Mohanbhai vs State on 25 August, 2011

[Cites 29, Cited by 0]

Gujarat High Court

Mohanbhai vs State on 25 August, 2011

Mr.Rashesh Rindani, learned Assistant Government Pleader, waives service of notice of Rule on behalf of respondents Nos.1,2 and 4, Mr.Kaushal D.Pandya, learned advocate, waives service of notice of Rule on behalf of respondent No.3 and Mr.Sunil L.Mehta, learned advocate, waives service of notice of Rule on behalf of respondent No.5. On the facts and in the circumstances of the case, and with the consent of the learned advocates for the respective parties, the petition is being finally heard and decided.

2. The challenge in this petition preferred under Article 226 of the Constitution of India, is to the Notification dated 16-07-2011, issued by the Commissioner of Police, Surat City, under the provisions of Section 144 of the Code of Criminal Procedure, 1973, ("The Code" for short).

3. The brief factual background leading to the filing of the petition is as follows:

3.1 The petitioners are artisans, engaged in the business of making idols of Hindu Gods and Goddesses in the City of Surat. These idols are made of clay, or Plaster of Paris. After manufacture, the said idols are sold in the market and are purchased by the public for worship during festivals, such a Ganesh Chaturthi, after which they are ceremonially immersed in the River Tapi. According to the petitioners, Plaster of Paris is a a natural product, and while preparing the idols, no chemicals or toxic colours are used. The Commissioner of Police, Surat City (respondent No.2), issued a Notification dated 21-05-2011, under the provisions of Section 144 of the Code, prohibiting the use of Plaster of Paris in making the idols and banning the use of toxic colours for painting them. The Notification contained certain other prohibitions, such as, the height of the idol should not exceed 9 ft., etc. This Notification was made effective from 21-05-2011 to 20-07-2011. During the pendency of the petition, the period of validity of the said Notification has come to an end, therefore, respondent No.2 issued another, identically worded Notification, dated 16-07-2011, with effect from 21-07-2011, valid upto 18-09-2011. The petitioners were permitted to amend the petition, in order to include a challenge to this Notification which has been done. The Notification dated 16-07-2011, is under challenge in the present petition.

4. Mr.B.C.Dave, learned advocate for the petitioners has made several submissions, the gist of which is as under:

(a) The petitioners are engaged in the preparation of idols of Hindu Gods and Goddesses which are sold in the open market. No chemicals are being used by the petitioners in preparation of the idols and no toxic colours are used for painting them. Plaster of Paris, which is the material used for making the idols, is a natural product, and no chemicals are being mixed with it.

(b) The petitioners have no role to play, insofar as immersion of the idols during religious festivals is concerned. It is the duty of the local authorities such as the respondent Municipal Corporation, to ensure that immersion of the idols does not cause pollution of the River and other environmental hazards.

(c) There is no justification in the issuance of the impugned Notification by respondent No.2, especially in the absence of any material with regard to the adverse effect upon public health and hygiene. The Notification has been issued without basis. There is no material on record to show that an emergent situation existed, justifying the exercise of power under Section 144 of the Code.

(d) The power under Section 144 of the Code can be used only in urgent situations. No such urgent situation existed, in the present case.

There is no material on record to show that an urgent situation existed, warranting a conclusion by respondent No.2 that the use of Plaster of Paris in preparation of the idols, and immersion thereof, is causing imminent danger to public health and hygiene. It is not so stated in the impugned Notification, therefore, respondent No.2 has exceeded the jurisdiction vested in him under Section 144 of the Code.

(e) Respondent No.2 has not recorded his subjective satisfaction that an urgent situation, endangering human life and health, has arisen, causing the issuance of the impugned Notification.

(f) The Notification has been issued only in the City of Surat and not in any other part of the State. Banning the manufacture of idols made of Plaster of Paris in Surat only,when no ban has been imposed in any other part of the State, causes hostile discrimination to the petitioners, as no restrictions on the manufacture of Idols of Plaster of Paris have been imposed on similarly situated persons in other parts of the State.

(g) The issuance of the impugned Notification is violative of the fundamental rights of the petitioners under Articles 14 , 19(1)(g) and 21 of the Constitution of India. The petitioners have a right to carry on their occupation in any part of the country. There is no rationale or reasonable basis for imposing this prohibition in the City of Surat only. By preventing the petitioners from making idols, which is the sole means of earning their livelihood, there is a violation of Article 21 of the Constitution of India.

(h) Though the petitioners have been prohibited from manufacturing idols of Plaster of Paris in Surat City, no restriction is imposed upon bringing such idols into the City from outside, which goes against the very object for which the Notification is purported to have been issued.

(i) In support of the above submissions, learned advocate for the petitioners has placed reliance upon the following judgments:

(1) Acharya Jagdishwaranand Avadhuta v. Commissioner of Police, Calcutta, AIR 1984 SC 51 (2) Wing Commander Utpal Barbara v. State of Assam, AIR 1999 Gauhati 78 (3) Gwalior Distillers Ltd. v. State of M.P., 1996 Cri.L.J.2819 (Madhya Pradesh High Court) (Gwalior Bench).

5. The petition has been strongly opposed by Mr.P.K.Jani, learned Government Pleader, appearing for respondents Nos.1,2 and 4, on the following grounds:

(a) The Commissioner of Police has been empowered to issue a Notification under Section 144 of the Code in certain situations, as mentioned in the Section. In the present case, manufacture and immersion of idols made of Plaster of Paris, painted with toxic colours, is likely to cause danger to human life, health and safety. The power under Section 144 is in the nature of an extraordinary power, used to prevent something with immediate effect. It is to be exercised where a speedy remedy is required to be resorted to.

(b) Pursuant to directions issued by the High Court of judicature at Bombay, the Central Pollution Control Board has framed Guidelines, that have been circulated vide letter dated 28-06-2010, of the Hon'ble Union Minister for Environment and Forests, to all State Governments. In pursuance thereto, the Department of Forests and Environment, State of Gujarat has, by communication dated 26-07-2010, circulated the Guidelines to local bodies and authorities throughout the State, with directions to ensure their strict implementation, with a view to preventing pollution of water. In this background,the Commissioner of Police, Surat City, has issued the impugned Notification, after granting the petitioners and similarly situated persons and stakeholders, an opportunity of hearing, and after considering the representations made by them. The Notification has been issued with a view to preventing pollution of the waters of the River Tapi, and resultant environmental pollution that occurs due to immersion of a large number of idols. The immersion of idols causes danger to human life and health, in addition to being dangerous to aquatic life. The word "urgent" used in Section 144, has to be understood in the context of the peculiar facts of the case.

The prohibitory order under Section 144 of the Code is in consonance with the spirit of the said provision. Had the said Notification not been issued,there would have been danger to human life and health, therefore, the issuance of the Notification is absolutely justified, and in doing so, respondent No.2 has not exceeded the jurisdiction vested in him by Section 144.

(c) The petitioners have participated in the decision-making process, and during the hearing given to them, they have agreed to discontinue the use of Plaster of Paris and toxic colours in preparation of the idols. It is not open for the petitioners to challenge the Notification, at this stage.

(d) The Commissioner of Police has not permitted the manufacturers of idols of Plaster of Paris from outside the City of Surat to bring such idols into the City. The apprehension expressed by the petitioners, in this regard, is unfounded.

(e) No prohibition has been imposed on the manufacture of idols. What has been prohibited is manufacture of idols made of Plaster of Paris, and the use of toxic paints. The activities of the petitioners have been regulated, but not prohibited, and the said regulation does not constitute a violation of the fundamental rights of the petitioners under Articles 14 , 19(1)(g), and 21, of the Constitution of India.

(f) The petitioners could have approached the State Government in accordance with the provisions of Section 144(6) of the Code but did not choose to avail of this remedy, and have invoked the extraordinary jurisdiction of this Court straightaway, therefore, the petition may be dismissed on the above grounds.

(g) In support of the above submissions, reliance has been placed upon the following judgments:

(1)

Babulal Parate v. The State of Maharashtra, AIR 1961 SC 884 (2) Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, 1970(3) SCC 746 (3) Md.Gulam Abbas v. Md. Ibrahim, AIR 1978 SC 422 (4) Gulam Abbas v. State of U.P., AIR 1981 SC 2198 (5) Akhil Bhartiya Sarkari Lottery Vyapari Mahasangh v. Commissioner of Police, 1999 Cri.L.J.3600 (Delhi High Court) (6) M.C.Mehta v. Union of India, (2004) 12 SCC 118 (7) K.Murugappa Mudaliar v. Kuppuswami Mudaliar, AIR (36) 1949 Madras 212

6. Mr.Kaushal D.Pandya, learned advocate for the Surat Municipal Corporation (Respondent No.3) has submitted that the impugned Notification has been issued after proper application of mind. As the jurisdiction of respondent No.2 is restricted to Surat City, the said Notification has been issued in the City of Surat only, therefore, the grievance of the petitioners regarding discrimination is without basis. It is contended that the River Tapi is one of the largest rivers in the State of Gujarat, and the number of idols immersed during religious festivals is huge. The respondent Corporation supplies potable water from the River Tapi to the citizens of Surat City. The water from the River is also used for irrigation and industrial purposes. A weir-cum-causeway is constructed on the Tapi River for this purpose. The immersion of idols in the river causes water pollution and health hazards to the citizens. Idols made of Plaster of Paris take a long time to dissolve. It is contended that due to the use of toxic and chemical colours for paining the idols, the TDS (Total Dissolved Solid) level rises to alarming proportions when the idols are immersed in the river. Not only is the water of the River Tapi polluted, but the immersion of idols adversely affects aquatic life. It is emphasised that the Corporation is making efforts to contain environmental pollution, and for this purpose 22 spots, divided into 5 Zones, have been identified for immersion of idols, and barrels are being put into place to demarcate the spots. The material for worship and 'Pooja', which is used during and after immersion, can be collected in those spots, so as to contain pollution. The immersion of idols made of Plaster of Paris, painted with toxic colours,will contaminate the water of the Tapi River and adversely affect the health of the citizens of Surat City, therefore, respondent No.2 is justified in issuing the Notification.

6.1 It is further submitted by the learned advocate for respondent No.3, that prior to issuance of the Notification, a meeting took place in which the President of the Association of idol makers, Officers of the Police Department and representatives of social organizations and NGOs participated and there was consensus regarding stopping the use of Plaster of Paris for making idols. It is contended that the petitioners cannot now challenge the Notification that has been issued after hearing all concerned parties, and looking to the public interest involved, the petition may be dismissed.

7. Mr.Sunil L.Mehta,learned advocate for respondent for Gujarat Pollution Control Board (respondent No.5) has also supported the issuance of the impugned Notification and has adopted the stand taken by the learned Government Pleader and learned advocate for Respondent No.3. In addition thereto, he has submitted that the Guidelines of the Central Pollution Control Board have been communicated to the State Pollution Control Board, and have been further circulated by it to all concerned authorities, throughout the State. It is contended that a communication dated 12-07-2011 has been received by it from respondent No.4 regarding the manner in which the idols should be made, and the steps to be taken by the local authorities during immersion of the idols, which has been sent to all concerned authorities. The Notification has been issued in order to prevent pollution of the river and the environment, therefore, the Court may not interfere.

8. In rejoinder, learned advocate for the petitioners has reiterated the submissions advanced by him earlier. In addition, it has been submitted that the Association of persons manufacturing idols is not a Registered one. The petitioners were not heard and have not given their consent. The President of the said Association, who had participated in the meeting held by respondent No.2 has later resiled from the consent given by him, regarding discontinuation of the use of Plaster of Paris in preparing the idols, and this has been communicated to the said respondent. It is contented that, though the petitioners have not approached the State Government under the provisions of Section 114(6), they may not be relegated to this course of action at this stage, as it is a settled position of law that a Notification under Section 144, is amenable to the writ jurisdiction of this Court.

9. Having heard the learned counsel for the respective parties, and in the background of the submissions made by them, it would be relevant to refer to the impugned Notification dated 16-07-2011, issued by the Police Commissioner, Surat City. The relevant portion thereof reads as below:

"Different religious festivals are celebrated every year in Surat city, during which idols of Gods and Goddesses are installed. These idols are, after a period of time, immersed in the River Tapi by conducting religious rituals. The idols of Gods and Goddesses are made of Plaster of Paris, and chemical colours are used on them. Such idols are immersed in Rivers, ponds and the Sea. Idols made of Plaster of Paris dissolve in the water and this results in the death of aquatic life, such as fish. Immersion and dissolution of the idols in the water causes damage to the environment and pollutes the water. Keeping in mind these aspects, Surat Municipal Corporation, social organizations and NGOs of Surat City have jointly undertaken the cause of cleaning the Tapi River and protecting the environment. In order to prevent pollution of the environment and water, and in exercise of powers conferred under Section 144 of the Criminal Procedure Code, 1973, it is necessary to prohibit the following acts relating to making of idols of Gods and Goddesses for religious occasions:

Prohibited Acts Idols should be made from natural material such as traditional clay, in accordance with religious tradition, and baked clay and Plaster of Paris should not be used.

Idols should be made in a manner that they dissolve easily in water, and only non-toxic and bio-degradable colours should be used for painting them.

While making the idols the use of grass, wood and bamboo is not excluded.

(4)The height of the idol should not exceed 9 ft.

(5)The places where the idols are made and the surrounding areas, should be kept clean.

(6)

After sale of the idols, the unused idols and broken parts of the idols, should not be left strewn around.

While making idols care should be taken that no signs or marks are put on them, which may hurt the religious feelings of persons of other religions.

These prohibitions/Rules would be applicable to those persons who are bringing idols for sale from outside Surat City.

-0-

10. An affidavit-in-reply has been filed on behalf of respondent No.2, wherein it is stated that the Notification under Section 144 of the Code has been issued by the Commissioner of Police, who has been vested with power of an Executive Magistrate, vide Notification dated 07-01-1989, by the State Government, with a view to controlling water and environmental pollution. It is stated that the Notification has been issued in exercise of powers under Section 144 of the Code, "to frame Rules with respect to manufacturing idols of Gods/Goddesses and laying foundation thereof in connection with the celebration of religious festivals." It is further stated that the said Notification has been issued with "a noble cause". It is stated in the affidavit that the Notification in question has been published after taking into consideration the guiding principles set out in the Guidelines for immersion of Ganesh idols issued by the Central Pollution Control Board. In addition, the Government of Gujarat has also issued certain Guidelines, with directions to the concerned authorities for their strict compliance. It emerges from the affidavit, that the stand taken by respondent No.2 is that, immersion of idols made of Plaster of Paris, painted with toxic or non-biodegradable colours in the Tapi River, causes pollution of the river and the environment, which may harm the public, therefore, the issuance of the Notification is justified, in the public interest.

11. In the affidavit-in-reply filed by Surat Municipal Corporation, emphasis has been laid upon the adverse environmental impact of idol immersion on water bodies, by stating that the Corporation provides potable water to the citizens of Surat City, and idols made of Plaster of Paris take a long time in dissolving, adding to the hardness of the TDS of water, which is likely to cause health hazards to the citizens.

12. In the affidavit-in-reply filed on behalf of respondent No.5-Gujarat Pollution Control Board, emphasis is once again laid on the Guidelines framed by the Central Pollution Control Board, as communicated to all States, and the necessity of implementing the same. The stand of the said respondent is the same as that of the other respondents, that the immersion of idols of Gods and Goddesses made of Plaster of Paris, painted with chemicals and non-biodegradable colours, causes water pollution and damage to the environment, necessitating the issuance of a Notification under Section 144 of the Code.

13. It may be relevant to note that the High Court of Judicature at Bombay, in its judgment in the matter of State of Maharashtra (PIL/W.P.(C) No.1325/2003), issued certain directions to the Central Government regarding immersion of idols. Pursuant thereto, the Central Pollution Control Board framed Guidelines for Idol Immersion, in June 2010. These Guidelines are being heavily relied upon by the respondents, and have formed the basis for the issuance of the impugned Notification. It would be relevant to advert to the salient features of the said Guidelines, which are reproduced below:

2.0 Guidelines 2.1 General Guidelines for Idol Immersion.

Idols should be made from natural materials as described in the holy scripts. Use of traditional clay for idol making rather than baked clay, plaster of paris, etc. may be encouraged,allowed and promoted.

Painting of idols should be discouraged. In case idols are to be painted, water soluble and nontoxic natural dyes should be used. Use of toxic and non-biodegradable chemicals dyes for painting idols should be strictly prohibited.

Worship material like flowers, vastras (clothes), decorating material (made of paper and plastic) etc. should be removed before immersion of idols. Bio-degradable materials should be collected separately for recycling or composting. Non-biodegradable materials should be collected separately for disposal in sanitary landfills. Clothes may be sent to local orphan house(s).

Public should be educated on ill effects of immersion in the holy water bodies through mass awareness programme.

The 'Idol Immersion Points' shall be cordoned of and barricaded. Synthetic liner may be placed in the bottom, well in advance. The said liner shall be removed on completion of immersion ceremony so that remains of idols would be brought to the bank. Bamboo and wooden logs, if any would be reused. Clay, etc. may be taken to sanitary land fill for disposal.

General Guidelines for Local Bodies/Authorities:

Local bodies/District Authorities generally make efforts to identify adequate number of designated immersion spots to avoid overcrowding and also to reduce pollution load on water bodies, such spots need to be notified and public & pooja committees be informed of such designated sites through awareness programme preferably a month before such events of idol immersion. All the stakeholders such as River Authority, Port Authority, Water Supply Board, Irrigation Department, etc be consulted for identification of the Immersion Ghats,where flow in stream is naturally available.

(ii) A co-ordination Committee comprising Police, Non-governmental Organizations, Local Authorities, SPCBs, representatives of pooja committees and stakeholders may be set up for guiding the public in carrying out the immersion with minimal impact on water bodies.

(iii) At the immersion sites, burning of solid wastes, so generated comprising of used flowers, clothes, decorating materials, etc. should be prohibited.

(iv) Within 48 hours of the immersion of idols, the left over material at idol immersion points on the banks of rivers, lakes, beaches, etc. should be collected by the local bodies for disposal as per point 2.1 (iii) above.

(v)In case of immersion of idols in rivers and lakes, arrangement may be made for construction of temporary confined ponds with earthen bunds for the purpose of immersion of idols. After the completion of immersion, supernatant water may be allowed to flow in river, pond and lake, as the case may be, after checking for colour and turbidity. Lime may be added in temporary confined ponds.

(vi)The Pooja organizers be involved in a campaign on the ill effects of the toxic components of coloring materials, not only of the idols, but also other decorating materials used during the festive season. Specific leaflets and poster for mass awareness may be prepared and the Pooja committees persuaded to be display such posters and distribute leaflets among worshipers.

2.3 *** *** **** ***** 4 Guidelines for Idol Immersion in Rivers:

Temporary ponds having earthen bunds along river bank should be created as idol immersion spots. Removable synthetic liner may be placed well in advance in bottom of pond. The said liner along with remains of idols should be removed from the point within 48 hours of immersion of idols.

14. Certain recommendations have also been made which form part of the Guidelines. Those of some relevant to the matter in hand are reproduced hereinbelow:

RECOMMENDATIONS:

A study to commissioned to quantify the amount of toxic metals that contaminate the nature through colours used for painting the idols, clearly specifying the compositions of all the colour materials used for the specific purpose. This study should also delineate the routing of the colours, i.e., the way the colours reach the artisans from the sources, i.e., the manufacturers.

(2)Discontinuation of the colours known commonly by "Yellow Puree Halka", "Yellow Puree Bhari". "Red Oxide" and "Red Lead" is to be aimed at through workshops with artisan idol makers and the colour manufacturers. Target for this may be fixed as the season of idol making in year 2009, i.e., alternatives are to be set in place by August, 2009.

(3) **** **** **** (4) Keeping in view of the possible contamination of water bodies from lead laden paints via various sources other than immersion, it is felt that the problem should be dealt at source - i.e., within the paints themselves - in the long run. It is an admitted position as documented in the report that the use of lead has been almost fully restricted as per USEPA guideline as it is known to have highly disastrous impacts on people per se and children in particular and even an international expert committee - the Executive Committee of the International Conference on Lead Poisoning during a conference at Bangalore. India in November 1999 in its 'Recommendations on National Policy and Implementation'- had recommended in this matter sometimes back. The central government should undertake appropriate steps in this matter and state environment department is requested to take up the matter with appropriate central government agencies. The respective detailed document is annexed herewith."

15. Having noticed the Guidelines, it would be fruitful to examine the legal position as enunciated by the Supreme Court and some High Courts, regarding the issuance of a Notification under Section 144 of the Code.

16. Reference may first be made to the judgments cited by the learned advocate for the petitioners.

16.1 In Acharya Jagdishwaranand Avadhuta v. Commissioner of Police, Calcutta (Supra), the Supreme Court has held as under:

"14.

******* ****** ******** ********** It is not disputed before us that the power conferred under this section is intended for immediate prevention of breach of peace or speedy remedy. An order made under this section is to remain valid for two months from the date of its making as provided in sub-section (4) of Section 144. The proviso to sub-s. (4) authorises the State Government in case it considers it necessary so to do for preventing danger to human life, health or safety, or for preventing a riot or any affray, to direct by notification that an order made by a Magistrate may remain in force for a further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired. The effect of the proviso, therefore, is that the State Government would be entitled to give the prohibitory order an additional term of life but that would be limited to six months beyond the two months' period in terms of sub-section (4) of Section 144 of the Code. Several decisions of different High Courts have rightly taken the view that it is not legitimate to go on making successive orders after earlier orders have lapsed by efflux of time."

(emphasis supplied) 16.2 In Wing Commander Utpal Barbara v. State of Assam (Supra), a ban was imposed on the use of polythene bags on members of the general public by the Magistrate acting under Section 144 of the Code of Criminal Procedure. The Gauhati High Court held as below:

"15.

Keeping in mind the various decisions rendered by the Supreme Court and the High Courts, the matter at hand has to be examined by this Court. The reasons apparent on the face of the order are that the unregulated disposal of the used polythene bags thrown into drains in the city of Guwahati has blocked the normal flow of water causing water logging and environmental pollution. It is a fact that the polythene bags are in use throughout the country since a long time and it cannot be construed as 'imminent danger' to the health and hygiene of the people. The reasons given in the impugned notification, in the opinion of this Court, do not appear to be a sound logic for arriving at a conclusion that the unregulated manner in which the polythene bags have been disposed of by the members of the public has suddenly caused 'imminent danger' to the public health and security. In my opinion, the remedy available to the district administration or other authorities like Guwahati Municipal Corporation lies in taking proper steps to regulate the use and disposal of the polythene bags and not in imposing a total ban in its use. If, however, the district administration or the State Government considers that a total ban has to be imposed on the polythene bags, they may do so by taking resort to appropriate legislation. In this connection, we may refer to the Himachal Pradesh Non-Biodegradable Garbage (Control) Act, 1995 and the Sikkim Non-Biodegradable (Control) Act, 1997. Both the Himachal Pradesh Government as well as the Sikkim Government enacted appropriate legislation to regulate the disposal of non-biodegradable garbage in public drains and open places. For that matter, it can be said that the State of Assam has to enact appropriate law to obviate the possibility of any danger to public health and hygiene.

16. It would further appear from the impugned order that the learned Additional District Magistrate in the impugned order cited blockade of the drains in the city of Guwahati as the main reason for 'issuing the prohibitory order'. But this impugned order has been brought into force throughout the territorial limit of the district of Kamrup without proper justification. The application of this order beyond the limit of Guwahati city in a flash of concern for public health without recording adequate reasons does not inspire this Court to accept it as just and proper.

17. There is no second opinion that anything that affects or is likely to affect 'public health', 'hygiene' and tranquility has to be abhorred. For that matter what is needed is proper study to identify those objects and to plan ahead to obliterate those possible hazards before they surface as a menace. To tide up such eventuality, necessary laws will have to be enacted. Resort to temporary or emergency powers under Section 144 of the Code of Criminal Procedure cannot be a permanent solution to those problems. Use of polythene bags containing lead (toxic element) because of dye used as an ingredient may be dealt with under Section 144 of the Code of Criminal Procedure for a short period, but not in perpetuity. Moreover, this is not included as one of the reasons in the impugned order. If the recycling process is undertaking by any of the manufacturers in violation of any law in force, the problem has to be dealt with under that law only. The 'legislative intent' embodied in the language of Section 144 and as has been explained by the Apex Court in the case referred to herein before suggests that this power is available only to meet an 'imminent situation'. This essential requirement is missing in this case. Although this Court admires the rare flash of concern for public health, the requirement of law cannot be lost sight of. Considering all these aspects, this Court is of the opinion that the 'satisfaction' arrived at by the learned Additional District Magistrate in issuing the impugned order cannot be justified in the given circumstances of this case. The order issued in exercise of powers under Section 144, Cr.P.C. being ex facie illegal has to be set aside. The argument advanced by Shri P. Pathak, learned Addl. Advocate General that the petitioners should have availed the alternate remedy made available in Sub-section (7) of Section 144, Cr.P.C. do not deserve any concession for the above reason."

16.3 In Gwalior Distillers Ltd. v. State of M.P., (Supra), the Magistrate ordered closure of an industrial Unit for two months causing pollution on account of poisonous gas being emitted as effluent,under Section 144 of the Code of Criminal Procedure. The Madhya Pradesh High Court (Gwalior Bench) held as under:

"9.

As a matter of fact the question as to whether the proceedings can be taken under the Code of Criminal Procedure, 1973, when there exist a separate remedy was gone into by this Court in Criminal Revision No. 108 of 1987. This petition was filed against an order passed by the Sub-Divisional Magistrate, who had refused to proceed under the Code of Criminal Procedure, 1973. The prayer made was that the view taken by the Magistrate is incorrect. In para 17 of the order this Court observed as under:

"In the ultimate analysis I find that in view of the Special Acts, the learned S.D.M. was right in holding that he has no jurisdiction to proceed with the matter which is in relation to acts which constitute offences under the Water Act and the Air Act."

Accordingly, I am of the view, that as a specific provisions exist in the aforementioned Central Acts, the Additional District Magistrate was not competent to pass an order under Section 144 of the Code."

17. To elucidate the legal position further, the judgments cited by the learned Government Pleader, may now be examined.

17.1 In the case of Babulal Parate v. The State of Maharashtra (Supra), a Constitution Bench of the Apex Court rejected the challenge to the constitutional validity of Section 144 of the Code. Regarding the exercise of powers under Section 144, this is what Their Lordships have laid down:

"(20) It seems to us, however, that wide though the power appears to be, it can be exercised only in an emergency and for the purpose of preventing obstruction, annoyance or injury to any person lawfully employed, or danger to human life,health or safety, or a disturbance of the public tranquility or a riot, or "

an affray ". These factors condition the exercise of the power and it would consequently be wrong to regard that power as being unlimited or untrammeled. Further, it should be borne in mind that no one has a right to cause "obstruction,annoyance or injury etc., " to anyone. Since the judgment has to be of a magistrate as to whether in the particular circumstances of a case an order, in exercise of these powers, should be made or not, we are entitled to assume that the powers will be exercised legitimately and honestly. The section cannot be struck down on the ground that the magistrate may possibly abuse his powers." (emphasis supplied) 17.2 In Madhu Limaye v. Sub-Divisional Magistrate, Monghyr (Supra) a Bench of seven Hon'ble Judges of the Apex Court held as below:

"24.The gist of action under Section 144 is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely and even exparte it is obvious that the emergency must be sudden and the consequences sufficiently grave. Without it the exercise of power would have no justification. It is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application. There is no general proposition that an order under section 144, Criminal Procedure Code cannot be passed without taking evidence :

see Mst. Jagrulia Kumari v. Chobey Narain Singh which in our opinion is correct in laying down this proposition. These fundamental facts emerge from the way the occasions for the exercise of the power are mentioned. Disturbances of public tranquility, riots and affray lead to subversion of public order unless they are prevented in time. Nuisances dangerous to human fife, health or safety have no doubt to be abated and prevented. We are, however, not concerned with this part of the section and the validity of this part need not be decided here. In so far as the other parts of the section are concerned the key-note of the power is to free society from menace of serious disturbances of a grave character. The section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. If that be so the matter must fall within the restrictions which the Constitution itself visualises as permissible in the interest of public order, or in the interest of the general public. We may say, however,that annoyance must assume sufficiently grave proportions to bring the matter within interests of public order."

17.3 In Md.Gulam Abbas v. Md. Ibrahim (Supra), the Supreme Court held as below:

"2.This provision confers a jurisdiction to "direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management" with the object, inter alia, of preventing "a disturbance of the public tranquility, or a riot, or an affray". Section 144(3) specifically lays down that the order under this Section "may be, directed to a particular individual or to the public generally when frequenting or visiting a particular place". The kind of orders mentioned here are obviously intended only to prevent dangers to life, health, safety or peace and tranquility of members of the public. They are only temporary orders which cannot last beyond two months from the making thereof as is clear from Section 144(6)of the Code. Questions of title cannot be decided here at all. But, previous judgments on them may have a' bearing on the question whether, and, if so, what order should be, passed under Section 144 Criminal Procedure Code."

17.4 In the case of Gulam Abbas v. State of U.P.(supra), the Supreme Court has dealt with the exercise of power under Section 144 of the Code and the relevant extract of the judgment is reproduced hereinbelow:

"26.The entire basis of action under Section 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions and annoyances with a view to secure the public weal by maintaining public peace and tranquility. Preservation of the public peace and tranquility is the primary function of the Government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the Executive Magistrate to over-ride temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves, for, it is obvious that when there is a conflict between the public interest and private rights the former must prevail. It is further well settled that the section does not confer any power on the Executive Magistrate to adjudicate or decide disputes of civil nature or questions of title to properties or entitlements to rights but at the same time in cases where such disputes or titles or entitlement to rights have already been adjudicated and have become the subject-matter of judicial pronouncements and decrees of Civil Courts of competent jurisdiction then in the exercise of his power under Section 144 he must have due regard to such established rights and subject of course to the paramount consideration of maintenance of public peace and tranquility the exercise of power must be in aid of those rights and against those who interfere with the lawful exercise thereof and even in cases where there are no declared or established rights the power should not be exercised in a manner that would give material advantage to one party to the dispute over the other but in a fair manner ordinarily in defence of legal rights, if there be such and the lawful exercise thereof rather than in suppressing them. In other words, the Magistrate's action should be directed against the wrong-doer rather than the wronged. Furthermore, it would not be a proper exercise of discretion on the part of the Executive Magistrate to interfere with the lawful exercise of the right by a party on a consideration that those who threaten to interfere constitute a large majority and it would be more convenient for the administration to impose restrictions which would affect only a minor section of the community rather than prevent a larger section more vociferous and militant."

17.5 In Akhil Bhartiya Sarkari Lottery Vyapari Mahasangh v. Commissioner of Police,it has been held that:

"19.

We have considered the rival contentions of the learned senior counsel for the parties on this aspect of the matter. It seems to us that it was not necessary for the Commissioner of Police of incorporate in the impugned notification the material or in other words the evidence which impelled him to conclude that the trends and events indicated imminent danger to human life, health and safety etc. Since the members of the community engaged themselves in gambling in the form of purchase of lottery tickets thereby obviously reducing their capacity to acquire food, shelter, medical care, which are necessities of life for their family, Section 144 of the Code was rightly invoked by the Commissioner of Police. Even in Madhu Limaye Vs. Sub Divisional Magistrate, Monghyr,AIR 1971 SC 2486 : (1971 Cri.L.J. 1720), which was relied upon by learned senior counsel for the petitioners, it has been held that nuisance, namely, danger to human life, health and safety have no doubt to be abated and prevented. It also recognised that key note of the power comprised in Section 144 of the Code is to free society from menace of serious disturbance of a great magnitude. It was precisely for these reasons that the impugned notification was issued.

20. ***** ***** ******

21. ***** ***** ******

22. It also needs to be noticed that the rights protected by Article 19(1) are not absolute. The limitations are stated in Clauses (2) to (6) of Article 19. The rights guaranteed in Article 19(1)(a) to (g) are to be read alongwith the qualifications contained in Clauses (2) to (6) of Article 19. The right to practice any profession or carry on any occupation, trade or business does not extent to practicing profession or carrying on an occupation, trade or business which is inherently vicious and pernicious. It does not entitle a citizen to carry on trade or business activities which are immoral and criminal.

These are res extra commercium, i.e., they are outside commerce. May be the interest of a citizen lies in carrying on trade or business which is pernicious but demands of public interest have to be given primacy and they over ride individual interest.

23. Since the business of sale of lottery tickets is of a pernicious nature, no person has a legal or a fundamental right in it. There is good authority for the proposition that trade or business which is noxious or pernicious in nature, is not covered under Article 19(1)(g) and 21 of the Constitution. The Apex Court in M.J. Sivani and others Vs. State of Karnataka,AIR 1995 SC 1770, was confronted with the question as to whether regulation of video games violates the fundamental right to trade or business or avocation guaranteed under Article 19(1)(g) and 21 of the Constitution. In this regard it held as follows:-

"....No one has inherent right to carry on a business which is injurious to public interest. Trade or business attended with danger to the community may be totally prohibited or be permitted subject to such conditions or restrictions as would prevent the evils to the utmost.

xx xx xx ...If its exhibition is found obnoxious or injurious to public welfare, it would be permissible to impose total prohibition under Article 19(2) of Constitution. Right to life under Art. 21 does protect livelihood, but its deprivation cannot be extended too far or projected or stretched to the avocation, business or trade injurious to public interest or has insidious effect on public morale or public order. Therefore, regulation of video games or prohibition of some of video games of pure chance or mixed chance and skill are not violative of Article 21 nor is the procedure unreasonable, unfair nor unjust."

17.6 In M.C.Mehta v. Union of India (Supra), it has been held as under:

"Legal Parameters

45. The natural sources of air, water and soil cannot be utilized if the utilization results in irreversible damage to environment. There has been accelerated degradation of environment primarily on account of lack of effective enforcement of environmental laws and non-compliance of the statutory norms. This Court has repeatedly said that the right to live is a fundamental right under Article 21 of the Constitution and it includes the right to enjoyment of pollution-free water and air for full enjoyment of life.(See Subhash Kumar v. State of Bihar).

46. Further, by the Forty-second Constitutional Amendment, Article 48-A was inserted in the Constitution in Part IV stipulating that the State shall endeavour to protect and improve the environment and to safeguard the forest and wildlife of the country. Article 51A, inter alia, provides that it shall be the duty of every citizen of India to protect and improve the natural environment including forest, lakes, rivers and wildlife and to have compassion for living creatures. Article 47 which provides that it shall be the duty of the State to raise the level of nutrition and the standard of living and to improve public health is also relevant in this connection. The most vital necessities, namely, air, water and soil, having regard to right of life under Article 21 cannot be permitted to be misused and polluted so as to reduce the quality of life of others."

17.7 In K.Murugappa Mudaliar v. Kuppuswami Mudaliar (Supra), the Court held as below:

"In passing orders under S.144, the authorities will no doubt pay due regard to the observations contained in civil Court's judgment with regard to private rights but in doing so there can be no question that the paramount consideration should be that of maintenance of law and order. Principles laid down in numerous decisions with regard to enforcement of civil Court decrees by authorities while exercising powers under S.144 applies a fortiori with regard to obiter dicta: (Para 3)"

18. Having noted the principles of law laid down by the Supreme Court and High Courts, with regard to the nature of power under Section 144 of the Code and its exercise, it would be relevant to advert to Section 144 of the Code, which reads thus:

"144.

Power to issue order in urgent cases of nuisance or apprehended danger.- (1) In case where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray.

(2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte.

(3) An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.

(4) No order under this section shall remain in force for more than two months from the making thereof:

Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification.

(5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessor-in-office.

(6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4).

(7) Where an application under sub-section (5), or sub-section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order, and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing."

19. Section 144 of the Code appears in Chapter X, under the heading of "Maintenance of Public Order and Tranquility". Chapter X is divided into four parts. Part

-A, from Section 129 to 132 pertains to "Unlawful assemblies". Part-B, from Section 133 to 143, pertains to "Public nuisances". Part-C, comprising of Sections 144 and 144A, pertains to "Urgent cases of nuisance or apprehended danger", and Part-D from Section 145 to 148 pertains to "Disputes as to immovable property". As is seen from the Scheme of Chapter X of the Code, Section 144 is a remedy to deal with urgent cases of nuisance or apprehended danger. It vests the competent authority with power to issue orders in urgent cases of "nuisance" or "apprehended danger". Sub-section (1) of Section 144 provides that the District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf (the Commissioner of Police, Surat City, in the present case), in case where the District Magistrate forms an opinion that there is sufficient ground for proceeding under the Section and immediate prevention or speedy remedy is desirable, he may make a written order stating the material facts, to be served in the manner provided in Section 134, directing any person to abstain from a certain act with respect to certain properties in his possession or under his management,if he considers that such a direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed "or danger to human life, health or safety", or a disturbance of the public tranquility, or a riot, or an affray. For the purpose of this petition, the relevant aspect of Sub-section (1) is the part dealing with danger to human life, health or safety.

20. The consistent legal position emerging from the judgments referred to herein-above, is that the sine qua non for making an order under Section 144 is urgency, requiring immediate and speedy intervention. An order under this Section is intended for immediate prevention of the situations mentioned in Sub-section (1), by way of a speedy remedy. Sub-Section (4) of Section 144 provides that no order made under this Section shall remain in force for more than two months from the making thereof. The proviso thereto stipulates, that if the State Government considers it necessary to do so for preventing danger to human life,health and safety or for preventing a riot or any affray,it can direct that an order made by the Magistrate under this Section shall remain in force for such further period, not exceeding six months, from the date on which the order made by the Magistrate would have, but for such order, expired. Thus, an order made under Section 144 is valid for two months, which period of time can, at the most, be extended to six months, thereafter. The legislative intent appears to be clear, that an order under Section 144, by its very nature, is a temporary one, and is to be issued in grave situations of imminent danger and emergency. This principle of law is stated in the judgment of Babulal Parate v. The State of Maharashtra (Supra), Madhu Limaye v. Sub-Divisional Magistrate, Monghyr (Supra), Md.Gulam Abbas v. Md. Ibrahim (Supra) and Gulam Abbas v. State of U.P. (Supra).

A bare reading of the provisions of Section 144 of the Code, together with the principles of law laid down in the above-quoted judgments, leaves no manner of doubt that the power under Section 144 of the Code is of a temporary nature, to be exercised in urgent situations of imminent danger, where immediate prevention and speedy remedy is required.

21. It would be appropriate to refer to the impugned Notification in light of the legal position emerging from the judgments referred to above and the provisions of Section 144. The Notification refers to the celebration of religious festivals in Surat City, during which idols of Gods and Goddesses are installed, and later immersed by the public in the waters of the Tapi River, amidst religious rituals. It is stated in the Notification that these idols are made of Plaster of Paris and are painted with chemical colours. Immersion of such idols in rivers, ponds or the sea, results in pollution of water, causing death of aquatic life and pollution of the environment. It is further stated in the Notification, that the Surat Municipal Corporation, other Social Organizations and NGOs, have undertaken the cause of cleaning the Tapi River and protecting the environment. The Notification has been issued under Section 144 of the Code in order to prevent pollution of the water and the environment. The Notification prohibits the manufacture of idols made of baked clay or Plaster of Paris, use of toxic and non bio-degradable colours for painting them. It also prohibits making of idols that exceed 9 ft. in height. It is stated that cleanliness should be maintained in the area where the idols are made and after sale of the idols, the unused idols and broken parts thereof should not be strewn. It is further stated in the Notification that no such marks or signs should be made on the idols, that may hurt the feelings of persons professing other religions. The above prohibitions had been made applicable to persons bringing idols for sale from outside, into Surat City. The impugned Notification makes it clear, in no uncertain terms, that the intention behind its issuance is prevention of pollution of the river waters and the environment, by imposing certain restrictions. The affidavit-in-reply filed on behalf of respondent No.2, who has issued the Notification, further elaborates upon the intention behind issuing the Notification. It is stated in the affidavit that the Notification has been issued with a view to controlling water and environmental pollution, in exercise of power under Section 144 of the Code, "to frame Rule with respect to manufacture of idols of Gods and Goddesses and their immersion during religious festivals". In addition thereto, it is stated that the Notification has been issued with a "noble cause", after taking into consideration the views of leading persons of society, representatives of Non-governmental Institutions and the President of the Associations of Idol makers. The Guidelines framed by the Central Pollution Control Board have also been referred to, and it is stated that the Notification has been issued after taking into consideration the guiding principles set out in the said Guidelines, and in the letter dated 26-07-2010, addressed by the Principal Secretary, Forests and Environment, Government of Gujarat, to various authorities in the State, exhorting the said authorities to implement the Guidelines strictly. A reading of the entire affidavit leaves no manner of doubt that the impugned Notification has been issued to enforce the Guidelines framed by the Central Pollution Control Board, with a view to preventing pollution of water and the environment.

22. There can be no two opinions that environmental pollution and contamination of water bodies has assumed alarming proportions, and stringent measures are required to be taken and mechanisms evolved by the concerned Government and local authorities to tackle this problem. Having said so, one cannot lose sight of the fact that pollution of rivers or the environment is not a temporary phenomenon that appears for a short duration like a flash of lightening, and suddenly disappears. In the world in which we live today, with all the technical and industrial advancements that have taken place, pollution of rivers, water-bodies and the environment has become a permanent problem. It is a deeply-rooted malady that requires to be tackled at the source, in a systematic, co-ordinated, and well-planned manner, by all concerned authorities. A permanent menace such as environmental and water pollution calls for permanent solutions, and not for temporary measures such as the issuance of a Notification under Section 144 of the Code. In the instant case, the cause is right but the remedy is not a correct one. The remedy under Section 144 is a short-lived one, with a life of two months which can be stretched to a maximum limit of six months, but not beyond that period. As held by the Supreme Court in Acharya Jagdishwaranand Avadhuta v. Commissioner of Police, Calcutta (Supra), it is not legitimate to go on making successive orders after earlier orders have elapsed by efflux of time. The power under Section 144 cannot be exercised in lieu of enactment of an appropriate legislation or framing rules, which course of action would address the issue of water and environmental pollution in an appropriate and permanent manner.

23. It is true that pollution of the water can result in adverse consequences to the life and health of human beings, and it is imperative that clean, potable water is supplied to citizens for drinking purposes. However, these are the functions of the State, local bodies and authorities. A duty is cast upon the State and local authorities to ensure that the water bodies are not polluted so as to endanger human life, health and safety. This duty is to be discharged by taking effective measures, of a permanent nature, and by tackling the menace of pollution at its source, after conducting proper studies of its causes and the roles played by different players, at different stages and levels, in contributing to pollution, be it of the environment or of water bodies. Manufacture of idols made of Plaster of Paris and their immersion in Rivers and water bodies, has been prevalent for innumerable years, and is likely to continue as long as people observe the rituals of their faith. It is, therefore, not a temporary phenomenon that has emerged suddenly, requiring a speedy remedy of short duration. As stated by the Supreme Court in Acharya Jagdishwaranand Avadhuta v. Commissioner of Police, Calcutta (Supra), the power conferred by Section 144 is intended for immediate prevention of breach of peace or speedy remedy. In Md.Gulam Abbas v. Md. Ibrahim (Supra), it has been held by the Supreme Court that orders under Section 144 are only temporary orders. In Gulam Abbas v. State of U.P. (Supra), the Apex Court has reiterated that the power under Section 144 is to be exercised during emergent situations.

24. It is nowhere stated in the impugned Notification that it has been issued in order to meet an urgent situation that is causing imminent danger to human life, health or safety. Neither has it been stated that the act of manufacture of idols made of Plaster of Paris and their immersion, is likely to give rise to an urgent situation of "nuisance" or "apprehended danger" for which a speedy, temporary remedy is required. The Notification has been issued on the basis of the Guidelines framed by the Central Pollution Control Board and the discussions held with the Surat Municipal Corporation, NGOs and social organizations. Respondent No.2 has not recorded his satisfaction that there are sufficient grounds for issuing an order under Section 144 of the Code. The emergent situation or urgency that has prompted action under this provision, is also not reflected in the Notification. The impugned Notification merely reiterates some of the Guidelines framed by the Central Pollution Control Board. The power under Section 144 is not meant to be used for enforcement of Guidelines, but to deal with urgent situations.

25. The Guidelines, as reproduced hereinabove, are extremely detailed and aim at tackling the issue of pollution in a multi-pronged and systematic manner. By the said Guidelines, a duty has been cast upon local bodies/authorities to identify adequate number of designated immersion spots, to avoid overcrowding, to reduce the load of pollution on water bodies, to make arrangements for collection of "pooja" materials at the immersion sites and to collect left-over material at the idol immersion points, within 48 hours of immersion of the idols. Guideline No.2.2(v) casts a duty upon the local authorities to make arrangements for immersion, by constructing temporary, confined, ponds with earthen bunds for the purpose of immersion of idols. Guideline No.4 of Idol immersion states that a removable synthetic liner may be placed, well in advance, at the bottom of pond so that the remains of the idols can be removed by lifting the liners. Use of lime has been advised for dissolving idols in the idol immersion ponds. It has been stated that the remnants be removed from the site within 48 hours of immersion. The Guidelines further speak of formation of Committees by local bodies/ authorities, comprising Police, Non-Governmental Organizations, etc. to guide the public in carrying out the immersion, with minimal impact on the water bodies. The Guidelines further state that idols should be made of natural material, and use of baked clay of Plaster of Paris should be avoided. Painting of idols with toxic and non bio-degradable dyes should be discontinued. Certain recommendations have been made which form a part of the Guidelines. It has been recommended that a study be commissioned to quantify the amount of toxic metals that contaminate nature through colours used for painting the idols, and that this study should delineate the routing of the colours, that is, the way the colours reach the Artisans from the manufacturers. Discontinuation of colours, known as "Yellow Puree Halka", "Yellow Puree Bhari", "Red Oxide" and "Red lead" has been recommended by holding workshops with Artisan idol makers and the colour manufacturers. Emphasis has been laid upon the contamination of water bodies from lead laden paints, via various sources other than immersion, and it has been recommended that appropriate steps be taken to redress the issue. As admitted by respondent No.2 in the affidavit-in-reply, these Guidelines have formed the basis for the issuance of the impugned Notification. As is seen from a perusal of the Guidelines, they cast a duty of tackling the problem of environmental and water pollution upon the local bodies and authorities, in addition to involvement of social organizations and NGOs. The Guidelines envisage a collective effort of local bodies and Governmental authorities to tackle the problem of environmental and water pollution caused by immersion of idols in the River, in order to remove it from the source, in a permanent manner.

26. The Guidelines form the very basis of the impugned Notification, and the sole intent and purpose behind its issuance is the objective of preventing pollution of water bodies, such as the River Tapi, and of the environment, caused by idol immersion during religious festivals. The scope of the Guidelines and the field covered by it is vast, entailing a collective effort by all concerned authorities. A Notification under Section 144 cannot be the answer to the monumental problem of water pollution. The concerned authorities and local bodies cannot take shelter behind the Notification, instead of performing the functions and discharging the duties cast upon them by the Guidelines, such as making ponds with earthen bunds lined with synthetic liners for immersion of idols, ensuring that idols are immersed only at the identified sites, ponds, which will prevent pollution of the river waters, and taking steps to remove the remnants of idols within 48 hours of immersion. If implemented strictly and seriously, these guidelines will go a long way in preventing pollution of the river and environment. Needless to say, that such measures can only be taken by the concerned authorities and local bodies with prior planning, the remedy under Section 144 of the Code is not meant to be used for such purposes. In my considered view, the permanent and deeply-rooted malady of environmental and water pollution can be eradicated by strong, systematic and lasting solutions, that trace the sources that cause pollution, and evolve measures to control, ban or regulate polluting substances or materials, and create mechanisms in order to eradicate the problem permanently. Constant vigilance and a coordinated effort will be required, and it is clear from the legislative intent emerging from Section 144 of the Code that the solution cannot be found by issuing a Notification under this provision.

27. A submission has been made by the learned advocate for the petitioners that the issuance of the impugned Notification violates the fundamental rights of the petitioners under Articles 14 , 19 and 21 of the Constitution of India and discriminates against the petitioners. Insofar as the question of discrimination is concerned, it is relevant to note that respondent No.2 has issued the Notification for Surat City only, for the simple reason that his jurisdiction does not extend to cities in other Districts of the State. The Notification imposes restrictions on idols being brought into Surat City from outside. The plea of discrimination against the petitioners is, therefore, not well founded. As regards the plea that the fundamental rights of the petitioners under Article 19(1)(g) of the Constitution of India have been violated by restricting them from carrying on their occupation, trade or business, it deserves to be noted that the impugned Notification does not prohibit the manufacture of idols per se, but only prohibits the manufacture of idols made of Plaster of Paris. The petitioners have not been prohibited from carrying on their occupation of making idols, however, certain restrictions and regulations have been imposed regarding the material to be used for making them, which does not constitute a violation of their fundamental rights under Article 19(1)(g) of the Constitution of India. Similarly, there is no discernible violation of the fundamental rights of the petitioners, as enshrined under Article 21 of the Constitution of India.

28. It has been urged by the learned Government Pleader that the word "urgent", mentioned in Section 144 of the Code should be read in the context of the facts of the particular case, and in the present case, the manufacture and immersion of idols made of Plaster of Paris and painted with toxic colours, would endanger human life and health, making the situation an urgent one. Emphasis has been laid on a judgment of the High Court of Delhi in Akhil Bhartiya Sarkari Lottery Vyapari Mahasangh v. Commissioner of Police (Supra) by submitting that, in the said case the High Court of Delhi had upheld the Notification under Section 144 of the Code, banning the sale of lottery tickets on the ground that the said action is noxious or pernicious in nature, therefore, not covered under Articles 19(1)(g) and 21 of the Constitution of India. In the present case, the manufacture of idols of Plaster of Paris, cannot be said to be "noxious" or "pernicious" as a whole. Sale of lottery tickets cannot be compared with pollution of water and the environment. The said judgment, rendered on its own facts, would not be relevant in the present case.

29. There can be no doubt that anything that is likely to adversely affect public health or endanger human life has to be dealt with appropriately. As already stated hereinabove, the correct approach would be for the local bodies/authorities and the State Government to undertake a proper study in order to identify the substances and materials that cause pollution, such as toxic paints and prevent them from reaching the Artisans from the source. The Guidelines issued by the Central Pollution Control Board, if implemented strictly by the concerned authorities, would have lasting effect and would go a long way in containing and eradicating the problem of pollution of water bodies and the environment. Pollution is a permanent problem, that cannot be dealt with by resorting to temporary solutions, such as exercise of a Notification under Section 144 of the Code.

30. The impugned Notification does not state that respondent No.2 has formed an opinion that there are sufficient grounds for exercise of power under Section 144 of the Code, or that an urgent situation has arisen, of a nature demanding immediate prevention by way of a speedy remedy, warranting a conclusion that use of Plaster of Paris in preparation of idols of Gods and Goddesses and their immersion in Rivers and other water bodies has resulted in imminent danger to human life, health and safety.

31. The cumulative effect of the above discussion leads to the conclusion that no urgent situation, as envisaged by the provisions of Section 144 of the Code, is reflected in the impugned Notification dated 16-07-2011, so as to justify exercise of power under the said provision of law. The impugned Notification cannot be sustained in law.

32. For the aforestated reasons, the petition is allowed. The impugned Notification dated 16-07-2011 is quashed and set aside. Rule is made absolute. No order as to costs.

(Smt.Abhilasha Kumari,J) A request has been made by Mr.J.K.Shah, learned Assistant Government Pleader, that this judgment be stayed for some time. For reasons stated hereinabove, the request is declined.

(Smt.Abhilasha Kumari,J) arg Top

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