2017(3) Law Herald (P&H) 2343 (DB) : 2017 LawHerald.Org 1358
INTHE HIGH COURT OF PUNJAB AND HARYANA [DIVISION BENCH]
Before
Hon’ble Mr. Justice S.S. Saron
Hon’ble Mr. Justice Avneesh Jhingan
CWPNo. 13340 of 2017 (O&M)
Vipan Kumar & Ors.
v.
State of Punjab & Ors.
Decided on 17/07/2017

For the Petitioner: For the Respondents:
Mr. Shekhar Verma, Advocate.
Mr. P.P.S. Thethi, Additional Advocate General, Punjab, Ms. Komal Mittal,
IAS, SDM, Mukerian; Mr. Kamaljinder Singh, E.O., Municipal Council,
Mukerian and Mr. Dharambir Singh, J.E.,Punjab Pollution Control Board,
Hoshiarpur.
Public NuisanceMunicipal Authorities are under a statutory duty and obligation to remove the garbage from the city.
Criminal Procedure Code, 1973, S.133–Public Nuisance-Municipal Authorities are
under a statutory duty and obligation to remove the garbage from the city–SDM is
invested with the powers under S.133 CrPC to remove the nuisance—Non
availability of funds, inadequacy or inefficiency of the staff, insufficiency of
machinery etc., it was said, could not be pleaded as a ground for non-performance
of their statutory obligations.                                                                (Para 8)
CASES CITED:
  1. Ratlam v. Vardhichand, AIR 1980 SC 1622 (Para 7)
  2. B.L. Wadhera v. Union of India & Ors., AIR 1996 SC 2969 (Para 8)
JUDGMENT
Mr. S.S. Saron, J.:- The petitioners – Vipan Kumar and others by way of present petition under Article 226 of the Constitution of India seek a mandamus directing the Municipal Committee, Mukerian (respondent No. 5) to implement and comply with the Municipal Solid Wastes (Management and Handling) Rules, 2000 and Municipal Solid Wastes (Management and Handling) Rules, 2016 and in the alternative direct the State Government to dissolve the Municipal Council, Mukerian and statutorily take over its functions and ensure compliance of all statutory provisions in the interest of the residents of the Mukerian Town.
  1. The grievance of the petitioners primarily is that garbage in large scale has been dumped all
    around Mukerian Town and no effective steps are being undertaken by the Municipal Council,
    Mukerian for its removal. Therefore, aggrieved against the complete inaction of the Municipal
    Council, Mukerian, they have filed the present petition in the nature of public interest.
  2. Copies of the petition were given to Mr. P.P.S. Thethi, Additional Advocate Genera), Punjab,
    on 13.07.2017 so as to enable him to seek instructions.
  3. Komal Mittal, IAS, Sub Divisional Magistrate, Mukerian; Mr. Kamaljinder Singh, Executive
    Officer, Municipal Council, Mukerian and Mr. Dharambir Singh, J.E., Punjab Pollution Control
    Board, Hoshiarpur are present.
  4. Learned State counsel on instructions from the officials of the Municipal Council, Mukerian
    and the Punjab Pollution Control Board, Hoshiarpur, who are present submits that garbage
    from Mukerian Town would be lifted and put at a site which has been identified at village
    Tikhowal, Tehsil Mukerian, District Hoshiarpur. The said site is at a distance of 13 kilometres
    from Mukerian Town. The garbage from Mukerian Town, it is submitted, would be removed as
    expeditiously as possible and hopefully within a period of three months.
  5. It is to be noticed that the Sub-Divisional Magistrate, Mukerian who is present in Court has
    powers under Section 133 of the Code of Criminal Procedure (Cr.P.C. – for short) for removal
    of nuisance.
  6. Hon’ble the Supreme Court in Municipal Council, Ratlam v. Vardhichand, AIR 1980 SC1622
    has held that the Magistrate’s responsibility under Section 133 Cr.P.C. is to order removal of
    nuisance within a time to be fixed in the order. This it was said is a public duty implicit in the public
    power to be exercised on behalf of the public and pursuant to a public proceeding. It was said that
    Section 133 Cr.P.C., permits enforcement of civic rights under the Municipal Law where the
    neglect had led to a public nuisance. The Section permits affirmative action to abate the
    nuisance on a time bound basis by issuing specific directives. Failure to comply with the
    directions issued by a Magistrate would be visited with the punishment contemplated by Section
    188 of the Indian Penal Code (‘IPC’ – for short). The Municipal or other Executive Authorities are
    bound by the order under Section 133 Cr.P.C. and they are to obey the directions of the Sub
    Divisional Magistrate because disobedience, if it causes obstruction or annoyance or injury to
    any persons lawfully pursuing their employment is to be punished with simple imprisonment or
    fine as prescribed in Section 188IPC. The offence is aggravated if the disobedience tends to
    cause danger to human health or safety. The imperative tone of Section 133 Cr.P.C. read with
    the punitive temper of Section 188 IPC makes the prohibitory act a mandatory duty.
  7. In Dr. B.L. Wadhera v. Union of India and others, AIR 1996 SC 2969, it was held by the
    Supreme Court that it is clear from various provisions of the Delhi Municipal Corporation Act
    and the New Delhi Municipal Council Act that the Municipal Corporation Delhi (MCD) and the
    New Delhi Municipal Corporation (NDMC) constituted under the Acts were under a statutory
    obligation to scavenge and clean the city of Delhi. It was said that it is mandatory for these
    authorities to collect and dispose of the garbage/waste generated from various sources in the
    The MCD and NDMC had been wholly remiss in the performance of their statutory duties.
    Apart from the rights guaranteed under the Constitution, the residents of Delhi had a statutory
    right to live in a clean city. The Courts were justified in directing the MCD and NDMC to perform
    their duties under the law. Non availability of funds, inadequacy or inefficiency of the staff,
    insufficiency of machinery etc., it was said, could not be pleaded as a ground for non-
    performance of their statutory obligations. Accordingly, directions were issued for collection
    and disposal of garbage to keep the city clean.
  1. In the circumstances, there is no reason whatsoever as to why the Municipal Authorities at
    Mukerian should not undertake the task of removing the garbage from the city to make the city
    clean and habitable for its residents. They are under a statutory duty and obligation to remove
    the garbage from the city. The Sub Divisional Magistrate, Mukerian is invested with the powers
    under Section 133 Cr.P.C. to remove the nuisance.
  2. Therefore, the learned Sub Divisional Magistrate, Mukerian shall ensure that she performs
    her statutory duty and ensures that the garbage is removed from Mukerian Town preferably
    within a period of three months as has been submitted. It is made clear that the Sub Divisional
    Magistrate shall exercise all powers contemplated by Section 133 Cr.P.C for the removal of
    garbage and would be at liberty to initiate action under Section 188 IPC against those
    disobeying her orders.
  3. The writ petition is accordingly disposed of with liberty to the petitioners to seek revival of the
    same, if need be.