Madhya Pradesh High Court
Citizen & Inhabitants Of Municipal Ward ... vs Municipal Corporation, Gwalior And ... on 14 December, 1995
Equivalent citations: AIR1997MP33, 1996(0)MPLJ642, AIR 1997 MADHYA PRADESH 33, (1996) JAB LJ 263 (1996) MPLJ 642, (1996) MPLJ 642
Author: D.M. Dharmadhikari
Bench: D.M. Dharmadhikari
JUDGMENT D.M. Dharmadhikari, J.
1. The petitioners own residential houses in what they have described as 'Govindpuri Colony', within the Corporation limits of Gwalior city. They have approached this Court in what they describe as Public Interest Litigation, for compelling the authorities of ' Municipal Corporation, Gwalior and the other concerned authorities, made as respondents, representing the Departments of Local Self-Government, Public Health Engineering and " Town and Country Planning, to provide civic amenities to the Colony in which the petitioners own buildings and residential houses. The allegation made by them is that as members of Co-operative Societies arrayed as respondents 4 and 7 to this petition, they purchased plots and built their houses after obtaining due clearance from the Town and Country Planning Department and sanction for construction from the Municipal Corporation, Gwalior. It is their case that the Corporation is levying all kinds of taxes, such as, property tax, development cess and conservancy tax, from them. The Municipal Corporation, however, is totally neglecting the maintenance of roads, sewage-line, drainage system and street-lights in the Colony. It has been submitted that because of the insanitary conditions prevailing in the locality, it has become hazardous to the safety and health of the inhabitants and difficult to live in the Colony. Repeated approaches were made to the authorities, but no attention was paid to the problems of the residents of the colony which has compelled the residents to bring this Public Interest Litigation to this Court. .
2. This Court issued notices to the respondents representing the concerned authorities of the Corporation and the State. A Commission, consisting of an Advocate of this Court, was appointed for making a spot inspection of the prevailing conditions of roads and sanitation in the Colony. The Commission has submitted its report showing the unhygienic conditions prevailing in the locality.
3. The Corporation has submitted its return and the Commissioner and the Deputy Commissioner of the Corporation were present before us at the time of hearing of the case to explain the practical problems faced by the Corporation in carrying out the necessary civil works for maintenance of roads, drainage and sewage system in the Colony. The legal stand of the Corporation is that the Colony was allowed to be developed through Co-operative Housing Societies which are parties to this petition, under a written agreement, copies of which have been filed as Annexures R/l and R/2. It is pointed out that under the terms of agreement entered into between the Corporation and the concerned Co-operative Housing Societies, the entire development of the Colony which included carving plots, laying streets and roads inside the Colony and providing a drainage system so as to connect it with the main drainage line of the Corporation, was the sole responsibility of the Society concerned. It is submitted that the Societies have failed to completely develop the colonies as per the terms of the agreement and the colonies, fully developed, have not yet been handed over to the Corporation for maintenance. It is denied by the Corporation that any conservancy tax is being levied on the residents of the locality. It is explained that the property tax is being levied which has to be paid by the owners irrespective of the development of the Colony on every construction which is raised within the limits of the Corporation. The contents of certain receipts showing charging of development cess, described in Hindi as "VIKAS KARYA SHULKA", is sought to be explained by the Corporation stating that under the terms of the agreement, in order to connect the sewage lines of the Colony with the main the of the Corporation, for construction of V shape drainage system, the Corporation had agreed to levy a fee at the rate of Rs. 50/ - per sq. ft. on every plot holder. The VIKAS KARYA SHULKA, therefore, represents the amount charged for construction of V shape drainage system. It is submitted by the counsel appearing on behalf of the Corporation that in the absence of the development of plots by the Housing Societies and handing them over to the Corporation in terms of the agreement, there is no statutory liability on the Corporation to provide the Civil amenities which have been claimed by only some of the plot holders from this Court.
4. The Housing Societies which are parties as respondents 4 to 7 in the petition were noticed, but only respondent No 4, Nehru Griha Nirman Society, has appeared and filed a return through a counsel engaged by it. In the return submitted by respondent No. 4, it is stated that at the time when the Colony was developed and houses were constructed by the members of- their Society, certain fixed amount at prescribed rates for development was charged from each of the plot-holders who were members of their Society. That estimated costs for development after being collected had already been , spent and no further amount has been paid by the members nor any fund is available with the 'Society for further development and maintenance of civic amenities in the Colony. The Society, respondent No. 4, has, therefore, expressed its financial inability to provide necessary civic amenities to the members residing in the Colony and partly developed by that Society.
5. Learned Counsel Shri N. P. Mittal, appearing for the petitioners] very strenuously argued that the Corporation and its authorities as also the concerned authorities of the State cannot shirk their statutory responsibility in providing of necessary civic amenities to the residents of the Colony. He submitted that when the Corporation is levying taxes and development cess, it is not open to them to take shelter under an agree ment entered into between them and the Housing Societies which are dormant and have n'o't at all taken any steps to help the members and the plot-holders or residents living in the locality.
6. A preliminary objection was also raised in the course of hearing on behalf of the -Corporation by Shri S.G. Chitnis, learned Counsel appearing for the Corporation and Shri K.N. Gupta, Government Advocate, on behalf of the State that this petition cannot be called a Public Interest Litigation. It is submitted that all the petitioners own houses and are members of the Co-operative Societies from whom they purchased the plots. The development of the colonies was the sole responsibility of the respective Society. The dispute inter se is between the members of the Society and the Societies concerned. The remedy, if any, lay under the M. P. Cooperative Societies Act by raising a 'dispute' under Section 64 of the said Act and recourse ' to this Court under a Public Interest Litigation is a misuse of the process ofthis Court.
6A. In support of the relief claimed by the petitioners, Shri N. P. Mittal placed strong reliance on a Division Bench decision of this Court in Citizen and Inhabitants of Municipal Ward No. 37, Gwalior v. Municipal Corporation, Gwalior, reported in 1992 (1) MPJR 93, .which has been upheld by the Supreme Court in Civil Appeal No. 4956 of 1992, decided on26-10-1993. On behalf of the petitioners, it is urged that a direction to the authorities on the lines of the Division Bench decision, supra, be issued.
7. After hearing the learned Counsel for the parties and the authorities which were present before us in the course of hearing, and looking into the relevant provisions of the M.P. Municipal Corporation Act, 1956, M. P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 and the M. P. Co-operative Societies Act, 1962, we are of the opinion that this Public Interest Litigation cannot be completely rejected on technical pleas of locus stand and non-observance of contractual obligations and statutory requirements by the Societies and the petitioners concerned. Although it could not be disputed by the petitioners that they are all owners of houses in the colonies which they purchased from the concerned Society and they are members of the Societies, the cause they have brought before this Court and the grievances, Which they want to be redressed, however, are not such which only individually pertain to them. It can be assumed that the localities and the colonies are also inhabited by several citizens and persons who may not be members of the Society, but have come to occupy houses and buildings within the locality as tenants and members of the families of the owners. It is also a locality or the colony to which public has an access. It is within the Corporation limits and, therefore, the public at large has substantial interest in maintenance of sanitation and proper living conditions in the locality. The petition has been filed by members of Housing Societies, but it is in a representative capacity to safeguard the interests of all citizens and residents of that locality. The petition, therefore, cannot be, thrown off on the ground that it is a private grievance of individual members of the Housing Societies and is not a Public Interest Litigation.
8. The main question that arises is as to whether the petitioners in this Public Interest Litigation are entitled to any directions as have been granted by a Division Bench of this Court in the case supra. The most striking and distinguishing feature of the Division Bench decision, supra, and the case in hand is that in that case, the colonies were developed and were formally taken over by the Municipal Corporation and yet, there were certain defaults and shortcomings in maintaining the sanitary conditions in those colonies. This aspect of the case is clear from the statement , of facts contained in para 17 and para 20(iv) of the judgment of the Division Bench, supra. In the instant case, the development of colony was the responsibility of the Societies who have not admittedly fully developed them and the colonies have also not been formally handed over to the Corporation for upkeep and maintenance. In such a situation, whether this petition calls for issuance of any direction and writ by this Court is the, second question. For the above purpose, the relevant provisions of the M. P. Municipal Corporation Act be noticed. Section 66(1)(a), (b) and (j) which impose certain compulsory duty on the Corporation read as under:
"66. Matters to be provided for by Corporation.-- (1) The Corporation shall make adequate provision, by any means or measures which it may lawfully use or take, for each of the following matters, namely:--
(a) lighting public streets, places and buildings.
(b) cleaning public streets, places and sewers and all' spaces not being private property, which are, open to the enjoyment of the public, whether such spaces are vested in the Corporation or not; removing noxious vegetation, and abating all public nuisances;
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(j) constructing, altering and maintaining public streets, culverts and Corporation boundary, markets, latrines, urinals, drains, sewers and providing public facilities for drinking water, watering public streets and places;
*** *** *** When there is a proposal to develop a private colony, provisions of Section 328 are attracted which require a sanction to be granted by the Corporation in accordance with the byelaws for developing a colony and for construction of building in it. It appears that in terms of Section 328(1), the concerned Society entered into an agreement with the Corporation and took upon itself the responsibility of developing the colonies and hand them over as fully developed to the Corporation for maintenance. The Corporation merely agreed to provide V shape drainage system by charging development cess at a fixed rate on the plot-holders. The Society and its members do not appear to have fulfilled their part of the obligation under the agreement as, admittedly, the colonies have not been fully developed and have not yet been handed over to the Corporation. In such eventuality, the Corporation cannot sit silent and adopt an apathetic attitude. The Corporation has corresponding statutory obligation under the Act to take necessary remedial measures and corrective action against the Society. See, Section 237 which reads as under:
"237. Power of Commissioner to require the owner to make provision for drainage.--Where any premises have no drain communicating with a public sewer, oR a drain insufficient for the effectual drainage of the premises, or a drain not adapted -, to the general sewage system of the City, or a drain which is in the opinion of the Commissioner, otherwise objectionable, the Commissioner may by notice, require the owner of the premises to make satisfactory provisions for the drainage of the premises or to do such other work within such time as may, in the opinion of Commissioner, be necessary for remedying the cause complaint or to construct a closed cesspool of such material, size and description in such position, at such level, and with allowance for such fall as the Commissioner thinks necessary and drain or drains emptying into such cesspool."
See also the provisions of Section 242. See. also Section 329 with regard to construction and maintenance of streets in the private colony. Both these sections read as under:--
"242. Control by Corporation and the Standing Committee.-- In dealing with municipal drainage, sewage and water-works schemes, the Commissioner shall follow the general principles laid down by the Corporation, -for any scheme of sewage or drainage or water-works and may refer to the Standing Committee any question connected with the carrying out of such a scheme in which the intention of the Corporation does not appear to him to have been, clearly expressed, or in which the provisions of the scheme appear to him to require modification. The Standing Committee shall in its discretion either decide the question or refer the matter for the orders of the Corporation:
Provided that any question involving the expenditure of a sum, exceeding one lakh of rupees shall be referred to the Corporation for orders."
"329. Levelling, metalling etc. of streets.--(1) If any street be not levelled, paved, lighted, sewered, drained, channelled or flagged to the satisfaction of the Commissioner; he may, with the approval of the Standing Committee by a written notice, require the owner or owners of the street and the owners of the several premises fronting or adjoining the said street, or abutting thereon, or to which access is obtained through such street, or which will benefit by works executed under this sections, to contribute within thirty days from the date of receipt of notice in such proportions as he may direct to the cost of levelling, metalling, tarring or asphalting, paving, lighting, sewering, draining, or flagging the same.
*** *** *** The Corporation has to compel the Societies on whom lay the responsibility of developing the plots to complete the development and hand them over to the Corporation for its upkeep and maintenance. See, Section 330 of the said Act which is as under:
"330. Power to declare streets when metalled, etc., public streets.-- (1) When any street has been levelled, metalled, tarred or asphalted, paved, made good, lighted, drained, channelled and flagged to the satisfaction of the Commissiner, he shall, if so required by the person liable for the greater part of the expenditure on such street by notice put up in any part of such street, declare the same to be a public street. The said street shall thereupon become a public street.
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9. After examining the above provisions, we are clearly of the view that both -- the Society and its members and the authorities of the Corporation have failed to fulfilling their statutory and contractual obligations and the public at large and the residents of the locality, in particular, cannot be allowed to suffer the insanitary conditions for an indefinite period of time. We, therefore, consider it fit and proper in the interest of justice to make the following directions :--
(i) The respondents 4 and 7 who are Housing Co-operative Societies shall, within a period of two months from today, fix a date for calling a general meeting of their members which shall be attended by a nominee of the Registrar of Co-operative Societies, Madhya Pradesh. The main agenda for the meeting would be the development of the colony in terms of the agreement entered into with the Corporation and for arranging funds for the same. After necessary deliberations, the Societies will come out with an agreed proposal, to be placed before the Commis sioner of the Corporation for completing the works of development of the colony within a reasonable period. *
(ii) The Commissioner, Municipal Corporation, Gwalior, is directed to give statutory notice and take statutory steps as required by the provisions contained in Sections 237 and 242 of the Act for providing the proper drainage and sewer system in the colony developed by the Housing Societies-respondents 4 to 7. The Commissioner is also directed to take, necessary remedial steps as required by the provisions of Section 329 of the Act. The statutory requirements of Sections 237, 242 and 329 of the said Act shall be fulfilled by the Commissioner within a period of two months from today.
10. The petitioners and the authorities shall submit a report of the steps taken as per our directions made above after expiry of four months from today.
11. It would be open to any of the parties concerned, to approach this Court for further directions if the occasion arises, by way of a separate petition.
12. A copy of this order be sent also to the Registrar of Co-operative Societies, M. P., Bhopal.
13. The petition is disposed of with the above observations and directions. In the circumstances of the case, we leave the parties to bear their own costs.