IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.7882 of 2007 Date of decision: 6th November, 2009 Dr. O.P. Munjal and another … Petitioners Versus State of Haryana and others … Respondents CORAM: HON’BLE MR. JUSTICE T.S. THAKUR HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: None for the petitioners. Mr. H.S. Hooda, Advocate General, Haryana with Mr. Randhir Singh, Addl. Advocate General, Haryana for respondent No.1. Mr. A.R. Takkar, Amicus Curiae. Mr. R.K. Sharma, Advocate with Mr. Sanjay S. Chauhan, Advocate for respondents No.2 and 3. Ms. Vandana Malhotra, Advocate for HUDA. Notes: 1. Whether Reporters of local newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? KANWALJIT SINGH AHLUWALIA, J. Two residents of Panchkula have instituted the present writ petition purportedly in public interest to question the role of Municipal Council, Panchkula in providing civic amenities, ensuring public hygiene Civil Writ Petition No. 7882 of 2007 and upkeep and maintenance of Panchkula city. Petitioners have made a grievance that worst ever civic conditions are prevailing in Panchkula. Roads are full of potholes, broken to the extent that metalled portion is not visible. The petitioners also lament Municipal Council for poor drainage system and non-maintenance of parks. The writ petitioners have gone to the extent of praying that this Court should direct the State Government to dissolve the house of Municipal Council, Panchkula as they have miserably failed to perform their statutory duties and obligations. The writ petitioners have made further averments that Municipal Council though having necessary adequate funds have been incurring wasteful expenditure for lack of vision and funds are pilfered due to corruption prevailing in the system to which many Municipal Councillors are party. To illustrate this averment, petitioners have pleaded that one year old foot paths are being replaced by new foot paths, cement chequered tiles used on a foot path and laid year ago after dismantling are being taken away by Contractor or other persons. Petitioners have urged that neither there was any necessity nor it was prudent to replace the old tiles and the funds spent in this manner could have been utilized in a better way. Having set out the grievances of the petitioners, we may recapitulate the brief facts. Petitioner No.1 is a practicing Dental Surgeon, residing in Sector 6, Panchkula for the last many years. Petitioner No.2 is a retired Engineer from the Department of Irrigation, Government of Punjab. He is leading a retired life and is residing at Sector 8, Panchkula. They have pleaded that the roads outside their houses are in a deplorable and pathetic condition. According to the petitioners, worst of the civic conditions are prevailing in Panchkula town. This, according to the petitioners, is a result of inter-se clash and sharp political differences between 2 – 3 groups of Municipal Council, Panchkula, due to which common man is facing unhygienic conditions, which are not livable at all. 2 Civil Writ Petition No. 7882 of 2007 Petitioners dispute the claim of the Municipal Council that they had spent Rs.11.00 – 12.00 crores on re-carpeting of the roads, as they have averred that roads in Sector 2, 4, 6 to 12, 12-A, 14 to 19, 4 MDC, 5 MDC and the roads leading to Industrial Area, Phase I and II, have been washed out, having pits and miserable conditions. Thus, according to the petitioners, these roads are not worth commuting and are accident-prone. To support this contention, petitioners have annexed the photographs of these roads. The petitioners submit that only inference, which can be drawn, is that either the specifications for carrying out the work of road repair have not been followed or the material of inferior quality has been used. This, according to the petitioners, has happened due to connivance between Municipal Councillors and the contractors. Another grievance of the petitioners that chequered cement tiles on the footpaths are being changed within a span of one year, has already been noticed by us. To pick the thread further, petitioners state that new footpaths, which have been constructed, are being laid by using very poor cement mortar on a layer of sand without adhering to the norms and specifications of construction prescribed. The petitioners have averred that sub-standard material was used, due to which a case has been registered against the former President, 9 contractors and 6 officials/officers of the Municipal Council. The preliminary investigation is being carried by the Vigilance Bureau. The petitioners have stated that they have learnt that various enquiries are pending against the President, Municipal Council, Panchkula, some Councillors and Contractors as the allegations of cheating, theft, fraud and misappropriation of funds have been levelled. These enquiries, according to the petitioners, are to be conducted by Additional Deputy Commissioner, Panchkula. 3 Civil Writ Petition No. 7882 of 2007 The petitioners rue that Panchkula is not maintained according to standards, to which it is entitled being a part of the tricity consisting of Chandigarh, Panchkula and Mohali. The petitioners, in a literal metaphor, have described Panchkula as poor cousin of Chandigarh. Petitioners urge that due to various acts of omission and commission on the part of the office bearers/ officials of Municipal Council, Panchkula, residents of the town have been deprived of the right of decent/peaceful living with human dignity and thus, according to the petitioners, respondents have infringed the right of life vested in them under Article 21 of the Constitution of India. This Court had appointed Mr. A.R. Takkar, Advocate as Amicus Curiae. He has submitted a report depicting pathetic conditions prevailing in the city of Panchkula in regard to roads, sanitation, water stagnation and non-operation of sewage treatment plant. A perusal of the report reveals that the roads connecting Panchkula to Chandigarh and Punjab were in good condition. 70 per cent inter-sector dividing roads of Panchkula were also found to be reasonably good. Whereas, 30 per cent inter-sector dividing roads, according to the Amicus Curiae appointed by this Court, require re-carpeting. This report further brings into light that the roads in Industrial Area, Phase I, Panchkula are in deplorable condition and not worth mobility. The following portion of the report seems to justify the grievance of the petitioners regarding disposal of storm water and sewage effluents: “2. The poor and inadequate storm water drainage or serious error in planning and implementation on the part of HUDA/ Municipal Council, Panchkula became visible and brought out the ugly side of Panchkula when several areas of the city were flooded badly during one of the heavy rains in the last 2 weeks. The water entered the houses of several residents which was reported in the newspapers also and during our visits we came to know that House Nos. 198and 4 Civil Writ Petition No. 7882 of 2007 the entire lane having house Nos. 213 to 220 in Sector 12 adjoining village Rella and some houses in the lane having House No.273 to 248 in Sector 12 and also House No. 841 to 844 in Sector 8 were worst affected with water entering many houses. The road in front of the abovesaid houses at the corner of Sector 8 was almost in the 4 feet water and was virtually like a river in flood. This road in normal rains also gets always flooded with about 2 to 3 feet of water for hours together. The grim situation can clearly be judged from photographs annexed collectively as Appendix ‘C’. Rain water mixed with the sewage water entered in several houses damaging the furniture and people were seen cleaning the muck brought by this water in their houses apart from suffering the stench left by water. Suitable directions need to be issued by this Hon’ble Court to both HUDA as well as Municipal Council, Panchkula to forthwith take all possible remedial measures in the areas where water flooded the residential houses so that this does not happen again. A report to this effect with the steps taken is needed to be sought by this Hon’ble Court from the Authorities concerned.” The status report further brings out the inadequacy in collection of garbage disposal and providing sanitation on the part of the Municipal Council, Panchkula. The prevailing system of dumping and collection of garbage, as per the report, shows that the Municipal Council, Panchkula has not complied with requirements of The Municipal Solid Waste (Management & Handling) Rules, 2000, notified way back in September, 2000, either due to ignorance or will to act. The Amicus Curiae, in his report, has recommended as under: “(B) Garbage Disposal/ Sanitation (iii) A. … … … … it is high time that they come out with a realistic and scientifically designed programme for calculation, segregation, storage, transportation, processing and disposal of municipal solid waste apart from identifying landfill sites and setting up of a Solid Waste Management 5 Civil Writ Petition No. 7882 of 2007 Facility for the Treatment of municipal solid waste as is also the mandate of the Hon’ble Supreme Court of India in the ongoing Writ Petition Civil No.888 of 1996 titled as Almitra H.Patel and another Versus Union of India and Others in which the Haryana State Pollution Control Board, in all likelihood should be one of the respondents.” The report also describes that one rain water nala, called Singh Choe Nala, flows through Panchkula and the same not only often floods the city leading to damage of the roads, but is also carrying sewerage water and municipal waste, due to which various areas of the city stink. According to the report, sewage treatment plant was inspected while it was in running condition. Foul smell was emanating from the treatment plant. Most of the equipments and parts of the plant were unusable. Therefore, there was no difference between the quality of untreated sewerage and treated sewerage. Haryana Urban Development Authority filed objections to the report and disputed its contents. Municipal Councillor, Panchkula, in his counter affidavit filed, pleaded that Municipal Council, Panchkula came into existence on 25th December, 2001 and since then the Municipal Council, Panchkula, with limited staff and limited funds, is trying its best to provide basic amenities to the residents of the city. The averments made in the writ petition were vehemently denied, saying that the samples of the development work executed are sent to the reputed testing Laboratories and after receipt of the report, payment is made to the Contractors. Various development projects undertaken and efforts made by the Municipal Council to provide the best facilities have also been detailed in the counter affidavit, with a rider that their future execution is dependent upon availability of funds. 6 Civil Writ Petition No. 7882 of 2007 We have heard counsel for the parties and gone through the pleadings made in the present writ petition. The present writ petition brings into focus aspirations and hopes of the citizens of this country, who, after 62 years of independence, seek and demand that the Municipal Councils, a form of local self government, should ensure good living conditions, civic amenities and public hygiene. Government functionaries, officials of local self government, its elected representatives, have not been able to answer the growing needs and expectations of the citizens of the country. Lack of vision and perspective, compulsion of a tight rope walk to balance the need of those, who live in slums and in highly urbanized area, inadequacy of funds, difficulty in generating revenue from the stakeholders, fiscal mismanagement, populist approach to satisfy the demands of all strata of life, are some of the reasons, which can be spelled to notice various difficulties faced by the Municipal Councils/ Corporations managing the affairs of cities of India. This requires a peep into functioning and management of cities and towns of India through local self government. Traditionally, urban local bodies have been looking after the basic amenities of civic life, which included water supply and sanitation, roads and drains, maintenance of public places, burial grounds and crematoria, cattle pounds, provision of street lights, fire brigades and maintenance of markets. For performing these duties, certain administrative and regulatory functions have also been undertaken by urban local bodies, which included maintenance of register of births and deaths, grant of license for sale of various food items, control and planning of urban development, sanctioning of building plans, inspection of buildings constructed, maintenance of record of rights and also public health areas, such as eating places, slaughter houses and tanneries etc. By passage of time, role of urban local bodies has been substantially broadened. Regulation of land use, planning of economic and 7 Civil Writ Petition No. 7882 of 2007 social development, safeguarding the interests of weaker sections of society including the handicapped and mentally retarded, slum improvement and upgradation, urban poverty alleviation, promotion of cultural, educational and aesthetic aspects and protection of environment and safeguarding of health have become part of functions and duties falling within Municipal domain. New Delhi Declaration, which was adopted by the U.N. General Assembly in December 1990, though recognizes that provision of basic amenities will remain one of the core activities of the urban local bodies, enlarging the scope further announce that following objects are required to be achieved by the Municipal local bodies: (a) Protection of the environment and safeguarding of health through the integrated management of water resources and liquid and solid waste; (b) Organisational reforms, promoting an integrated approach and including changes in procedures, attitudes, and behaviour, and the full participation of women at all levels; (c) Community management of services, backed by measures to strengthen the capacity of local institutions in implementing and sustaining water and sanitation programmes; (d) Sound financial practices, achieved through better management of existing assets and extensive use of appropriate technologies. Government of India has further resolved that water needs to be managed as an economic asset rather than a free commodity. So the provision and management of water is also one of the essential duties of Municipal bodies. To achieve the above objectives and answer needs of the growing times, Union of India has formulated a scheme, called 8 Civil Writ Petition No. 7882 of 2007 Jawaharlal Nehru National Urban Renewal Mission (hereinafter referred to as, ‘the Mission’). A paper circulated by the Government of India to justify the mission undertaken had noticed the following background: “1. Background (1) Need for Urban Sector Development: According to the 2001 census, India has a population of 1027 million with approximately 28 per cent or 285 million people living in urban areas. As a result of the liberalization policies adopted by the Government of India is expected to increase the share of the urban population may increase to about 40 per cent of total population by the year 2021. It is estimated that by the year 2011, urban areas would contribute about 65 per cent of gross domestic product (GDP). However, this higher productivity is contingent upon the availability and quality of infrastructure services. Urban economic activities are dependent on infrastructure, such as power, telecom, roads, water supply and mass transportation, coupled with civic infrastructure, such as sanitation and solid waste management. (2) Investment Requirements in the Urban Sector: It is estimated that over a seven-year period, the Urban Local Bodies (ULBs) would require a total investments of Rs.1,20,536 crores. This includes investment in basic infrastructure and services, that is, annual funding requirement of Rs.17,219 crores. It is well recognised that in order to fructify these investments, a national level initiative is required that would bring together the State Governments and enable ULBs catalyse investment flows in the urban infrastructure sector.” After noticing this, it will be worthwhile to acknowledge the Mission Statement and objectives of the Mission, which read as under: “1. The Mission Mission Statement: The aim is to encourage reforms and fast track planned development of identified cities. Focus is to be on efficiency in urban infrastructure and service 9 Civil Writ Petition No. 7882 of 2007 delivery mechanisms, community participation, and accountability of ULBs/ Parastatal agencies towards citizens. 2. Objectives of the Mission (1) The objectives of the JNNURM are to ensure that the following are achieved in the urban sector;. (a) Focussed attention to integrated development of infrastructure services in cities covered under the Mission;. (b) Establishment of linkages between asset-creation and asset-management through a slew of reforms for long-term project sustainability;. (c) Ensuring adequate funds to meet the deficiencies in urban infrastructural services;. (d) Planned development of identified cities including peri-urban areas, outgrowths and urban corridors leading to dispersed urbanisation;. (e) Scale-up delivery of civic amenities and provision of utilities with emphasis on universal access to the urban poor;. (f) Special focus on urban renewal programme for the old city areas to reduce congestion; and (g) Provision of basic services to the urban poor including security of tenure at affordable prices, improved housing, water supply and sanitation, and ensuring delivery of other existing universal services of the government for education, health and social security.” During the pendency of the writ petition, Panchkula and Mohali have been found to be eligible cities under the Mission. Adoption of these cities under the Mission made the local newspaper say as under: “Called satellite cities, Mohali and Panchkula are often said to have risen in stature by shining in Chandigarh’s reflected glory, but soon that dependence on their flourishing neighbour’s foundation is set to wane for the better with the 10 Civil Writ Petition No. 7882 of 2007 Centre sanctioning an ‘urban agglomeration’ project under Jawaharlal Nehru Urban Renewal Mission (JNURM) for overall uplift of Tricity. As part of the project, Punjab and Haryana will augment their infrastructure to match existing services in Chandigarh, using financial aid from the ministry of urban development.” This is now apparent that overall growth and development of Panchkula will be funded under the Mission, taking care of integrated development of the city. We hope that this will take care of the grievances raised by the petitioners in the present writ petition, as the Mission will not only, in association with Haryana Government and Municipal Council, provide adequate funds but will also support planning of infrastructure in consonance with the broad parameters of the Scheme. This, in times to come, is bound to satisfy the expectations of the petitioners. The very enactment of the Scheme and adoption of Panchkula under the Scheme lead us to record our satisfaction that the Government is sensitive to the needs and has a foresight to take care of urban economic development. Hence, we refrain to tread on the path of giving various directions, as we feel that the authorities are alive to the remedial measures and are geared to take recourse to mechanism, which shall provide better urban living. However, as a parting note, it will be appropriate for us to take note of the problem of Singh Choe Nala, one of the main contributing cause of deterioration of roads, choking of storm water and sewerage system leading to pollution and emitting of foul smell. Residents of Punjab also faced similar problem and had filed Civil Writ Petition No.13322 of 2008 titled as ‘Avtar Singh and others v. State of Punjab and others’, which was disposed of by us on 7th July, 2009, giving various directions in respect of Singh Choe Nala. In that writ petition, we had mentioned as follows: 11 Civil Writ Petition No. 7882 of 2007 “Running across the said colony is a storm water drain known as ‘Singh Choe Nala’, which starts from near about the military area in Panchkula in the State of Haryana and flows down to Zirakpur to eventually join River Ghaggar.” To avoid multiplicity of directions, it will be necessary to observe that Singh Choe Nala has been subject matter of various other writ petitions. We had noticed details of earlier litigation in Avtar Singh’s case (supra). It will be apposite here to reproduce the same: “Writ petition No. 1840 of 2005 was filed in public interest by Shri Om Parkash, a Municipal Councilor of Panchkula, in which he prayed for a mandamus directing the respondents to take immediate steps to stop unauthorized and illegal squeezing/narrowing of ‘Singh Choe Nala’ at various places in the State of Punjab and to ensure that the width of the said Nala is not narrowed down from its original width so that Panchkula City does not get flooded during rainy season because of such narrowing. The immediate provocation for filing the said petition, appeared to be the flooding of parts of residential area in Panchkula as well as in Punjab on account of unauthorized constructions raised by the people on the banks of ‘Singh Choe Nala’, which had the effect of narrowing the Nala and thereby obstructing free flow of water in the same especially during the rainy season. By an order dated 03.05.2006, a Division Bench of this Court disposed of the said petition with the observation that the Chief Secretaries of two States would constitute a Committee to examine on regular basis whether any steps are required to be taken for preventing the obstruction in the free flow of water in ‘Singh Choe Nala’ and addressing problems of the residents of the area. Contempt petition, COCP No.796 of 2007 was then filed alleging breach of the said direction of this Court. By an order dated 04.12.2007 passed by a Single Bench of this Court in those proceedings Mr.Vijay Jindal, Advocate was appointed as Local Commissioner to make a spot inspection and to submit a report regarding clearing of the obstructions in the ‘Singh Choe Nala’. The respondents were 12 Civil Writ Petition No. 7882 of 2007 also directed to lend assistance to the Commissioner to conduct a spot inspection. The Local Commissioner accordingly appears to have conducted a spot inspection in the presence of Chief Engineer (Drainage), Punjab and other officers and submitted a report, a copy whereof has been placed on record by the petitioners as Annexure P-6. A reading of the said report would reveal that the width of the ‘Singh Choe Nala’ at the entry point in Punjab State is said to be approximately 54-55 feet. It is further reported that at RD5880 a private builder has covered the entire ‘Singh Choe Nala’ with pucca bridge/slab over a length of 160 feet. Some other aspects referred to the Commissioner have also been noticed by him and the photographs etc. placed on record with the report to indicate how the Nala flows down different areas of Haryana and Punjab and has varying widths at different places. The Punjab Government have also issued a Notification dated 07.11.2007 directing all concerned to remove all the obstructions created by them at any place on the ‘Singh Choe Nala’ so that the natural flow of water in the same is not obstructed or diverted in any way. It is not in dispute that the contempt proceedings were finally disposed off by a learned Single Judge by an order dated 31.10.2008 with the observation that the authorities had and were taking suitable measures in compliance with the directions issued by this Court regarding removal of obstructions on the ‘Singh Choe Nala’ and consequent prevention of flooding of the areas in Punjab and Haryana.” We had given following directions in respect of Singh Choe Nala in Avtar Singh’s case (supra): “Without meaning to cause any delay in any such action especially because of the current monsoon season, we direct that the Chief Engineers Drainage of Punjab and Haryana as also Chief Engineers H.U.D.A. & GMADA may together have a spot inspection and take a final decision as to the action that needs to be taken regarding the retention or demolition of the construction raised by the petitioner over the same. We make it clear that these directions shall not be taken as expression of any opinion whether the construction should or should not 13 Civil Writ Petition No. 7882 of 2007 be removed immediately nor should we be