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PETITIONER: ALMITRA H.  PATEL AND ANR.  PETITIONERS

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.  ..  RESPONDENTS

DATE OF JUDGMENT:       15/02/2000

BENCH: M.B.Shah, B.N.Kirpal, D.P.Mohapatro

JUDGMENT:

D E R       KIRPAL,J.

     More  in anguish, than out of anger, this Court nearly four years ago in Dr.  B.L.  Wadhera Vs.  Union of India and Ors.  [(1996) 2 SCC 594 at 595] observed:  ?Historic city of Delhi   the capital of India  is one of the most  polluted cities  in  the  world.  The  authorities,  responsible  for pollution  control and environment protection, have not been able  to  provide  clean  and  healthy  environment  to  the residents  of  Delhi.  The ambient air is so  much  polluted that  it  is difficult to breathe.  More and more  Delhities are   suffering  from  respiratory   diseases   and   throat infections.   River  Yamuna   the main source  of  drinking water  supply    is the free dumping  place  for  untreated sewage  and  industrial  waste.  Apart from  air  and  water pollution,  the city is virtually an open dustbin.   Garbage strewn  all  over  Delhi is a common sight.   The  Municipal Corporation  of Delhi (the MCD) constituted under the  Delhi Municipal  Corporation  Act,  1957 (Delhi Act) and  the  New Delhi Municipal Council (the NDMC) constituted under the New Delhi Municipal Council Act, 1994 (New Delhi Act) are wholly remiss in the discharge of their duties under law.  It is no doubt   correct   that     rapid   industrial   development, urbanisation and regular flow of persons from rural to urban areas  have  made major contribution  towards  environmental degradation but at the same time the authorities  entrusted with  the work of pollution control  cannot be permitted to sit  back with folded hands on the pretext that they have no financial  or  other means to control pollution and  protect the  environment.  The  Court then proceeded  to  issue  14 directions  in  an  effort to see that the  capital  of  the biggest  democracy in the world is not branded as being  one of the most polluted cities in the world.

     It  is  indeed  unfortunate  that  despite  more  than sufficient  time  having elapsed the condition of Delhi  has not  improved.   The citizens of Delhi  increasingly  suffer from  respiratory  and other diseases, the river  Yamuna  is highly  polluted  and  garbage and  untreated  domestic  and industrial waste is being either freely dumped into the said river or is left on open land, large volume of which remains unattended.

     The  present  writ  petition  is  concerned  with  the question  of  solid  waste disposal.  By  order  dated  16th January,  1998 this Court constituted a Committee headed  by

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Mr.   Asim  Burmon to look into all aspects of  urban  solid waste  management  and in particular to the  following  four areas:

     1.   Examine  the existing practices and  to  suggest hygienic  processing and waste disposal practices and proven technologies on the basis of economic feasibility and safety which the Corporations/Government may directly or indirectly adopt or sponsor.

     2.   Examine and suggest ways to improve conditions in the  formal  and informal sector for promoting  eco-friendly sorting, collection, transportation, disposal, recycling and reuse.

     3.   To  review Municipal bye-laws and the  powers  of local  bodies and regional planning authorities and  suggest necessary  modifications  to   ensure  effective  budgeting, financing, administration, monitoring and compliance.

     4.   Examine  and formulate standards and  regulations for  management  of  urban solid waste, and set  time  frame within which the authorities shall be bound to implement the same.

     After  a preliminary and then the final report of  the said  committee was received notices were issued to all  the States  who  were  required to file their responses  to  the report  of the committee.  None of the States really opposed the  recommendations made by the committee and it is noticed that  the  responses  of the States were in  fact  positive. Keeping   the  aforesaid  report  in  mind,  Management   of Municipal  Solid Waste (Management and Handling) Rules  1999 were  notified  by  the  Central Government  which,  as  the heading  itself suggests, deals with the question as to  how the solid waste in the cities is to be managed and handled.

     In  this Courts order dated 15th October, 1999 it was indicated  that  we  proposed  to take up  the  question  of cleaning  of  four  metropolitan   cities,  namely,  Mumbai, Chennai, Calcutta and Delhi as also the city of Bangalore.

     We have first heard counsel appearing on behalf of the National  Capital Territory of Delhi in connection with  the management  and handling of the solid waste.  It was in this connection that our attention was drawn to the 14 directions issued  by this Court in Dr.  B.L.  Wadheras case  [supra]. It is indeed unfortunate that till today the said directions have  not  been  complied with.  When this was  put  to  the learned  counsel  appearing  for Delhi as to  why  the  said directions  were not complied with, there was, in effect, no satisfactory  answer.  For example, sites for landfill  have not been identified and handed over to the MCD nor have four additional  compost  plant been constructed though  specific direction  in this regard was issued in Dr.  B.L.  Wadheras case.   The  Court also approved of the experimental  scheme placed  before it by the MCD where-under certain  localities had  been  selected for distribution of polythene  bags  and collection  of  garbage from door to door but  no  effective progress  appears  to have been made in this regard.   These are  but  a  few examples which show non-compliance  of  the directions issued.

     We  are not oblivious of the fact that in a large city like  Delhi  where  the floating population which  comes  in

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every  day  is  not very small, keeping the  city  clean  is indeed  a daunting task.  Just because the work involved  is difficult  cannot  be  a reason for lack  of  initiative  or inaction on the part of the authorities concerned.

     We  are  informed that one of the  local  authorities, namely,  MCD  itself  employ   about  forty  thousand  safai karamcharis.   This is in addition to the staff employed  by other  local  bodies,  namely, the NDMC and  the  Cantonment Board.   Like  all government and municipal employees  these karamcharis  are expected to work for the stipulated  period of time, namely, eight hours a day.  It was submitted by Mr. Dushyant  Dave,  learned Amicus Curiae that  the  insanitory conditions  of different areas of Delhi does not in any  way show  that requisite effort has been put in or the  required time  spent in the cleaning operations which are supposed to be carried out by this large workforce.  These employees are more invisible than visible.  There appears to be a complete lack of accountability, at all levels of the Corporation, in this behalf.

     Keeping Delhi clean is not an easy task but then it is not  an  impossible  one  either.    What  is  required   is initiative,  selfless  zeal and dedication and  professional pride, elements which are sadly lacking here.

     Surat  had for time immemorial been known to be one of the  dirtiest  cities in the country.  The plague  there  in 1995  was  the  result of the filth  which  had  accumulated therein.   Nevertheless  the effort of one man, namely,  the Municipal  Commissioner, who worked in the field and in  the office  with dedication resulted in not only eradicating the plague  and cleaning up Surat but gave the city of Surat the distinction of being the second most clean city in the whole of  India.  The people of Surat who threw garbage all around were  so affected by the tireless effort of one person  that they  themselves have now become zealous guardians of  their new found clean city of Surat.  This shows what one man as a head  of the organisation, like Municipal Corporation,  with selfless  zeal,  initiative  and   dedication  and   without allowing  any outside interference can achieve by motivating his  employees  to  clean up the city while  acting  fairly, justly and efficiently within the four corners of the law.

     In Delhi which is the capital of the country and which should be its show piece no effective initiative of any kind has  been  taken  by   the  numerous  governmental  agencies operating here in cleaning up the city.  As a result thereof the Court had in Dr.  B.L Wadheras case, per force, to step in  because of the non- performance or non-implementation of the  law by the municipal authorities.  The law, inter alia, makes  it  obligatory on them to discharge  their  municipal functions  and at least prevent filth and garbage from lying strewn  at different public places causing hazard to  public health.

     The  local  authorities are constituted for  providing services  to the citizens  not merely to provide employment to  a  few of its inhabitants.  Tolerating filth, while  not taking   action  against  the   lethargic  and   inefficient workforce  for  fear of annoying them, is  un-understandable and  impermissible.  Non-accountability has possibly led  to lack of effort on the part of the employees concerned.  They are  perhaps sanguine in their belief that non-  performance is not frowned upon by the Government or by the heads of the

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organisations and no harm will befall them.

     Domestic  garbage and sewage is a large contributor of solid  waste.  The drainage system in a city is intended  to cope  and  deal  with household effluent.  This is so  in  a planned  city.  But when a large number of inhabitants  live in  unauthorised  colonies, with no proper means of  dealing with  the  domestic effluents, or in slums with no care  for hygiene the problem becomes more complex.

     Establishment  or creating of slums, it seems, appears to  be  good business and is well organised.  The number  of slums  has  multiplied in the last few years by  geometrical proportion.   Large  areas of public land, in this way,  are usurped  for  private use free of cost.  It is difficult  to believe  that this can happen in the capital of the  country without  passive  or  active connivance of the  land  owning agencies  and/or the municipal authorities.  The promise  of free  land, at the taxpayers cost, in place of a jhuggi, is a  proposal which attracts more land grabbers.  Rewarding an encroacher  on public land with free alternate site is  like giving  a  reward to a pickpocket.  The department  of  slum clearance  does  not seem to have cleared any  slum  despite it’s  being in existence for decades.  In fact more and more slums   are  coming  into   existence.   Instead  of   Slum Clearance  there is Slum Creation in Delhi.  This in turn gives  rise  to domestic waste being strewn on open land  in and around the slums.  This can best be controlled at least, in  the  first instance, by preventing the growth of  slums. The  authorities must realise that there is a limit to which the population of a city can be increased, without enlarging its  size.   In other words the density of  population  per square  kilometer  cannot be allowed to increase beyond  the sustainable  limit.  Creation of slums resulting in increase in  density  has to be prevented.  What the  slum  clearance department  has  to  show,  however, does  not  seem  to  be visible.   It  is the garbage and solid waste  generated  by these   slums   which  require  to   be  dealt   with   most expeditiously and on the basis of priority.

     It  was suggested by the learned Amicus Curiae that we should  issue  various  directions to the MCD and  the  NDMC including  direction  relating  to the manner in  which  the solid waste generated in Delhi is to be handled.  We believe it  is not for this Court to direct as to how the  municipal authorities  should  carry out their functions  and  resolve difficulties  in  regard to the management of  solid  waste. The Court, in fact, is ill equipped to do so.  Without doubt the  Governmental  agencies including the local  authorities have  all the powers of the State to take action and  ensure that  the city remains clean.  They have only to wake up and act.   The  Court  should, however, direct  that  the  local authorities,  Government and all statutory authorities  must discharge  their statutory duties and obligations in keeping the city at least reasonably clean.  We propose to do so now by issuing appropriate directions.

     Before  we pass the necessary orders some difficulties are  stated to have been encountered in implementing some of the  directions  in Dr.  B.L.  Wadheras case (supra)  which need to be dealt with.

     One of the difficulties pointed out before us was that even  though  the MCD and the NDMC Acts permit action  being taken,  inter  alia,  against persons who  litter  the  city

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sufficient  number of judicial magistrates are not available for  ensuring  proper enforcement of the provisions  of  the said  Acts.  But the shortage of judicial magistrates can be easily  overcome  by  the   Government  appointing  suitable persons as Executive Magistrates under Section 20 or Special Executive  Magistrates  under  Section  21 of  the  Code  of Criminal  Procedure  who can be empowered to deal with  such minor  offences  under  the provisions of the MCD  and  NDMC Acts.    There  are  large   number  of  retired  government officials  and ex-defence officers who have held responsible posts  and  are  living in Delhi who, we are sure,  will  be willing to act as such Magistrates.  Delhi is divided into a number  of  Municipal wards and for every ward one  or  more Executive  Magistrate  or Special Executive  Magistrate  can easily be appointed.  This will also take some burden of the Courts.

     The  counsel  for the MCD has submitted  that  despite orders  having  been  passed in Dr.   B.L.   Wadehras  case [supra]  sufficient  number  of  sites  for  landfills  have neither  been identified nor handed over to it.  One of  the reasons  for  the  sites not being made  available,  it  was stated,  was  that land owning agencies like the DDA or  the Government  of  National  Capital  Territory  of  Delhi  are demanding market value of the land of more than rupees forty lacs  per  acre before the land can be transferred  to  MCD. Keeping  Delhi clean is a governmental function.  There  are more  than one agencies that administer Delhi, namely, Union of  India through Ministry of Urban Development,  Government of National Capital Territory of Delhi, Commissioner of MCD, Chairman,  NDMC,  Cantonment Board and the DDA.  It  is  the duty  of  all  concerned  to see  that  landfill  sites  are provided  in  the interest of public health.   Providing  of landfill  sites is not a commercial venture, which is  being undertaken by the MCD.  It is as much the duty of the MCD as that  of  other  authorities enumerated above  to  see  that sufficient  sites  for landfills to meet the requirement  of Delhi for next twenty years are provided.  Not providing the same  because the MCD is unable to pay an exorbitant  amount is  un-understandable.  Landfill site has to be provided and it  is  wholly immaterial which Governmental agency  or  the local  authority has to pay the price for it.  As for nearly four  years  since  the direction was issued  in  Dr.   B.L. Wadheras  case (supra) this problem has not been solved  it has now become necessary for this Court to issue appropriate directions in this behalf, which we shall presently do.

     One  of  the important directions issued in Dr.   B.L. Wadheras  case  was regarding the construction  of  compost plants.   In  addition to the compost plant at Okhla,  which was  expected  to  be in operation by 1st June,  1996,  four additional  compost  plants  were  to  be  constructed,   as recommended  by  Jagmohan Committee.  This has not  happened and  even  land for sufficient number of compost plants  has not  been  identified  or handed over.  It  has,  therefore, become  necessary  to  issue time-bound directions  in  this behalf.

     Uptill now no action has been taken against people who spread litter.  Discipline amongst people in this behalf has to  be  inculcated  and the  guilty  punished.   Appropriate orders  in  this behalf are proposed to be issued  including the  appointment  of  Magistrates under  Section  20  and/or Section 21 of the Code of Criminal Procedure, inter alia, to deal with such cases.

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     CONCLUSIONS:

     In  addition  to and not in derogation of  the  orders passed  by this Court in Dr.  B.L.  Wadheras case  (supra), we order as follows:

     1.   We  direct  the Municipal  Corporation  of  Delhi through  the Commissioner, NDMC through its Chairman and the Cantonment Board through its Executive Officer and all other concerned      officials           including      Sanitation Superintendents/Chief     Sanitary       Inspectors/Sanitary Inspectors/Assistant      Sanitary       Inspectors/Sanitary Guides/Medical   Officers  to  ensure   that  the   relevant provisions of the DMC Act, 1957, New Delhi Municipal Council Act,  1994  and  the  Cantonments   Act,  1924  relating  to sanitation and public health prohibiting accumulation of any rubbish,  filth, garbage or other polluted obnoxious matters in   any  premises  and/or   prohibiting  any  person   from depositing  the same in any street or public place shall  be scrupulously  complied.   2.   We direct that  the  streets, public premises such as parks etc.  shall be surface cleaned on  daily  basis, including on Sundays and public  holidays. 3.   We  direct  and  authorise  the  MCD,  NDMC  and  other statutory  authorities through competent officers, as may be designated  by  them,  (but not lower than in  the  rank  of Sanitary  Superintendent  or  equivalent post) to  levy  and recover  charges  and  costs from any  person  littering  or violating  provisions  of  the diverse  Acts,  bye-laws  and Regulations  relating to sanitation and health for violating the  directions  being issued herein.  For this purpose  the Commissioner,  MCD, Chairman, NDMC and other concerned heads of  sanitary  authorities will prepare and publish  for  the information   of  public  at  large   the  scale   of   such charges/costs  as may be levied and recovered in respect  of the  diverse acts of commission/omission.  The charges/costs will  be recoverable on the spot by such designated officers from  any  person  found littering or throwing  rubbish  and causing  nuisance  so  as to affect  sanitation  and  public health.   The Commissioner, MCD and Chairman, NDMC and other authorities  may  frame and publish such schemes as  may  be necessary   to  ensure  compliance   of   these   directions forthwith.   Till  the scheme is framed and  published,  the authorities named above would recover Rs.50/- as charges and costs  from any person littering or violating provisions  of the  Municipal  Corporation  Act, Bye-laws  and  Regulations relating  to sanitation and health.  This part be  published and  implemented at the earliest through concerned  Sanitary Inspectors.  4.  We direct the MCD through the Commissioner, NDMC  through  its Chairman and other statutory  authorities through   their  respective  heads  to  ensure  proper   and scientific  disposal of waste in a manner so as to  subserve the common good.  In this connection they shall endeavour to comply  with the suggestions and directions contained in the report prepared by the Asim Burmon Committee.  5.  We direct that sites for land fills will be identified bearing in mind the  requirement of Delhi for the next twenty years within a period  of  four  weeks from today by the  exercise  jointly conducted  by  Union of India through the Ministry of  Urban Development,  Government  of National Capital  Territory  of Delhi,  Commissioner, MCD and Chairman, NDMC and other heads of statutory authorities like the DDA etc.  These sites will be   identified   keeping   in    mind   the   environmental considerations and in identifying the same Central Pollution Control  Boards  advice will be taken  into  consideration.

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The  sites  so  identified shall be handed over to  the  MCD and/or  NDMC  within two weeks of the  identification,  free from  all encumbrances and without MCD or the NDMC having to make any payment in respect thereof.  6.  We direct Union of India  through the Ministry of Urban Development, Government of National Capital Territory of Delhi, Commissioner of MCD, Chairman  NDMC and other statutory authorities like DDA  and Railways  to take appropriate steps for preventing any fresh encroachment  or unauthorised occupation of public land  for the  purpose  of dwelling resulting in creation of  a  slum. Further appropriate steps be taken to improve the sanitation in  the  existing slums till they are removed and  the  land reclaimed.   7.   We further direct Union of  India  through Ministry  of  Urban  Development,   Government  of  National Capital  Territory of Delhi, Commissioner MCD, Chairman NDMC and  other statutory authorities like DDA etc.  to  identify and  make  available to the MCD and NDMC within  four  weeks from  today sites for setting up compost plants.   Initially considering  the extent of solid waste, which is required to be  treated  by  compost plants, the number of  sites  which should be made available will be eight.  Such sites shall be handed  over to the MCD/NDMC free of cost and free from  all encumbrances  within  two weeks of identification.  MCD  and NDMC  shall  thereupon  take appropriate steps to  have  the compost plants/processing plants established or caused to be established  and to be in operation by 30th September, 2000. 8.   We direct the MCD, NDMC and other statutory authorities concerned  with  sanitation and public health  to  regularly publish the names of concerned Superintendents of Sanitation and  such  equivalent  officers   who  are  responsible  for cleaning   Delhi   who   can    be   approached   for    any complaint/grievance  by the citizens of Delhi together  with their  latest  office and residential telephone numbers  and addresses.  9.  We direct the Government of National Capital Territory  of Delhi to appoint Magistrates under Section  20 and/or Section 21 of the Code of Criminal Procedure for each Board/Circle/Ward  for ensuring compliance of the provisions of  the MCD and NDMC Acts and to try the offences  specified therefor  in  relation  to littering and  causing  nuisance, sanitation  and public health.  These appointments shall  be made within a period six weeks from today in conformity with the reasons contained in this order.  10.  All the concerned authorities will file compliance reports of these directions within  eight  weeks  from  today.   The  Central  Pollution Control  Board  will  also  file within  the  same  time  an affidavit  indicating  to what extent the directions  issued have been complied with.

     It  is  needless  to  say that the  violation  of  the directions issued by this Court shall be viewed seriously.