CWP No.11961 of 2012 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** CWP No.11961 of 2012 Date of Decision:
01. 04.2013 ***** Court on its own motion . . . .Petitioner Versus State of Punjab and others . . . . Respondents ***** CORAM: HON’BLE MR.JUSTICE A.K. SIKRI, CHIEF JUSTICE HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.P.S. Bajwa, Addl. A.G. Punjab. Mr.Tarundeep Singh, S. Kaira, Advocate, for Mr.Sanjay Kaushal, St. Standing counsel, for U.T., Chandigarh. Mr.B.S. Rana, Addl. A.G. Haryana. ***** RAKESH KUMAR JAIN, J.This petition is placed before this Court as ‘Public Interest Litigation’ after suo motu notice taken by a learned Single Judge about the pathetic sanitary condition, defacement and destruction of public property by the residents of Chandigarh and other places in the State of Punjab and Haryana. Before the law was set into motion with the issuance of notice to the Chief Secretaries of both the States of Punjab and Haryana and the Home Secretary of UT, Chandigarh, the following order was passed by the learned Single Judge: CWP No.11961 of 2012 -2- “Photographs appeared in “Daily Chandigarh”. newspaper on 4.6.2012 showing how various sign boards in the City were either in broken condition or had been defaced by pasting posters thereon. Prior thereto, a news item had appeared in “The Tribune”. on 11.5.2012 showing garbage littering on the roads after removal of black films from the cars. It is not a case in isolation. Number of times such type of news items are reported in the newspapers. Photographs also appear where public property is damaged by the persons for their private gain. Many times for erecting poles for flying flags, the roads or pavement are damaged. It is generally seen that once these are damaged, no body repairs the same immediately and the damage increases day by day, as a result of which the public money spent thereon is wasted. It is also seen that if any public function is organized by any person, lot of CWP No.11961 of 2012 -3- garbage is spread all around. No body takes care of the place after the same has been used either with the permission of the authority and some times even without permission. In Public parks which are used for similar purposes, the plants, trees and other infrastructure are usually damaged. The authorities, who control the places, which are either given on rent or un-authorisedly used, do not even care to visit the spot after the function/meeting is over. For parking, the people even don’t hesitate to remove the fencing fastened into the earth whether temporarily or permanently. This is not the only instance of the willful neglect and carelessness on the part of the authorities and the general public. At various places in Chandigarh where Agricultural Marketing Board allows ‘Apni Mandi’ for selling of vegetables on different days of week in different parts of the city, on the next day, one can see CWP No.11961 of 2012 -4- lot of perished vegetables, and other garbage spread all around. Though the Market Committee, Chandigarh charges market fee, considering this to be its legal right but never thought of performing its duty to get the places cleaned immediately thereafter. Still further there are lot of eating joints in the city. It is very difficult to pass by a place where people are permitted to consume eatables standing outside a tuck shop, booth or a shop. The people who consume fast food, tea or cold drinks and other eatables either do not throw garbage in the dustbins or the same are not available. Result can be seen in the morning with garbage all around. Part of which is shifted by the sweepers in the morning into the rain water drain, resulting into its chocking. Chandigarh is called, ‘City Beautiful’. The people love and enjoy life only because of its maintenance. They would criticize the administration for not carrying its duty of not cleaning the CWP No.11961 of 2012 -5- places. The people who use public places for various purposes forget that it is their duty as well to clean the place after its use and ensure that the people to whom they are serving do not spread garbage here and there resulting in emission of foul smell etc. which may also become an eye sore for the residents of the area. The increasing incidents of the defacement of the public property through pasting of posters, flags, remarks etc. upon walls, rocks bridges, buildings, fences, gates, trees etc. within the city is another disturbing feature. Presently, posters of various candidates contesting election in the University can be seen pasted at various places in the city including sign boards and sector plan erected in the sector, as is evident even from the photographs published in the newspaper today. In my opinion, this matter needs to be taken as a public interst litigation to CWP No.11961 of 2012 -6- find out as to whether there is any scheme available which takes care of such situation and to find out as to what is the solution to the problem. If the residents of the city do not realize their duty, certain strict measures are required to be taken to make them understand. Similar is the position at Panchkula and Mohali. In research Foundation for Science (18) Vs. Union of India and another, (2005) 13 SCC186; T.N. Godavarman Thirumalpad Vs. Union of India 2007(12) Scale 616 and T.N. Godavarman Thirumulpad Vs. Union of India and others, 2012(2) RCR (Civil) 652, Hon’ble the Supreme Court had also recognized the principle of “let polluters pay”.. Let a notice be issued to Chief Secretaries of the States of Punjab and Haryana and Home Secretary, U.T., Chandigarh for 20.7.2012. CWP No.11961 of 2012 -7- The matter be placed before Hon’ble the Acting Chief Justice for constitution of appropriate Bench.”
. Both the States of Punjab and Haryana as well as U.T. Chandigarh have filed their respective replies. The State of Haryana has filed affidavit of Varinder Sharma, Deputy Director, Urban Local Bodies, Haryana dated 1.8.2012, Sameer Pal Srow, Joint Secretary to Govt. Haryana, Urban Local Bodies Department on behalf of Chief Secretary, Haryana dated 18.9.2012 and an additional affidavit on 6.12.2012. In the affidavit dated 1.8.2012, it is averred that the Municipalities, in the State of Haryana, autonomous bodies are supposed to develop the areas under their control/jurisdiction, after generation of the resources at their level. The State of Haryana is also aware of its social obligation and intend to help the Municipalities to provide service to its citizens, which are though not up to the mark because in order to provide the services upto required level, huge financial resources are required which are not available with the State and also with the Municipalities, who are unable to generate its financial resources. It is further averred that the State Government is issuing grant-in-aid to various municipalities as per the available resources and priorities and the budget provision under various schemes/ heads for release of grant-in-aid to CWP No.11961 of 2012 -8- Municipalities of the Haryana State during the year 2012-2013 is as under: Sr. Name of Scheme ` in lacs not Approved Outlay 2012-13 1.
2. 3.
1. Jawaharlal Nehru 16855.00 National Urban Renewal Mission (JNNURM).
2. Urban Infrastructure 10358.00 Development Scheme for Small and Medium Towns (UIDSSMT).
3. Integrated Housing & 2777.00 Slum Development Programme (IHSDP) 4. Rajiv Awas Yojna 1900.00 5. Integrated Low Cost 100.00 Sanitation Scheme 6. Thirteenth Central Finance Commission (i) General Grant 9244.00 (ii) Fire & Emergency 2500.00 Services 7. Urban Solid Waste 313.00 Management.
8. Kurukshetra Development 250.00 Board. CWP No.11961 of 2012 -9- 9. Training for Elected 4.00 Women Councilors.
10. Scheme of Development of 1000.00 Satellite and Counter Magnet Towns (Centrally sponsored Scheme) (Central Share 8000.00) 11. Shifting of Milk Dairies 125.00 12. Scheme for development 3387.00 of SC basties 13. Grant in aid to 14289.00 municipalities – SFC Devolution (Transferred from not Plan) 14. Strengthening of Fire & 250.00 Emergency services (Centrally sponsored scheme) (Central Share 1000.00) 15. Construction of Palika 200.00 Bhawan 16. Rajiv Gandhi Shahri 268.00 Bhagidari Yojna (RGSBY) 17. Share of surcharge on 36200.00 VAT for Urban Local Bodies (RGUDMH) 18. Payment of 2% 10100.00 commission on sale of CWP No.11961 of 2012 - 10 - Non-judicial stamp paper of Municipal Corporations.
19. Payment of 2% 5300.00 commission on sale of Non-judicial stamp paper of Municipal Council/Committee. TOTAL 11542 .00 Central Share 9000.00 It is further alleged in this affidavit that in Panchkula three agencies namely, Municipal Corporation, Haryana Urban Development Authority and Market Committee, are looking after sanitation work of the town. A team has been constituted in the Municipal Corporation which is regularly removing hoardings, posters, boards and for that purpose a truck has also been provided. The Municipal Corporation, Panchkula under the Haryana Prevention of Defacement of Property Act, 1989 (for short ‘the Act’) had also filed some cases against the violators. In the second affidavit dated 18.9.2012, it is averred that a video conference was held on 11.9.2012 in which Principal Secretary to Government Haryana, Urban Local Bodies Department directed all the Deputy Commissioners and Commissioners of Municipal Corporations to take immediate action in regard to the following: - CWP No.11961 of 2012 - 11 - “(i) Sign boards are either in broken condition or had been defaced by pasting posters thereon. (ii) Garbage littered on the roads after removal of black films from the cars. (iii) Spread by of garbage in a public park after the holding of public function by some persons. (iv) Removal of fencing fastened into the earth, temporarily or permanently by the people, for parking of vehicles. (v) Throwing of garbage and perished vegetables in the Apni Mandis being organized for selling vegetables. (vi) Throwing of garbage in front of the eating joints, tuck shops, booth or a shop in the cities, by the people who consume fast food, tea or cold drinks or other eatables. CWP No.11961 of 2012 - 12 - (vii) Defacement of the public property through pasting of posters, flags, marks etc. on walls rocks, bridges, buildings, fences, gates, trees etc.”
. It is also stated that the Government had issued guidelines dated 13.9.2012, directing all the Deputy Commissioners to Constitute a ‘District Level Implementation Committee’ to ensure strict compliance and monitoring of the activities required to be undertaken for achieving cleanliness, better surroundings, proper disposal of garbage and maintenance of public property. It is further alleged that number of persons have been charged for various types of violations and the Deputy Commissioners and Commissioners of the Municipal Corporations are directed to designate area wise Nodal Officer(s) for supervising these activities in their respective areas. In the last affidavit dated 612.2012, the latest status report received from various Districts intimating compliance of various issues referred to above have been given. The State of Punjab filed an affidavit of Vinot Kumar Bhalla, Special Secretary, Department of Local Government, Punjab, Chandigarh, in which it is stated that the Government has formulated Control of Advertisement Byelaws- 2002 by which Regulations & Control of Advertisement have CWP No.11961 of 2012 - 13 - been prescribed. Special drive has been undertaken for removal of unauthorized hoardings by issuing directions to all the Urban Local Bodies to remove all unauthorized hoardings within the municipal areas and ensure that in future no unauthorized hoardings are erected. The provisions of law, in reference to the nature of problem/issues, which are already in existence have also been mentioned, which read as under: - Sr. Nature Provision of Law No 1. Defacement of Section 399 (1) of the walls/information Punjab Municipal boards by affixing Corporation Act, 1976 posters/wall & the Punjab painting Prevention of (advertisement) Defacement of Property Act, 1997.
2. Defacement of The Punjab Informative Road Prevention of Direction sign Defacement of boards by affixing Property Act, 1997 banners.
3. Dumping of Punjab Municipal Act, Garbage on road 1911 (under Section side/in parks 154 & 156) Chapter XV of Punjab Municipal Corporation Act, 1976 u/s 282 & 283. CWP No.11961 of 2012 - 14 - 4. Damage of side Under Section 3 of the railing on roads for Prevention of Damage creating to Public Property Act, unauthorized 1984. parking.
5. Unhygienic Punjab Municipal Act, conditions reacted 1911 (under Section by dumping of 154 & 156) & Punjab perishable waste Municipal Corporation on Apni Mandi sites Act, 1976 under Section 282 & 283.
6. Littering poly- Punjab Municipal Act, garbage near 1911 (under Section eating joints/ 154 & 156) or Punjab Dhabas / Rehri Municipal Corporation stands / fairs / Act, 1976 under Public Recreation Section 282 & 283. Places.
7. Damage of Plants Section 3 of the in the parks while Prevention of Damage holding functions. of Public Property Act, 1984. The U.T., Chandigarh has filed its affidavit through Anil Kumar, IAS, Home Secretary, in which it is stated that the West Bengal Prevention of Defacement of Property Act, 1976 has been extended to the U.T. Administration by the Ministry of Home Affairs, New Delhi on 25.1.1985 and various violators have been booked under this Act. Secondly, the Medical Officer of Health, Municipal Corporation is entrusted with the work of CWP No.11961 of 2012 - 15 - cleanliness and maintenance of such places where public function is organized by any person who leaves the garbage after the function is over. The Medical Officer of Health, M.C., Chandigarh has deputed/appointed many sanitation staff i.e. safai-karamcharies in various areas who clean the roads/areas allotted to them regularly. Regarding the organization of function in different parks, it is alleged that there are three kinds of public parks (on the basis of their sizes) which are given on rent for a day to public for organizing some functions and correspondingly three different fee is charged along with an amount of `200/- for the purpose of maintenance and cleanliness of the park. In regard to the Apni Mani, which is organized by the Marketing Board on different days of the week at different places, it is alleged that a contract has been given to the private contractor for removing garbage after Apni Mandi time is over. The contract is given for a period of one year. It is also alleged that some of the Mandies in different sectors are being held by Punjab State Agricultural Marketing Board with the permission of the Municipal Corporation, Chandigarh in which the Marking Board, Punjab is responsible for removal of garbage. Insofar as damage/defacement of the public property through pasting of posters, flags etc. is concerned, it is alleged that the Administration has adopted the West Bengal Prevention of Defacement of Property Act, 1976 under which various FIRs have been registered against the violators. CWP No.11961 of 2012 - 16 - We have heard learned counsel for the parties and have perused the record. We all are living in this Society and are not ignorant about the problems being faced by us in our day to day life. The residents of a place exhort the compliance of their rights conferred upon them by the Statute but are oblivious of their duties which also come along with the rights. For example; the people of Chandigarh, one of the best City of the entire world, known as ‘City Beautiful’, do not take the cudgel to stop a person, who is in the process of defacing or damaging the public property for his own cause; nobody asks the host of a function held in a public place to remove the residual after the function is over. As a matter of fact, besides taking the preventive action, people are required to be sensitized about their duties for maintaining the public property and not spreading filth and garbage at public places. Needless to mention that even it is one of the fundamental duties enshrined in Rule 51-A(i) of the Constitution of Indian to safeguard public property and to abjure violence. The State of Haryana has enacted “the Haryana Prevention of Defacement of Property Act, 1989”. which extends to whole of the State of Haryana in which the term defacement of property is defined under Section 2(a)(b) of the Act. Section 3 of the Act provides for advertisement in writing at places CWP No.11961 of 2012 - 17 - ordered by Block Development and Panchayats Officer (BDPO) or Social Education and Panchayats Officer (SEPO) in the rural areas and Executive Officer or Secretaries of the Municipalities or any other agencies notified by the Government in the urban area on payment of fee and Section 3A provides penalties for the Act of defacement of the property. Section 5 has empowered the State Government to take steps as may be necessary to remove defacement and any amount spent in this behalf can be recovered by the Collector as arrears of land revenue. The Union Territory, Chandigarh is following the West Bengal Prevention of Defacement of Property Act, 1976 in which similar powers have been given for imposition of penalty and removal of defacement in terms of Section 3 & 5 of the Act. The State of Punjab, as per their affidavit filed in this Court has formulated Control of Advertisement Byelaws-2002 under which they can remove unauthorized hoardings etc. and take steps to check defacement and destruction of the public property by the residents/citizens. Since, respective affidavits/replies have been filed by both the States and U.T., Chandigarh regarding the steps which are being taken, we close this writ petition directing the respondents to carry out the work which has been undertaken in its letter and spirit and also educate the masses about the consequences of violation of the relevant provisions of law. CWP No.11961 of 2012 - 18 - Both the State of Haryana, Punjab and U.T. Chandigarh are directed to place on record the action taken report after six months of the passing of this order. (A.K. SIKRI) (RAKESH KUMAR JAIN) CHIEF JUSTICE JUDGE APRIL 01 2013 Vivek