RAMJI PATEL AND ORS. v. NAGRLK UPBHOKTA MARG DARSHAK MANCH AND ORS

Citation: [2000] 1 S.C.R. 1006

Court: Supreme Court of India

Bench: S. SAGHIR AHMAD, R.C. LAHOTI, Y.K. SABHARWAL

Judgment text

RAMJI PATEL A"ID ORS. v. NAGRlK UPBHOKTA MARG DARSHAK M. \NCH A'lD ORS. FEBRLARY 17, 2COO [S. SAGHIR AHtvlAD, R. C. LAHOTI A'. \D Y. K. SABHARWAL, JJ. j Af. P. Cattle (Control) Act, IY78- hall also be completed by the Statt: Government within this period. 8. Another dairy owner is Shri Manohar Singh Marwaha. He shall also be allotted land at TilharL He has his dairy on 0. 148 hectares of land at Gwarighat. He has 150 cattle heads. He shall be allotted land at Tilhari out of Kh. No. 200/1, Patwari Circle No. 23/27, measuring 30. 10 hectares. Out of this Khasra, he will be given 0. 50 hectares of land on usual charges. He shall make an application before the Nazul Officer, Jabalpur and the Collector shall forward his application to the State Government. The State Gov itcd with the Central Pollution Control Board.

In the affidavit dated 3rd January, 1999 of Sri Ramji Patel filed on behalf of the petitioners, it has been stated that they have entered into an agreement with the Sunraj Construction Company for the construction of the bio-gas plant of 45 cubic meter capacity and that the Executive Engineer of Madhya Pradesh Vrja Vikas Nigam Ltd. has also been informed. The petitioner has also applied for the subsidy for the construction of the bio-gas plant. The Madhya Pradesh Urja Yikas Nigam Ltd. shall monitor the construction of the bio-gas plant on the spot and submit a report to this Court after 2 months. The other recommendations of the Central Pollution Control Board contained in its report dated 27th March, 1998 shall also be complied with by the petitioners. List after 2 months. " Thereafter, time for completing the work for the construction of Bio Gas Plant etc.

was extended from time to time and the Union of India, through the Ministry of Agriculture, was also directed to relt:ase the subsidy amount of Rs. 64,000 for the Bio Gas Plant, to the petitioners. In the meantime, an affidavit of Dr. M. R. Tiwari, Health Officer, Municipal Corporation, Jabalpur, dated 25. 3. 1998, was filed in which it was, inter alia, stated as under : ;'4. That a meeting was held on 21/10/97 and following decision has been taken : 'This is determined by full majority that to keep environment of the city neat and clean due to earthquake and from the point of view of pollution all dairies within the Municipal Corporation limits must be removed from the city limits upto end of Nov. , 1997. Simultaneously dairies which are running in Lalpur nearby Public Healt~ Engineering Pipe Line should also be removed because some complaints regarding the pollution in drinking water pipe lir. e are received.

This action is very necessary from the health point of view of the citizens. ' A copy of Resolution dated 21/10/97 1s marked as Annexure R-4-1. " 5. That as per the resolution of Standing Committee, Municipal Corporation, Jabalpur some of the dairies has been removed and the proceeding of removal of dairies is still :mder process. " The proceedings of the meeting of the Municipal Corporation which adopted a Resolution on 21. 10. 1997, was also annexed which indicated that the Municipal Corporation had adoptt:d a Resolution that ail dairies within the Municipal limits must be removed from the city of Jabalpur by the end of November, 1997. It was also n:solvcd that daines at Lalpur near the Public Health Engineering Pipeline should also be removed because a number of complaints regarding pollution caused in the drinking water pipeline were received.

It may be stated th<>t Madhya Pradesh Cattle (Control) Act, 1978 was enforced within the Municipal limits of Jabalpur with dfect from 27th January, 1978, and in the Notification issued by the Commissioner, Municipal Corporation, Jabalpur, on September 24, 1979, it was ~tated that the cattle could not be kept within the limits of Jabalpur Municipal Corporation, except in the villages which were specified in the list set out in the Notification. This list included Gwarighat and Laipur villages also but in pursuance of the Resolution adopted by the Municipal Corporation on 21. 10. 1997, both the villages, namdy, Gwarighat and Lalpur, were taken out of the list of "excepted villages' vide Notification published in the Govt. RAMJI PAlEL v. NAGRIKUPBHOKTAMARG DARSHAKMANCH(S. S. AHMAD, lJ 1017 Gazette on 19. 3. 1999. In view of the above Notification, by which the villages of Gwarighat and Lalpur were excluded from the ''excepted villages", where cattle could be kept, it is contended by Mr.

Anoop G. Choudhary, learned Senior Counsel appearing on behalf of the State of Madhya Pradesh, that the petitioners have to shift outside the Municipal limits of Jabalpur city, if they, at all, intend to keep their dairies, but the dairies, particularly at the spot at which they have establlshed their business cannot be permitted to be run or maintained, not only for the reason that both the villages, namely, Gwarighat and Lalpur fall within the limits of Municipal Corporation and have, in the meantime, become densely populated, but also for the reason that keeping of cattle in the close proximity of the main pipeline which supplies drinking water from Lalpur Filtration Plant to the city of Jabalpur, would be hazardous to the health of the people on account of the possibility of the water carried through that pipeline being contaminated by the Gobar (cowdung) as also the urine of the hundreds of cattle kept there by the petitioners.

This is also the stand of the Municipal Corporation, Jabalpur, on whose behalf Mr. Ranjan Mukherjee, learned counsel made submissions, that in the face of the exercise of statutory power by the Municipal Corporation, Jabalpur, by which the establishment of dairies or the keeping of cattle within the limits of Municipal Corporation, has been totally prohibited, the petitioners cannot contend that they are still entitled to retain their dairies at the disputed sites. Dr. Rajeev Dhawan, learned Senior Counsel appearing on behalf of the petitioners has, on the other hand, contended that the Resolution dated 31. 10.

1997, which was adopted by Municipal Corporation, Jabalpur, was colourable exercise of power, inasmuch as the exclusion of Gwarighat and Lalpur from the "excepted villages'' as detailed in the Notification issued in 1978, has been done only during the pendency of the present petitions in this Court in which an interim order was also granted that the judgment of the High Court would not be implemented. It is contended that the proceedings in this regard cannot be rendered nugatory by adopting the Resolution that the dairies could not be run in Gwarighat and Lalpur ~ villages. It is contended that since the Resolution was adopted only to harm the interests of the petitioners whose rights were under adjudication by this Court in the present proceedings, the same is liable to be quashed and cannot be given effect to.

It is also contended that the list of "excepted villages" set out in the Notification of 1978 contained many villages, but the Resolution was adopted only in respect of Gwarighat and Lalpur villages where the present petitioners arc running their dairies. No reason, it is contended, has been shown by the Municipal Corporation why dairies are still permitted to be run in other villages, although those other villages also fall within the Municipal limits of Jabalpur. It appears that there has been previous litigation between the parties with regard to the running of dairies which, at that time, were being run by the petitioners withm the Municipal limits of Jabalpur. In 1971, a writ petition for the shifting of dairies was filed in the Madhya Pradesh High Court which by its judgment dated 6. 2. 1976 framed a scheme directing the Corporation to reserve three plots outside the Municipal limits of Jabalpur where the dairy-owners would shift their dairies.

On account of the dispute having arisen between the Municipal Corporation, Jabalpur and the dairyowncrs with regard to the development charges which the dairy-owners were required to pay, another writ petition was filed in the Madhya Pradesh High Court by about 89 dairy-owners. Since a choice was given to the dairy-owners to make their own arrangement for establishing and running their dairies outside the Municipal limits of Jabalpur, the writ petition was dismissed by the High Court on 2. 1. 1976. It was, thereafter that the dairy-owners purchased plots of land outside the Municipal limits and established their dairies. The plots of land were purchased by the petitioners in villages Lalpur and Gwarighat in 1982 and they shifted their dairies to those villages which had already been excepted from the operation of the Madhya Pradesh Cattle (Control) Act, 1978. The petitioners have set out in the present petitions that one Shri K. K.

Nayakar, a Mimicry Artist of repute, purchased a plot of land and constructed a house at Gwarighat which was at a distanc-: of about 500 meters from the dairy of one of the petitioners and as Shri Nayakar did not like the presence of dairies near his house, he filed a complaint under Section 133 of the Code of Criminal Proeedure before the Sub-Divisional Masistrate, Jabalpur, for the removal of nuisance created by the petitioners. While the proceedings were pending before the Sub-Divisional Magistrate under Section 133 of the Code of Criminal Procedure. a writ petition was filed in the Madhya Pradesh High Court which ultimately resulted in the judgment which is being impugned before us. RAMJ! PA! 'El v. '. 'iAGRIKUPBHOKIAMARG DARSHAKMANCH [S. S. AHMAD, J.

f 1019 From the facts set out above, it will be seen that when the Special Leavt: Pt:titions wt:n: filed in this Court, the villages Lalpur and Gwarighat wen: in the list of ;•excepted villages" where dairies could be established and run and catt! c could be kept. Sinct: it was stated in the writ petition that thl! main watt:r pipeline from the Filtration Plant at La1pur passed nearby the dairies set up by the petitioners on account of which the drinking water was likdy to be contaminated by the Gobar (cowdung) and urine of hundreds of cattle kept there, this Court, while entertaining the Special Leave Petitions, considered the possibility of a project being devised so as to prt:v.. :nt altogether the possibility of pollution/contamination of water carried through pipelines already embedded about four foct below the surface of the earth. It was for this reason that this Court by its ordi;:r dated 7. 11.

1997 directed the Central Pollution Control Board to consider this matter and to report whether the likelihood of pollution to the drinking water carried by the pipeline in question could be ruled out by any device suggested by it. On the submission of the Report of the Centrai Pollution Control Board, which was also supported by the State Pollution Control Board, the Court directed a project to be prt:pared for project that purpose. On the submission of the Project Report, since it was given out by the petitioners that they would implement the project and carry out all other recommendations made by the Central Pollution (. '. antral Board, the Court directed the petitioners to implement the project which included, inter alia, the setting up of a Gobar Gas (Bio Gas) Plant The petitioners, apart from making a payment of Rs. 93,000 to the Central Pollution Control Board towards its Inspection Fee etc.

, also took up the construction of a Gobar Gas Plant and enten:d into an agret:ment for purchase of certain additional land as suggestt:d by the Central Pollution Control Board. Time to complete the construction of the Gobar Gas Plant was extt:nded from time to time by this Court and ultimately an affidavit was filed on behalf of the petitioners that the Gobar Gas Plant has been constructed and established. The construction was carried out under the supervision of the Madhya Pradesh Urja Vikas Nigam as directed by this Court and Madhya Pradesh Crja Yikas "ligam also submitted its progress report. An affidavit to the effect that the Gobar Gas Plant had become functional was also filed before the Court. The cost of construction of the Gobar Gas Plant which was incurred - .. by the petitioners is man: than Rs. 5 lakhs. i While these proceedings were pending in this Court, thc Municipal Corporation adopted a Resolution to exclude from the li,t of "excepted .

• villages" the two villages where the dairies in question are situate, namely, Lalpur and Gwarighat, so that the dairies may be shifted from these two villages and established elsewhere outside the limits of Municipal Corporation, Jabalpur. An affidavit to this effect was, for the first time, filed on. behalf of the Municipal Corporation, Jabalpur, in March 1998. But the Notification issued on the basis of that Resolution was still not filed before the Court and this has been placed before the Court during the course of the arguments. While it is contended on behalf of the petitioners that the Resolution adopted by the Municipal Corporation, Jabalpur, and the consequent Gazette Notification issued on its basis were liable to be quashed on account of the abuse of power, or to put it differently, on account of colourable exercise of power, it is maintained on behalf of the State Govt.

as also the Municipal Corporation, Jabalpur, that the Resolution was adopted in the interest of public health and could not be said to be a colourable exercise of power merely because the proceedings were pending in this Court. Supply of pure drinking water is the statutory duty of the Municipal Corporation and the supply of such water has to be ensured to every citizen. In a situation, whcre the interest of the community is involved, the individual interest must yield to the interest of the community or the general public. Since the Cattle (Control) Act, 1978 is already in force within the Municipal limits of Jabalpur city, the dairies cannot be established and cattle cannot be kept so as to cause public nuisance in contravention of the statutory provisions.

But the Court cannot also overlook the fact that the petitioners, who had already been uprooted from one place, and that too, at the dictate of the judiciary, had established dairies at a place at which such activity was not prohibited. In the list of villages appended to the Notification issued under the Cattle (Control) Act, 1978, Lalpur and Gwarighat were the villages, besides other villages, where such activity could be legally carried on. These villages were taken out of that list during the pendency of the present proceedings by virtue of a Resolution adopted by the Municipal Corporation on 21. 10. 1997. The petitioners have already invested huge sums in setting up a Gobar Gas Plant at an ... ~ expense of more than Rupees Five lakhs and have also incurred an expense of Rs. 93,000 towards Inspection Fee of the Central Pollution Control Board in pursuance of the order passed by this Court. - RAM. JI PATEL v. NAGRIKUPBHOKTAMARG DARSHAKMANCH [S. S. AHMAD. J.

[ 1021 The validity of the Resolution dated 21. 10. 1997 as reflected in the Gazette Notification dated 19. 3. 1999 cannot be legally adjudicated upon in these proceedings on the oral submissions made by Dr. Rajeev Dhawan, learned Senior Counsel, who also pointed out that although the Resolution was adopted only in respect of Lalpur village, the Notification published in the Gazette mentions Gwarighat village also. If the Notification is intended to be challenged by the petitioners, they have to initiate appropriate proceedings in which they have to set out the foundation for such challenge so that the State Govt.

or, for that matter, the Municipal Corporation may have adequate opportunity of submitting their reply, particularly as they have also to explain why only these two villages were taken out of the list of "excepted villages" set out in the Notification of 1978 and why the activity of establishing dairies in other villages was not prohibited, although those other villages were also within the Municipal limits of Jabalpur city. Having regard to the facts and circumstances of this case, we dispose of these Special Leave Petitions by providing as under. (a) In view of the Notification published in the Govt. Gazette on 19. 3. 1999, milk dairies and the keeping of cattle at the place in question, or for that matter, in villages Lalpur and Gwarighat, cannot be permitted to continue nor can anyone be permitted to establish it in those villages specially in the proximity of the main pipeline through which drinking water is supplied to the city of Jabalpur.

(b) Whether the Notification published in the Govt. Gazette dated 19. 3. 1999 is valid or not cannot be decided in the present proceedings as there are no pleadings in that regard. It will be open to the petitioners to challenge the Notification by instituting appropriate proceedings questioning its validity on all the grounds which have been orally urged before us, including the ground that the Notification reflected a colourable exercise of power in the hands of the Municipal Corporation, or that it intended to interfere with the proceedings pending in this Court, but such proceedings shall have to be instituted by the petitioners within three months from the date of this judgment. The interim orders passed by this Court in these petitions shall continue for 1022 SUPREME COURT REPORTh [2000] l S. C. R. another period of three months and two weeks thereafter, to enable the petitioners to approach the High Court and make appropriate application for interim relief.

(c) Since the Notification dated 19. 3. 1999 was issued by the Municipal Corporation during the pendency of these proceedings at a stage when this Court had already allowed the petitioner to sel up the Bio Gas Plant and lhe petitioner in SLP(C) No. 2927. ''17 has incurred an expenditure of Rs. 5,86,CCO , the Municipal Corporation, Jabalpur, shall, after deducting the amount of subsidy as may have already bi. :en paid by the Government, pay that amount to the petitioner in the Special Leave Petition (C) No. 2927 of 1997 at the time of their shifting to the new locations pur,uant to the Notification dated 19. 3. 1999 and in the c··ent of tlu:ir chalkngt: to the said Notification being turned down by the High Court. He and petitioner No. 1 in Special Leave Petition (C) Nu. 2926 of 1997 will also be entitled to all the benefits indicated by the High Court in the impugned judgment while dealing with the individual cases of the petitionns. (d) The petitioners, namely, Mr.

Shiv Kumar Patel and Hari Ram Rajak in S. L. P. (C) No. 2926/97 have indicated their willingness to shift to new locations in terms of the judgment passed by the High Court. Consequently, the Special Leave Petition on their behalf shall be treated to have been dismissed as not pressed. R. K. S. Petitions dismissed.