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PETITIONER: DHRANGADHRA CHEMICAL WORKS LTD.

       Vs.

RESPONDENT: THE DHRANGADHRA MUNICIPALITY(and connected petition)

DATE OF JUDGMENT: 19/05/1959

BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER SINHA, BHUVNESHWAR P. KAPUR, J.L. GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1959 AIR 1271            1960 SCR  (1) 388

ACT:   Municipality-Regulation of discharge of effluent-Issue  of notice-Objection  to such notice and  requisition  specified there  in Scope of enquiry by Special  Officer-Existence  of nuisance, if can be gone into-Bombay District Municipal Act, 1901, as adapted and applied to the State of Saurashtra  and as amended by Act XI of 1955, s. 153A(3).

HEADNOTE:  The  respondent Municipality issued a notice  under  sub-s. (1)  Of s. 153A of the Bombay District Municipal Act,  1901, as  adapted  and applied to the State of Saurashtra  and  as amended  by  Act XI Of 1955, calling upon the  appellant  to show  cause why it should not be directed to  discharge  the effluent  Of it’s chemical works in the manner specified  in the  notice.  On the appellant objecting to the  notice  and the  requisition  contained therein, a Special  Officer  was appointed by the Government under sub-s. (3) of that section to  hold  an  enquiry in the matter.   The  Special  Officer treated some of the issues raised,, as preliminary issues of law and held that the question whether the discharge of  the effluent  polluted  the  water and  adversely  affected  the fertility  of  the  soil was a  matter  for  the  subjective satisfaction of the Municipality and binding on him and  was as  such beyond the scope of his enquiry.  The question  for determination in this appeal was whether the Special Officer was  right in the view he took of s. 153A(3) Of the Act  and in restricting the scope of the enquiry in the way he did. 389   Held,  that  Special  Officer took a  wrong  view  of  his jurisdiction under s. 153A(3) Of the Act and was in error in restricting the scope of the enquiry.   There  could be no doubt on a proper appreciation  of  the scheme  laid  down by the provision of s. 153A of  the  Act, correctly construed, that while the subjective  satisfaction of  the  Municipality as to the existence  of  the  nuisance could not be questioned at the initial stage when it  sought to  put  the machinery provided by sub-s. (1) in  motion  or under  sub-s.  (2) where such existence  was  admitted,  the

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situation  contemplated by sub-s. (3) where the  notice  and the   requisition   were  wholly  disputed,  and   no   mere modification   of  the  requisition  sought,  was   entirely different.    The  language of sub-s. (3) and particularly the words  " to  hold  an enquiry into the matter " used  by  it  clearly indicated  that where there was such a contest, it  was  the duty of the Special Officer to enquire into the existence of the alleged nuisance and come to a finding of his own.   The status  of the Special Official and powers conferred on  him by  the  relevant provisions of the Act,  clearly  indicated that  sub-s.  (3) was intended by the Legislature  to  be  a protection  against any arbitrary exercise-of its  power  by the Municipality.   It  was  of the utmost importance  that  such  proceedings should in the interest of the community, be disposed of with all possible expedition.

JUDGMENT:    CIVIL  APPELLATE JURISDICTION : Civil Appeal No.  173  of 1959. Appeal  by special leave from the judgment and  order  dated July  16,  1958,  of the  Special  Officer  appointed  under section  153(3) of the Bombay District Municipal  Act,  1901 (Bombay  Act No. 1 1 1 of 1901), as applied  to  Saurashtra, Zalawad Division, Surendarnagar.                             AND ORIGINAL JURISDICTION: Petition No. 174 of 1958. Petition  under Article 32 of the Constitution of India  for the enforcement of Fundamental Rights. Purshottam Tricumdas, P. N. Bhagwati, Tanibhai D. Desai  and I. N. Shroff, for the appellant and petitioner.   N. C.  Chatterjee, S. K. Kapur and A. G. Ratnaparkhi,  for the  respondent  in  appeal  and respondent  No.  2  in  the petition.   B. Sen and R. H. Dhebar, for respondent No. 3 in petition. 390    1959.   May 19.  The Judgment of the Court was  delivered by    IMAMJ.-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  the 14th June, 1956, to the appellant under s. 153 A (1) of  the Bombay District Municipal Act, 1901, as adapted and  applied to the State of Saurashtra and as amended by Act 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 nine 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.    The  appellant replied to this notice by a  letter  dated the  10th  of July, 1956.  According to the  appellant,  the effluent  was being discharged until 1943 through  a  Katcha Channel  running  parallel  to  the  railway  line  in   the

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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 391 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 analyzing 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.   The respondent then requested the Government to appoint  a Special Officer under the provisions of s. 153 A (3) of  the Act.   The  Government by its order dated the 17th  of  May, 1958, appointed Mr. T.U. Mehta, District and Sessions Judge, Jhalawad  District, as a Special Officer to hold an  enquiry into the matter and to complete it within three months  from the date of the Notification.    When  the  matter  came before  the  Special  Officer  he recorded  the  order  which is the  subject  matter  of  the present  appeal by special leave.  The Special  Officer  had framed 7 Issues of which Issues Nos. 1 to 4 were 392 treated  by  him  as preliminary Issues of law.   Of  the  7 Issues framed Issue No. 4 was one of the most important ones for consideration and it was to the following effect:-               "  Is it shown that the question  whether  the               discharge of the effluent from the factory  of               the respondent company is polluting water  and               adversely  affects the fertility of the  soil,               is  a question of the subjective  satisfaction               of the Municipality and that this question  is               beyond the scope of the present enquiry ? "

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Along  with  this Issue, Issue No. 6 had  to  be  considered which was as follows:- it  If  the Point No. 4 is decided in the  negative,  is  it proved  that the effluents discharged by the factory of  the respondent  corrupt  potable  waters of  the  wells  in  the surrounding area so as to render them unfit for any use, and also  affect prejudicially the fertility of the soil in  the surrounding  area  by  percolation?"  The  Special   Officer decided  Issue  No. 4 in the affirmative and held  that  the question whether the discharge of the effluent polluted  the water  and adversely affected the fertility of the soil  was one  for  the  subjective  satisfaction  of  the  respondent Municipality and was beyond the scope of the enquiry  before him.   Having  found this he held that Issue No. 6  did  not arise  for  consideration.   In dealing  with  Issue  No.  5 whether the notice issued by the respondent Municipality was mala fide, arbitrary, capricious and that the same had  been issued  without  the  respondent  Municipality  sufficiently applying  its mind, the Special Officer was of  the  opinion that  it wag, " out of the purview of the present  enquiry." Issues 2 and 3 were decided by the Special Officer in favour of the appellant and need not be referred to for the purpose of the present appeal.  Issue No. I dealt with the  question whether ss. 153A to 153G of the Act violated the fundamental rights of the appellant guaranteed under Articles 14, 19 and 31  of the Constitution.  It was pointed out by the  Special Officer that during the course of the argument on behalf  of the appellant it was not pressed that the 393 fundamental  rights  covered  by Articles  14  and  31  were infringed.  The submission was confined to the  infringement of  Art.  19  of  the  Constitution.   This  contention  was rejected by the Special Officer.  The Special Officer in his order stated that "The result of the above findings is  that this Tribunal shall now proceed to decide the only remaining Issue which is Issue No. 7. I therefore order that the  case should proceed with the determination of this Issue." This Issue was in these words:-               "  If  it is found that the effluents  of  the               factory of the respondents corrupt the potable               waters  and fertility of the soil, what  final               recommendation should be made about the method               and   manner   of  the  discharge   of   these               effluents?" It  was  urged on behalf of the appellant that  the  Special Officer  had unduly restricted the scope of the  enquiry  by taking  an  erroneous view as to the scope  of  the  enquiry before  him  and thus had refused to  exercise  jurisdiction which  was  vested  in him under the Act.   It  was  further submitted  that  s. 153A of the Act offends Art. 19  of  the Constitution. On  behalf  of  the respondent it  was  contended  that  the Special Officer has not erred in holding that the  existence of a nuisance of the kind mentioned in s. 153A(1) of the Act was  a  matter  for  the  subjective  satisfaction  of   the respondent Municipality and beyond the scope of his enquiry. S.  153A  of  the  Act  did  not  offend  Art.  19  of   the Constitution because it would be a reasonable restriction to the exercise of the fundamental right under Art. 19(1)(C) to prevent a nuisance which would affect the public health  and fertility  of  the soil.  Having regard to  the  submissions made  on  behalf of the appellant and the respondent  it  is necessary  to quote the provisions of ss. 153A and  153B  of the Act.               Section 153A states

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             "Regulation    of   discharge   of    effluent               containing   salt   or  other   chemicals   by               factories.               (1)   If  it be shown to the  satisfaction  of               the Municipality that the owner or manager  of               a factory, 50 394 situated  or  located  within the limits  of  the  Municipal District,   is  discharging  from  such   factory   effluent containing  salt  or  other  chemicals  in  such  manner  as renders,  or is likely to render, saline the potable  waters of  wells,  tanks,  ponds or  other  water  receptacles,  or corrupts, or is likely to corrupt, such water in such a  way as  to  render  it unfit for any use by  the  public  or  is prejudicially  affecting,  or is likely to  so  affect,  the fertility  of  the soil, in the surrounding area  either  by percolation  or  otherwise, the Municipality may,  with  the previous approval of the Government, issue a written  notice to  the manager or the owner of such factory, requiring  him to show cause in writing within a fixed period why he should not  be  directed to arrange within such period  as  may  be fixed  in  such notice, or as may be extended from  time  to time, for the discharge of such effluents in such manner  as may  have been previously approved by the Government and  as may  be  specified in the notice, so that the  discharge  of such  effluents may not have the effect of rendering  saline or  corrupting  the waters of wells, tanks, ponds  or  other water   receptacles,  or  of  prejudicially  affecting   the fertility of the soil, in surrounding area. (2)  If no reply to the notice given under subsection (1) is received from the manager or the owner of the factory within the  fixed period, or if a reply is received to  the  effect that  the manager or the owner consents to comply with,  the requisition  in such notice, the Municipality may  forthwith pass  such  order  as may be necessary for  the  purpose  of regulating   the  discharge  of  effluents  in  the   manner specified in such notice. (3)  If a reply to the notice given under subsection (1)  is received  from  the  manager or the owner  of  the  factory, objecting  or  consenting  subject to  modification  to  the requisition specified in such notice, the Government  shall, on  a request made to it by the Municipality in this  behalf appoint  a special judicial officer, who shall not be  below the rank of a District Judge (hereinafter referred to as the Special Officer), to hold an inquiry into the 395               matter.   The Special Officer shall  make  the               inquiry  in  such  manner  and  perform   such               functions  and  within  such time  as  may  be               specified in the order of appointment."               Section 153B states:               "  Report by Special Officer and order  to  be               passed   by  Municipality  with  sanction   of               Government.               The Special Officer shall on completion of the               inquiry entrusted to him under subsection  (3)               of  Section  153A,  send  his  report  to  the               Municipality  & the Municipality  shall,  with               the previous approval of the Government,  pass               an  order in terms of the  recommendations  of               such officer." It  was contended on behalf of the appellant that  prior  to the  issuing of notice under s. 153A (1) the existence of  a nuisance  in the terms of the sub-section may be within  the

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subjective  satisfaction  of  the  Municipality  but   after issuing the notice different considerations would arise when the  provisions  of sub-s. (3) are (riven  effect  to.   The scheme of s. 153A of the Act is to permit the  Municipality, if  it is satisfied that a nuisance in the terms  of  sub-s. (1)  exists’ to issue a notice requiring the person to  whom the  notice  is issued to show cause why he  should  not  be directed  to  arrange for the discharge of the  effluent  in such  manner  as may have been previously  approved  by  the Government and as mentioned in the notice so that  rendering saline  or corrupting the water -of the wells, tanks,  ponds or  other water receptacles, or prejudicially affecting  the fertility  of  the  -,oil in the surrounding  areas  may  be stopped.  In showing cause the person to whom the notice has been issued may under sub-s. (2) consent to comply with  the requisition in such, notice upon which the Municipality  may forthwith  pass  such  orders as may be  necessary  for  the purpose  of regulating the discharge of the effluent in  the manner  specified in such notice.  Upto this stage there  is no  contest between the Municipality and the person to  whom the notice has been issued.  The question whether a nuisance in  the terms of sub-s. (1) exists or not did not  arise  as the person to whom the notice has been issued by his consent and willingness 396 to comply with the requisition admits the existence of  such a nuisance. -Different considerations, however, arise  where the circumstances attract the provisions of sub-s. (3) and a Special Officer has to be appointed.  Under this sub-section if the reply to the notice given under sub-s. (1) objects to the  requisition specified in the notice or consents  to  it subject to modification, the Government shall on the request of the Municipality appoint a special judicial officer "  to hold. an inquiry into the matter." It is urged on behalf  of the  appellant  that  if the requisition in  the  notice  is objected  to,  the  objection  includes  not  only  to   the allegation of the existence of the nuisance in terms of sub- s.  (1) but also to the direction as to the manner in  which the discharge of the effluent shall be made.  The  objection being in regard to both the matters, it was the bounden duty of  the Special Officer to hold an enquiry with  respect  to the   entire  matter  in  dispute.   At  this   stage,   the satisfaction of the Municipality as to the existence of  the nuisance   alleged  inevitably  becomes  justiciable.    The Special  Officer was bound to enquire into the  dispute  and make  its report both as to the, existence of  the  nuisance and  the  direction as to the manner in which  the  effluent shall be discharged. On  behalf of the respondent Municipality it  was  submitted that  under  sub-s. (1) the satisfaction is  the  subjective satisfaction of the Municipality and of no other  authority. The  requisition under this subsection is to the  person  on whom the notice is issued to show cause why he should not be directed to arrange for the discharge of the effluent in the manner specified in the notice and not to show cause against the  existence of the nuisance.  Sub-s. (3) deals with  this requisition  which is the subject of the enquiry before  the Special  Officer and not the existence of a  nuisance  which was  purely a matter for the subjective satisfaction of  the Municipality.   It is contended that where  the  Legislature has conferred on the Municipality jurisdiction to  determine whether  a  particular state of fact exists and  on  finding that it does exist to proceed further and to do something 397 more,  then the fact in question is not collateral but is  a

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part of the very issue which the Municipality has to enquire into and that ceases to be justiciable.  Having  regard  to the submissions made on  behalf  of  the appellant and the respondent it is necessary to construe the provisions  of  s. 153A of the Act -and  to  understand  the scheme set out in its provisions for dealing with a nuisance of’  the  kind mentioned in subs. (1).  In our  opinion,  to justify  the issuing of a notice by the  Municipality,  with the  previous approval of the Government, there must  be  in existence  such  a  nuisance  to  the  satisfaction  of  the Municipality.   The  satisfaction  here  is  the  subjective satisfaction  of  the Municipality and  no  other  authority could question the action of the Municipality in issuing the notice  on  the  ground  that it should  not  have  been  so satisfied.   Once the notice has issued ordering the  person to whom the notice is issued to show cause why he should not be directed to arrange for the discharge of the effluent  in the manner specified in the notice, it is open to the person to whom the notice is issued to accept the assertion of  the Municipality  that  the nuisance in question exists  and  to agree to comply with the direction to arrange the  discharge of  the effluent in the manner specified by the notice.   In such a case, the Municipality may forthwith pass such orders as  may  be  necessary for the  purpose  of  regulating  the discharge  of  the effluent in the manner specified  in  the notice.   In  our opinion, this authority is  given  to  the Municipality because the person to whom the notice has  been issued  does  not  deny the existence  of  the  nuisance  in question  and is prepared to comply with requisition in  the notice  without  any objection.  If the person to  whom  the notice  has  been issued does not reply to  the  notice  the Municipality  may forthwith pass a similar order.   In  both these  cases there is no dispute about the existence of  the nuisance   in   question  and  what   was   the   subjective satisfaction  of  the  Municipality is  admitted  to  be  in accordance with the existing facts.  Sub-s. (2) of s. 153  A covers such a situation, 398 Sub-s.  (3)  of  s. 153A deals  with  a  situation  entirely different  from that which arises under sub-s.  (2).   Under sub-s. (3) two situations arise (1) where the person to whom the notice has been issued objects to it and the requisition contained therein and (2) where he consents to it subject to modification.   In  both cases the Government shall  on  the request made by the Municipality, appoint a judicial officer not  below the rank of a District Judge to hold  an  enquiry into the matter.  It will be noticed that while under sub-s. (2)   the  consent  and  willingness  to  comply  with   the requisition  in the notice is absolute under sub-s.(3)  even if the person to whom the notice has been issued consents to the  requisition subject to modification the consent is  not absolute.   That is to say, some dispute between the  person concerned and the Municipality remains outstanding as to the manner  of  carrying it out and that dispute  would  be  the subject  of  an  enquiry by the Special  Officer.   In  this situation also, the existence of the nuisance is  implicitly admitted  at-id need not be enquired into.  Where,  however, the   person  concerned  objects  to  the  notice  and   the requisition contained therein absolutely the objection is in substance to the issue of the notice itself, which means  he objects  to  the  declaration of  the  Municipality  that  a nuisance  exists  as  well  as  to  the  direction  of   the Municipality as to the manner in which the effluent shall be discharged.   If  sub-s. (3) was intented to mean  that  the person  to whom the notice has been issued could not  object

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to the assertion of the Municipality that a nuisance existed then  the  words  "   objecting  or  consenting  subject  to modification to the requisition " would not find a place  in the subsection because in that case it would have been quite sufficient  to  have  used in the sub-section  the  words  " consenting subject to the modification to the  requisition." The  words  "to hold an enquiry into the  matter  "  clearly suggest  that  the  Special Officer must  enquire  into  the entire matter where a party objects absolutely to the notice and  the  requisition contained therein.  There  would  have been  no  need  for the appointment of  a  special  judicial officer not below the rank of a District Judge as a  Special Officer if such 399 Officer  was not required to enquire into the  existence  of the  nuisance.  If the existence of a nuisance  was  assumed because that was a matter for the subjective satisfaction of the  Municipality,  then  it would not  require  a  judicial officer  of  the  rank of a District Judge  to  enquire  and report only as to the manner in which the effluent should be discharged.   That task could be performed by engineers  and experts in such matters. In  our opinion, the scheme under s. 153A is to leave it  to the  subjective satisfaction of the Municipality as  to  the existence  of  a nuisance before a notice is issued  to  the party  concerned. Sub-s. (1) does not deal with any  enquiry into  the matter.  It merely provides a machinery  by  which the  scheme  of s. 153 A is set in  motion.   No  difficulty arises once a notice has been issued and the party concerned consents to it absolutely or does not choose to reply to it. Under  sub-s.(3),  however,  the appointment  of  a  Special Officer was considered necessary because the dispute between the   Municipality   and  the   party   concerned   required investigation and a report from the Officer.  Under s. 153E the Special Officer shall have the same powers as a    Civil Court has while trying a suit under the Code of   Civil Procedure in the following matters:-               "(a) summoning and enforcing the attendance of               any person and examining him on oath;               (b) requiring the discovery and production  of               any documents;               (c)   receiving evidence on affidavits;               (d)   requisitioning any public record or copy               there of from any court or office;               (e)   issuing commissions for the  examination               of witnesses or documents;               (f)   any   other   matters   which   may   be               prescribed." Under  s. 153F there is a provision for the  appointment  of assessors  to  advise the Special Officer on  any  technical matter.   Under s. 153G the proceedings before  the  Special Officer  shall be deemed to be judicial  proceedings  within the  meaning  of sections 193 and 228 of  the  Indian  Penal Code.   These provisions make it clear that the  Legislature intended, where there was 400 an  absolute  objection to the notice  and  the  requisition contained  therein as in the present case, that the  dispute between  the Municipality and the party concerned ’would  be enquired  into  by  a  judicial officer of  the  rank  of  a District  Judge.  Sub.s. (3) was a protection to  the  party objecting  to the requisition.  In these circumstances,  the enquiry  must necessarily relate to the entire  dispute  and the  words "  to hold an enquiry into the matter " are  wide enough  to suggest this.  The Legislature intended that  the

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party to whom. the notice had been issued should not be  the victim  of exercise of any power vested in the  Municipality in a capricious manner. The  Special Officer apparently made no attempt to  construe the provisions of sub-s. (3) of s. 153A of the Act.  In  our opinion, he erred in holding that it was beyond the scope of his  enquiry to enquire into the question whether, in  fact, the  nuisance alleged by the Municipality existed.   He  had thus  denied. himself the jurisdiction-which he did  possess and  which  he ought to have exercised.  It  is  plain  that before the appellant could be called upon to comply with the requisition of the respondent Municipality involving several lakhs of rupees as expenditure the Special Officer ought  to decide and report whether a nuisance of the kind alleged  by the respondent Municipality existed.  The appellant  rightly -contends that the order of the Special Officer declining to go  into  the  question whether  the  nuisance  in  question existed was one which ought to be set aside.   As,  in  our  opinion, the  Special  Officer  had  wrongly decided that lie could not go into the question whether  the nuisance  existed  his order must - be  set  aside.   Having regard  to the view which we take, the contention on  behalf of  the appellant that the provisions of s. 153A of the  Act offend  Art. 19 of the Constitution does not require  to  be decided; this position is conceded by the appellant.   We  must  point out, however, that the enquiry  should  be completed  without undue delay.  The notice was  issued  ;in June,  1956, nearly 3 years ago.  Proceedings of  this  kind ought to be handled with the utmost 401 expedition because if a nuisance exists it should be removed without  delay  in  order  to preserve  the  health  of  the community and the fertility of the soil. The appeal is accordingly allowed with costs.  A  petition  (No.  174  of  1958)  under  Art.  32  of  the Constitution  was  also  filed  by  the  appellant.   It  is unnecessary  to pass any formal order on this  petition  as, the  appellant has succeeded in the Civil Appeal No. 173  of 1959,  and it is disposed of accordingly except  that  there will be no order for costs in this petition.                               Appeal allowed.