Gujarat High Court
Abhilash Textile And Ors. Etc. vs The Rajkot Municipal Corporation on 5 August, 1987
Equivalent citations: AIR1988GUJ57, (1987)2GLR1325, AIR 1988 GUJARAT 57
ORDER
1. Is there any right to carry on business or trade in unregulated manner and cause nuisance to the public and also become a health hazard to the society at large? If no, can the petitioners claim any right to be heard before they are asked to discontinue or prevent the nuisance? This, in substance, is the question which needs to be examined in this group of petitions.
In these four petitions in all 165 petitioners who are conducting the business of dyeing and printing works at different places in the city of Rajkot challenge the notice issued by the respondent Municipal Commissioner which is produced at Annexure-A to the petitions. The notice is issued under S. 370-A of the Bombay Provincial Municipal Corporation Act, 1949. In this notice it is stated that at the place mentioned the, in the petitioners are discharging dirty water from the factory on public roads public drainage without purifying the same, thereby causing damage to the public health. Moreover, it is stated that on November 11, 1986 when the place was visited by the Commissioner himself it was found that by discharging dirty water nuisance was being created. Hence each petitioner has been called upon to prevent the discharge of dirty water without the same being purified, within seven days from the date of receipt of the notice and they are also directed to inform the Commissioner regarding compliance. It is further stated that if there is failure to comply with the notice. Under the powers conferred' upon the Municipal Commissioner, he shall have to take steps to close the factory with a view to prevent the illegal discharge of dirty water.
2. The petitioners contended that they are carrying on the business for last about 20 to, 25 years and the industry is providing employment to twenty to thirty thousand families; the proposed action as stated-in the notice will have harsh consequences and the petitioners may have to close down their business. Having regard to the very harsh consequences it is submitted that before issuing the notice the respondent- Municipal Commissioner ought to have afforded an opportunity of being heard to the petitioners. Reliance is placed on the decision of the Supreme Court in the case of Maneka Gandhi v. Union of India. AIR 1-078 SC 597. The Learned counsel for the petitioners relied upon the following observations of the Supreme Court occurring in Para 32of the judgment:
"It is well established that even where there is no specific provision in a statute or rules made hereunder for showing cause against action proposed to be taken, against an individual, which affects the rights of that individual the duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action."
The learned counsel for the petitioners submitted that the proposed action will have civil consequences in as much as the closing down of the factories will adversely affect, the petitioners; they will have to close down their business and their right to carry on the business will be adversely affected. Similarly, very harsh consequences will follow, and therefore, the notice Annexure-A which has been issued without affording an opportunity of being heard should be held to be illegal and void.
3. The aforesaid observation of the Supreme Court will be available to the petitioners only if the petitioners can show that they have right to carry on the business even in the manner so as to cause nuisance,' and if the carrying on of the business in the same manner is a health hazard to the public at large. they have unfettered and unregulated right to carry on this business. In the afore said paragraph of the judgment of the Supreme Court, the underlined part of the sentence which affects the rights of that individual" is very important. Before the aforesaid principle laid down by the Supreme Court is made applicable. One has to establish his right to carry on business in the manner which is objected to by the respondent Municipal Commissioner.
4. In the aforesaid background, the relevant provisions of the Bombay Provincial Municipal Corporation Act. 1949 (hereinafter referred to as 'the-Act') may be examined. Section 2(40) defines "nuisance". It includes any act, omission, place or thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or heading or which is or may be dangerous to life or injurious to health or property. Thus the definition of nuisance is very wide and certainly the discharge of effluent by the factories on public road and in the public drainage system of the Corporation without the same being purified would be covered within the meaning of nuisance as defined in the Act. Section 376 of the Act occurs in Part 11 of Chapter XXII which deals with trade 'license and' other licenses for keeping animals and creature articles. The relevant portion of S. 376 reads as follows "376 (1) Except under arid in conformity with the tern-is and. conditions of a 1icence granted by the Commissioner, no person shall
(a) ................
(b) ................
(c) ................
(d) carry on, or allow to be carried on, in or upon any premises -
(i) any of the trades or operations connected with the, trade specified in the rules;
(ii) any trade or operation which in the opinion of the Commissioner is dangerous to life or loath or property, or likely to create a nuisance either from its nature, or by reason of the manner in which, or tutee conditions under which, the same is, or is proposed to be, carried on;
(e) ................
(2) A person shall be deemed to have known that a trade or operation is in the opinion of the Commissioner, dangerous or likely to create a nuisance within the meaning of paragraph (ii) of clause (d) of section (1), after written notice to that effect, signed by the Commissioner, has been served on such person or affixed to the premises to which it relates.
(3) A person shall be deemed to carry on or to allow to be carried on a trade or operation within the meaning of cause(d) of sub-section 1) if he does any act in furtherance of such trade or is in any way engaged or concerned therein whether as municipal, agent, clerk, master, servant workman, handicraftsman or otherwise.
(4) When any premises are used in the manner described in clause (c) or (d) of subsection (1) it shall be presume until the contrary is proved, that the owner or occupier of such premises, or both the owner and occupier have permitted such use.
Rest of the provisions of the section is not material for our purpose. The provisions of sub-section (1) aims at regulating the carrying on of' business by any person. As provided in this part of the section, no person shall carry on any trade or operation which in the opinion of the Commissioner is dangerous to life or health or property or is likely to create a nuisance either form its nature, orbs reason of the manner in which, or the conditions under which, the same is or is proposed to be, carried on. Sub-section (2) creates deeming fiction that whenever the Commissioner serves upon a person concerned a written notice that person shall be deemed to have known that the trade or operation is, in the opinion of the Commissioner, dangerous to likely to create nuisance as provided intersection. Similarly sub-section (3) also creates a deeming fiction to the effect that the person concerned shall be deemed to carry on or allow to be carried on a trade or operation within the meeting of clause (d) of sub-section ( 1) if fie does any act in furtherance to such trade or is in any way engaged or concerned therein in any capacity either as principal, agent, clerk, master, servant, workman, handicraftsman or otherwise. Sub-section (4) is very important. It creates a statutory presumption to the effect that unless contrary is proved the owner and occupier of such premises, or both of them have pinnate such user of the premises.
5. In the aforesaid statutory background the provisions of S. 376A under which the impugned notice has been issued by the respondent-Municipal Commissioner are required to be seen. Section 376A reads as follows :
"376A. Where the Commissioner is of opinion that the use of any premises for any of the purposes specified in sub-section (1) of section 376 is dangerous to life, health or property or is causing a nuisance either from its nature or by reason of the manner in which or the conditions under which the use is made and such danger or nuisance should be immediately stopped, the Commissioner may, notwithstanding anything contained in section 376, require the owner or occupier of the premises to stop such danger or nuisance within such time specified in such requisition as the Commissioner considers reasonable and in the event of the failure of the owner or occupier to comply with such requisition, the Commissioner may himself or by an officer subordinate to him cause such use to be stopped."
The language of the section is plain and unambiguous. The exercise of power conferred depends upon subjective satisfaction of the Commissioner. The impugned notice clearly indicates that the Commissioner has formed an opinion that from the premise of the petitioners concerned, dirty water is being discharged on public toad and/or in public drainage system without. puffing the same and it is dangerous to health. It also indicates that on a particular day when the place was visited by the Commissioner the dirty water was being discharged and it did create nuisance. Therefore, the Commissioner has called upon the petitioners to prevent, within seven days of the receipt of the notice, the discharge of dirty water on public coda or in the public drainage system without purifying the same. failing which the user of the premises may have, to be stopped.
6. In the background of the aforesaid statutory provisions can it be said that the petitioners have a right to carry on the business so as to cause nuisance and be a health hazard to the public at large? Article 19(1)(g) of the Constitution confers right upon every citizen to practice any profession or to carry on any occupation, trade or business. But this fundamental right is subject to reasonable restrictions which may be placed in the interest of the general public as provided for in sub-clause (6) of Art. 19 itself. No one has a right to carry on business so as to cause nuisance to the society. One cannot carry on the business in the manner by which the business activity becomes a health hazard to the entire society. The fundamental right to carry on trade or business is subject to reasonable restrictions and regulations that may be placed in the interest of the general public.
7. It may also be noted that by discharge of effluent water on public road and or in the public drainage system the entire environment of the locality gets polluted. The provisions regarding fundamental duties of the citizens contained in Art. 51A(g) of the Constitution enjoins upon all the citizens to protect and improve the natural environment. By no stretch of imagination it can be said that the petitioners would be protecting the natural environment by discharging the effluent from the factory on public road and or in public drainage system. By the impugned notice the respondent-Municipal Commissioner has simply reminded the petitioners of their fundamental duty. The petitioners cannot assert their right, much less fundamental right, to carry on business without any regard to the fundamental duty. In a complex society, in which \vet live today, no one can claim absolute freedom without incurring any obligation whatsoever for the general well being. The Article 51-A regarding fundamental duties of citizens has been inserted in the Constitution by Forty Second Amendment and it has come into force with effect from January 3, 1977. Even in absence of the provisions with regard to fundamental duty and enshrined in Art. 51A of the Constitution, the Supreme Court has held that such restrictions placed on the fundamental right to carry on trade or business are in the interest of the general public and constitutionally valid and no citizen can claim absolute right to carry on business without complying with the restrictions placed in this behalf.
8. Reference maybe made to the decision of the Supreme Court in the case of T. B. Ibrahim v. The Regional Transport Authority reported in AIR 1953 SC 79. In that case the petitioner claimed his right to have a bus stand at a particular place, which he was using for last many years. The Regional Transport Authority, for the convenience of the traveling public, resolved to alter the starting place and termini of all public vehicles and the existing bus-stand owned by the petitioner was ordered to be discontinued. This action of the Regional Transport Authority was challenged by the petitioner. In Para 13 of the judgment the Supreme Court has observed as follows.
"There is no fundamental right in a citizen to carry on business wherever he chooses and his right must be subject to any reasonable restriction imposed by the executive authority in the interest of public convenience. The restriction may have the effect of eliminating the use to which the stand has been put hitherto but the restriction cannot be regarded as being unreasonable if the authority imposing such restriction had the power to dose. Whether the abolition of the stand was conductive to public convenience or not is a matter entirely for the Transport Authority to judge, and it. is not open to the Court substitute its own opinion for the opinion of the Authority, which is in the best position, having regard to its knowledge of local conditions, to appraise the situation."
9. In the case of Covered B. Bharucha v. Excise Comair., Ajmer, reported in AIR 1954 SC 220, in Para 7 of the judgment the Supreme Court has observed as follows :
"The right of every citizen to pursue any lawful trade or business is obviously subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, order and morals of the community. Some occupations by the noise made in their pursuit, some by the odors they engender, and some by the dangers accompanying them, require regulations as to the locality y in which they may be conducted. Some, by the dangerous character of the articles used, manufactured or sold require also special qualifications in the parties permitted to use, manufacture or sell them."
10. In the case of State of Maharashtra v. Himmatbhai Narbheram Rao, AIR 1970 SC 1157 the question with regard to right to ' business in carcass arose, and certain carry on provisions of the Bombay Municipal Corporation Act 3 of 1888 (as amended by Act 14 of 196 1) came up f or c onside ration. In para 12 of the judgment it is inter alia observed "under the Constitution a proper balance is intended to be maintained between the exercise of the right conferred by Art. 19(1)(f) and (g) and the interests of a citizen in the exercise of his right to acquire, hold or dispose of his property or to carry on occupation, trade or business. In striking that balance the danger which may be inherent in permitting unfettered exercise of right in a commodity must of necessity influence the determination of the restrictions which may be placed upon the right of the citizen "to the commodity". It is further observed that the law which compels removal to the appointed place and disposal of the, carcass under the supervision of the Corporation to which is entrusted the power and duty to take steps to maintain the public health cannot also be regarded as arbitrary or excessive merely because the enforcement of the law involves some pecuniary loss td the citizen."
11. In the aforesaid background it may be recalled that S. 63 of the Act makes it incumbent upon the Corporation to make reasonable and adequate provisions by an means or measures which it is lawful competent to it to use or to take for certain matters which inter alia includes, watering, scavenging and cleansing of all public streets and places in the city and the removal of all sweepings therefrom;- the collection, removal, treatment and disposal of sewage, offensive matter, and cleansing of drains and drainage works;- "the regulation and abatement of off ends and dangerous trades or practices" (See S. 63(2),(3)(4) and (10) of the Act). By issuing the impugned notice the respondent-Municipal Commissioner has acted within his power. He has tried to do something which is the abjuratory duty of the Corporation. The Act empowers the Corporation to make reasonable and adequate provisions by any means or measures to regulate and abate offensive and dangerous trade or practice. Therefore, if the respondent-Municipal Commissioner has issued notice under the provisions of S. 376A so as to perform the obligatory functions of the Municipal Corporation as provided under-S. 63 of the Act, the same cannot be held to be in any way illegal or void. The petitioners have failed to show any right whatsoever to carry on the business without complying with the restrictions and regulations as contemplated under the provisions of Sections 376 and 376A of the Act.
12. By the impugned notice the respective owner or occupier of the premises has been told to abate the nuisance. A reasonable time has been given to each of the petitioners. Within the time mentioned in the notice if the owner or occupier of the premises does not abate the nuisance and does not prevent causing of nuisance, the health-hazard tot he public cannot be allowed to continue. By issuing this notice no right whatsoever of the petitioners has been affected by the respondent- Municipal Commissioner. By the impugned notice all that the petitioners are told is that "regulate your business, do not cause nuisance, if you continue to cause nuisance the measures so as to prevent the n uisanc6 will be taken." If the petitioners do not cause nuisance or they have prevented to cause nuisance within the period mentioned in the notice they need not fear. If they have not complied with the requisition made in the notice, the consequences may follow. In that situation the petitioners cannot claim any right to carry on business so as to cause nuisance to the public at large.
13. The contention that the petitioners are carrying on business for last about 20 to 30 years has also no merit. If the petitioners wish to carry on the business they may have to incur expenditure and they must provide for purification-plant before discharging, the effluent water on public road or in the public drainage system. This is the minimum requirement for carrying on the business which they must comply with. If they have to incur expenditure for the purification-plant the same must be considered as part of the cost of the business. The petitioners cannot be allowed to reap profit at the cost of the public health. This is the mandate of the law. This is what the Commissioner has proposed to do by serving the impugned notice upon the petitioners.
14. The only ground urged before that the notice has been issued without affording an opportunity of being heard and therefore it is violative of the principles of natural Justice. As shown hereinabove the petitioners have not been able to show that they have any right, much less fundamental rim, to carry on their business without complying with the requirement of the law. Hence there is no substance in this contention. No other contention is raised.
15. The learned counsel for the respondent-Municipal Commissioner has pointed out from the affidavit-in- reply filed in Special Civil Application No. 6203 of 1986 that four petitioners, namely (1) Abhilash Textile (2) Vimal Printers (3) Shri Shanker Dyeing & Printers (4) Shri Kanjibhai Laxamanbhai Bhuva had given undertaking before the Sub-Divisional magistrate, Rajkot, that they will make necessary arrangements to install waste-water treatment plant in their fact Nary premises. Even so, they have not complied with this undertaking. This assertion made by the learned counsel for the respondent-Municipal Commissioner is controverted by the learned counsel for the petitioners. According to him the undertaking given by the respective petitioners has been complied with. Be that as it may. For the purpose of determination of the sole contention raised in this petition regarding the, violation of the principles of natural justice, this controversy is not very much material.
16. In the facts and circumstances of the case it is hoped that before taking any coercive steps the respondent-Municipal Commissioner will give some more time to the petitioners to mend their ways and prevent the nuisance. This observation is made with a view to see that several workmen employed by the numerous factories may not be rendered unemployed on account of the fact that the petitioners are carrying on their business in unregulated manner. Subject to the aforesaid observations, the petitions are rejected. Notice discharged. Ad interim relief granted earlier stands vacated in each petition.
17. Omitted - Ed.
18. Order accordingly.