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1959 Supreme(SC) 124
SUPREME COURT OF INDIA
19th May, 1959.
B.P. SINHA, S. JAFER IMAM, J.L. KAPUR, P.B. GAJENDRAGADKAR AND K.N. WANCHOO, JJ.
Dhrangadhra Chemical Works Ltd., Appellant
Versus
The Dhrangadhra Municipality, Respondent.
AND
Dhrangadhra Chemical Works Ltd., Petitioner
Versus
T. U. Mehta and others, Respondents.
Civil Appeal No.173 of 1959.
Petition No. 174 of 1958.
Civil Appeal No. 173 of 1959 and Petition No. 174 of 1958.
Advocate Appeared
Mr. Purushottam Tricumdas, Senior Advocate (M/s. P. N. Bhagwati, Tanibhai D. Desai & I. N. Shroff, Advocates with him), for Appellant and Petitioner; Mr. N. C. Chatterjee, Senior Advocate (M/s. S. K. Kapur and A. G. Ratnaparkhi, Advocates with him), for Respondent in Appeal and Respondent No. 2 in Petition; Mr. B. Sen, Senior Advocate (Mr. R. H. Dhebar, Advocate, with him), for Respondent No. 3 in Petition.
A.G.Ratnaparkhi, B.SEN, I.M.SHROFF, N.C.CHATTERJI, P.N.BHAGWATI, PURSHOTTAM TRIKAMDAS, R.H.Dhebar, S.K.KAPOOR, TANUBHAI D.DESAI
The existence of a nuisance before issuing a notice under S. 153A (1) of the Bombay District Municipal Act, 1901, is a matter for the subjective satisfaction of the Municipality. However, after issuing the notice, if the person to whom the notice is issued objects to it, the Special Officer appointed to hold an inquiry must inquire into the entire dispute, including the existence of the nuisance.
Headnote:
MUNICIPAL LAW - NUISANCE - REGULATION OF DISCHARGE OF EFFLUENT CONTAINING SALT OR OTHER CHEMICALS BY FACTORIES - SATISFACTION OF MUNICIPALITY - SCOPE OF ENQUIRY BY SPECIAL OFFICER - BOMBAY DISTRICT MUNICIPAL ACT, 1901 (BOM. III OF 1901), SS. 153A, 153B.
Fact of the Case:
The respondent Municipality issued a notice to the appellant under S. 153A (1) of the Bombay District Municipal Act, 1901, alleging that the appellant's chemical works discharged effluent containing calcium, sodium, and other salts through Katcha Channels, corrupting potable water and prejudicially affecting soil fertility. The appellant objected to the notice, and the Government appointed a Special Officer to hold an inquiry. The Special Officer held that the question of whether the discharge of effluent polluted the water and adversely affected the soil fertility was a matter for the subjective satisfaction of the Municipality and beyond the scope of the inquiry.
Finding of the Court:
The Court held that the Special Officer erred in holding that it was beyond the scope of his inquiry to inquire into the question of whether the nuisance alleged by the Municipality existed. The Court found that the Special Officer had denied himself the jurisdiction which he did possess and which he ought to have exercised.
Issues: 1. Whether the Special Officer erred in holding that the question of whether the discharge of effluent polluted the water and adversely affected the soil fertility was a matter for the subjective satisfaction of the Municipality and beyond the scope of the inquiry? 2. Whether the provisions of S. 153A of the Bombay District Municipal Act, 1901, offend Art. 19 of the Constitution?
Ratio Decidendi: The Court interpreted the provisions of S. 153A of the Bombay District Municipal Act, 1901, and held that the existence of a nuisance before issuing a notice is a matter for the subjective satisfaction of the Municipality. However, after issuing the notice, if the person to whom the notice is issued objects to it, the Special Officer appointed to hold an inquiry must inquire into the entire dispute, including the existence of the nuisance. The Court found that the Special Officer had wrongly decided that he could not go into the question of whether the nuisance existed and that his order must be set aside.
Final Decision: The Court allowed the appeal and set aside the order of the Special Officer. The Court also disposed of a petition filed by the appellant under Art. 32 of the Constitution, as the appellant had succeeded in the Civil Appeal.
Judgement
IMAM J. : The case of the respondent Municipality was that the appellant s chemical works. discharged effluent in very large quantities containing calcium, sodium and other salts through Katcha Channels thereby corrupting potable water of the wells in the surrounding area so as to render it unfit for use and also prejudicially affecting the fertility of the soil in the surrounding area by percolation. The respondent Municipality accordingly, after having obtained the approval of the Government, issued a notice dated 14-6-1956, to the appellant under S. 153A (1) of the Bombay District Municipal Act, 1901 (Bom. III of 1901), as adapted and applied to the State of Saurashtra and as amended by the State of Saurashtra (Application of Central and Bombay Acts) (Second Amendment) Act, 1955 (Saurashtra XI of 1955) (hereinafter referred to as the Act), to show cause in writing within a period of one month from the date of the receipt of the notice why it should not be directed to arrange within a period of 9 months from the date of such direction for the discharge of the effluent through a covered pucca drainage and for pumping it over a distance of about 8 miles in the Ran area of Cutch near Kuda, as shown in the plan annexed to the notice.
2. The appellant replied to this notice by a letter dated 10-7-1956. According to the appellant, the effluent was being discharged until 1943 through a Katcha Channel running parallel to the railway line in the direction of Halvad. In 1944 it was felt that as the water of some of the wells in the areas known as Harijanvas and Kolivas close to the vicinity of the channel might be affected another channel was constructed for discharging the effluent, which was at a considerable distance away from Kolivas and Harijanvas and still further away from the city which lies on the western side of the railway lines whereas the factory is at a considerable distance away on the eastern side of the railway lines. It was pointed out that during the last 3 or 4 years, periodical surveys of the water of various wells in the city had been taken by the appellant and these tests had shown that the water was not in any way polluted by reason of the effluent being discharged through the existing channels, that all the papers and reports relating to the tests carried out periodically by the appellant were available for inspection by the respondent Municipality and that they could be inspected by appointment. The appellant further enquired whether before issuing the notice the respondent Municipality had carried out similar tests for analysing the water of the various wells and that if such analysis had been made it might be allowed to inspect and survey the reports and other relevant papers connected therewith. Regarding the fertility of the soil the appellant emphatically denied that the same had been in any way adversely affected by the discharge of the effluent through the existing channels. The appellant further pointed out that the respondent Municipality s direction that the appellant should arrange the discharge of the effluent through a covered pucca drain for pumping it over a distance of about 8 miles as shown in the plan would involve an expenditure of nearly 8 to 9 lakhs of rupees which, having regard to the prevailing conditions, would involve a capital outlay of such an enormous amount as to cripple the appellant s activities. The appellant further pointed out that the scheme suggested by the respondent Municipality was impracticable and difficult to implement for technical reasons and that the appellant s engineer had been consulted in that respect. Finally, the appellant informed the respondent Municipality that in these circumstances it objected to the requisitions and expressed its inability to carry out the same.
3. The respondent then requested the Government to appoint a Special Officer under the provisions of S. 153A (3) of the Act. The Government by its order dated 17-51958, appointed Mr. T
