Nyaya Bhoomi (A Regd. Society) vs Municipal Corporation Of Delhi ...
2005 Latest Caselaw 1062 Del

JUDGMENT

B.C. Patel, C.J.

1. The Apex Court in WP (C) No. 888/1996 titled 'Almitra H. Patel and Anr. v. Union of India and Ors.' after considering the matter in great detail issued the directions to Municipal Corporation of Delhi (MCD) as under :-

"CONCLUSIONS :

In addition to and not in derogation of the orders passed by this Court in Dr. B.L. Wadehra's case (supra), we order as follows

1. We direct the Municipal Corporation of Delhi through the Commissioner, NDMC through its Chairman and the Cantonment Board through its Executive Officer and all other concerned officials including Sanitation Superintendents / Chief Sanitary Inspectors / Sanitary Inspectors / Assistant Sanitary Inspectors / Sanitary Guides / Medical Officers to ensure that the relevant provisions of the DMC Act, 1957, New Delhi Municipal Council Act, 1994 and the Cantonments Act, 1924 relating to sanitation and public health prohibiting accumulation of any rubbish, filth, garbage or other polluted obnoxious matters in any premises and/or prohibiting any person from depositing the same in any street or public place shall be scrupulously complied.

2. We direct that the streets, public premises such as parks etc. shall be surface cleaned on daily basis, including on Sundays and public holidays.

3. Commissioner, MCD, Chairman, NDMC and other concerned heads of sanitary authorities will prepare and publish for the information of public at large the scale of such charges/costs as may be levied and recovered in respect of the diverse acts of commission/omission. The charges/costs will be recoverable on the spot by such designated officers from any person found littering or throwing rubbish and causing nuisance so as to affect sanitation and public health. The Commissioner, MCD and Chairman, NDMC and other authorities may frame and publish such schemes as may be necessary to ensure compliance of these directions forthwith. Till the scheme is framed and published, the authorities named above would recover Rs.50/- as charges and costs from any person littering or violating provisions of the Municipal Corporation Act, Bye-Laws and Regulations relating to sanitation and health. This part be published and implemented at the earliest through concerned Sanitary Inspectors.

4. We direct the MCD through the Commissioner, NDMC through its Chairman and other statutory authorities through their respective heads to ensure proper and scientific disposal of waste in a manner so as to sub-serve the common good. In this connection they shall endeavor to comply with the suggestions and directions contained in the report prepared by the Asim Burmon Committee.

5. We direct that sites for land fills will be identified bearing in mind the requirement of Delhi for the next twenty years within a period of four weeks from today by the exercise jointly conducted by Union of India through the Ministry of Urban Development, Govt. of National Capital Territory of Delhi, Commissioner, MCD and Chairman, NDMC and other heads of statutory authorities like the DDA etc. These sites will be identified keeping in mind the environmental considerations and in identifying the same Central Pollution Control Board's advice will be taken into consideration. The sites so identified shall be handed over to the MCD and/or NDMC within two weeks of the identification, free from all encumbrances and without MCD or the NDMC having to make any payment in respect thereof.

6. We direct Union of India through the Ministry of Urban Development, Govt. of National Capital Territory of Delhi, the sites so identified shall be handed over to the MCD and/or NDMC within two weeks of the identification, free from all encumbrances and without MCD or the NDMC having to make any payment in respect thereof.

7. We direct Union of India through the Ministry of Urban Development, Govt. of National Capital Territory of Delhi, Commissioner of MCD, Chairman, NDMC and other statutory authorities like DDA and Railways to take appropriate steps for preventing any fresh encroachment or unauthorised occupation of public land for the purpose of dwelling, resulting in creation of a slum. Further appropriate steps be taken to improve the sanitation in the existing slums till they are removed and the land reclaimed.

7. We further direct Union of India through Ministry of Urban Development, Government of National Capital Territory of Delhi, Commissioner, MCD, Chairman, NDMC and other statutory authorities like DDA etc. to identify and make available to the MCD and NDMC within four weeks from today sites for setting up compost plants. Initially considering the extent of solid waste, which is required to be treated by compost plants, the number of sites which should be made available will be eight. Such sites shall be handed over to the MCD/NDMC free of cost and free from all encumbrances within two weeks of identification. MCD and NDMC shall thereupon take appropriate steps to have compost plants/processing plants established or caused to be established and to be in operation by 30th September, 2000.

8. We direct the MCD, NDMC and other statutory authorities concerned with sanitation and public health to regulatory publish the names of concerned Superintendents of Sanitation and such equivalent officers who are responsible for cleaning Delhi who can be approached for any complaint/grievance by the citizens of Delhi together with their latest office and residential telephone numbers and addresses.

9. We direct the Government of National Capital Territory of Delhi to appoint Magistrate under Section 20 and/or Section 21 of the Code of Criminal Procedure for each Board/Circle/Ward for ensuring compliance of the provisions of the MCD and NDMC Acts and to try the offences specified therefore in relation to littering and causing nuisance, sanitation and public health. These appointments shall be made within a period of six weeks from today in conformity with the reasons contained in this order.

10. All the concerned authorities will file compliance reports of these directions within eight weeks from today. The Central Pollution Control Board will also file within the same time an affidavit indicating as to what extent the directions issued have been complied with.

It is needless to say that the violation of the directions issued by this Court shall be viewed seriously.

2. The aforesaid directions were issued in the month of February, 2000 and even after five years, the situation has not improved. The citizens have pointed out their grievances and the present petition has been filed for necessary direction against MCD to take suitable action in respect of littering and cleaning. Practical problems are indicated in the affidavit filed by the petitioner as also in the additional affidavit, which is placed on record today. Going through para 3, it appears that actions are not taken by MCD and the responsibilities are shifted from one Department to the other. It requires that there must be a Nodal Officer, who should co-ordinate and should be held responsible for any breach, if noticed.

3. Our attention was drawn to various provisions of the local Acts particularly Delhi Municipal Corporation Act, 1957 ( for short, 'DMC Act' ) and after going through the provisions, it was submitted before the Court that it is equally the duty of MCD to take action against the persons, who are not discharging their duties. 'Nuisance' is defined in Section 2(33); 'public street' is defined in Section 2(35); 'public place' is defined in Section 2(42); 'street' is defined in Section 2(44); 'rubbish' is defined in Section 2(50). It would be useful to reproduce the definition of 'nuisance' as it is the most relevant and the same is as under :-

2. Definitions.

(33) "includes any act, omission, place, animal or thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell, or hearing or disturbance to rest or sleep, or which is or may be dangerous to life or injurious to health or property."

4) Section 397(1)(a)(vi) of the DMC Act reads as under :-

397. Prohibition of nuisances. - (1) No person shall -

(a) in any public street or public place -

...

(vi) being engaged in the removal of rubbish, filth or other polluted and obnoxious matter willfully or negligently permit any portion thereof to spill or fall, or neglect to sweep away or otherwise effectually to remove any portion thereof which may spill or fall in such street or place; or ... ... ... ... ... ... ..."

5. The aforesaid provision falls in Chapter XIX pertaining to 'Public Safety and Suppression of Nuisances'. A reading of the aforesaid provision makes it abundantly clear that it is not only the duty of citizens to make the city clean, but it is equally the duty of the person engaged in removal of rubbish, filth or other polluted and obnoxious matter to see that he discharges his duties and he is made responsible in view of all these for neglect in this behalf.

6. It is required to be noted that Section 465 of the DMC Act refers to penalty in general and it falls in Chapter XXII dealing with powers, procedures, offences and penalties. The said Section reads as under :-

"465. General penalty.- Whoever, in any case in which a penalty is not expressly provided by this Act, fails to comply with any notice, order or requisition issued under any provision thereof, or otherwise contravenes any of the provisions of this Act, shall be punishable with fine which may extend to one hundred rupees, and in the case of a continuing failure or contravention, with an additional fine which may extend to twenty rupees for every day after the first during which he has persisted in the failure or contravention."

7. Section 470 of the DMC Act refers to cognizance of offences. The said Section reads as under :-

"470. Cognizance of offences. All offences against this Act or any rule, regulation or bye-law made there under, whether committed within or without the limits of Delhi, shall be cognizable by a municipal magistrate and such magistrate shall not be deemed to be incapable of taking cognizable of any such offence or of any offence under any enactment which is replaced by, or which ceases to have effect under, this Act by reason only of his being liable to pay any municipal tax or rate or benefited out of the Municipal Fund"

8. Section 473 of the DMC Act refers to complaints concerning nuisance and procedure therefore, which reads as under :-

"473. Complaints concerning nuisances and procedure therefore. - (1) The Commissioner or any municipal officer or other municipal employee authorised by him in this behalf or any person who resides or owns property in Delhi, may complaint to a municipal magistrate of the existence of any nuisance.

(2) Upon the receipt of any such complaint the magistrate, after making such inquiry as he thinks necessary, may by written order direct the person responsible for the nuisance or the owner of the land or building on which the nuisance has taken place, to take such measures as to such magistrate may seem practicable and reasonable, and within such period as may be specified in the order, for abating, preventing, removing or remedying such nuisance and may direct the Commissioner to put into force any of the provisions of this Act or any bye-law made there under.

(3) The magistrate may further direct the person found responsible for the nuisance to pay to the complainant such reasonable costs of and relating to the said complaint as he shall determine, inclusive of compensation for the complainant's loss of time in prosecuting such complaint.

(4) Where in the opinion of the magistrate immediate action to prevent the nuisance is necessary he may dispense with the inquiry as required by sub-section (2) and make such order as he considers necessary forthwith.

(5) If the person directed to take action by an order under sub-section (2) or sub-section (3) fails to do so within the period specified in the order, the Commissioner may on the expiry of the said period proceed to take action as directed in the order or may take such other measures to abate, prevent, remove or remedy the nuisance as he considers necessary, and all expenses incurred in that connection shall be recoverable from the person against whom the magistrate has made the order as an arrear of tax under this Act."

9. The relevant provisions are sub-sections (2) and (4) of Section 473 of the DMC Act.

10. Section 190 of Cr.P.C. provides that a Magistrate can also take cognizance suo moto, therefore, when an offence is committed, it is open for the Municipal Magistrate to take the cognizance and to proceed against the wrongdoer. In view of this, if any person appointed by the MCD is found not discharging his duties as contemplated in Section 397(1)(a)(vi), he is guilty for the aforesaid offence indicated in Section 465 read with Section 397 and it will be open for the Municipal Magistrate to proceed against such persons.

11. It may be noted that in view of the decision of the Apex Court in Almitra H. Patel's case (supra), the powers are conferred on Municipal Magistrate within the metropolitan area for trial of offences in relation to littering and causing nuisance in respect of sanitation and public health vide notification dated 15.07.2004 and similar notifications have been issued from time to time under sub-section (1) of Section 18 of the Code of Criminal Procedure, 1973. It is in view of the aforesaid position, it is competent for the Municipal Magistrate to proceed against such persons / officers when attention of the Magistrate is drawn in this regard or he himself has taken action suo moto. Commission of nuisance as provided in sub-sections (1), (2) and (3) of Section 397 provides penalty as indicated in Twelfth Schedule of the DMC Act and penalty of Rs. 50/- can be imposed. Therefore, if a person who is posted at a place to discharge his duties for removal of nuisance and he is not removing, then he can be penalised by the Municipal Magistrate in view of this provision.

12. A grievance is made by the citizens that the persons are not found on duty and they are remaining absent.

13. Our attention was drawn to Section 387 of the DMC Act, which reads as under :-

"387. Conditions of service of sweepers employed for doing house scavenging. No sweeper, being employed for doing house scavenging of any building shall discontinue to do such house scavenging without reasonable cause or without having fourteen days' notice to his employer."

14. Section 461 of DMC Act is required to be referred at this stage, which provides for punishment for certain offences. A reading of the said Section makes it clear that Twelfth Schedule provides for penalties.

15. From a reading of Section 387 of the DMC Act, which falls in Twelfth Schedule, it is very clear that if there is an absence of sweepers, etc. from duty without notice, he can be punished with imprisonment, which may extend to one month. The relevant part of the Schedule reads as under :-

Section, sub-section, Subject Fine or Daily fine clause or proviso imprisonment which may which may be...be imposed imposed ... ... ... ... ... ... ... ... ... ... ...Section 387, sub- Absence of sweepers Imprisonment sections (1) and (2) etc., from duty which may extend without notice to one month ...

16. In view of what is discussed herein-above, the following directions are required to be issued :-

(i) It should be open for the Special Municipal Magistrate to impose penalty against the delinquent workman / officer in view of the provisions of Section 397 read with Twelfth Schedule and Sections 470 and 473 of the DMC Act. In view of fine imposed, the entry will be made in the Confidential Report of the concerned workman / officer.

(ii) It is directed that MCD shall take action under Section 387 read with Schedule XII against the person who is not reporting for duty and who is found not discharging his duty at the relevant place and the prosecution shall be filed before the competent court and in view of offence being proved, the same will be noted in the Confidential Report of the concerned person / officer.

(iii) It is further directed that the Deputy Commissioner of the concerned area shall be acting as a Nodal Officer and it will be his duty to see that in his area, there is no problem of nuisance faced by any citizen. It will be for him to co-ordinate with other Departments if other Departments are involved and it is for him to ensure inter se co-ordination between different Departments under him and to take appropriate action in the matter.

(iv) In view of the amount of penalty, which is meagre, considering the value of penalty as against the cost for recovery of that amount, it was fairly suggested by learned counsel for the parties that the amount of penalty is required to be increased so as to deterrent and also to see that the recovery cost is not more than the fine imposed. It would be appropriate for the Legislature to consider increase in the quantum of penalty and, thus, the matter may be placed for examination before the concerned authorities.

17. We have passed the aforesaid directions after hearing the parties at length. These are naturally in the nature of interim directions as hearing is not concluded on all aspects and the matter has been partly heard.

18. For remaining hearing, directions and filing of status report, list on 24.08.2005.

19. Direct service (dusty) on payment of usual charges.