tition 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 section 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 section 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 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 section 153 A 3 of the Act
The Government by its order dated the 17th of May 1958 appointed Mr TU 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   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 sections 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 article 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 section 153A of the Act offends article 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 section 153A1 of the Act was a matter for the subjective satisfaction of the respondent Municipality and beyond the scope of his enquiry
section 153A of the Act did not offend article 19 of the Constitution because it would be a reasonable restriction to the exercise of the fundamental right under article 191C 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 sections 153A and 153B of the Act
Section 153A states 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 section 153A 1 the existence of a nuisance in the terms of the sub section may be within the subjective satisfaction of the Municipality but after issuing the notice different considerations would arise when the provisions of sub section
3 are riven effect to
The scheme of section 153A of the Act is to permit the Municipality if it is satisfied that a nuisance in the terms of sub section
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 section
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 section
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 section
3 and a Special Officer has to be appointed
Under this sub section if the reply to the notice given under sub section
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 section 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 section
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 section
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 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 section 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
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 section
2 of section 153 A covers such a situation 398 Sub section
3 of section 153A deals with a situation entirely different from that which arises under sub section
Under sub section
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 section
2 the consent and willingness to comply with the requisition in the notice is absolute under sub s3 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 section
3 was intented to mean that the person to whom the notice has been issued could not object 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 section 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 section
1 does not deal with any enquiry into the matter
It merely provides a machinery by which the scheme of section 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 s3 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 section 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 section 153F there is a provision for the appointment of assessors to advise the Special Officer on any technical matter
Under section 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
Subs
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 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 section
3 of section 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 section 153A of the Act offend article 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 article 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


Summary:
The appellant company in enforcement of a standing order framed under the XX of 1946 against which the respondent had preferred no appeal compulsorily retired 47 of its workmen at the age Of 55
A dispute was raised by the workmen as to the validity of such retirement and the three questions referred to the Tribunal for adjudication were 1 whether forced retirement of workmen at 55 was justified 2 what relief were the workmen entitled to on retirement and 3 supposing the forced retirement of the workmen in question was justified to what relief would they be entitled
It was urged on behalf of the respondents that the age of superannuation fixed by the standing order should apply only to new entrants and in the case of old ones the age should be sixty with option to them to continue even thereafter
The Labour Appellate Tribunal on appeal in reversal of the findings of the Industrial Tribunal held that the Standing Order in question could not bar adjudication as to the propriety of the system of forced retirement that in view of the admitted fact that there was no fixed age of retirement in the appellant s concern before the Standing Order it could not be enforced against workmen recruited prior to it and by its award directed that the workmen who had been compulsorily retired should be reinstated on refunding what they had received in the shape of gratuity and Provident Fund dues
It was urged by way of preliminary objections on behalf of the appellant that 1 the 349 appeal to the Labour Appellate Tribunal was incompetent as no substantial question of law was involved in it and 2 that the reference to adjudication was itself bad and the delay in raising the present dispute showed that the respondent had acquiesced in the relevant standing order
Held that the objections must fail
The question as to what should be the proper age of super annuation for industrial workers was one of general importance as it affected a large number of employees and involved questions of industrial policy and principle so it was a substantial question of law under section 71a of the Industrial Disputes Appellate Tribunal Act 1950
A standing order even though binding as between the employer and the employees under section 7 of the  was open to modification even under the Act as it stood prior to its amendment in 1956 in an industrial dispute raised by the workmen for that purpose and as such the present reference questioning the propriety and validity of the system of forced retirement as introduced by the appellant must be decided on merits
Mettur Industries Ltd vs Varma and Others 1958 11 LLJ 326 and Bharat Starch and Chemicals Ltd vs The Industrial Tribunal Punjab  referred to
The delay inevitable in raising an industrial dispute could be no ground in the instant case for an inference that the respondent had acquiesced in the relevant standing order
In industrial disputes legal technicalities should be avoided as far as it was reasonably possible to do so and industrial tribunals should be cautious in applying the principle of acquiescence and estoppel in the adjudication of such disputes
Held further that it was evident in the instant case that it was unfair to fix the age of superannuation of previous employees by a subsequent standing order which should apply in that matter only to future entrants
In view of the fact However that the previous employees had agreed that such age for them should be sixty with option to continue thereafter the age of superannuation for them should be fixed at sixty but without the option which must be held to be wholly unreasonable and inconsistent with the basic idea of a retirement age
jamadoba Colliery of Messrs Tata Iron and Steel Co Ltd vs Shri Nasiban  referred to
Guest Keen Williams Private Ltd vs Its Workmen The Calcutta Gazette Pt 1 dt
24 9 53 P 3261 Ms Calcutta Exchange Gazette  Daily Advertiser vs Shri Uma Prasanna Bhattacharjee The Calcutta Gazette Pt 1 dt 16 9 1954 P 3111 and Bengal Chamber of Commerce vs Its Employees Govt of West Bengal Labour Deptt Award made by the Tribunals  for quarter ending March 1949 P 116 distinguished
350 In fixing the age of superannuation however industrial tribunals should take into consideration various relevant factors such as the nature of the work the wage structure retirement benefits and other amenities available the climate of the locality age of superannuation in comparable industries and the past practice prevailing in the industry