Municipal Council, Ratlam v Vardichand (1980)

This is the case that turned a dusty magisterial power to abate a public nuisance into an instrument of environmental and social justice. It is the leading Indian authority for four propositions, all examinable:

1. A statutory body can be compelled by a criminal court to perform an affirmative public duty — to build drains and latrines, on a time-bound basis, under judicial supervision.
2. Financial inability is no defence to a statutory duty or to an order under s. 133.
3. Section 133 reads discretionary but operates as mandatory once the jurisdictional facts are found.
4. Public nuisance from industrial effluent is a matter of social justice, and industry may be restrained under the same section.

Chapter 3 treats BNSS s. 152 as often the most useful of the three general-law remedies, because it is quick and does not wait on a trial. Ratlam is the reason.

Ward No. 12, New Road, Ratlam town, in Madhya Pradesh. Krishna Iyer J.'s description is famous and worth reading once in the original:

The ward "is an area where prosperity and poverty live as strange bedfellows". "The rich have bungalows and toilets, the poor live on pavements and litter the streets with human excreta because they use roadsides as latrines in the absence of public facilities." The council being "too busy with other issues to bother about the human condition", the "crying demand for basic sanitation and public drains fell on deaf ears".

To this was added a second cause: "the discharge from the Alcohol Plant of malodorous fluids into the public street". In the resulting stagnant water "mosquitoes found a stagnant stream of stench so hospitable to breeding and flourishing".

The residents applied to the Sub-Divisional Magistrate, Ratlam, under s. 133 CrPC to abate the nuisance. The Magistrate's own findings, quoted in the judgment, record a dirty nallah flowing in the middle of New Road into which "dirty and filthy water of Alcohol Plant having chemical and obnoxious smell, is also released"; a drain begun by the municipality and "left the construction in between", so that "the dirty water of half constructed drain and septic tank is flowing on the open land of applicants", accumulating in pits, creating "dirt and bad smell" and mosquitoes, reaching nearby houses, and leaving the residents "unable to live and take rest in their respective houses".

The Magistrate found the facts proved and ordered the municipality to construct drain pipes with a flow of water. The municipality, in Krishna Iyer J.'s phrase, "rushed from court to court till, at last, years after, it reached this Court as the last refuge of lost causes".

Its only plea was poverty: that its funds being insufficient it could not carry out its duties under s. 123 of the M.P. Municipalities Act 1961.

M.P. Municipalities Act 1961, s. 123 casts a duty on a Council to make "reasonable and adequate provision" for, among other things, "cleansing public streets, places and sewers" and all places open to the enjoyment of the public, "removing noxious vegetation, and abating all public nuisances", and "disposing of night-soil and rubbish and preparation of compost manure from night-soil and rubbish".

CrPC s. 133(1) empowers a District Magistrate, a Sub-Divisional Magistrate or a specially empowered Executive Magistrate, on a police report "or other information" and on such evidence as he thinks fit, where he considers "that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public", to make a conditional order requiring removal "within a time to be fixed in the order", or requiring the person to appear and "show cause" why it should not be made absolute.

IPC s. 188 supplies the sanction: disobedience of an order lawfully promulgated by a public servant is punishable, and where the disobedience "causes or tends to cause danger to human life, health or safety" the punishment extends to six months or fine up to one thousand rupees or both.

The Court framed it in one sentence: "The key question we have to answer is whether by affirmative action a court can compel a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost and on a time-bound basis."

Appeal dismissed, subject to modifications making the magistrate's order workable.

1. Financial inability is no answer. "The plea of the municipality that notwithstanding the public nuisance financial inability validly exonerates it from statutory liability has no juridical basis." The reason is stated with force: "The criminal procedure code operates against statutory bodies and others regardless of the cash in their coffers, even as human rights under Part III of the Constitution have to be respected by the State regardless of budgetary provision." Section 123 has "no saving clause when the municipal council is penniless"; otherwise "a profligate statutory body or pachydermic governmental agency may legally defy duties under the law by urging in self-defence a self-created bankruptcy or perverted expenditure budget."

2. Section 133 is mandatory in operation. "Section 133 Cr PC is categoric, although reads discretionary. Judicial discretion when facts for its exercise are present, has a mandatory import." Where the Magistrate has information and evidence disclosing a public nuisance, "he shall act". His responsibility "is to order removal of such nuisance within a time to be fixed in the order", and this is "a public duty implicit in the public power to be exercised on behalf of the public and pursuant to a public proceeding". Read with the penal consequence: "The imperative tone of Section 133 Cr PC read with the punitive temper of Section 188 IPC make the prohibitory act a mandatory duty."

3. Affirmative directions are within the judicial function. "The nature of the judicial process is not purely adjudicatory nor is it functionally that of an umpire only. Affirmative action to make the remedy effective is of the essence of the right which otherwise becomes sterile." Section 133 "authorise the prescription of a time-limit for carrying out the order" and "spells out the power to give specific directives".

4. Sanitation is a human right, and industry pays. "Decency and dignity are non-negotiable facets of human rights and are a first charge on local self-governing bodies." And on the factory: "Public nuisance, because of pollutants being discharged by big factories to the detriment of the poorer sections, is a challenge to the social justice component of the rule of law."

These are what makes the case an environmental case and not merely a municipal-law case.

1. The Ratlam Municipal Council to take immediate action, within its statutory powers, to stop the effluents from the Alcohol Plant flowing into the street; the State Government also to act; and the Sub-Divisional Magistrate to use s. 133 to abate the nuisance so caused. The Court's rebuke is the line to quote: "Industries cannot make profit at the expense of public health."
2. Within six months, construction of a sufficient number of public latrines for use by men and women separately, with water supply and scavenging service morning and evening; the Health Officer to report at the end of the six-monthly term; local people to be trained in their use, because "Conscious cooperation of the consumers is too important to be neglected by representative bodies."
3. The State Government to instruct the Malaria Eradication Wing to stop mosquito breeding in Ward 12, with a report to the Sub-Divisional Magistrate.
4. The municipality not merely to construct drains but to fill up cesspools and other pits of filth and keep the place free of accumulations — the Court adding the fiscal argument that "what it lays out on prophylactic sanitation is a gain on its hospital budget".
5. Enforcement. If the directions are not complied with "the sub-Divisional Magistrate will prosecute the officers responsible", and the Supreme Court "will also consider action to punish for contempt in case of report by the sub-Divisional Magistrate of wilful breach by any officer".

The Court also expected the State Government to make available "loans or grants sufficient financial aid" to enable the municipality to comply, invoking Art. 47, which makes it a paramount principle of governance that steps are taken "for the improvement of public health" as among the State's primary duties; and it told the municipality to "slim its budget on low priority items and elitist projects". And it made clear that the relief was not to be confined to the litigating ward: "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."

Procedure as the carrier of rights. The judgment opens on that theme — it is "procedural rules" which "infuse life into substantive rights, which activate them to make them effective" — and the case is best understood as an argument about access to justice. Krishna Iyer J. treats the shift "from the traditional individualism of locus standi to the community orientation of public interest litigation" as mandated by the Preamble, and calls the case "a pathfinder in the field of people's involvement in the justicing process".

Why s. 133 and not a writ. The choice matters. A writ petition is slow and expensive; "The pressure of the judicial process, expensive and dilatory, is neither necessary nor desirable if responsible bodies are responsive to duties." Section 133 puts the remedy in the hands of an Executive Magistrate in the district, on information from anyone, with a criminal sanction behind it. It is, in modern terms, the cheapest environmental remedy in Indian law.

Directive Principles turned operative. Art. 47 is not enforceable, but s. 123 of the Municipalities Act is its statutory expression, and the Court says so: "Where directive principles have found statutory expression in Do's and Dont's the court will not sit idly by and allow municipal government to become a statutory mockery." And the closing warning about personal liability: "The wages of violation is punishment, corporate and personal."

A candid correction of the Magistrate. The Court noticed that the Magistrate had been influenced by the presence of prosperous and educated residents, and corrected him: in India "one man, one value" is the democracy of remedies, "and rich or poor the law will call to order where people's rights are violated". A good answer includes this; it shows the case is about the slum-dwellers and not only about the bungalows.

• *State of M.P. The answer is no — which is why *Ratlam is still good law.
• BNSS s. 152 now carries s. 133 forward. The case is cited under the new numbering without difficulty, because the language of the power is carried across.
• The continuing mandamus technique — specific directions, a reporting officer, a fixed period, contempt in reserve — is used in the Ganga cases (case 12), the Bichhri case (case 8) and by the National Green Tribunal.