and needful will be done and every effort will be taken to ensure that no manually service Page 8 of 9 C/SCA/16930/2003 JUDGMENT scavengers exist in the State of Gujarat and servicing of latrines manually is stopped. Therefore, we dispose of the writ petitions with a request to the State Government to look into the matter again and if the statement made in the Parliament on 5.8.2014 is found to be correct, the State Government will ensure that the latrines serviced manually which are 2566 are not serviced by the manual scavengers and toilets are constructed there so that the practice of manual scavenging is completely stopped and the State becomes free from manual scavengers. It will be open to the State Government to conduct survey and find out as to whether the statement made in the Parliament was on the basis of the correct data and learned AGP Mr. Utkarsh Sharma ensures on behalf of the Government that every possible steps will be taken by the State Government to stop the practice of manual scavenging and the Act of 2013 is enforced with full rigour.
10. The Government is requested to direct all the local bodies and local authorities to take strict compliance of the Act and the Resolutions as well as the policy decision of the Government.
11. With the aforesaid observation, these writ petitions stand disposed of. Rule/notice stand discharged.
(V.M.SAHAI, ACJ.) (R.P.DHOLARIA,J.) (pkn) Page 9 of 9