Special Leave Petition Crl No 2856 of 1979
From the Judgment and Order dated 6 8 1979 of the Madhya Pradesh High Court in Crl
Revision No 39276
Sobhag Mal Jain and section K Jain for the Petitioner
C section Chhazed Miss Manisha Gupta and M section Gupta for Respondents 1 5
section K Gambhir for the State
The Order of the Court was delivered by KRISHNA IYER J It is procedural rules  as this appeal proves which infuse life into substantive rights which activate them to make them effective 
Here before us is what looks like a pedestrian quasi criminal litigation under section 133 Cr
PC where the Ratlam Municipality the appellant challenges the sense and soundness of the High Court s affirmation of the trial court s order directing the construction of drainage facilities and the like which has spiralled up to this Court
The truth is that a few profound issues of processual jurisprudence of great strategic significance to our legal system face us and we must zero in on them as they involve problems of access to justice for the people beyond the blinkered rules of standing  of British Indian vintage
If the centre of gravity of justice is to shift as the Preamble to the Constitution mandates from the traditional individualism of locus standi to the community orientation of public interest litigation these issues must be considered
In that sense the case before us between the Ratlam Municipality and the citizens of 100 a ward is a path finder in the field of people s involvement in the justicing process sans which as Prof Sikes points out1 the system may crumble under the burden of its own insensitivity 
The key question we have to answer is whether by affirmative action a court can compel a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost and on a time bound basis
At issue is the coming of age of that branch of public law bearing on community actions and the court s power to force public bodies under public duties to implement specific plans in response to public grievances
The circumstances of the case are typical and overflow the particular municipality and the solutions to the key questions emerging from the matrix of facts are capable of universal application especially in the Third World humanscape of silent subjection of groups of people to squalor and of callous public bodies habituated to deleterious inaction
The Ratlam municipal town like many Indian urban centres is populous with human and sub human species is punctuated with affluence and indigence in contrasting co existence and keeps public sanitation a low priority item
what with cesspools and filth menacing public health
Ward No 12 New Road Ratlam town is an area where prosperity and poverty live as strange bedfellows
The rich have bungalows and toilets the poor live on pavements and litter the street with human excreta because they use roadsides as latrines in the absence of public facilities
And the city fathers being too busy with other issues to bother about the human condition cesspools and stinks dirtied the place beyond endurance which made the well to do citizens protest but the crying demand for basic sanitation and public drains fell on deaf ears
Another contributory cause to the insufferable situation was the discharge from the Alcohol Plant of malodorous fluids into the public street
In this lawless locale mosquitoes found a stagnant stream of stench so hospitable to breeding and flourishing with no municipal agent disturbing their stinging music at human expense
The local denizens driven by desperation at long last decided to use the law and call the bluff of the municipal body s bovine indifference to its basic obligations under section 123 of the M P Municipalities Act 1961 the Act for short
That provision casts a mandate 123
Duties of Council 1 In addition to the duties imposed upon it by or under this Act or any other enactment for the time being in force it shall be the duty of a Council to 101 undertake and make reasonable and adequate provision for the following matters within the limits of the Municipality namely XX XX XX b cleansing public streets places and sewers and all places not being private property which are open to the enjoyment of the public whether such places are vested in the Council or not removing noxious vegetation and abating all public nuisances c disposing of night soil and rubbish and preparation of compost manure from night soil and rubbish
And yet the municipality was obvious to this obligation towards human well being and was directly guilty of breach of duty and public nuisance and active neglect
The Sub Divisional Magistrate Ratlam was moved to take action under section 133 Cr
PC to abate the nuisance by ordering the municipality to construct drain pipes with flow of water to wash the filth and stop the stench
The Magistrate found the facts proved made the direction sought and scared by the prospect of prosecution under section 188 IPC for violation of the order under section 133 Cr
PC the municipality rushed from court to court till at last years after it reached this Court as the last refuge of lost causes
Had the municipal council and its executive officers spent half this litigative zeal on cleaning up the street and constructing the drains by rousing the people s sramdan resources and laying out the city s limited financial resources the people s needs might have been largely met long ago
But litigation with other s funds is an intoxicant while public service for common benefit is an inspiration and in a competition between the two the former overpowers the latter
Not where a militant people s will takes over people s welfare institutions energises the common human numbers canalises their community consciousness forbids the offending factories from polluting the environment forces the affluent to contribute wealth and the indigent their work and thus transforms the area into a healthy locality vibrant with popular participation and vigilance not neglected ghettoes noisy with squabbles among the slimy slum dwellers nor with electoral sound and fury signifying nothing  The Magistrate whose activist application of section 133 CrPC for the larger purpose of making the Ratlam municipal body to do its duty and abate the nuisance by affirmative action has our appreciation
He has summed up the concrete facts which may be usefully quoted in portions New Road Ratlam is a very important road and so many prosperous and educated persons are living on this Road
On 102 the southern side of this Road some houses are situated and behind these houses and attached to the College boundary the Municipality has constructed a road and this new Road touches the Government College and its boundary
Just in between the said area a dirty Nala is flowing which is just in the middle of the main road ie New Road
In this stream nala many a time dirty and filthy water of Alcohol Plant having chemical and obnoxious smell is also released for which the people of that locality and general public have to face most obnoxious smell
This Nala also produces filth which causes a bulk of mosquitoes breeding
On this very southern side of the said road a few days back municipality has also constructed a drain but it has  constructed it completely but left the construction in between and in some of the parts the drain has not at all been constructed because of this the dirty water of half constructed drain and septic tank is flowing on the open land of applicants where due to insanitation and due to non removing the obstructed earth the water is accumulated in the pits and it also creates dirt and bad smell and produces mosquitoes in large quantities
This water also goes to nearby houses and causes harm to them
For this very reason the applicants and the other people of that locality are unable to live and take rest in their respective houses
This is also injurious to health
There are more dimensions to the environmental pollution which the magistrate points out A large area of this locality is having slums where no facility of lavatories is supplied by the municipality
Many such people live in these slums who relieve their lateral dirt on the bank of drain or on the adjacent land
This way an open latrine is created by these people
This creates heavy dirt and mosquitoes
The drains constructed in other part of this Mohalla are also not proper it does not flow the water properly and it creates the water obnoxious
The Malaria Department of the State of MP also pays no attention in this direction
The non applicants have not managed the drains Nallahs and Naliyan properly and due to incomplete construction the non applicants have left no outlet for the rainy water
Owing to above reasons the water is accumulated on the main road it passes through living houses sometimes snakes and scorpions come out and this obstruct the people to pass through this road
This also causes financial loss to the people of this area
The road constructed by Nagarpalika is on a high level and due to this this year more 103 water entered the houses of this locality and it caused this year more harm and loss to the houses also
This way all works done by the non applicants ie construction of drain canal and road come within the purview of public nuisance
The non applicants have given no response to the difficulties of the applicants and non applicants are careless in their duties towards the public for which without any reason the applicants are facing the intolerable nuisance
In this relation the people of this locality submitted their returns notices and given their personal appearance also to the non applicants but the non applicants are shirking from their responsibilities and try to avoid their duty by showing other one responsible for the same whereas all the non applicants are responsible for the public nuisance
 Litigation is traumatic and so the local people asked first for municipal remedies failing which they moved for magisterial remedies At the last the applicants requested to remove all the nuisance stated in their main application and they also requested that under mentioned works must be done by the non applicants and for which suitable orders may be issued forthwith 1
The drains constructed by Municipality are mismanaged and incomplete they should be managed and be completed and flow of water in the drains should be made so that the water may pass through the drain without obstruction
The big pits and earthen drains which are situated near the College boundary and on the corners of the road where dirty water usually accumulates they should be closed and the filth shall be removed therefrom
The big Nala  which is in between the road should be managed and covered in this way that it must not create overflow in the rainy season
The Malaria Department should be ordered to sprinkle DDT and act in such a manner and use such means so that the mosquitoes may be eradicated completely from the said locality The proceedings show the justness of the grievances and the indifference of the local body Both the parties heard
The court was satisfied on the facts contained in their application dated 12 5 72 and granted conditional order against non applicants No 1 and 2 us 133 of Cr
PC Old Code
In this order all the nuisances were described which were there in their main application and the court directed to remove 104 all the nuisances within 15 days and if the non applicants have any objection or dissatisfaction against the order then they must file it on the next date of hearing in the court XX XX XX The applicants got examined the following witnesses in their evidence and after producing following documents they closed their evidence XX XX XX No evidence has been produced by the non applicants in spite of giving them so many opportunities
Both the parties heard and I have also inspected the site XX XX XX The non applicant Municipal Council has sought six times to produce evidence but all in vain
Likewise non applicant Town Improvement Trust has also produced no evidence
 The Nallah comes into picture after the construction of road and bridge
It has shown that Nallah is property of Nagarpalika according to Exp 10
Many applications were submitted to remove the nuisance but without result
According to Sec
32 to 43 of the Town Improvement Trust Act it is shown that it has only the provisions to make plans
Many a time people tried to attract the attention of Municipal Council and the Town Improvement Trust but the non applicants always tried to throw the responsibility on one another shoulder
XX XX XX It is submitted by non applicant Municipality that the said Nallah belongs to whom it is still disputed ie whether it belongs to non applicant 1 or 2
Shastri Colony is within the area of Town Improvement Trust
The Nagarpalika non applicant No 1 is financially very weak
But Municipal Council is not careless towards its duties
Non applicant Town Improvement Trust argued that primary responsibility lies with the Municipal Council only
There is no drainage system
At the end of it all the Court recorded    after considering all the facts I come to this conclusion that the said dirty Nallah is in between the main road of Ratlam City
This dirty Nallah affects the Mohalla of New 105 Road Shastri Colony Volga Talkies and it is just in the heart of the city
This is the very important road and is between the Railway Station and the main city
In these mohallas cultured and educated people are living
The Nallah which flows in between the New Road and Shastri Colony the water is not flowing rapidly and on many places there are deep pits in which the dirty water is accumulated
The Nallah is also not straight that is also the reason of accumulation of dirty water
The Nallah is not managed properly by the non applicants
It is unable to gush the rainy water and due to this the adjoining areas always suffer from over flowing of the water and it causes the obstruction to the pedestrians
XX XX XX It is also proved by the evidence given by the applicants that from time to time the Power Alcohol factory which is situated outside the premises of the Municipal Council and it flows its dirty and filthy water into the said Nallah due to this also the obnoxious smell is spreading throughout the New Road or so it is the bounden duty of the Municipal Council and the Town Improvement Trust to do the needful in this respect
XX XX XX The dirty water which flows from the lavatories and urinals of the residential houses have no outlet and due to this reason there are many pits on the southern side of the New Road and all the pits are full of dirty and stinking water
So it is quite necessary to construct an outlet for the dirty water in the said locality
In this area many a places have no drainage system and if there is any drain it has no proper flow and water never passes through the drain properly
That causes the accumulation of water and by the time it becomes dirty and stink and then it produces mosquitoes there
The Magistrate held in the end Thus after perusing the evidence I come to this conclusion and after perusing the applications submitted by the persons residing on the New Road area from time to time to draw the attention of the non applicants to remove the nuisance the non applicants have taken no steps whatsoever to remove all these public nuisances
He issued the following order which was wrongly found unjustified by the Sessions Court but rightly upheld by the High Court 106 Therefore for the health and convenience of the people residing in that particular area of all the nuisance must be removed and for that the following order is hereby passed 1 The Town Improvement Trust with the help of Municipal Council must prepare a permanent plan to make the proper flow in the said Nallah which is flowing in between Shastri Colony and New Road
Both the non applicants must prepare the plan within six months and they must take proper action to give it a concrete form
2 According to para 13 a few places are described which are either having the same drains and the other area is having no drain and due to this the water stinks there so the Municipal Council and the Town Improvement Trust must construct the proper drainage system and within their own premises where there is no drain it must be constructed immediately and all this work should be completed within six months
3 The Municipal Council should construct drains from the jail to the bridge behind the southern side of the houses so that the water flowing from the septic tanks and the other water flowing outside the residential houses may be channellised and it may stop stinking and it should have a proper flow so that the water may go easily towards the main Nallah
All these drains should be constructed completely within six months by the Municipal Council
4 The places where the pits are in existence the same should be covered with mud so that the water may not accumulate in those pits and it may not breed mosquitoes
The Municipal Council must complete this work within two months
A notice under Section 141 of the Criminal Procedure Code Old Code may be issued to the non applicants Nos 1 and 2 so that all the works may be carried out within the stipulated period
Case is hereby finalised
Now that we have a hang of the case we may discuss the merits legal and factual
If the factual findings are good and we do not re evaluate them in the Supreme Court except in exceptional cases one wonders whether our municipal bodies are functional irrelevances banes rather than booms and lawless  by long neglect not leaders of the people in local self government
It may be a cynical obiter of pervasive veracity that municipal bodies minus the people and plus the bureaucrats are the bathetic vogue no better than when the British were here 107 We proceed on the footing as we indicated even when leave to appeal was sought that the malignant facts of municipal callousness to public health and sanitation held proved by the Magistrate are true
What are the legal pleas to absolve the municipality from the court s directive under section 133 Cr
PC  That provision reads section 1331 whenever a District Magistrate or a Sub Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government on receiving the report of a police officer or other information and on taking such evidence if any as he thinks fit considers a that any unlawful obstruction or nuisance should be removed from any public place or from any way river or channel which is or may be lawfully used by the public XX XX XX such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance or carrying on such trade or occupation or keeping any such goods or merchandise or owning possessing or controlling such building tent structure substance tank well or excavation or owning or possessing such animal or tree within a time to be fixed in the order i to remove such obstruction or nuisance or XX XX XX iii to prevent or stop the construction of such building or to alter the disposal of such substance or if he objects so to do to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order and show cause in the manner hereinafter provided
why the order should not be made absolute
So the guns of section 133 go into action wherever there is public nuisance
The public power of the Magistrate under the Code is a public duty to the members of the public who are victims of the nuisance and so he shall exercise it when the jurisdictional facts are present as here
All power is a trust that we are accountable for its exercise that from the people and for the people all springs and all must exist
i Discretion becomes a duty when the beneficiary brings home the circumstances for its benign exercise
If the order is defied or ignored section 188 IPC comes into penal play 108 188
Whoever knowing that by an order promulgated by a public servant lawfully empowered to promulgate such order he is directed to obtain from a certain act or to take certain order with certain property in his possession or under his management disobeys such direction and if such disobedience causes or tends to cause danger to human life health or safety or causes or tends to cause a riot or affray shall be punished with imprisonment of either description for a term which may extend to six months or with fine which may extend to one thousand rupees or with both
There is no difficulty in locating who has the obligation to abate the public nuisance caused by absence of primary sanitary facilities
Section 123 which is mandatory we repeat reads 123
Duties of Council  1 In addition to the duties imposed upon it by or under this Act or any other enactment for the time being in force it shall be the duty of a Council to undertake and make reasonable and adequate provision for the following matters within the limits of the Municipality namely a   b cleansing public streets places and sewers and all places not being private property which are open to the enjoyment of the public whether such places are vested in the Council or not removing noxious vegetation and abating all public nuisances c disposing of night soil and rubbish and preparation of compost manure from night soil and rubbish
The statutory setting being thus plain the municipality cannot extricate itself from its responsibility
Its plea is not that the facts are wrong but that the law is not right because the municipal funds being insufficient it cannot carry out the duties under section 123 of the Act
This alibi  made us issue notice to the State which is now represented by counsel Shri Gambhir before us
The plea of the municipality that notwithstanding the public nuisance financial inability validly exonerates it from statutory liability has no juridical basis
The Criminal Procedure Code operates against statutory bodies and others regardless of the cash in their coffers even as human rights under Part III of the Constitution have to be respected by the State regardless of budgetary provision
Likewise section 123 of the Act has no saving clause when the municipal council is penniless
Otherwise a profligate 109 statutory body or pachydermic governmental agency may legally defy duties under the law by urging in self defence a self created bankruptcy or perverted expenditure budget
That cannot be
Section 133 Cr
PC is categoric although reads discretionary
Judicial discretion when facts for its exercise are present has a mandatory import
Therefore when the sub Divisional Magistrate Ratlam has before him information and evidence which disclose the existence of a public nuisance and on the materials placed he considers that such unlawful obstruction or nuisance should be removed from any public place which may be lawfully used by the public he shall act
Thus his judicial power shall passing through the procedural barrel fire upon the obstruction or nuisance triggered by the jurisdictional facts
The Magistrate s responsibility under section 133 Cr
PC is to order removal of such nuisance within a time to be fixed in the order
This is a public duty implicit in the public power to be exercised on behalf of the public and pursuant to a public proceeding
Failure to comply with the direction will be visited with a punishment contemplated by section 188 IPC Therefore the Municipal Commissioner or other executive authority bound by the order under section 133 Cr
PC shall obey the direction because disobedience if it causes obstruction or annoyance or injury to any persons lawfully pursuing their employment shall be punished with simple imprisonment or fine as prescribed in the Section
The offence is aggravated if the disobedience tends to cause danger to human health or safety
The imperative tone of section 133 Cr
PC read with the punitive temper of section 188 IPC make the prohibitory act a mandatory duty
Although these two Codes are of ancient vintage the new social justice orientation imparted to them by the Constitution of India makes it a remedial weapon of versatile use
Social justice is due to the people and therefore the people must be able to trigger off the jurisdiction vested for their benefit in any public functionary like a Magistrate under section 133 Cr
In the exercise of such power the judiciary must be informed by the broader principle of access to justice necessitated by the conditions of developing countries and obligated by article 38 of the Constitution
This brings Indian public law in its processual branch in line with the statement of Prof Kojima 1 the urgent need is to focus on the ordinary man one might say the little man  Access to Justice by Cappelletti and B Garth summarises the new change thus2 110 The recognition of this urgent need reflects a fundamental change in the concept of procedural justice
The new attitude to procedural justice reflects what Professor Adolf Homburger has called a radical change in the hierarchy of values served by civil procedure the paramount concern is increasingly with social justice ie with finding procedures which are conducive to the pursuit and protection of the rights of ordinary people
While the implications of this change are dramatic for instance insofar as the role of the adjudicator is concerned it is worth emphasizing at the outset that the core values of the more traditional procedural justice must be retained
Access to justice must encompass both forms of procedural justice Public nuisance because of pollutants being discharged by big factories to the detriment of the poorer sections is a challenge to the social justice component of the rule of law
Likewise the grievous failure of local authorities to provide the basic amenity of public conveniences drives the miserable slum dwellers to ease in the streets on the sly for a time and openly thereafter because under Nature s pressure bashfulness becomes a luxury and dignity a difficult article A responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability
Decency and dignity are non negotiable facets of human rights and are a first charge on local self governing bodies
Similarly providing drainage systems not pompous and attractive but in working condition and sufficient to meet the needs of the people cannot be evaded if the municipality is to justify its existence
A bare study of the statutory provisions makes this position clear
In this view the Magistrate s approach appears to be impeccable although in places he seems to have been influenced by the fact that cultured and educated people live in this area and New Road Ratlam is a very important road and so many prosperous and educated persons are living on this road
In India one man one value  is the democracy of remedies and rich or poor the law will call to order where people s rights are violated
What should also have been emphasised was the neglect of the Malaria Department of the State of Madhya Pradesh to eliminate mosquitoes especially with open drains heaps of dirt public excretion by humans for want of lavatories and slums nearby had created an intolerable situation for habitation
An order to abate the nuisance by taking affirmative action on a time bound basis is justified in the circumstances
The nature of the judicial process is not purely adjudicatory nor is it functionally that of an umpire only
111 Affirmative action to make the remedy effective is of the essence of the right which otherwise becomes sterile
Therefore the court armed with the provisions of the two Codes and justified by the obligation under section 123 of the Act must adventure into positive directions as it has done in the present case
Section 133 Cr
PC authorises the prescription of a time limit for carrying out the order
The same provision spells out the power to give specific directives
We see no reason to disagree with the order of the Magistrate
The High Court has taken a correct view and followed the observations of this Court in Govind Singh vs Shanti Sarup1 where it has been observed We are of the opinion that in a matter of this nature where what is involved is not merely the right of a private individual but the health safety and convenience of the public at large the safer course would be to accept the view of the learned Magistrate who saw for himself the hazard resulting from the working of the bakery
 We agree with the High Court in rejecting the plea that the time specified in the order is unworkable
The learned judges have rightly said
It is unfortunate that such contentions are raised in 1979 when these proceedings have been pending since 1972
If in seven year s time the Municipal Council intended to remedy such a small matter there would have been no difficulty at all
Apart from it so far as the directions are concerned the learned Magistrate it appears was reasonable
So far as direction No 1 is concerned the learned Magistrate only expected the Municipal Council and the Town Improvement Trust to evolve a plan and to start planning about it within six months the learned Magistrate has rightly not fixed the time limit within which that plan will be completed
Nothing more reasonable could be said about direction No 1
 A strange plea was put forward by the Municipal Council before the High Court which was justly repelled viz that the owners of houses had gone to that locality on their own choice with eyes open and therefore could not complain if human excreta was flowing dirt was stinking mosquitoes were multiplying and health was held hostage
A public body constituted for the principal statutory duty of ensuring sanitation and health cannot outrage the court by such an ugly plea
112 Luckily no such contention was advanced before us
The request for further time for implementation of the Magistrate s order was turned down by the High Court since no specific time limit was accepted by the municipality for fulfillment of the directions
A doleful statement about the financial difficulties of the municipality and the assurance that construction of drains would be taken up as soon as possible had no meaning
The High Court observed Such assurances it appears are of no avail as unfortunately these proceedings for petty little things like clearing of dirty water closing the pits and repairing of drains have taken more than seven years and if these seven years are not sufficient to do the needful one could understand that by granting some more time it could not be done The High Court was also right in rejecting the Additional Sessions Judge s recommendation to quash the Magistrate s order on the impression that section 133 Cr
PC did not provide for enforcement of civic rights
Wherever there is a public nuisance the presence of section 133 Cr
PC must be felt and any contrary opinion is contrary to the law
In short we have no hesitation in upholding the High Court s view of the law and affirmation of the Magistrate s order
Before us the major endeavour of the municipal council was to persuade us to be pragmatic and not to force impracticable orders on it since it had no wherewithal to execute the order
Of course we agree that law is realistic and not idealistic and what cannot be performed under given circumstances cannot be prescribed as a norm to be carried out
From that angle it may well be that while upholding the order of the Magistrate we may be inclined to tailor the direction to make it workable
But first things first and we cannot consent to a value judgment where people s health is a low priority
Nevertheless we are willing to revise the order into a workable formula the implementation of which would be watch dogged by the court
Three proposals have been put forward before us in regard to the estimated cost of the scheme as directed by the Magistrate
The Magistrate had not adverted to the actual cost of the scheme nor the reasonable time that would be taken to execute it
As stated earlier it is necessary to ascertain how far the scheme is feasible and how heavy the cost is likely to be
The Court must go further to frame a scheme and then fix time limits and even oversee the actual execution of the scheme in compliance with the court s order
Three schemes placed before us together with tentative estimates of the costs have been looked into by us
Judges are laymen and cannot put on expert airs
That was why we allowed the municipality 113 and the respondents to produce before us schemes prepared by expert engineers so that we may modify the directions issued by the Magistrate suitably
Scheme A  is stated to cost an estimated amount of Rs 1016 crores
The State Government has revised this proposal and brought down the cost
In our view what is important is to see that the worst aspects of the insanitary conditions are eliminated not that a showy scheme beyond the means of the municipality must be undertaken and half done
From that angle we approve scheme C  which costs only around Rs 6 lakhs
We fix a time limit of one year for completing execution of the work according to that scheme
We further direct that the work shall be begun within two months from to day and the Magistrate shall inspect the progress of the work every three months broadly to be satisfied that the order is being implemented bona fide
Breaches will be visited with the penalty of section 188 IPC We make the further supplementary directions which we specifically enjoin upon the municipal authority and the State Government to carry out
We direct the Ratlam Municipal Council R1 to take immediate action within its statutory powers to stop the effluents from the Alcohol Plant flowing into the street
The State Government also shall take action to stop the pollution
The Sub Divisional Magistrate will also use his power under section 133 IPC to abate the nuisance so caused
Industries cannot make profit at the expense of public health
Why has the Magistrate not pursued this aspect  2
The Municipal Council shall within six months from to day construct a sufficient number of public latrines for use by men and women separately provide water supply and scavenging service morning and evening so as to ensure sanitation
The Health Officer of the Municipality will furnish a report at the end of the six monthly term that the work has been completed
We need hardly say that the local people will be trained in using and keeping these toilets in clean condition
Conscious cooperation of the consumers is too important to be neglected by representative bodies
The State Government will give special instructions to the Malaria Eradication Wing to stop mosquito breeding in Ward 12
The Sub Divisional Magistrate will issue directions to the officer concerned to file a report before him to the effect that the work has been done in reasonable time
The municipality will not merely construct the drains but also fill up cesspools and other pits of filth and use its sanitary 114 staff to keep the place free from accumulations of filth
After all what it lays out on prophylactic sanitation is a gain on its hospital budget
We have no hesitation in holding that if these directions are not complied with the Sub Divisional Magistrate will prosecute the officers responsible
Indeed this court will also consider action to punish for contempt in case of report by the Sub Divisional Magistrate of willful breach by any officer
We are sure that the State Government will make available by way of loans or grants sufficient financial aid to the Ratlam Municipality to enable it to fulfil its obligations under this order
The State will realise that article 47 makes it a paramount principle of governance that steps are taken for the improvement of public health as amongst its primary duties 
The municipality also will slim its budget on low priority items and elitist projects to use the savings on sanitation and public health
It is not our intention that the ward which has woken up to its rights alone need be afforded these elementary facilities
We expect all the wards to be benefited without litigation
The pressure of the judicial process expensive and dilatory is neither necessary nor desirable if responsible bodies are responsive to duties
Cappelletti holds good for India when he observes 1 Our judicial system has been aptly described as follows Admirable though it may be it is at once slow and costly
It is a finished product of great beauty but entails an immense sacrifice of time money and talent
This beautiful system is frequently a luxury it tends to give a high quality of justice only when for one reason or another parties can surmount the substantial barriers which it erects to most people and to many types of claims
 Why drive common people to public interest action  Where Directive Principles have found statutory expression in Do s and Dont s the court will not sit idly by and allow municipal government to become a statutory mockery
The law will relentlessly be enforced and the plea of poor finance will be poor alibi when people in misery cry for justice
The dynamics of the judicial process has a new enforcement  dimension not merely through some of the provisions of the Criminal Procedure Code as here but also through activated tort consciousness
The officers in charge and even the elected representatives will have 115 to face the penalty of the law if what the Constitution and follow up legislation direct them to do are defied or denied wrongfully
The wages of violation is punishment corporate and personal
We dismiss this petition subject to the earlier mentioned modifications
NVK Petition dismissed


Summary:
The residents respondents of a prominent residential locality of the Municipality petitioner in their complaint under section 133 Criminal Procedure Code to the Sub Divisional Magistrate averred that the Municipality had failed despite several pleas to meet its basic obligations like provision of sanitary facilities on the roads public conveniences for slum dwellers who were using the road for that purpose and prevention of the discharge from the nearby Alcohol Plant of maladorous fluids into the public street and that the Municipality was oblivious to the statutory obligation envisaged in section 123 M P Municipalities Act 1961 The Municipal Council contested the petition on the ground that the owners of houses had gone to that locality on their own choice fully aware of the insanitary conditions and therefore they could not complain
It also pleaded financial difficulties in the construction of drains and provision of amenities
The Magistrate found the facts proved and ordered the municipality to provide the amenities and to abate the nuisance by constructing drain pipes with flow of water to wash the filth and stop the stench and that failure would entail prosecution under section 188 IPC
The order of the Magistrate was found unjustified by the Sessions Court but upheld by the High Court
In the Special Leave Petition by the Municipality to this Court on the question whether a Court can by affirmative action compel a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost and on a time bound basis
 HELD  1
Wherever there is a public nuisance the presence of section 133 Criminal Procedure Code must be felt and any contrary opinion is contrary to the law
112D 2
The public power of the Magistrate under the Code is a public duty to the members of the public who are victims of the nuisance and so he shall exercise it when the jurisdictional facts are present
107G 98 3
The Magistrate s responsibility under section 133 Cr
PC is to order removal of such nuisance within a time to be fixed in the order
This is a public duty implicit in the public power to be exercised on behalf of the public and pursuant to a public proceeding
Failure to comply with the direction will be visited with a punishment contemplated by section 188 IPC 109C D 4
The Municipal Commissioner or other executive authority bound by the order under section 133 Criminal Procedure Code shall obey the direction because disobedience if causes obstruction or annoyance or injury to any persons lawfully pursuing their employment shall be punished with simple imprisonment or fine as prescribed in the section
The offence is aggravated if the disobedience tends to cause danger to human health or safety
109E 5
Public nuisance because of pollutants being discharged by big factories to the detriment of the poorer sections is a challenge to the social justice component of the rule of law
110C 6
The imperative tone of section 133 Criminal Procedure Code read with the punitive temper of section 188 IPC make the prohibitory act a mandatory duty
109E 7
The Criminal Procedure Code operates against statutory bodies and others regardless of the cash in their coffers even as human rights under Part III of the Constitution have to be respected by the State regardless of budgetary provision
108H 8
Section 123 M P Municipalities Act 1961 has no saving clause when the municipal council is penniless
108H 9
Although the Cr
PC and IPC are of ancient vintage the new social justice orientation imparted to them by the Constitution of India makes them a remedial weapon of versatile use
Social Justice is due to the people and therefore the people must be able to trigger off the jurisdiction vested for their benefit in any public functionary like a Magistrate under section 133 Criminal Procedure Code
In the exercise of such power the judiciary must be informed by the broader principle of access to justice necessitated by the conditions of developing countries and obligated by article 38 of the Constitution
109F G 10
A responsible municipal council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability
Decency and dignity are non negotiable facets of human rights and are a first charge on local self governing bodies
Similarly providing drainage systems not pompous and attractive but in working condition and sufficient to meet the needs of the people cannot be evaded if the municipality is to justify its existence
110E 11
The Court armed with the provisions of the two Codes and justified by the obligation under section 123 of the Act must adventure into positive directions as it has done in the present case
Section 133 Criminal Procedure Code authorises the prescription of a time limit for carrying out the order
The same provision spells out the power to give specific directives
111A B Govind Singh vs Shanti Sarup   279 referred to
The state will realise that article 47 makes it a paramount principle of governance that steps are taken for the improvement of public health as amongst its primary duties
The municipality also will slim its budget on 99 low priority items and elitist projects to use the savings on sanitation and public health
114C 13
Where Directive Principles have found statutory expression in Do s and Don ts the court will not sit idly by and allow municipal government to become a statutory mockery
The law will relentlessly be enforced and the plea of poor finance will be poor alibi when people in misery cry for justice
The dynamics of the judicial process have a new enforcement  dimension not merely through some of the provisions of the Criminal Procedure Code as here but also through activated tort consciousness
The officers in charge and even the elected representatives will have to face the penalty of the law if what the Constitution and follow up legislation direct them to do are defied or denied wrongfully
The wages of violation is punishment corporate and personal
114G 115A The Court approved a scheme of construction work to be undertaken by the Municipality for the elimination of the insanitary conditions and directed that the work be commenced within two months and that the Magistrate inspect the progress of the work every three months and see that it is implemented
113 D 114 B