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The Chamber of Commerce, Kunnumkulam, Represented by Its General Secretary K.M. Abubacker v/s Kunnamkulam Municipality, Represented by Its Secretary & Others


Company & Directors' Information:- INDIA E-COMMERCE LIMITED [Active] CIN = L99999MH1968PLC014091

Company & Directors' Information:- S H COMMERCE PRIVATE LIMITED [Active] CIN = U51109WB2008PTC121420

Company & Directors' Information:- A. M. COMMERCE PRIVATE LIMITED [Active] CIN = U51909WB2011PTC168744

Company & Directors' Information:- G S E-COMMERCE PRIVATE LIMITED [Active] CIN = U52100KA2013PTC067567

Company & Directors' Information:- V K COMMERCE PVT LTD [Amalgamated] CIN = U51109WB1984PTC037122

Company & Directors' Information:- P. R. COMMERCE PRIVATE LIMITED [Active] CIN = U51909WB2008PTC122333

Company & Directors' Information:- M & P E. COMMERCE PRIVATE LIMITED [Active] CIN = U74300DL1999PTC099198

Company & Directors' Information:- R S COMMERCE PVT LTD [Converted to LLP] CIN = U51909WB1995PTC074372

Company & Directors' Information:- P S COMMERCE PRIVATE LIMITED [Active] CIN = U51909WB1997PTC084487

Company & Directors' Information:- T S R I COMMERCE PRIVATE LIMITED [Strike Off] CIN = U65910TG1999PTC032173

Company & Directors' Information:- AND E-COMMERCE PRIVATE LIMITED [Active] CIN = U74120AP2015PTC096206

Company & Directors' Information:- GENERAL COMMERCE LIMITED [Active] CIN = U41404DL1973PLC006514

Company & Directors' Information:- P K A CHAMBER PRIVATE LIMITED [Strike Off] CIN = U26931TZ2014PTC020478

Company & Directors' Information:- D B S COMMERCE PRIVATE LIMITED [Active] CIN = U52190MH2009PTC190773

Company & Directors' Information:- A P COMMERCE LIMITED [Strike Off] CIN = U51909WB1981PLC033798

Company & Directors' Information:- K P INDIA COMMERCE PRIVATE LIMITED [Strike Off] CIN = U51909AS2001PTC006701

Company & Directors' Information:- CHAMBER OF COMMERCE LIMITED [Strike Off] CIN = U67120RJ1944PLC000259

Company & Directors' Information:- Y S E-COMMERCE PRIVATE LIMITED [Active] CIN = U72200MH2000PTC126344

Company & Directors' Information:- B AND D E-COMMERCE PRIVATE LIMITED [Strike Off] CIN = U74999HP2015PTC000945

Company & Directors' Information:- I P E-COMMERCE PRIVATE LIMITED [Active] CIN = U52399CH2012PTC033585

Company & Directors' Information:- THE CHAMBER OF COMMERCE [Active] CIN = U91110UP1923NPL000361

Company & Directors' Information:- CHAMBER OF COMMERCE [Active] CIN = U91110KL1940NPL000215

    WP(C) No. 20974 of 2016

    Decided On, 15 July 2021

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE SHAJI P. CHALY

    For the Petitioner: Dinny Thomas, Albert V. John, Jaishankar V. Nair, Roshni Manuel, Advocates. For the Respondents: I.V. Pramod, Advocate, R2 & R3, Surin George Ipe, Senior Government Pleader.



Judgment Text

1. This writ petition is filed by the Chamber of Commerce, Kunnamkulam Branch, seeking a writ of mandamus to the Kunnamkulam Municipality— first respondent to provide facilities like proper toilets with water, drinking water, clean environment, adequate parking facilities, cleaning the leakages and proper maintenance, including proper lighting facilities in the buildings owned by the Municipality as mentioned in Ext. P2 representation submitted by the petitioner or in the alternative it seeks a direction to the Municipality to take a decision on Ext. P2 representation within a time limit to be fixed by this Court.

2. The petitioner has produced Ext. P1 series of photographs showing the condition of the toilets and washrooms of various building complexes of the Kunnamkulam Municipality. The substantial contention advanced by the petitioner is that every Municipality is duty bound to provide latrine facilities and also to ensure that private latrines are provided by the owners of the private building. However, the Municipality is duty bound to ensure that public as well as private latrines are maintained in a clean and hygienic manner as is insisted upon in Section 320 of the Kerala Municipality Act, 1994 ('Act, 1994' for short).

3. According to the petitioner, the Municipality has failed to discharge the duties and obligations conferred upon under the Act, 1994 and therefore, the petitioner has no other alternative than to seek reliefs by invoking the power conferred on this Court under Article 226 of the Constitution of India, especially due to the fact that the Municipality has failed to consider Ext. P2 representation submitted by the petitioner on 11.02.2016.

4. The Municipality has filed a counter affidavit basically admitting the unhygienic and unclean way in which the bath rooms, toilets and latrines in the building are maintained by the Municipality and justifying it in the pretext that the State Government have ordered that the maintenance fund cannot be used for maintaining the building owned by the Municipality and which are given out for rent. The Municipality is facing paucity of funds even to pay salary to the employees and for routine affairs and therefore, the Municipal Council decided to do maintenance work of the building by including it in the plan fund of the Municipality for the year 2016. That apart, it is stated that the Municipality is only getting a moderate sum as licence fee from the licensee occupying the shopping complexes as pointed out by the petitioner. It is also submitted that with the meager income received by the Municipality from the occupiers, the Municipality is unable to maintain the toilets and latrine in the Municipality buildings.

5. I have heard the learned counsel for the petitioner Smt. Roshni Manual, learned Senior Government Pleader Sri. Surin George Ipe and Sri. Saifdeen for the Municipality, and perused the pleadings and materials on record.

6. The issue raised by the petitioner is basically the failure on the part of the Municipality to maintain the toilets and latrines in the Municipality buildings. Ext P1 series of photographs clearly demonstrates and depicts the ugly and unclean manner the toilets of the shopping complexes are maintained by the Municipality. In my view, the photographs speak volumes about the disgusting state of affairs and one cannot believe that the occupiers in the shopping complexes are using the latrine and toilets. The issue is well guided by the clear provisions of the Act, 1994.

7. Section 320 deals with provision of public latrines, which clearly specifies that the Municipality shall provide and maintain a sufficient number of public latrines in proper and convenient places and shall cause the same to be daily cleansed and kept in a proper order. Section 321 deals with 'licensing of public latrines' and sub section (1) empowers the Secretary to issue licence, for providing and maintaining latrines for public use, subject to such conditions as may be fixed by the Council and for the period fixed by it. Sub-section (2) further makes it clear that no person shall keep a public latrine without a licence under sub-Section (1), and sub-Section (3) stipulates that every licensee of a public latrine shall maintain it clean and in proper order. Section 322 deals with 'provision of latrines by owner or occupier' and it reads thus:

“322. Provision of latrines by owner or occupier,— (1) The Secretary may, by notice, require the owner or occupier of any building, within the time specified in such notice, to provide a latrine or alter or remove from an unsuitable to a more suitable place any existing latrine in accordance with the directions contained in such notice for the use of the persons employed in or about or occupying such building and to keep it clean and in proper order.

[(2) Where a group of building or huts situated in a land and where individual latrine for each household is not feasible, the Secretary may, by notice, require the owner or occupier of such land to provide latrines of such description and number and in such position and within such time as may be fixed in the notice.]

(3) Where the work under sub-section (1) or sub-section (2) is not carried out within the time specified in the notice, the Secretary may, if he thinks fit, cause such works to be executed and recover the expenses incurred therefore from the owner or occupier in default.”

8. Sections 324 and 325 are also relevant to the context and they read thus:

324. Provision of latrines for markets, cart stands, cattle sheds, choultry etc.— The Secretary may, by notice require the owner or manager of a market, cartstand, cattleshed, choultry, theatre, railway station, dock, wharf or other place of public resort to provide and maintain within the time specified in such notice for the separate use of persons of each sex latrines of such description and number and in such position as may be specified in such notice.

[325. Latrines to afford privacy.— All latrine shall be of such kind, affording privacy to its user and to screen the filth from the view of persons passing by or residing in the neighbourhood and it shall have water closet, leach pit having lid or septic tank or drainage system, net tied polluted air exhaust system etc. All latrines shall always be maintained clean and in a proper manner and wastewater shall not be permitted to accumulate in its surroundings.”

9. On an analysis of these provisions, it is clear that the Municipality is duty bound to maintain not only the public as well as private latrines but also to properly maintain and keep in a clean and proper order, the latrines and the toilets constructed by the Municipality. So also, Schedule 1 of Part A of the Act, 1994 deals with the mandatory functions of the Municipality. Serial No. 8 in the schedule imbibes a duty on the Municipality for the maintenance of environmental hygiene; serial No. 14 deals with maintenance of roads and other public properties. Serial No. 19 clearly specifies that the Municipality shall issue licences to industries, trades and services protecting public interests such as environment, public safety and public health. Serial No. 25 stipulates providing of toilet facilities and bathing ghats at public places. Apart from all these, various provisions of Act, 1994 clearly encompasses a duty on the Municipality to protect the interest of the citizens by virtue of the power conferred on it under the Act, 1994.

10. That apart, Article 243W of the Constitution of India delineates the powers, authority and responsibilities of Municipality and it reads thus:

“243-W. Powers, authority and responsibilities of Municipalities, etc,— Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow-

(a) the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of selfgovernment and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to-

(i) the preparation of plans for economic development and social justice;

(ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule;

(b) the Committees 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.”

It was thus by virtue of the responsibilities entrusted with the State Government, Act, 1994 was introduced and the Municipality was entrusted with the powers by the Government to carry out the duties and obligations in accordance with the provisions of the Act, 1994. The citizens are entitled to enjoy a clean and healthy environment both in buildings and in open, which is a right emanating from Article 21 of the Constitution of India dealing with the protection of life and personal liberty which states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. It is so well settled that Article 21 takes in the right of citizens to live in a healthy and orderly environment that it requires any elaborate discussion and evaluation.

11. This is a case where the Municipality has totally neglected itself from its duty to make necessary provisions to meet up with the basic amenities entitled to be enjoyed by the citizens. In spite of submitting a representation, the Municipality has not cared to rectify the defects occurring in the latrine and toilet of the Municipality building. We are also conscious of the duty that is to be discharged by the State and any authority to secure social order for the promotion of the welfare of the people in contemplation of the directive principles of State policy under the Constitution of India. It is taking into account the duties contained under Part IV of the Constitution of India dealing with directive principles of State policy, the Local Self Government Institutions are constituted by the State Government and endowed with such power and authority as may be necessary to enable them to function as units of self-Government.

12. The Municipality is also duty bound to raise the standard of living and to improve the public health, which are primary and mandatory functions that are to be discharged by the Municipality. This is a case where the Municipality has ignored the fundamental and basic rights of licensees of its own buildings to have toilet and latrine facilities. I also have no doubt in my mind that the action of the Municipality is a clear human right violation depriving the citizens of basic convenience to answer their essential requisites with adequate privacy. It is disheartening to note that the toilets are not even having proper doors. In fact, Ext. P1 series of photographs show that the latrines and toilets are so dirty and unclean that one would use it, and even unused and waste articles are dumped in the toilets and commodes to make it unusable.

13. In that view of the matter, I am of the considered opinion that imperative directions are to be issued to

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the Municipality to maintain latrine and toilets in the Municipality buildings in a proper and hygienic condition. Therefore, there will be a direction to the Secretary of the Municipality to ensure that the toilets and latrines of the municipal building which are specified in Ext. P2 representation submitted by the petitioner shall be repaired, modified and made usable with sufficient equipment, pipe, water, wash basin etc, and further to maintain it continuously. 14. I am informed that the unfortunate state of affairs discernible from the Ext P1 series of photographs is continuing even now. Therefore, there will be a direction to the Secretary of the Municipality to do the maintenance and repair works as directed above within a period of 3 months from the date of receipt of a copy of this judgment and submit a report before this court immediately thereafter. Accordingly the writ petition is allowed with the above observations and directions. Registry is directed to post this matter before this Court on 17.09.2021, on which date the Municipality shall submit a report before this Court along with the photographs of the repaired toilets and latrines situated in the buildings owned by the Municipality with appropriate description.
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