RAMJI PATEL A"ID ORS.

NAGRlK UPBHOKTA MARG DARSHAK M.\NCH A'lD ORS.

FEBRLARY 17, 2COO

B [S. SAGHIR AHtvlAD, R.C. LAHOTI A'.\D Y.K. SABHARWAL, JJ.j

Af.P. Cattle (Control) Act, IY78-<.'untrol of water Pollution- In an earlier PIL, owners of dairies shifting their dairies tu villages 'L' and

'G' Fresh PlL filed jnr a direction to the dairy owners to shut their dai1ies C from villages 'L' and 'Ci' also alltging that cow dung etc. may contaminate the water pipeline gumg nearby it-High Cowt allowed the praye1~-Appeal before Supreme Cuun by dairy mvner.1--Supreme Coll/1 directing Central Pollution Control Board ro visit the area and file a project repon-Board recommending installation •Jf bio gas plant.\' Some of the dairy owners inclllring fees in installing the plant as pa the recommendation of the Board-During D the pendmcy of the appeal, Municipal Corporation issuing Votijication dated

19.03. 1999 excluding villages 'L' and 'Ci' from the list of "excepted village "-Held, validity uf the notification cannot be challenged in the absence of pleadings in that regard-Liberty granted to the dairy owners to challenge the Notification in a fresh proceedings befort the High Court-<:onstitution E of India, Article.1 21, 226 and 136.

Madhya Pradesh Cattle (( ontrol) Act, 1978 was enforced within the municipal limits of Jabalpur with effect from 27th January, 1978, and in the Notification issued by the Commissioner, \funicipal Corporation, Jabalpur, on September 24, 1979, it was stated that the cattle could not be F kept within the limits of Jabalpur Municipal Corporation, except in the villages which were pecified in the list set out in the otification. This list included villages 'G' and 'L' also in pursuance of the Resolution adopted by the Municipal Corporation on 21.10.1997. Both the villages 'G' and 'L' were taken out of the list of "excepted villages" vide Notification published G in the Government Gazette on 19.3.1999.

High Court in an earlier Public lnterest Litigation had directed the dairy owners to shift their dairies to village 'L' and 'G' which had been excepted from the operation of the Act and allowed that dairies in these two villages can be established and cattle could be kept there. Respondent No.

H 1 filed a further PIL that due to storing of the cow dung and waste of dairy

l006

RA.\1.JIPATJ::L v. l"'AGRIKIJPBHOKL'AMARGDARSHAKMANCH 1007

products near main drinking water pipeline was likely to contaminate the A pure drinking water through it. High Court allowed shifting o.f these dairies from their present location to alternative sites. Hence this appeal.

This Court hearing the appeal directed the Central Pollution Control Board to submit a project report to prevent the possibility of contamination of drinking water carried through the pipeline. Board, inter B alia, recommended setting up of Bio Gas Plant. One of the dairy owner incurring an expenditure of Rs. 5,86,000 in paying inspection fee to the Board and in installing a Bio Gas Plant. However, during the pendency of proceedings before this Court, Municipal Corporation issued a N otification dated 19.3.1999 under the Act excluding village 'L' and 'G' within the C purview of "excepted villages" where the dairies were situated.

Disposing of the matters, this Court

HELD : 1. Supply of pure drinking water is the statutory duty of the Municipal Corporation and the supply of such water has to be ensured to D every citizen. In a situation, where the interest of the community is involved, the individual interest must yield to the interest of the community or the general public. Since the M.P. Cattle (Control) Act, 1978 is already in force within the Municipal limits of Jabalpur city, 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 dlsO overlook the fact that the 11etitioners, who had alread:ibeen uprooted from one place, and that too, at the dictate of the judiciary, bad established dairies at the place at which such activity was not prohibited. In the list of villages appended to the Notification issued under the Cattle (Control)

Act, 'L' and 'CJ' were the villages, besides other villages, where such activity F 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 expe11se of more than five lakhs and have also incurred an expense of Rs. 93,000 towards G Inspection Fee of the Central Pollution Control Board in pursuance of the order passed by this Court. [1020-E-H]

2.1. 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. Although the Resolution was adopted only in H

SL PRFMECOL R:· RFPUK:·~

;2000] 1 S.CR

A respect of village 'L', the Notification published in the Gazette mentions village '(i' abo. If the Notification was intended to be challenged by the petitioners, they have tu initiate appropriate proceedings in which they have to set out the foundation for rnch challenge so that the State Government or for that matter, the Municipal Corporation may have adequate B 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 'fotification of 1978 and why the activity of establishing dairie• in other villages was not prohibited, although those other villages were also within the municipal limits of Jabalpur city. (1021-A-C]

C 2.2. In view of the Notification published in the Government Gazette on 19.3.1999, milk dairies and the keeping of cattle at the place in question, or for that matter, in village 'L' and 'G', cannot be permitted tu 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 sup- D plied to the city of Jabalpur. [1021-El

2.3. Whether the !'llotilicatiun published in the Government 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 '.'Ootification by instituting appropriate proceedings ques- E tioning ib validity on all the grounds, including the ground that the

!'liotification rdlected 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 of the date of this judgment. The F interim order' passed by this Court in these petitions shall continue for another period of three months and two week' thereafter to enable the petitioners approach the High Court and make appropriate application fur interim relief. [1021-F-HJ

G 2.4. Since the Notification dated 19.3.1999 was issued by the Municipal Corporation during the pendency of these proceedings at the stage when this Court had already allowed the petitioner in SLP(C) No. 2927 of 1997 to set up the Bio Gas Plant and the petitioner has incurred an expenditure of Rs. 5,86,000, the '.\-Junicipal Corporation Jabalpur, shall, after deducting the amount of subsidy as may have already been paid by H the Governmnt, pay that amount to petitioner in SLP(C) Nu. 2927of1997

RA,\'1JIPAIBL v. NAGRIK UPBHOKTA~RG DARSHAKMANCH(S.S.AHMAD, J.] 1009

and at the time of fixing of their shifting to the new locations pursuant to A the Notification dated 19.3.1999 and in the event of their challenge to the said Notification being turned down by the High Court, he and Petitioner No. 1 in Special Leave Petition No. 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 petitioners. [1022BD]

CIVIL APPELLATE JURISDICTION: Special Leave Petition (C) No. 2926 of 1997 Etc.

From the Judgment and Order 16.12.96 of the Madhya Pradesh High Court in W.P. No. 3220 of 1996.

C.S. Vaidyanathan, R.N. Rawat, Additional Solicitor General, Gopal Subramaniam, Sobhagmal Jain, Guiab C. Gupta, Dr. RaJeev Dhawan, N.N.

Goswami, Anoop G. Choudhary, G.L. Sanghi, Prakash Shrivastava, Shiv Sagar Tiwari, Rajesh Srivastava, Ms. Madhu Dadlani, Satish K. Agnihotri, Ranjan Mukht:rjee, Yijay Panjwani, M. Veerappa, K.H. Nobin Singh, Wasim A. Qadri, Ms. Sushma Suri, H.K. Puri, B. Krishna Prasad, Ms.

Yogmaya, S.S. Tiwari, Ashok Kumar Singh, Rajeev Sharma, Prakash U.

Upadhyay, ujjwal Banerjee, Romy Chacko, P. Prameswaran, Prakash K.

Shrivastava, A.P. Dhamija, D.K. Chopra, Sudhanshu Atreya for the appear

ing parties.

The Judgment of the Court was ddivt:red by

S. SAGHIR AH.'\1AD, J. The Madhya Pradesh High Court, in a Public Interest Litigation, instituted under Article 226 of the Constitution, has directed, by the impugned judgment dated 16.12.1996, that the dairies, located on the outskirts of the Jabalpur City, be shifted from their present location to the alternative sites. This judgment was passed in the Writ Petition in which the following reliefs were claimed:·

"(a) to direct the respondents to take appropriate, effective and immediate steps to remove the Cow/Buffalow dung and urine from G the pipe line of water filteration plant at Lalpur, Gwarighat.

(b) direct the respondents to ensure that in future also no storage of Cow/Buffalow dung and urine of animals may be done on the water supply pipe line of Lalpur, Gwarighat as stated in the body of the petition; H

(c) direct the respondents to take appropriate steps against the persons who have stored these hazardous materials on the water supply pipe lines;

( d) Any other order/orders, writ/writs or direction/directions that this Hon'ble Court may deem fit and proper, may also kindly be given."

The principal ground on which the petition was founded was that the main water pipelines, which supplied water, after its filtration at Lalpur Filtration Plant, to the Jabalpur City, passed through the place where a C number of dairy-owners, had started storing the cow/buffalow dung and waste of the dairy products, and that too, near the pipelines which was likely to contaminate the pure water supplied to the residents of the City for home consumption. On this aspect, the High Court recorded the following findings:- D

''We called the Public Health Engineering persons and the Corporation Authorities. The Corporation Authorities informed us that proceedings under Sec. 133 of the Code of Criminal Procedure were taken against these persons and against Shri Manohar Singh Marwaha. Against Marwaha dairy, final order has been passed which is also the suhject of revision before the Ses. sions Judge, Jabalpur in which interim order has been passed by the Sessions Judge restraining the M.P. Electricity Board from disconnection of their power supply. We also sought reports from the Public Health Engineering D.:partment, Revenue Authorities and Corporation Authorities and after considering the matter, we find that keeping all these dairies around these water supply lines is a great hazard to the lives of the people of Jabalpur, because most of them get water from these pipelines on which cow1buffalow dungs are being stored by the dairy owners as a result of which there is every likelihood of pollution in the town by the &upply of polluted water."

The High Court, thereafter, considered the question of rehabilitating the dairy-owners at some other place and passed the following order on a H consideration of the case of each dairy-owner individually:

( I v"

RAMJIPATEL v. NAGRJK UPBHOKTA MARG DARSHAKMANCH[S.S.AHMAD, J.) 1011

"5. We, therefore, explored the possibility of rehabilitating these dairy owners from the present location so that cow/buffalow dungs may not polluk the water supply lines. We have been informed that so far as dairy owner Ramji Patil is concerned, his present dairy is situated on Khasra No. 15/3 at Gwarighat. He has 107 cattlt: heads. He has otht:r lands in village Lalpur, i.e. Settlement

o. 641, bearing Kh. Nos. 134, 154/2, 135 and 136/3. It is, therefore, directed that since Ramji Patel has a site available on the lands bearing the aforesaid Khasra numbers, he should shift his dairy from the present site tu any of the above mentioned sites of Kh.

No. 15/3 at Gwarighat within two months from today.

6. Shiv Kumar Patel has got his dairy at Gwarighat on Khasra o. 15/2. He has 18 cattle heads. He has also a land in Khasra Nos. 4

and 5/2 at Gwarighat which site is sufficiently away from the present site. He is also directt:d to remove his dairy to any of the above mentioned places from the present one within two months D from today.

7. Hariram Rajak has his dairy at Gwarighat. He does not have any land of his own. He has 30 cattle heads. He does not have any alternative land. Therefore, we asked the S.D .M. Jabalpur that he may he providt:d a site for his dairy. He has pointed out that there is a land available at villagt: Tilhari, bearing Kh. No. 200/1 of Patwari Circle u. 23/27, measuring about 30.106 hectares. We asked the Public Health Engineering Department authorities also to go and find out whether there is water available in that area or not Shri A.K. Tiwari, Chief Enginetr, Public Health Engineering Department Jabalpur and his Executive Engineer both have inspected the area and also conducted hydrological tests. According

to their report, there is plenty of water in that area. Therefore, there will be no difficulty so far as supply of water to this dairy is concerned. It is directed that Hariram Rajak shall make a proper application before the Nazul Officer, Jabalpur and the Collector, Jabalpur shall forward the same to the State Government for allotting 0.50 hectares of land to him for running his dairy. The State Government is directed that 0.50 hectares of land shall be allotted tu Hariram Rajak on usual charges within a month from today. The Public Health Engineering Department shall dig a H

tubewell for him at that place at the cost of the State Exechequer within another period of one month. Hariram Rajak shall be removed from the present place within a period of two months to the newly allotted "ite. All this exercise should be done by the State Government and the Public Health Engineering Department within a period of two months from today. lt will be the responsibility of the Corporation to see that the dairy of Hariram Rajak is removed within two months from today and all formalities >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 D before the Nazul Officer, Jabalpur and the Collector shall forward his application to the State Government. The State Gov<:rnment is directed to allot this piece of :and to Shri Manohar Singh Marwaha. The Public Health Engineering Department shall also dig a tubewell on this land at the cost of the State. All this exercise E should be done within a period of two months from today. It will be responsibility of tk State Government and the Public Health Engineering Auth0rities that all these facilitie, an: made available to the aforesaid dairy owners. It will also be the responsibility of the J abaipur Corporation to remove all the aforesaid dairies within

F two months from today to the locations mentioned above."

On the Special Leave Petitions being filed in this Court, the following order was passed on 3.2.1997:

"I.A. is allowed. Permission to file S.L.P. is granted in both the G matters. Issue noticio on Special Leave Petitions as well as on stay application returnable on 3.3.1997. Dasti service in addition. Notice may also be issued to the Divisional Managc:r, Railway, Jabalpur.

The learned counsel for the petitioners state that the petitioners would not allow cow dung or urine to accumulate within 20 feet H of the pipe line in question on both sides. There shall be interim

RAMJI PATtL v. :-IAGRIK t:PBHOKrA MARG DARSHAKMANCH 1s.s. AHMAD, J.) 1013

stay of the impugned direction regarding shifting of the dairies of A the petitioners for 6 weeks.''

On 5.9.1997, a Bench comprising Hon. S.C. Agrawal and G.T.

Nanavati, JJ., passed the following order : . "The learned counsel appearing for the Jabalpur Municipal Cor- B poration and the State of Madhya Pradesh prays for eight weeks' time to file an additional affidavit indicating the response of the authorities to the proposal of the petitioners to construct a wall around their dairies so as to prevent the cow-dung spreading near the pipe line. They will also show the plan of the pipe line as it C passes from near the dairies of the petitioners. Time prayed for is allowed.

Put up after eight weeks."

The following order was passed by the same Bench on 7.11.1997: D

"One of the questions that arises in these petitions is whether the cowdung and urine from the cattle maintained by the petitioners in their dairy farms can be dealt with so as to prevent contamination of the water being carried through the pipeline as well as the soil surrounding the pipeline. Since there is no material on record E on this aspect, we consider it appropriate to direct the Central Water Pollution Control Board to depute a specialist who may, after inspecting the site, suggest measures which can be taken for treatment of cowdung and the urine of the cattle to prevent it from flowing above the pipeline and exclude the possibility of contamination of the water passing through the pipeline.

The Central Water Pollution Control Board shall submit the said report within a period of two months. The petitioners will jointly pay the charges for such inspection and the report.

A copy of this order may be sent to the Secretary, Central Water G

Pollution Control Board."

On 16.1.1998, a notice was directed to be issued to the State Pollution Control Board.

Thereafter, on 20.2.1998, the following order was passed : H

A "Notice on Central Pollution Control Board has been serwd but nobody enters appearance on behalf of Central Pollution Control Board and, therefore, we do not know as to what steps have been taken by the Central Pollution Control Board in pursuance of the directions contained in our order dated November 7, 1997.

B Put up on March 27, 1998.

In the meanwhile a communication be sent to the Secn:tary, Central Pollution Control Board to be personally present before this Court on March 27, 1998."

The order passed by this Court on 27.3.1998 is as follows :

;•An affidavit of Dr. S.P. Chakrabarti, Member- Secretary, Central Pollution Control Board, has been filed in response to the directions given by this Court in the Order dated November 7, 1997. In the said affidavit measures have been suggested for treatment of cowdung and the urine of the cattle and other waste water from the dairies so as to exclude the possibility of contamination of the water flowing through the pipeline. An affidavit has also been filed by Dr. S.N. Nema, Zonal Officer, M.P. Pollution Control Board agreeing with the said affidavit of Shri Chakrabarty. ln these circumstances, the Central Pollution Control Board is directed to prepare a project report in respect of the measures which are required to be taken as per the affidavit of Shri Chakrabarty. The petitioners will bear the cost of the preparation of the said project report. The learned counsel for the Central Pollution Control Board prays for four weeks time to submit the project report.

Put up in the 1st week of May, 1998.''

On 31.8.1998, Shri Vijay Panjwani, learm:d counsel appearing on behalf of the Central Pollution Control Board stated that the Project G Report would be submitted within two weeks. On the submission of the

Project Report of the Central Pollution Control Board, it was stated by learned coun.-el appearing on behalf of the petit:oners that the recommendations made by the Central Pollution Control Board and the measures suggested by them would be implemented and carried out. The Court, H therefore, passed the following order on 6.10.1998 :

RAM.JI PATtL ' NAGRJK UPllHOKTA MARG DARSHAKMANCH 1s.s. AHMAD. J.] 1015

"It has been stated by the learned counsel for the parties that the recommendations made by the Central Pollution Control Board and the measures suggested shall be implemented and carried out.

The cost amounting to Rs.93,CCO incurred by the CPCB shall be paid to the CPCB by the Marwah Dairy, Ramji Dairy, Hariram Rajak and Shivprasad Patel in equal shares within 6 weeks. List after 3 months."

When the matter was taken up on 8.1.1999, the Court passed the following order :

c "The cost of Rs.93,000 (Rupees Ninety three thousand) has been depo>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. D 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 E 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, G 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 : H

SUPREME COURT REPORTS

[2CCOJ 1 S.C.R.

'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, J abalpur 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 E 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 F pipeline were received.

It may be stated th<>t Madhya Pradesh Cattle (Control) Act, 1978 was enforced within the Municipal limits of J abalpur with dfect from 27th January, 1978, and in the Notification issued by the Commissioner, G Municipal Corporation, Jabalpur, on September 24, 1979, it was tated that the cattle could not be kept within the limits of J abalpur 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 H out of the list of "excepted villages' vide Notification published in the Govt.

RAMJI PAlEL v. NAGRIK UPBHOKTAMARG 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 D 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 a F 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 G 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 H

A 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 B 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 J abalpur. In 1971, a writ petition for the shifting of dairies was filed in the Madhya Pradesh High C 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 D 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 E 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.

F 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 G 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 H resulted in the judgment which is being impugned before us.

- .. i

RAMJ! PA !'El v. '.'iAGRIK UPBHOKIA MARG DARSHAK MAN CH [S.S. AHMAD, J .f 1019

From the facts set out above, it will be seen that when the Special A 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 C 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 D 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 E 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 F 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 G Court. The cost of construction of the Gobar Gas Plant which was incurred by the petitioners is man: than Rs. 5 lakhs.

While these proceedings were pending in this Court, thc Municipal Corporation adopted a Resolution to exclude from the li, t of "excepted H

A 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, J abalpur. An affidavit to this effect was, for the first time, filed on . behalf of the Municipal Corporation, Jabalpur, in March 1998. But the B 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 C 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 D 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 E 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 F 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 G 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 H Board in pursuance of the order passed by this Court. -

RAM.JI PATEL v. NAGRIK UPBHOKTAMARG DARSHAKMANCH [S.S.AHMAD.J.[ 1021

The validity of the Resolution dated 21.10.1997 as reflected in the A 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 D 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 E 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 F 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 G 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 H

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) N o.2927.''17 has incurred an expenditure of Rs.5,86, CCO , the Municipal Corporation, J abalpur, 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 cent 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.