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2017 DIGILAW 278 (CHH)

Mukesh Kumar Dewangan v. State of Chhattisgarh

2017-07-03

SHARAD KUMAR GUPTA, THOTTATHIL B.RADHAKRISHNAN

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ORDER : 1. Heard learned counsel for the Petitioner, the learned Amicus Curiae, the learned Additional Advocate General, the learned Senior Counsel for Chhattisgarh State Pollution Control Board and the learned counsel for the Municipal Corporations, which are the Respondents. 2. The fundamental issue which is brought for consideration through this Public Interest Litigation is the massive discounting of the quality of potable water in the Municipal Corporation areas of Raipur, Bilaspur and Durg. One of the reason attributable to this situation is the alarming rate of presence of E.coli bacteria in the drinking water that is made available through the water supply system. Whether this is by itself an ultimate reality is a different matter. But, this Court cannot be oblivious to the fact that presence of E.coli bacteria and the possibility of presence of that bacteria in potable water is disastrous to human health and, at times, it may be even fatal as contended by the Petitioner quoting the case of his wife whom he lost, allegedly to E.coli infection. 3. A team of Advocates Commissioners were appointed by this Court earlier. They have inspected the municipal areas. The efforts taken by them have apparently unearthed the fact that there is such physical nexus between the water supply lines and the sewerage and sanitation lines that E.coli presence in the sanitation lines would easily pilfer into the water supply lines. There is no public sewerage lines connectivity which enables the people of any among the three municipalities to pass off their sewerage and other waste into a common sewerage system. Septic tanks are supposed to be the system in place. But, the Advocate Commissioners' report an alarming situation where the public drains became the carrier of all filth and waste, including sewerage from the homes and other buildings. This is not acceptable at all, either in terms of science, or in terms of the laws governing the operation of sanitation, sanitation conservancies and waste management. 4. Still unfortunate is the situation that the proximity between the public drains and the water supply lines provide the fertile ground and opportunity for easy transmission of E.coli bacteria from the public drain into the water supply lines. It appears that connection from the main water supply lines could be affected only by a duly authorised person of the Corporation. Still unfortunate is the situation that the proximity between the public drains and the water supply lines provide the fertile ground and opportunity for easy transmission of E.coli bacteria from the public drain into the water supply lines. It appears that connection from the main water supply lines could be affected only by a duly authorised person of the Corporation. The Commissioners, however, report that the plumbing contractors do the activity of effecting such connection resulting in unguided and unauthorised meddling with the public water supply lines. On ground, the situation is that the connectivity between the private lines and the public water supply lines are not properly affected or maintained. This, in turn, gives room for suction of wet particles including unhygienic substances from the drain into the water supply lines when pressure variation maintained in the water supply lines create infusion of the external air and other substances into the water supply lines. This situation is more critical and alarming where the water supply lines run, essentially, through the drain themselves. 5. Adverting to Article 243W in Part IX (a) which deals with the Municipalities, it can be seen that the State Legislature is authorised under that constitutional provision to make laws which endow the Municipalities with different matters and powers. Clause (a) of that Article deals with law making to enable the Municipalities to function as institution of self-government. Clause (b) of Article 243W provides the making of law to endow the Committee with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them, including those in relation to the matters listed in the Twelfth Schedule. The Committee referred to in that clause is the Committee constituted under Article 243S of the Constitution; that is to say, the Wards Committees, etc; for management of the local self-government institution which is the Municipality. The Twelfth Schedule of the Constitution enumerates the different matters which fall under Article 243W (b). Therefore, the irrefutable conclusion is that insofar as the matters enumerated under Twelfth Schedule are concerned, the Committees of the Municipalities not only have the powers and authority but also carry with them responsibilities in relation to matters so listed in Twelfth Schedule. The Twelfth Schedule of the Constitution enumerates the different matters which fall under Article 243W (b). Therefore, the irrefutable conclusion is that insofar as the matters enumerated under Twelfth Schedule are concerned, the Committees of the Municipalities not only have the powers and authority but also carry with them responsibilities in relation to matters so listed in Twelfth Schedule. Therefore such constitutional responsibility of the Municipalities and Committees as are referable to Article 243W (b) read with the Twelfth Schedule of the Constitution are constitutional responsibility and therefore mandatory in the functioning of the Committees of the Municipalities. Adverting to entries 5, 6 and 10 of the Twelfth Schedule, it can be seen that Water supply for domestic, industrial and commercial purposes; Public health, sanitation conservancy and solid waste management; and, Slum improvement and up-gradation are mandatory constitutional responsibilities of the Committee of every Municipality. 6. The aforenoted responsibilities and duties of the Municipalities have to be discharged. The provisions in the Chhattisgarh Municipalities Act, 1961, with the provisions introduced therein through amendment after the introduction of Part IXA of the Constitution of India, confers adequate power on the Municipalities to survey and control the drains and also to ensure that carrying, supply and distribution of water is in no manner affected by the contents of drains, privies, latrine, urinals, cesspools or other receptacles. These powers are easily deducible from the nature of the constitution of Municipal Council and its Committees as also their powers delineated through different statutory provisions contained in Chapter-IX of the Chhattisgarh Municipalities Act, 1961. The necessary corollary of the conferment of such power on a Municipality and its Committees carries with it the constitutional, public and statutory duties to ensure that such powers are exercised when the circumstances warrant. Failure of such authorities to exercise such power and enforce the requisite prescriptions of the Constitution and the statutory laws amounts to failure to perform the relevant statutory and public duties. This also amounts to breach of the constitutional confidence reflected through the provisions in Part IXA of the Constitution of India, introduced with the avowed object to enhance the functional efficacy of the local self governance as effective tool of the national management and national life. 7. This also amounts to breach of the constitutional confidence reflected through the provisions in Part IXA of the Constitution of India, introduced with the avowed object to enhance the functional efficacy of the local self governance as effective tool of the national management and national life. 7. In this view of the matter, we cannot drag on the issues relevant for consideration in this case merely on the premise that the Municipal Corporation are either trying to put contracts and other requisite activities in place for establishment of sewerage treatment plant and other matters connected with sewerage treatment and waste management. 8. We may here in now mention that the Municipalities cannot excuse themselves from their responsibilities in relation to supply of potable drinking water merely by taking the stand that the requisite level of disinfecting substances, including chlorine or other chemical components are available in the drinking water even when it is delivered to every end consumer. 9. For the aforesaid reasons, we direct the Municipalities of Bilaspur, Raipur and Durg, to place before this Court affidavits, without fail, on or before the 5th August, 2017 as to what actions have already been taken and what actions are further taken before the filing of such affidavits for providing and up-grading of sanitation and drinking water facilities in those Municipal areas and also for improvement of slums, particularly on the aspect relating to sanitation and water supply. 10. We see that there is gross deficit in the functioning of the State Pollution Control Board which is directly attributable to huge backlog of vacancies remaining unfilled in that Establishment. The Pollution Control Board is an institution of critical importance in the governance, management and administration of the fields relevant to the environment. The failure of such Establishments cannot be permitted to happen because of the enormous vacancy position. Therefore, the State Government is directed to take immediate steps for filing up all the existing vacancies, particularly of Environment Engineers and Scientists in the service of the Chhattisgarh State Pollution Control Board and to report all such action through an affidavit on or before the next date of hearing before this Court. We also told that the office of the Member Secretary is not able to function appropriately having regard to various facts and factors touching those who are put in charge from time to time to man that post. We also told that the office of the Member Secretary is not able to function appropriately having regard to various facts and factors touching those who are put in charge from time to time to man that post. The learned Additional Advocate General will obtain instructions regarding the appropriate arrangement made in this matter.