Kerala High Court
The Chamber Of Commerce vs Kunnamkulam Municipality on 15 July, 2021
W.P.(C) No. 20974/2016 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 15TH DAY OF JULY 2021 / 24TH ASHADHA, 1943
WP(C) NO. 20974 OF 2016
PETITIONER/S:
THE CHAMBER OF COMMERCE
VYAPARA BHAVAN, 4/3773-F, YESUDAS ROAD,
KUNNUMKULAM-680 503, REPRESENTED BY ITS GENERAL SECRETARY
K.M.ABUBACKER.
BY ADVS.
SRI.DINNY THOMAS
SRI.ALBERT V.JOHN
SRI.JAISHANKAR V.NAIR
SMT.ROSHNI MANUEL
RESPONDENT/S:
1 KUNNAMKULAM MUNICIPALITY
KUNNAMKULAM-680 503, REPRESENTED BY ITS SECRETARY.
2 THE DIRECTOR
DEPARTMENT OF URBAN AFFAIRS,GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM, 695 001.
3 THE DISTRICT COLLECTOR
THRISSUR-680 001.
BY ADV SRI.I.V.PRAMOD
R2 & R3 BY SRI.SURIN GEORGE IPE, SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 20974/2016 :2:
Dated this the 15th day of July, 2021.
JUDGMENT
This writ petition is filed by the Chamber of Commerce,
Kunnamkulam Branch, seeking a writ of mandamus to the
Kunnamkulam Municipality-- first respondent to provide facilities like
proper toilets with water, drinking water, clean environment, adequate
parking facilities, cleaning the leakages and proper maintenance,
including proper lighting facilities in the buildings owned by the
Municipality as mentioned in Ext. P2 representation submitted by the
petitioner or in the alternative it seeks a direction to the Municipality to
take a decision on Ext. P2 representation within a time limit to be fixed
by this Court.
2. The petitioner has produced Ext. P1 series of photographs
showing the condition of the toilets and washrooms of various building
complexes of the Kunnamkulam Municipality. The substantial
contention advanced by the petitioner is that every Municipality is duty
bound to provide latrine facilities and also to ensure that private
latrines are provided by the owners of the private building. However,
the Municipality is duty bound to ensure that public as well as private
latrines are maintained in a clean and hygienic manner as is insisted
upon in Section 320 of the Kerala Municipality Act, 1994 ('Act, 1994'
for short).
3. According to the petitioner, the Municipality has failed to
discharge the duties and obligations conferred upon under the Act,
1994 and therefore, the petitioner has no other alternative than to
seek reliefs by invoking the power conferred on this Court under
Article 226 of the Constitution of India, especially due to the fact that
the Municipality has failed to consider Ext. P2 representation submitted
by the petitioner on 11.02.2016.
4. The Municipality has filed a counter affidavit basically
admitting the unhygienic and unclean way in which the bath rooms,
toilets and latrines in the building are maintained by the Municipality
and justifying it in the pretext that the State Government have ordered
that the maintenance fund cannot be used for maintaining the building
owned by the Municipality and which are given out for rent. The
Municipality is facing paucity of funds even to pay salary to the
employees and for routine affairs and therefore, the Municipal Council
decided to do maintenance work of the building by including it in the
plan fund of the Municipality for the year 2016. That apart, it is stated
that the Municipality is only getting a moderate sum as licence fee
from the licensee occupying the shopping complexes as pointed out by
the petitioner. It is also submitted that with the meager income
received by the Municipality from the occupiers, the Municipality is
unable to maintain the toilets and latrine in the Municipality buildings.
5. I have heard the learned counsel for the petitioner Smt.
Roshni Manual, learned Senior Government Pleader Sri. Surin George
Ipe and Sri. Saifdeen for the Municipality, and perused the pleadings
and materials on record.
6. The issue raised by the petitioner is basically the failure on
the part of the Municipality to maintain the toilets and latrines in the
Municipality buildings. Ext P1 series of photographs clearly
demonstrates and depicts the ugly and unclean manner the toilets of
the shopping complexes are maintained by the Municipality. In my
view, the photographs speak volumes about the disgusting state of
affairs and one cannot believe that the occupiers in the shopping
complexes are using the latrine and toilets. The issue is well guided by
the clear provisions of the Act, 1994.
7. Section 320 deals with provision of public latrines, which
clearly specifies that the Municipality shall provide and maintain a
sufficient number of public latrines in proper and convenient places
and shall cause the same to be daily cleansed and kept in a proper
order. Section 321 deals with 'licensing of public latrines' and sub-
section (1) empowers the Secretary to issue licence, for providing and
maintaining latrines for public use, subject to such conditions as may
be fixed by the Council and for the period fixed by it. Sub-section (2)
further makes it clear that no person shall keep a public latrine without
a licence under sub-Section (1), and sub-Section (3) stipulates that
every licensee of a public latrine shall maintain it clean and in proper
order. Section 322 deals with 'provision of latrines by owner or
occupier' and it reads thus:
"322. Provision of latrines by owner or occupier,-- (1) The Secretary
may, by notice, require the owner or occupier of any building, within
the time specified in such notice, to provide a latrine or alter or
remove from an unsuitable to a more suitable place any existing
latrine in accordance with the directions contained in such notice for
the use of the persons employed in or about or occupying such
building and to keep it clean and in proper order.
[(2) Where a group of building or huts situated in a land and where
individual latrine for each household is not feasible, the Secretary
may, by notice, require the owner or occupier of such land to provide
latrines of such description and number and in such position and
within such time as may be fixed in the notice.]
(3) Where the work under sub-section (1) or sub-section (2) is not
carried out within the time specified in the notice, the Secretary may,
if he thinks fit, cause such works to be executed and recover the
expenses incurred therefore from the owner or occupier in default."
8. Sections 324 and 325 are also relevant to the context and
they read thus:
324. Provision of latrines for markets, cart stands, cattle sheds,
choultry etc.-- The Secretary may, by notice require the owner or
manager of a market, cartstand, cattleshed, choultry, theatre, railway
station, dock, wharf or other place of public resort to provide and
maintain within the time specified in such notice for the separate
use of persons of each sex latrines of such description and number
and in such position as may be specified in such notice.
[325. Latrines to afford privacy.-- All latrine shall be of such
kind, affording privacy to its user and to screen the filth from the
view of persons passing by or residing in the neighbourhood and it
shall have water closet, leach pit having lid or septic tank or
drainage system, net tied polluted air exhaust system etc. All
latrines shall always be maintained clean and in a proper manner
and wastewater shall not be permitted to accumulate in its
surroundings."
9. On an analysis of these provisions, it is clear that the
Municipality is duty bound to maintain not only the public as well as
private latrines but also to properly maintain and keep in a clean and
proper order, the latrines and the toilets constructed by the
Municipality. So also, Schedule 1 of Part A of the Act, 1994 deals with
the mandatory functions of the Municipality. Serial No. 8 in the
schedule imbibes a duty on the Municipality for the maintenance of
environmental hygiene; serial No. 14 deals with maintenance of roads
and other public properties. Serial No. 19 clearly specifies that the
Municipality shall issue licences to industries, trades and services
protecting public interests such as environment, public safety and
public health. Serial No. 25 stipulates providing of toilet facilities and
bathing ghats at public places. Apart from all these, various provisions
of Act, 1994 clearly encompasses a duty on the Municipality to protect
the interest of the citizens by virtue of the power conferred on it under
the Act, 1994.
10. That apart, Article 243W of the Constitution of India
delineates the powers, authority and responsibilities of Municipality
and it reads thus:
"243-W. Powers, authority and responsibilities of Municipalities,
etc,-- Subject to the provisions of this Constitution, the Legislature
of a State may, by law, endow-
(a) the Municipalities with such powers and authority as may be
necessary to enable them to function as institutions of self-
government and such law may contain provisions for the devolution
of powers and responsibilities upon Municipalities, subject to such
conditions as may be specified therein, with respect to-
(i) the preparation of plans for economic development and social
justice;
(ii) the performance of functions and the implementation of schemes
as may be entrusted to them including those in relation to the matters
listed in the Twelfth Schedule;
(b) the Committees with such powers and authority as may be
necessary to enable them to carry out the responsibilities conferred
upon them including those in relation to the matters listed in the
Twelfth Schedule."
It was thus by virtue of the responsibilities entrusted with the State
Government, Act, 1994 was introduced and the Municipality was
entrusted with the powers by the Government to carry out the duties
and obligations in accordance with the provisions of the Act, 1994.
The citizens are entitled to enjoy a clean and healthy environment
both in buildings and in open, which is a right emanating from Article
21 of the Constitution of India dealing with the protection of life and
personal liberty which states that no person shall be deprived of his life
or personal liberty except according to the procedure established by
law. It is so well settled that Article 21 takes in the right of citizens to
live in a healthy and orderly environment that it requires any elaborate
discussion and evaluation.
11. This is a case where the Municipality has totally neglected
itself from its duty to make necessary provisions to meet up with the
basic amenities entitled to be enjoyed by the citizens. In spite of
submitting a representation, the Municipality has not cared to rectify
the defects occurring in the latrine and toilet of the Municipality
building. We are also conscious of the duty that is to be discharged by
the State and any authority to secure social order for the promotion of
the welfare of the people in contemplation of the directive principles of
State policy under the Constitution of India. It is taking into account
the duties contained under Part IV of the Constitution of India dealing
with directive principles of State policy, the Local Self Government
Institutions are constituted by the State Government and endowed
with such power and authority as may be necessary to enable them to
function as units of self-Government.
12. The Municipality is also duty bound to raise the standard of
living and to improve the public health, which are primary and
mandatory functions that are to be discharged by the Municipality.
This is a case where the Municipality has ignored the fundamental and
basic rights of licensees of its own buildings to have toilet and latrine
facilities. I also have no doubt in my mind that the action of the
Municipality is a clear human right violation depriving the citizens of
basic convenience to answer their essential requisites with adequate
privacy. It is disheartening to note that the toilets are not even having
proper doors. In fact, Ext. P1 series of photographs show that the
latrines and toilets are so dirty and unclean that one would use it, and
even unused and waste articles are dumped in the toilets and
commodes to make it unusable.
13. In that view of the matter, I am of the considered opinion
that imperative directions are to be issued to the Municipality to
maintain latrine and toilets in the Municipality buildings in a proper and
hygienic condition. Therefore, there will be a direction to the
Secretary of the Municipality to ensure that the toilets and latrines of
the municipal building which are specified in Ext. P2 representation
submitted by the petitioner shall be repaired, modified and made
usable with sufficient equipment, pipe, water, wash basin etc, and
further to maintain it continuously.
14. I am informed that the unfortunate state of affairs
discernible from the Ext P1 series of photographs is continuing even
now. Therefore, there will be a direction to the Secretary of the
Municipality to do the maintenance and repair works as directed above
within a period of 3 months from the date of receipt of a copy of this
judgment and submit a report before this court immediately thereafter.
Accordingly the writ petition is allowed with the above
observations and directions.
Registry is directed to post this matter before this Court on
17.09.2021, on which date the Municipality shall submit a report
before this Court along with the photographs of the repaired toilets
and latrines situated in the buildings owned by the Municipality with
appropriate description.
sd/-
SHAJI P. CHALY,
JUDGE.
Rv
APPENDIX OF WP(C) 20974/2016
PETITIONER'S EXHIBITS
P1 PHOTOGRAPHS SHOWING THE SITUATION OF TOILETS
IN MUNICIPAL SHOPPING COMPLEXES.
P2: TRUE COPY OF THE REPRESENTATION 11.2.2016
SUBMITTED BY THE PETITIONER.
RESPONDENTS' EXHIBITS: NIL
/True Copy/
PS To Judge.
rv
