1998 PLP 387 (MLD)

7. Like the Punjab Local Government Ordinance, 1979, the provisions with regard to the "Compulsory Functions of Urban Local Councils" are made in Chapter VIII of the Punjab Local Government Act, 1996, (hereinafter referred to as "the Act"). The provisions of Chapter VIII relevant for the present purpose are reproduced below:-- Section

59. Responsibility for sanitation.--An urban local shall be responsible for the sanitation of its local area. Section

61. Removal collection and disposal of refuse.--(1) An urban local council shall make adequate arrangement for the removal of refuse from all public roads and streets, public latrines, urinals, drains and all buildings and lands vested in the urban local council and for the collection and proper disposal of such refuse. (2) The occupiers of all other buildings and lands within the local area of an urban local council shall be responsible for the removal of refuse from such buildings and land subject to the general control and supervision of the urban local council. (3) An urban local council shall cause public dustbins or other suitable receptacles to be provided at suitable places and in proper and convenient situations in streets or other public places and where such dustbins or receptacles are provided, the urban local council may, by public notice, require that all refuse accumulating in any premises or land shall be deposited by the owner or occupier of such premises or land in such dustbins or receptacles. (4) All refuse removed and collected by the staff of an urban local council or under their control and supervision and all refuse deposited in the dustbins and other receptecles provided by the urban local council shall be property of the ruban local council. Section

64. Infectious diseases.--(1) An urban local council shall adopt measures to prevent infectious diseases and to restrain infection within its local area. (2) An urban local council shall establish and maintain one or more hospitals for the reception and treatment of persons suffering from infectious diseases. Section

65. Water Supply.--(I) An urban local council shall provide or cause to be provided to its local area supply of wholesome water sufficient for public and private purposes. (2) where a piped water supply is provided, the urban local council shall supply water to private and public premises in such manner and on payment of such charges as the bye-laws may provide. Section

67. Drainage.--(I) An urban local council shall provide an adequate system of public drains in its local area and all such drains shall be constructed, maintained, kept, cleared and emptied with due regard to the health and convenience of the public. (2) Every owner or occupier of any land or building within the local area of an urban local council may, with the previous permission of the urban local council, and subject to such terms and conditions, including the payment of fees, as the urban local council may impose, cause his arains to be empties into public drains. (3) All private drains shall be subject to control, regulation and inspection by the urban local council. (4) Subject to the provisions of any other law for the time being in force, an urban local council may, by notice, direct a commercial or industrial concern to provide for the disposal of its waste or effluent in the manner specified and failure on the part of owner, tenant or occupier thereof to comply with such directions shall be on offence under this Act. (5) An urban local council may, by notice, require the owner of any building, land or an industrial concern within its local area. (a) to construct such drains within the buildings or land or the street adjoining such building or land and to take such other measures for treatment and disposal of effluent as may be specified in the notice. (b) to remove, alter or improve any such drains; (c) to take such other steps for the effective drainage of the building or land as may be so specified. (6) In case of failure of the owner to comply with the requirements of notice under subsection (5), the urban local council may itself cause to carry out such requirements and the cost so incurred shall be deemed to be a tax levied on the owner of the building or land, as the case may be, under this Act. Section

68. Drainage and Sewerage Schemes for commercial and industrial area.--(1) An urban local council may through a notice, require the owners, tenants and occupiers of commercial and industrial concerns in any area or areas within its local area to have, at their own cost, prepared a scheme for the adequate and safe drainage and disposal of their wastes and affluent of the quality permitted under the rules or the bye-laws and submit it to the urban local council within the time specified in the notice: Provided that the time limit may be extended by the urban local council for a maximum period of three months at the request of the owners, tenants or occupiers of the commercial and the industrial units concerned. (2) The drainage, sewerage and disposal schemes as approved by an urban local council with modification, if any, shall be executed and implemented by the owners, tenants or occupiers of the commercial or industrial units at their expense in such manner and within such time as may be specified by an urban local council. (3) In case of the failure of the owners, tenants or occupier of the commercial or industrial concern to comply with the provisions of subsections (1) and (2) an urban local council may itself prepare the drainage sewerage and disposal scheme and execute and implement it after approval by Government, at its own expense and the cost so incurred shall, under this Act, be deemed to be a tax levied on the owners, tenants or occupier of the industrial and commercial units concerned. Section

87. Public Streets.--(1) An urban local council shall provide and maintain such public streets and other means of public communications as may be necessary. (2) An urban local council shall, in the manner prescribed, prepare and execute a road maintenance and development programme which shall form part of the budget. Section

89. Street Lighting.--(L) An urban local council shall take such measures as may be necessary for the proper lighting of the public streets and other public places vesting in the urban local council by oil, gas electricity or such other illuminant as the urban local council may determine. (2) An urban local council may frame and enforce a street lighting scheme. Section

90. Street Watering.--An urban local council shall take such measures as may be necessary for the watering of public streets for the comfort and convenience of the public and tray for this purpose, maintain such vehicles, staff and other apparatus as may be necessary."

8. Under section 59 of the Act all Urban Local Councils, which according to section 2(56) of the Act includes the Municipal Corporation of Rahimyar Khan, are 'responsible for the sanitation of its local area.' 'Sanitation' includes maintenance and improving of sanitary conditions and disposal of sewage and refuse. Section 61 of the Act deals with the removal, collection and disposal of refuse and obliges the respondent Corporation to 'make adequate arrangements for the removal of refuse from all public roads and streets, public latrines, urinals, drains and all buildings and lands vested in the urban local council and for the collection and proper disposal of such refuse." Subsection (3) of section 61 (ibid) again obliges the respondent Corporation to provide dustbins and receptacles in streets and other places for dumping the refuse and filth.

9. From the aforesaid provisions of Chapter VIII of the Act it is clear that the Municipal Corporation, Rahimyar Khan is under legal obligation to provide and maintain proper sewerage and drainage system, to erect and maintain roads and public streets in good condition, to provide dustbins and receptacles for temporary dumping of refuse and garbage and to make arrangements for its removal out of the residential areas, to provide hygienically clean drinking water to the people and also to provide healthy environments in the city. If the Local Council, in the present case the respondent Corporation, fails in its duty to perform compulsory functions as enumerated in Chapter VIII of the Act, all the officers linked with the management, control and administration of the Local Council can be held responsible for any untoward event or accident resulting from such negligence or failure to provide such necessary civic amenities or if proper measures are not adopted to prevent infectious diseases and if consequently danger to life be caused to the residents of the area, it would be in violation of their fundamental rights as contained in Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973 which guarantees protection of life and liberty and declares as under:-- "Security of person. No person shall be deprived of life or liberty save in accordance with law."

10. In the present case as observed above in the performance of the compulsory functions enumerated in Chapter VIII of the Act the Municipal Corporation, Rahimyar Khan, its officers and managers and also those Government functionaries who directly or indirectly control its affairs, have failed to provide such civic facilities and amenities to the citizens of this city. Article 199 of the Constitution of Pakistan confers powers on this Court to issue direction to any person performing functions in connection with the affairs of the Federation, a Province or a local authority to do anything he is required by law e to do but has not so far been done by such a person. Similarly, under Clause (c) of Sub-Article (1) of Article 199 of the Constitution, direction can also be issued to any authority and the Government functionaries for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II of the Constitution. As already observed, Article 9 of the Constitution quarantees the protection of life and liberty of the citizens of the city of Rahimyar Khan. In almost in similar situation my learned brother Muhammad Aqil Mirza, J. (as he then was) accepted the writ petition of the citizens of Bahawalpur and issued necessary direction to the Municipal Corporation in the case "Mst. Ameer Bano v. S.F. Highway" (PLD 1996 Lahore 592).

11. Accordingly, this petition is accepted and the Administrator and the Controlling Authority of the Municipal Corporation, Rahimyar Khan, the Chief Engineer, Public Health Department, the Secretary, Local Government and Rural Development Department, Government of Punjab are directed to make proper arrangements for; (1) providing hygienically clean drinking water; (ii) constructing/reconstructing roads and public streets; (iii) the drainage of sullage and draining out the sewerage water from the localities which stagnates on the roads, streets and its the parks and open sites, and (iv) covering open man-holes and (v) providing dustbins and receptacles for dumping of refuse and garbage and for its removal outside the residential area. This shall be done immediately and in any case within the current financial year. The Municipal Corporation may recruit on temporary/ad hoc or permanent basis necessary staff notwithstanding any ban if imposed by the Government on such recruitment. The office shall send copy of this order to the aforesaid officers for compliance. A.A./C-9/L Petition accepted