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Firm pyarchand Kesarimal Vs. the City of Nagpur Corporation - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case Number First Appeal No. 35 of 1955
Judge
Reported in(1961)63BOMLR355
AppellantFirm "pyarchand Kesarimal"
RespondentThe City of Nagpur Corporation
Excerpt:
.....that the plaintiff preferred an appeal before the board of revenue against the order of the chief executive officer on may 31, 1953, under section 387(3) of the corporation act. the corporation knowing full well that these sections had no application to the case had served notice on the plaintiff under those sections with mala fide intention to harass it and lower its prestige in the eyes of public and business world and also in the locality. 3. it is the case of the defendant that under section 57 of the corporation act, mandatory duty is imposed on it to make adequate provision, by any means or measures which it may lawfully use or take, regulating or abating dangerous or offensive trades or practices and abating all public nuisances. the chief executive officer bona fide and..........by march 15, 1953, the plaintiff firm started a bidi manufacturing factory in this building. the chief executive officer of the defendant corporation of the city of nagpur, then served a notice on march 25, 1953, under section 227(a) of the city of nagpur corporation act, hereinafter referred to as the corporation act, on the plaintiff (exh. d-3), calling upon the plaintiff to stop working of the factory within 3 days of the receipt of the notice. the plaintiff replied to this notice by its letter dated april 4, 1953 (exh. d-2) in which it was stated that it had not started any factory in the building, the labourers sit and roll bidis only. it was further stated in this letter that without prejudice to its rights it is ready and willing to compromise the matter on reasonable terms......
Judgment:

Tambe, J.

1. This is a plaintiff's appeal. The following facts are not in dispute. The plaintiff is a firm doing business of manufacturing bidis under the name and style 'Pyarchand Kesarimal'. Its sole proprietor is one Nemkumar Kesarimal Porwal. The plaintiff firm took on rent a building belonging to one Latif Haji Kasam Kacchi, who it appears migrated to Pakistan. That building is situated in a thickly populated part of the City of Nagpur known as Maska-Satha. The plaintiff firm intended to start a bidi factory in these premises and. with that view it started making certain construction and alterations in the building. One of the constructions that the plaintiff started was of building of a tandur (i.e. furnace to bake tobacco and bidis) of the size of about 11 ft. X 22 ft. X 5 1/2ft. By March 15, 1953, the plaintiff firm started a bidi manufacturing factory in this building. The Chief Executive Officer of the defendant Corporation of the City of Nagpur, then served a notice on March 25, 1953, under Section 227(a) of the City of Nagpur Corporation Act, hereinafter referred to as the Corporation Act, on the plaintiff (exh. D-3), calling upon the plaintiff to stop working of the factory within 3 days of the receipt of the notice. The plaintiff replied to this notice by its letter dated April 4, 1953 (exh. D-2) in which it was stated that it had not started any factory in the building, the labourers sit and roll bidis only. It was further stated in this letter that without prejudice to its rights it is ready and willing to compromise the matter on reasonable terms. Second notice was served on the plaintiff-firm by the Chief Executive Officer on April 29, 1953 (exh. D-13). Material part of this notice is as follows :

In my opinion to carry on of this Bidi work-shop and also the operation of the tandur furnace is highly and immediately dangerous to life, health and property and is actually causing a pernicious nuisance from its very nature in the locality. You are therefore required hereby to close this Bidi work-shop and dismantle and stop the working of the Tandur Furnace altogether within seven days of the service of this notice. Failing this action will be taken at your cost according to Section 423 of the City of Nagpur Corporation Act to cause the terms of this notice complied with.

This notice was purported to be given under Sections 227 and 230 (f) of the Corporation Act. The plaintiff did not comply with this notice. The Chief Executive Officer, therefore, served another notice on the plaintiff on May 15, 1953 (exh. D-1) under the same sections. It runs:

Since you have failed to comply with this office notice No. HI/199 D dated the 29th April 1953, this notice is being given to you under Section 423 of the Nagpur, Corporation Act to dismantle the Tandur and furnace altogether within 6 hours from the time of receipt of this notice, failing which the Corporation will dismantle the same.

The plaintiff having failed to comply with this notice, the Tandur was dismantled by the Encroachment Department of the Corporation on May 29, 1953. After dismantling of the Tandur it appears that the plaintiff preferred an appeal before the Board of Revenue against the order of the Chief Executive Officer on May 31, 1953, under Section 387(3) of the Corporation Act. That appeal was decided by the Revenue Board on July 25, 1053. The Board took a view that the plaintiff firm was not justified in starting the bidi factory without obtaining prior permission of the Chief Executive Officer and without obtaining a licence to run the factory. The learned Members of the Board, however, held that the Chief Executive Officer acted in excess of his powers in dismantling the Tandur; the only proper course for the Chief Executive Officer was to launch a prosecution under the provisions of the Act against the plaintiff. In this view of the matter the Board allowed the appeal and set aside the order of the Chief Executive Officer requiring the appellant to dismantle the Tandur Furnace. On the day this appeal was decided (i.e. on July 25, 1953), the plaintiff served a notice of suit (exh. P-7) on the Chief Executive Officer claiming Rs. 50,000 as compensation for the loss incurred in business, loss of damages, loss of reputation etc. resulting from the alleged wrongful act of the Chief Executive Officer in dismantling the, Tandur. Thereafter, on October 26, 1953, the plaintiff filed this suit claiming damages from the Corporation.

2. Plaintiff inter alia pleaded that Sections 227, 230(1) (f) and 423 of the Corporation Act have no application to the facts of the present case. The Corporation knowing full well that these sections had no application to the case had served notice on the plaintiff under those sections with mala fide intention to harass it and lower its prestige in the eyes of public and business world and also in the locality. Details of damages claimed by the plaintiff are as follows:

Rs.1,053-14-9 Cost of Tandur as mentioned in Schedule B. 3,035- 0-0 As mentioned in Schedule A. 45- 0-0 Municipal Gang Expenses.384- 0-0 Expenses for lockout and closing on day of dismantling. 96,000- 0-0 Loss of profits at least for two years at Rs. 4000-0-0 p.m.(including general damages). 10,000- 0-0 Loss of Reputation.806- 3 6 Actual costs of construction of Tandur (Estimated Rs. 1054-0-0).500- 0-0 Miscellaneous expenses. 52- 0-0 Notice charges.--------------1,11,876- 2-3 61,824- 2-3 Claim given up.--------------50,052- 0-0 Amount claimed in this suit.--------------

The plaintiff thus claimed from the defendant a decree for Rs. 50,052 with interest at 6 per cent. per annum from the date of suit till realisation.

3. It is the case of the defendant that under Section 57 of the Corporation Act, mandatory duty is imposed on it to make adequate provision, by any means or measures which it may lawfully use or take, regulating or abating dangerous or offensive trades or practices and abating all public nuisances. The Chief Executive Officer got the factory and the workshop of the plaintiff inspected by the staff of the Health Department and other staff connected with this Branch and finding that the plaintiff had infringed the provisions of Section 227 of the Corporation Act asked the plaintiff to stop the working of the factory. The Chief Executive Officer also having formed the opinion that the plaintiff was using the said building for carrying on the trade of bidi manufacture by the process of Tandur furnace and that the same was dangerous to life, health and property and was creating nuisance on that account, served a notice dated April 29, 1953, on the plaintiff firm under Section 230 asking the latter to dismantle and stop the working of the Tandur furnace within seven days of the service of the notice. The plaintiff not having obeyed, the Tandur was dismantled to abate the nuisance in the public interest. The defendant denied that the Chief Executive Officer acted in a mala fide way. On the other hand, it is the case of the defendant that the Chief Executive Officer throughout acted bona fide and within law. The Chief Executive Officer bona fide and honestly believed that the working of the Tandur was dangerous to life, health and property and, therefore, to abate the nuisance he took this action of dismantling in good faith and in the interest of public good. It is further averred that in the circumstances of the case, dismantling of the Tandur was necessary. It was also averred that the plaintiff's suit was liable to be dismissed on account of its failure to serve notice on the defendant under Section 384 of the Corporation Act. It was also averred that the plaintiff's suit was not maintainable in view of the provisions of Section 386 of the Corporation Act.

4. The learned Judge of the trial Court has held that it was necessary for the plaintiff to obtain previous permission of the Chief Executive Officer under Section 227 of the Corporation Act before starting the factory; the Chief Executive Officer had bona fide formed the opinion that the burning of the Tandur funace with fire-wood constituted a pernicious nuisance dangerous to life, health and property of the residents of the locality; the Court, therefore, had no jurisdiction to question the correctness or otherwise of the opinion of the Chief Executive Officer; having formed the opinion, the Chief Executive Officer was justified in issuing notice under Section 230 of the Corporation Act and calling upon the plaintiff to dismantle the Tandur; notice given by the Chief Executive Officer was not in excess of his powers or illegal; the plaintiff firm having failed to dismantle the Tandur inspite of receipt of the aforesaid notice by the Chief Executive Officer, the latter was justified in getting the Tandur dismantled through the agency of the Corporation Department. The learned Judge also held that the notice dated July 25, 1953, given by the plaintiff to the Chief Executive Officer was not a valid notice under Section 384 of the Corporation Act as against the Corporation and, therefore, the plaintiff's suit was not maintainable. The learned Judge, however, has also recorded his finding on the question of damages and according to him the damages to which the plaintiff would be entitled, in the event it is held that the plaintiff is entitled to claim damages would amount to Rs. 3,380-13-0. Feeling aggrieved by this decision, the plaintiff has appealed.

5. Mr. Dhabe, learned Counsel for the appellant, contends that the act of the Chief Executive Officer in ordering dismantling of the Tandur was wrongful being without authority of law. According to Mr. Dhabe, it was open to the Corporation to frame bye-laws under Section 415(29)(c) and (55) of the Corporation Act providing for the supervision and sanitary regulation of factories and workshops and for regulating and abating nuisance. The Corporation not having done that it was not lawful for the Chief Executive Officer to order dismantling of the Taudur as there is no provision in the Act enabling him to do so. The only thing that he could have done was to prosecute the plaintiff under Section 421 or 427 of the Corporation Act. It is also urged by Mr. Dhabe that the act of the Chief Executive Officer in ordering dismantling of the Tandur was not a bona fide one. The Tandur was not dangerous to life, health and property and the smoke discharged from the Tandur was not causing any pernicious nuisance in the locality. Without there being any foundation the Chief Executive Officer has formed an unwarranted opinion that the Tandur Furnace was immediately dangerous to life, health and property and was actually causing a pernicious nuisance from its very nature in the locality. The plaintiff was, therefore, entitled to recover damages from the defendant, As regards the adverse finding of the trial Court about the validity of the notice under Section 384, Mr. Dhabe contended that, the act of the Chief Executive Officer being without jurisdiction the said section had no application. Mr. Dhabe contested the adverse finding of the trial Court as regards the quantum of damages.

6. Mr. Hazarnavis, learned Counsel for the defendant, on the other hand contends that action taken by the Chief Executive Officer relating to the dismantling the Tandur was a lawful one; Section 57(1) (b) and (e) of the Corporation Act enjoins a duty on the Corporation of abating public nuisance, and abating dangerous or offensive trades or practices, by any means or measures which it may lawfully use or take. In the circumstances of the case, the defendant could not have taken any other measure than dismantling the Tandur to abate the nuisance and imminent danger to life, health and property; at any rate, according to Mr. Hazarnavis, the Chief Executive Officer acted bona fide under the belief that, he was authorised by the provisions of the Act to dismantle the Tandur. The action is, therefore, protected under Section 386 of the Act and the suit of the plaintiff is, therefore, liable to be dismissed. In the further alternative, it is contended that the said notice of July 25, 1953, given by the plaintiff was not a valid notice, under Section 384 and, therefore, on this count also the plaintiff's suit is liable to be dismissed. Mr. Hazarnavis also contested the finding of the trial Court on the question of quantum of damages.

7. In order to appreciate rival contentions raised by the parties it would be convenient, at this stage to refer to the relevant provisions of the Act,

8. Section 6 provides that the municipal authorities charged with carrying out the provisions of the Act, shall be (a) the Corporation, (b) the Standing Committee, (c) the Chief Executive Officer. Section 59 defines the functions of several municipal authorities. Sub-section (1) provides that the functions of the several municipal authorities' shall be such as are specifically prescribed in this Act. Sub-section (2) provides that except as in this Act otherwise expressly provided, the municipal government of the City vests in the Corporation. Sub-section (3) provides, subject, whenever it is in this Act expressly so directed, to the approval or sanction of the Corporation or of the Standing Committee, and subject also to all other restrictions, limitations and conditions imposed by this Act, the entire executive power for the purpose of carrying out the provisions of this Act vests in the Chief Executive Officer, who shall also (a) perform all the duties and exercise all the powers specifically imposed or conferred upon him by this Act. Clauses (b) and (c) of Sub-section (3) and Sub-section (4) are not material for the purpose of this appeal. Section 57 enumerates the obligatory duties of the Corporation and Section 58 enumerates discretionary duties of the Corporation. We are here concerned with Clauses (b) and (e) of Section 57. Material part thereof reads:

57. (1) The Corporation shall make adequate provision, by any means or measures which it may lawfully use or take, for each of the following matters, namely:-

(a) ...

(b) ... abating all public nuisances;

(c) ...

(d) ...

(e) regulating or abating dangerous or offensive trades or practices.

Section 227 provides that no person shall (a) newly establish, or (b) remove from one place to another, or (c) reopen or renew after discontinuance for a period of not less than three years, or (d) enlarge or extend the area or dimensions of any factory, workshop or bakery in any area, other than an area set apart for the accommodation of industries by any Act, for the time being in force or by any local authority, except with the permission of the Chief Executive Officer and in accordance with the terms and conditions stated in such permission. The proviso is not material.

9. Section 229 provides:

Execpt in accordance with the provisions of this Act, no person shall-

(a) store or keep in any premises any articles mentioned, in any byelaws made under the Act as dangerous or offensive, or as being, or likely to be a nuisance to the public, or dangerous to life, health or property;

(b) store or keep in any premises the hide or any part of the carcass of any animal afflicted at the time of its death with infectious or contagious disease; or

(c) carry on or allow to be carried on in any premises any trade, manufacture, industry or operation mentioned in any rules under this Act as dangerous to life, health or property or as likely to create a nuisance, either from its nature or by reason of the manner in which or the conditions under which the same may be carried on.

Material part of Section 230 (1)(f) reads as follows:

No person shall use or permit to be used any premises for any of the following purposes without or otherwise than in conformity with the terms of a licence granted by the Chief Executive Officer in this behalf, namely:-(f) carrying on... any trade or operation which in the opinion of the Chief Executive Officer, is dangerous to life, health or property, or likely to create a nuisance either from its nature or by reason of the manner in which, or the conditions under which, it is carried on.

First Explanation provides that a person shall be deemed to know that a trade or operation is, in the opinion of the Chief Executive Officer, dangerous or likely to create a nuisance within the meaning of this clause after a written notice to that effect signed by the Chief Executive Officer has been served on him or affixed to the premises to which it relates. The second Explanation is not material. Sub-section (2) provides that it shall be in the discretion of the Chief Executive Officer to grant a licence for any of the purposes referred to in Sub-section (1) subject to such restrictions or conditions as he may think fit to specify or to refuse to grant such licence. Sub-sections (3) and (4) are not material.

10. Section 423 provides that whenever the terms or any one of the terms of a notice are not complied with, the Chief Executive Officer may, after six hours' notice, by his officers, cause the term or terms to be complied with.

11. Section 421 (1) provides:

Whoever-

(a) contravenes any of the provisions of this Act or of the rules made thereunder mentioned in the first column of the following table, or

(b) fails to comply with any direction lawfully given to him or any requisition law-fully made upon him under any of the said provisions or rules, shall be punishable with fine which may extend to the amount mentioned in the third column of the said table.

(2) Whoever after having been convicted of any offence under clause (a) or (b) of Sub-section (1), continues to commit such offence shall be punished for each day after the first during which he continues so to offend, with fine which may extend to the amount mentioned in the fourth column of the said table.

The Explanation is not material.

12. Contravention of Section 227 is made punishable with a maximum fine of Rs. 1,000 and if the person after having been convicted continues to commit such offence, the penalty provided is a fine of Rs. 100 per day. Contravention of Section 230 is not made punishable under Section 421. Section 427 provides, whoever disobeys any lawful direction or prohibition given by an authority of the Corporation by a public notice or any written notice lawfully issued by it under the provisions of this Act, or fails to comply with the conditions subject to which any permission was given to him by an authority of the Corporation under the said provisions, shall, if the disobedience or omission is not an offence punishable under any other section, be punishable with fine which may extend to fifty rupees, and in case of continuing breach, with a further fine which may extend to fifty rupees for every day after the first during which the breach continues. It is not in dispute that the Corporation has not framed any byelaws relating to abating of nuisances or abating of dangerous or offensive trades or practices.

13. It is the contention of Mr. Dhabe that in none of these provisions there is any express provision empowering' the Corporation or the Chief Executive Officer to give notice to dismantle a construction which in the opinion of the Chief Executive Officer is imminently dangerous to life, health and property or is actually causing pernicious nuisance from its very nature in the locality. The statute in express terms only empowers the Corporation to prosecute a person if there is a breach or contravention of any of the provisions of the Act. rules or notice. As already stated, the contention raised by Mr. Hazarnavis on the other hand is that Section 57 of the Corporation Act enjoins a duty on the Corporation for abating all public nuisances or abating dangerous or offensive trades or practices by any means or measures which it may lawfully use or take. The powers thus given by the Legislature are very wide and include the power to dismantle a part of a construction the working of which is either imminently dangerous to life, health or property or is actually causing pernicious nuisance from its very nature in the locality. The question turns on the construction of the clause 'by any means or measures which it may lawfully use or take' occurring in Sub-section (1) of Section 57, To perform the duties enumerated in Sub-section (1) of Section 57, no doubt the Corporation has been empowered to use any means or measures and according to the ordinary meaning of these words that would include the power to issue a notice to the person concerned to dismantle certain construction if it is found necessary to do so in order to discharge effectively the duties enjoined on the Corporation. Now, when power to give such a notice can be inferred on the language used in Section 57(1), Section 423 in terms confers a power to get that thing done in the event the notice is not complied with. The power conferred, however, is subjected to two limitations or safeguards: (i) the means or measures used or taken must be such as the Corporation can lawfully use or take. The word 'lawfully' has not been defined. The ordinary meaning of the word 'lawful' as occurring in the Shorter Oxford Dictionary is 'according or not contrary to law, permitted by law, permissible, justifiable'. Having regard to the various clauses of Sub-section (1) and the context in which it is used, in our opinion, the word 'lawfully' in Sub-section (1) is used in the sense 'justifiably'. In other words, when the action taken by the Corporation is challenged it must justify it. (ii) The second limitation is that the means or measures must be used or taken for the purpose of carrying out the duties imposed on it by the Act i.e. not for any other ulterior purpose.

14. It is next to be seen whether the wide general powers which are conferred by Section 57(1) are in any manner controlled by other provisions of the Act. The contention of Mr, Dhabe is that in view of the provisions of Section 415 the clause 'by any means or measures which it may lawfully use or take' will have to be understood and read as 'by framing byelaws which it can lawfully frame'. It is difficult to concede to the proposition so widely stated. It is true that when in a statute a general intention is expressed and also a particular intention, which is incompatible with the general one, is expressed, the particular one is considered an exception to the general one. In Section 57(1)(b) and (c) the Legislature has expressed a general intention that the Corporation shall make adequate provisions to abate all public nuisances as well as to abate dangerous or offensive trades or practices. Had we found any particular intention relating to the same subject-matter in any of the sub-sections or their clauses of Section 415 of the Act we might have held that the Chief Executive Officer was not justified in asking the plaintiff to dismantle the Tandur in absence of authority to that effect in the byelaws, but we do not find any such particular intention expressed in any of the 59 sub-sections or their clauses of Section 415, including Clause (c) of Sub-section (29) or Sub-section (33) on which reliance was placed by Mr. Dhabe. Sub-clause (c) of Clause (33) which was most emphasized by Mr. Dhabe does not speak of abating nuisances but only of its prevention. Sub-section (34) of Section 5 defines 'nuisance' in the following terms:-

'nuisance' includes any act, omission, place or thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell or hearing, or which is or may be dangerous to life or injurious to health or property;

In the very nature of the things it is not possible to foresee every sort of contingency or every sort of situation which would amount at a particular time in a particular circumstance or in a particular surrounding to be a nuisance or dangerous to the public health, life or property. It appears that on account of this difficulty the Legislature has not expressed a particular intention that the Corporation should make byelaws relating to abating public, nuisances or dangerous or offensive trades or practices. It is, therefore, not possible for us to hold that Clauses (29) (c) and (33) of Section 415 control the wide powers conferred by Section 57 of the Act on the Corporation in the matter of abating nuisance etc.

15. Mr. Dhabe also referred us to various other provisions in the enactments, viz. Sections 1.75, 178, 179, 180, 182, 258, and 286 and 289 read with Section 423 of the Corporation Act, which empowers the Corporation to dismantle certain constructions under certain conditions and on the basis of these sections Mr. Dhabe argued that when the Legislature intended to confer powers on the Corporation or its authorities to dismantle constructions or works it has in express terms said so. It not having said so in the case of abating a nuisance such power cannot be read in the expression 'any means or measures' occurring in Sub-section (1) of Section 57 of the Corporation Act. Sections 175, 178, 179, 286, 289 no doubt expressly empower the Chief Executive Officer to serve a notice on the owner calling upon him to remove any insanitary drain, latrine etc. near any source of water supply, to remove unauthorised constructions and to remove buildings in dangerous state and Section 258 empowers the Medical Officer of Health to give notice to destroy a hut or shed to prevent the spread of any dangerous disease; but it is not possible for us to infer from these express provisions that the power conferred to use or take 'any means or measure' does not include power to give notice to dismantle a structure in the matter of abating a nuisance or abating dangerous trades or practices. It appears that the Legislature after conferring a general power on the Corporation has also specifically expressed its intention in the matter of dealing with situations of common and frequent occurrence. In our opinion, therefore, under Section 57 of the Corporation Act, the Corporation has authority to dismantle a construction or a part thereof for the purpose of abating public nuisance or for the purpose of abating dangerous or offensive trades or practices, provided other conditions, already referred to, in that section are fulfilled. We have already referred to Section 59 and in the absence of any limitations the entire executive power conferred on the Corporation can be exercised by the Chief Executive Officer for the purpose of carrying out the provisions of the Act. It is not in dispute that in the matter of abating nuisances there are no limitations on the power of the Chief Executive Officer. It would, therefore, be within the competence of the Chief Executive Officer to serve a notice on the plaintiff to demolish the Tandur provided it is possible for the Corporation to establish that other conditions mentioned in Section 57 are fulfilled. Two conditions as already stated are that it is to be shown by the Corporation that dismantling was for the purpose of abating public, nuisance or abating dangerous or offensive trades or practices and the other condition is that dismantling was justified in the circumstances of the case.


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