M/S ABHILASH TEXTILES AND ORS. V RAJKOT MUNICIPAL CORPORATION
FACTS
A notice is issued under S. 370-A of the Bombay Provincial Municipal Corporation Act, 1949. In the notice it was stated that at the place mentioned, the petitioners were discharging dirty water from the factory on public roads and public drainage without purifying the same, thereby causing damage to the public health.A total of 4 petitions were filed which challenged the notice issued by the Municipal Commissioner.A period of 7 days was granted to prevent the discharge of dirty water, without any treatment, on public roads and drainage system.In case of non-compliance with the notice issued under S.376A the Municipal Commissioner shall take steps to close the factory in order to prevent such illegal discharge of water.The counsel representing the petitioners claimed that the proposed action of factory being closed would lead to adverse civil consequences.
ISSUE
- Should the notice issued by the Municipal Commissioner be deemed illegal and void on basis of the petitioners not being granted an opportunity to be heard?
- Is there a right to carry on business or trade, when the business is carried out in an unregulated manner which causes nuisance to the general public?
CONTENTION
Respondent
It was 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.
Petitioner
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 1078 SC 597. The Learned counsel for the petitioners relied upon the following observations of the Supreme Court occurring in Para 32 of 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.
HELD
- 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.
- 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.
- 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 respondentMunicipal 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 we live today, no one can claim absolute freedom without incurring any obligationwhatsoever 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.
- 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.
- 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.