Satpal Singh and Others Vs. Municipal Council Gardhiwala Through Its Executive Officer and Others - Court Judgment

The Applicants filed Writ Petition (Civil) No. 8783/2009 in the Honble High Court of Punjab and Haryana at Chandigarh, being Public Interest Litigation, mainly seeking direction to Respondents for shifting of “Hada Rori” (a place where dead animals carcasses, hide and remains are dumped) to a suitable place and further to implement provisions of the Municipal Solid Wastes (Management and Handling) Rules, 2000 (in short MSW Rules). The Writ Petition has been transferred to this Tribunal in keeping with directions of the Apex Court in WP (C) No. 50/1998 titled as “Bhopal Gas Peedith Mahila Udyog Sangathan and Ors. Vs Union of India and Ors.”. The Writ Petition has been converted in the form of an Application as required under the National Green Tribunal (Practice and Procedure) Rules, 2011.

2. Since the pleadings were filed before the Honble High Court, there was no need to file pleadings afresh. It is only by way of clarification that the Executive Officer of Municipal Council, Gardhiwala, Hoshiarpur (Punjab) filed additional affidavit along with certain documents.

3. The Applicants are inhabitants of Gardhiwala town. Admittedly, an open space used as “Hada Rori” (place for disposal of the carcasses, hide, remains, etc. of dead animals) is situated adjacent to the local grain market. There is no dispute about the fact that inhabitants of Gardhiwala town used and are using the said place for dumping of carcasses, hide and remains of dead animals.

4. Briefly stated, the case put-forth by the Applicants is that the carcasses of dead animals spread over at the place and emit foul smell in the nearby area. The stray dogs and scavenging birds loiter/hover around the remains of the dead animals, eat up some parts of the bodies and also scatter bones of the dead animals around the place. The stray dogs become furious, if passersby goes near the place. There are some instances of dog biting the passersby, including children. Thus, it causes nuisance to environment in the locality. The Municipal Council (Respondent No. 1) failed to perform its obligation to clean the public place by removing the remains of the dead animals. The Council totally failed to implement MSW Rules. With the result, the pollution around the place of “Hada Rori” is enhanced and has reached to the extent of intolerable level. Though, provisions under Section 154 and Section 168 of the Punjab Municipality Act, 1911 cast duty on the Municipal Council to remove and dump the remains of dead animals to a proper place and ensure cleanliness in the township, yet Municipal Council has failed to perform such a duty. The other Respondents also have failed to discharge their obligation. The Punjab Pollution Control Board is required to monitor implementation of the MSW Rules. However, the Punjab Pollution Control Board also committed dereliction in discharging such legal obligation. Though, representations were made by the Applicants to the Deputy Commissioner, yet the Respondents did not pay heed to the requests for appropriate implementation of the MSW Rules. The dumping ground (Hada Rori) ought to have been shifted to a proper place outside the limits of the Municipal Council. The Applicants, therefore, filed the present Application seeking direction to the Respondents as indicated herein before.

5. The Municipal Council, Gardhiwala filed reply by way of short affidavit sworn by the then Executive Officer. Main contention of the Municipal Council is that the place of “Hada Rori” falls outside the limits of Municipal Council. It is denied that the area is surrounded by population. According to the Municipal Council, the place used as “Hada Rori” is situated at a distance of approximately more than one mile beyond the Municipal limits. Still, the Municipal Council considered the representations of the local inhabitants. Necessary efforts were made to find out suitable land for dumping of carcasses but suitable place could not be located. The Municipal Council further averred that until a suitable land is made available, it has been decided to raise a boundary wall around the “Hada Rori”. The Municipal Council accordingly passed resolution no. 106 dated 21.05.2007 in this behalf.

6. The Respondent No. 1 (Municipal Council) further submits that all steps will be taken to shift the “Hada Rori” to other suitable place and also to erect a boundary wall around such place of dumping as and when the required funds would be available.

7. Respondent No. 2 (The Deputy Commissioner-cum-District Magistrate, Hoshiarpur) filed separate reply on the identical pleas raised by the Respondent No.1 (Municipal Council). According to Respondent No. 2, the place of “Hada Rori” falls outside the limits of Municipal Council, Gardhiwala. Moreover, there is no residential area around the site of “Hada Rori”, except some houses which have been constructed a few years earlier. The Respondent No. 2 denied all the material averments made in the Petition/Application.

8. The other two Respondents, namely, the State of Punjab and Punjab Pollution Control Board i.e. the Respondent No. 3 and Respondent No. 4 respectively, did not file any reply affidavit.

9. We have heard Learned Counsel for the parties in extenso. We have also perused the relevant documents filed by the parties.

10. Mr. Sumit Sharma, Learned Counsel for the Applicant contended that the place of “Hada Rori” is adjoining the residential locality of Ward No. 6 and as such it is the responsibility of the Municipal Council to implement the MSW Rules. He argued that the Respondents No. 1 and 2 have not specifically denied location shown in the map (Annex R-1) and, therefore, the plea that the site of “Hada Rori” is outside the Municipal limits is incorrect and unacceptable. He argued that even otherwise, throwing carcasses of dead animals, hide or remains of the dead animals at the site of dumping, ultimately, results in pollution, which adversely affects the health and wellbeing of the residents of nearby locality. He submits that the foul smell and frequent movements of stray dogs in the area must be appropriately dealt with in order to protect right to life, which is available to the citizens of the town. He points out that though, the Respondent No. 1 stated in the reply affidavit that steps were being taken to shift the “Hada Rori” to a suitable place and also to erect a boundary wall around the same, yet no action has been taken so far. He, therefore, urged to allow the Application.

11. Mr. P.N. Puri, Mr. Anil Soni and Ms. Gurinderjit Kaur, Learned Counsel for Respondent No. 1, Respondents No. 2 to 3 and Respondent No. 4, respectively, argued that the MSW Rules are not applicable to the present case. The disposal of dead animals will be governed by the Punjab Municipal Act, 2011. They argued that the site of “Hada Rori” does not fall within the limits of Municipal Council. They placed reliance on the affidavit of Shri Ram Prakash, Executive Officer, Municipal Council and the map showing the limits of Municipal Council. They would submit that the Applicants have no cause of action to seek reliefs against the Respondents. They contended that due to non-availability of funds as well as non-availability of alternative site, it is difficult to relocate the “Hada Rori”. Hence they sought dismissal of the Application.

12. The provisions of Rule (3)(xv) of The Municipal Solid Wastes (Management and Handling) Rules, 2000 defines municipal solid waste as follows:

(xv) “Municipal solid waste” includes commercial and residential wastes generated in a municipal or notified areas in either solid or semi-solid form excluding industrial hazardous wastes but including treated bio-medical wastes;”

The carcasses and remains of dead animals are, thus, a part of municipal solid wastes which are to be handled and managed as per The Municipal Solid Wastes (Management and Handling) Rules, 2000. The provision of sections 154 and 168 of The Punjab Municipal Act, 1911 refers to site selection and collection of dead animals. That, however, does not specify the procedure for scientific disposal and management of the wastes.

13. Clinching issue involved in the present application is as stated below:

Whether the site of “Hada Rori” falls within the limits of Municipal Council, Gardhiwala and therefore the Respondents are duty bound to follow the Municipal Solid Wastes (Management and Handling) Rules, 2000 or even otherwise the Respondents are duty bound to relocate the site of “Hada Rori” and to take proper care for the purpose of avoiding public nuisance as well as to protect right to life available to the citizens?

We record our finding on the above point in the “affirmative” for the reasons discussed hereinafter.

14. Before we consider merits of the matter, it may be stated that there is no dispute, whatsoever, that carcasses, hide and remains of dead animals are being dumped at the open place which is in the proximity of the township. There is no dispute about the fact that foul smell emanates from the carcasses and remains of the dead animals. The photographs filed by the Applicant (Annexure P-2) clearly show that stray dogs gather around the carcasses to eat flesh and other parts of the dead animals. It is but natural that frequent movement of the stray dogs cause nuisance to the adjacent dwellers. The Respondents have not disputed the fact that degradation to the environment is the result that follows due to such indisciplined and haphazard dumping of the carcasses, remains of dead animals and frequent movement of stray dogs in the vicinity.

15. The Municipal Council has produced relevant extracts of Gardhiwala Had Bast No. 19 (Annexure R-1/3). It appears that the record of Jamabandi is prepared in respect of the properties situated within the Municipal Council. The entry no. 141 of the said Register (pg 10) may be reproduced as below:

“ 141 4-1 Hada Rohri

0-4 Abadi

0-9 Abadi

0-12 Guudwara mandir

0-06 Chai”

16. The relevant record produced by the Respondents go to show that the dumping ground (“Hada Rori”) is owned by the Municipal Council after transfer of the village/land in its favour. Extracts of Jamabandi Register (pg-24) clearly show that Nagarpalika is the owner of the field no. 141 which consists of “Hada Rori” spread over in the area of 4 acres. These documents completely demolish the contention of the Respondents that the dumping ground (“Hada Rori”) is not the concern of the Municipal Council. Besides, the Respondents have filed a copy of the order passed by the Assistant Collector, Hoshiarpur in proceedings of Mutation No. 6688, H.B. No. 19 (Annexure R-1/4) (pg. -15). The order passed by the Assistant Collector reveals that the Khasra Nos. shown in column no. 6 of the mutation shall be mutated in favour of Municipal Council. It is also worthy to be noted that no private person has come forward claiming ownership of the said land.

17. Though, the Municipal Council categorically denied the fact that the dumping ground, namely, “Hada Rori” is surrounded by residential houses, yet this fact is clearly admitted by the Respondent No. 2 i.e. the Deputy Commissioner-Cum-District Magistrate. The main dispute raised by the Respondents No. 1 and 2 pertains to the location of the “Hada Rori”. It may be mentioned that the Applicants filed sketch map of the dumping ground called “Hada Rori” and the nearby places. It is categorically stated by the Applicants that the place of “Hada Rori” is adjacent to Ward No. 6 of the Municipal Council and there are houses on the Eastern side of the same. The map filed by the Applicants goes to show that there is a grain market (Dana Mandi) on Northern side of the site of “Hada Rori”. The Respondents have filed sketch map in order to show municipal limits of the town. On a perusal of the documents and map submitted subsequently by the Counsel of the Municipal Council, Gardhiwala and the affidavit of the Executive Officer, State Municipal Council, it is clear that Kasra No. 141 where “Hada Rori” is located was mutated in favour of the Municipal Council on 6th May, 1977, though it is situated outside the Municipal limit. This is also apparent from the letter dated 11th April, 2013, issued by Naib Tehsildar, Gardhiwala. Thus, the ownership of the land “Hada Rori” is shown in the name of Municipal Council and possession is shown as “under the possession of Adharmies” a caste mentioned in the list of Scheduled Castes. In any case, when the residential houses are adjoining the place of “Hada Rori”, it goes without saying that the Municipal Council is responsible to ensure proper hygienic conditions and protect the right to life which is enshrined under Article 21 of the Constitution.

18. Taking stock of all the relevant documents, we are of the opinion that irrespective of the location of the dumping ground “Hada Rori” ,whether within or outside the Municipal Limit ,it is the duty of the Municipal Council to handle and manage dumping/disposal of waste of the dead animals as per the MSW Rules as these wastes are generated from the Municipal area. We have noticed that the Municipal Council pleaded to take all steps to shift the “Hada Rori” to a suitable place and also to erect a boundary wall around the place. This statement was made in the reply affidavit dated 18.08.2009. Notwithstanding such contention of the Respondent No.1 (Municipal Council), nothing has been done so far. Needless to say, the air pollution has been continuing due to apathy of the Respondents No. 1 and 2.

19. As per the provisions of the MSW Rules, it is the duty of the Deputy Commissioner or District Magistrate to enforce the provisions of the MSW Rules and the Pollution Control Board shall monitor the compliance of the standard as specified under Schedules – II, III and IV. It would be useful to reproduce Rule No. 2, 4, Rule No. 5 and Rule No. 6 of the Municipal Solid Wastes (Management and Handling) Rules, 2000.

“Rule No. 2. Application-

These rules shall apply to every municipal authority responsible for collection, segregation, storage transportation, processing and disposal of municipal solid wastes.”

“Rule No. 4. Responsibility of municipal authority:-

1. Every municipal authority shall, within the territorial area of the municipality, be responsible for the implementation of the provisions of these rules, and for any infrastructure development for collection, storage, segregation, transportation, processing and disposal of municipal solid wastes.

2. The municipal authority or an operator of a facility shall make an application in Form-I, for grant of authorization for setting up waste processing and disposal facility including landfills from the State Board or the Committee in order to comply with the implementation programme laid down in Schedule –I.

3. The municipal authority shall comply with these rules as per the implementation schedule laid down in Schedule –I.

4. The municipal authority shall furnish its annual report in Form-II:-

a. to the Secretary-incharge of the Department of Urban Development of the concerned State or as the case may be of the Union territory, in case of a metropolitan city; or

b. to the District Magistrate or the Deputy Commissioner concerned in case of all other towns and cities, with a copy to the State Board or the Committee on or before the 30th day of June every year.

“Rule No. 5. Responsibility of the State Government and the Union territory Administrations:-

(1) The Secretary-incharge of the Department of Urban Development of the concerned State or the Union territory, as the case may be, shall have the overall responsibility for the enforcement of the provisions of these rules in the metropolitan cities.

(2) The District Magistrate or the Deputy Commissioner of the concerned district shall have the overall responsibility for the enforcement of the provisions of these rules within the territorial limits of their jurisdiction.

“Rule No. 6. Responsibility of the Central Pollution Control Board and the State Board or the Committees:-

1. The State Board or the Committee shall monitor the compliance of the standards regarding ground water, ambient air, leachate quality and the compost quality including incineration standards as specified under Schedules – II, III and IV.

2. The State Board or the Committee, after the receipt of application from the municipal authority or the operator of a facility in Form-I, for grant of authorization for setting up waste processing and disposal facility including landfills, shall examine the proposal taking into consideration the views of other agencies like the State Urban Development Department, the Town and Country Planning Department, Air Port or Air Base Authority, the Ground Water Board or any such other agency prior to issuing the authorization.

3. The State Board or the Committee shall issue the authorization in Form-III to the municipal authority or an operator of a facility within forty-five days stipulating compliance criteria and standards as specified in Schedules II, III and IV including such other conditions, as may be necessary.”

20. Apart from what we have discussed earlier, let it be noted that dumping of carcasses, remains of dead animals, etc. in the proximity of the residential area is not only the cause of air pollution but it also amounts to “public nuisance”. In “Municipal Council, Ratlam vs. Shri Vardichan and others” (1980) 4 SCC 162, the Apex Court held that the District Magistrate has authority to direct removal of such public nuisance. The Apex Court further held that financial stringency of the Municipal Body is not a defense in such a matter. The Apex Court observed:

“ 24. 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 fulfill its obligation under this Order. The State will realize 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. 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. Cappilletti holds good for Indian when he observes.”

21. The provisions of Section 154 and 168 of the Punjab Municipality Act, 1911 also indicate legal obligation cast on the Municipality/Municipal Committee. Section 154 reads as follows:

“ Section 154. Removal and deposit of offensive matters. The Committee may fix places within or, with the approval of the District Magistrate, beyond the limits of the municipality for the deposit of refuse, rubbish or offensive matter of any kind or for the disposal of the dead bodies of animals, and may by public notice give directions as to the time, manner and conditions at, in the under which such refuse, rubbish or offensive matter or dead bodies of animals may be removed along any street and deposit at such places.”

22. So also, Section 168 reads as follows:

“Section 168. Disposal of Dead animals: (1) Whenever any animal in the charge of any person dies otherwise than by slaughter either for sale or for some religious purpose, the person in charge thereof shall within twenty four hours either:-

(a) convey the carcass to a place (if any) fixed by the committee under section 154 for the disposal of the dead bodies of animals or to any place at least one mile beyond the limits of the municipality; or

(b) give notice of the death to the committee whereupon the committee shall cause the carcass to be disposed of.

2. In respect of the disposal of the dead body of an animal under clause (b) of sub section (1), the committee may charge, such fee as the committee may, by public notice, have prescribed.

3. For the purpose of this section the word “animal” shall be deemed to mean all horned cattle, elephants, camels, horses, ponies, asses, mules, deer, sheep, goats, swine and other large animals.

4. Any person bound to act in accordance with sub section (1) of this section shall, if he fails so to act, be punishable with fine which may extend to (five hundred rupees).”

23. Thus, considered from any angle, the Respondents are under legal obligation to ensure that pollution free air is available to the residents of the locality near the site of dumping place “Hada Rori”. The Respondents cannot abdicate their legal responsibility on flimsy grounds, like absence of fund or absence of land for relocation of “Hada Rori”. The Respondents have failed to implement Municipal Solid Wastes (Management and Handling) Rules, 2000 and discharge their duties under the Punjab Municipal Act, 1911.

24. So also, the Respondents have failed to ensure that Fundamental Right available to the citizens of the township in the matter of protection of life is taken care of. The right to life includes the right to pollution free air and pure water. Having regard to the foregoing discussion, we deem it proper to allow the application and give appropriate directions to the Respondents.

25. In the result, we allow the Application and direct the Respondents as follows:

1. The Respondents No. 1 to 3 shall take immediate action to shift the dumping ground “Hada Rori” to a suitable place outside the limits of Municipal Council and if necessary by acquiring a suitable land, after negotiating with owner of such land and to complete the shifting process within a period of six months hereinafter.

2. The Municipal Council shall construct a parapet wall around the place so selected for “Hada Rori” with wire mesh affixed at least two (2) feet above on such parapet wall, which shall be of five feet height, in order to avoid entry of stray dogs in the “Hada Rori” after shifting of the dumping ground.

3. The Municipal Council shall consult experts as well as the Punjab Pollution Control Board in order to examine whether the dumping can be made by creating ditch of appropriate depth. The dead animals, being biodegradable waste, could be processed to convert them into manure by composting under the provisions of MSW Rules (Schedule II)if it is found that the same will not cause any adverse impact on the ground water level and will not cause contamination/pollution of the ground water. The Respondents shall make arrangements for processing of wastes within a period of one year herein after.

4. The Punjab Pollution Control Board shall closely monitor the progress on alternate site selection and construction in “Hada Rori” and shall file affidavit on the progress six monthly for the next two (2) years hereinafter, in the Registry of National Green Tribunal.

The parties to bear their own costs. Application disposed off.