S.B. Wad, J.
(1) M/S. Cycle Equipments (P.) Ltd., the petitioners, (C.W. 1284179) run a factory for manufacturing free- wheels of cycle in Kalkaji Industrial Estate. The factory is located in premises No. 8 Kalkaji, New Delhi. They were running the factory under a Municipal license issued under Section 416 read with Section 417 of the Delhi Municipal Corporation Act, 1957. This license is required as the factory is in the city of Delhi. The object of the license is to ensure that no objectionable industrial activity is carried on in densely populated city of Delhi. The other object is to see that no nuisance is caused to the inhabitants of the neighborhood. Under the Master Plan for Delhi only light and small scale Industries are permitted in the city of Delhi. Light small scale Industries as described in the Master Plan do not emit large quantities of smoke or create noise and light nuisance.
(2) The first Municipal license was issued in the year 1960-61. An application for the license was moved in August, 1960. The application for license was made for a light industry involving only 'machine operations' for manufacture of free-wheels. The power required was 200 Kw electric power and 150 Kw generated by diesel generators. Against column (8) requiring information as to whether blast furnaces, forges or bhatties will be used, the applicant, furnished the following information : 'No blast or melting foundry, only heating and hardening furnaces'. The factory employed 40-50 persons. The applicant did not furnish any information against column 6 which would enable the authorities to decide the consequences from the health point of view. On the basis of this information, the license was granted for the year 1960-61.
(3) The present position of the petitioner's factory is that it is producing steel as raw material for manufacturing free-wheels. This is being done by running a melting furnace. There is an investment of more than one crore in the factory on the showing of the petitioner himself. The total horsepower load is 2328 H.P. 200 workers now work in each shift. The total turnover is to the tune of Rs. 1.5 crores to 2 crores, per year. Production of steel required for the free-wheels was not originally permitted. as the petitioner did not have any license from the Ministry of Industries, Government of India. It applied for the license for manufacturing steel ingots in December, 1978. The Ministry of Industry granted a license for production of 7000 tonnes of mild steel ingots per annum in September, 1979. The justification (if the petitioner is that due to serious competition in the manufacture of free-wheels, they had to resort to the manufacture of steel itself so as to bring down the cost of free wheels.
(4) The new melting process started emitting large quantities of smoke and soot. It also produced let of noise and sparking lights in the night, as the factory was run in the night shift also. The citizens in the neighborhood felt affilicted. They complained to the Corporation. The factory Inspector of the Corporation was satisfied that the complaint of the citizens was genuine. On August 4, 1979, the Corporation issued notice to show cause to the petitioner why the license issued to it should not be revoked for violation of the terms and conditions of the license. The show cause notice was replied by the petitioner on August 18, 1979. The Corporation was not satisfied with the Explanationn of the petitioner and, thereforee, on September 4, 1979 the petitioner's license was revoked. It may be noted that the license is renewed every year. The last renewal was up to March 31, 1978. Although the petitioner had made his application for renewal for the year 1979-80 no renewal was actually effected till the time the order of revocation was passed.
(5) Writ petition No. 1284 of 1979 was filed on September 13, 1979 challenging the revocation order of the Corporation. dated September 4, 1979. On September 14, 1979, the admitting Bench issued a show cause notice and passed an interim order staying the operation of the order of revocation. When this petition was pending admission Civil Writ 63 of 1980 was filed by the President of the Kalkaji Welfare Association and the other citizens, staying in the neighborhood of the factory. The citizens petition complained about the nuisance caused by the petitioners factory by way of smoke, light and notise. They complained that it was injurious to the health and property of the citizens. They prayed that the Corporation should be restrained from renewing the license or issuing a fresh license to the petitioner's factory. Notice to show cause was issued and after admission the two petitions were clubbed together for the final hearing of the matter.
(6) The petitioner faced an initial difficulty. The license is renewed every year and is valid for that year. The application for renewal from 1st of April 1979 to 31st of March, 1980 was pending and was not renewed. In between the order of revocation was passed in September, 1979. Even assuming that the petitioner succeeds in this petition he would be entitled to held a license up to 31st of March, 1980 . This is also on the assumption that the license was in fact extended up to 31st March, 1980. After the said period was over the license comes to an end, whether revoked or otherwise. This position was clarified by the Division Bench on an order passed in C.M. 518 of 1980. This petition was moved by the petitioner after the D.E.S.U. informed the petitioner on March 3, 1980 that they would be charged at an extra amount of 50 NP. per unit in view of the revocation of license. The D.B. on March 12, 1980 passed an interim order directing the Corporation not to recover the extra charge. In the same order the D. B. held : 'This order, however, should not be taken to mean that they were extending the period of operation of the license.' There is no grievance nor any relief against the non-renewal of the license for the year 1979-80. It is entirely for the Corporation to decide whether to renew the license or to grant a fresh license for future period. There was no application on the record for the year 1980-81, when I passed the last order on 23-5-1980. Although it is stated at the Bar that such an application was made and has been rejected by the Corporation, the present petition is not amended nor any reply of the Corporation brought on the record. The whole exercise in this writ petition is, thereforee, an exercise in futility.
(7) Mr. Singh, learned counsel for the petitioner tried the smoother the thorny path by referring to the so-called administrative instructions. That is a bulletin giving information regarding factory licenses. It is stated in the bulletin that the application for the renewal should be made before 31st of March but in no case beyond 30th April. It is further stated in it that thereafter a penalty of Rs. 5 p.m. up to the amount of the license fee would be recovered. Mr. Singh submits that there was no difficulty for him to make an application for renewal at any time because he was always willing to pay the additional penalty. He further submits that once he pays this penalty and the license. is renewed it will relate back to the date of last renewal, in this sense he submits that the revocation would stand in the way of future renewal. The writ petition in his submission thereforee survives to this extent. The learned counsel for the Corporation however, points out that where an action is taken under section 430 for suspension or revocation of a license its effect is expressly stated in Section 430(4). That sub-section reads : 'When any such license or written permission is suspended or revoked, or when the period for which the same was granted has expired, the grantee shall for all purposes of this Act or any byelaw made there under, be deemed to be without a license or written permission until such time as the order suspending or revoking the license or written permission is rescinded or until the license or written permission is renewed.' The counsel submits that the bulletin for general information referred to by the petitioner, as a matter of fact, does not support the petitioner. He submits that in any case it could not go against the express language of Section 430(4).
(8) I find that the provisions of Section 430(4) arc quite clear and unambiguous. Either by revocation or by natural expiration the petitioner was without a license at the relevant time. There is no alternative to the petitioner but to approach the Corporation to renew a license or to get a fresh license.
(9) The L.P.A. Bench, however, held : 'It does appear, prima facie, that the writ petition is not anfractuous and the question of the renewal of license for the year 1980-81 is interrelated with the question whether the license is in force. Once it is held that the revocation is bad, then the petitioner will be free to apply for renewal of the license.' I, thereforee, heard the petition in full on merits.
(10) The counsel for the respondent Corporation raised preliminary objections to the maintainability of the writ petition filed by Mis. Cycle Equipment. The counsel submitted that there is grave suppression of facts in the petition and the conduct of the petitioner is such that he is not entitled to the discretionary relief of a writ or direction under Article 226 of the Constitution. He then submits that the petitioner, in substance, is alleging breach of contract and a writ court cannot grant any relief to impose contractual obligations. His third objection is that the petitioner before filing the writ petition had filed a civil suit substantially praying for the same reliefs. As the suit is pending, the petitioner cannot be permitted to prosecute another original remedy in the form of a writ petition. I find that there is good deal of substance in these preliminary objections and they should be upheld.
(11) On August 4, 1979 a show cause notice was served on the petitioner calling upon the petitioner as to why the license should not be revoked. Two grounds were stated : (1) that it had started manufacturing steel slabs by melting iron scraps, and (2) that this new trade was causing smoke, nuisance and pollution. On August 18, 1979 the petitioner filed a reply admitting that he was running a melting furnace, but it claimed that it was carrying on this process for the last over 20 years. It further claimed that as the melting process is done by electricity, there was no question of any smoke being created. 'This Explanationn was not found satisfactory by the Corporation. The Corporation by its letter, dated September 4, 1979 informed the petitioner that its license was revoked and that it should step the industrial use of the site forthwith. This letter was sent by registered A.D. The very next day, the petitioner filed a civil suit in the court of the Senior Sub-Judge, Delhi, being S. No. 62 of 1979. If appears from the plaint that the Inspector of the Corporation visited the factory on 4th September and informed the petitioner about the decision to revoke the license. The petitioner has described this as a threat of revocation in the plaint. The relief claimed in the plaint was as follows :
'THE plaintiff, thereforee, prays that a decree for permanent injunction with costs of the suit be passed in favor of the plaintiff against the defendant, restraining the defendant Corporation, its officers, employees and agents from revoking or cancelling the Municipal Trade license No. 39706 and thereby from directing the Desu to discontinue the supply of electric energy for ruining its business of manufacture of cycle free-wheels at 8, Kalkaji New Delhi.'
(12) An application for an interim injunction was also moved along with the plaint. None of these facts were disclosed in the writ petition filed on September 13, 1979. An interim stay of the order of revocation was granted by the Bench on September 14, 1979. Four days thereafter, that is, on September 18, 1979 an interim ex parte injunction was issued by the Trial Court in the suit. Obviously the petitioner had supressed the facts from the Trial Court that an interim stay was granted by High Court otherwise, the Trial Court would not have issued the interim ex parte injunction. Perhaps it was also not disclosed to the Trial Court that the writ petition claiming substantially the same relief was filed in the High Court, after the suit was instituted.
(13) The counsel for the petitioner submits that the Admitting Bench was aware of the suit filed by the petitioner and after hearing the counsel for both sides the Bench issued Rule and continued the interim stay, as the writ petition itself was expedited and set for final hearing on March 31, 1980. But the various orders passed by the D. B. tell a different story. It is not the petitioner but the respondent-corporation, which brought this fact to the notice of the D. B. The Court, naturally found that the writ petition and the suit cannot go on simultaneously and thereforee passed a specific order. The said order dated 22-11-79 reads : 'Present : Mr. V. P. Singh for the petitioner. Mr. Ramesh Chandra for the respondents. Mr. Ramesh Chandra says that a suit filed by the petitioner is already pending. However, Mr. Singh says that the Corporation is considering giving turn relief. The petitioner has to choose either to pursue the said suit or be satisfied with the relief to be granted by the Corporation or pursue the writ petition. His choice among the three alternative to be intimated to the court by the 23rd January, 1980.
(14) On 23rd January, 1980 the counsel for the petitioner was present in the Court but he did not inform the court about the choice as he was directed to do by the said order. The matter was merely adjourned on that date. On three subsequent dates the matter was adjourned. On 12-3-1980 the D. B. issued the Rule and also directed to final hearing of the writ petition on March 31, 1980. This order was passed in the presence of the counsel for the petitioner. Obviously the petitioner must have informed the Court that he wanted to pursue the writ petition and not the suit. The position in law would be that on 12-3-80 Civil Suit No. 62 of 1979 pending in the court of .Senior Sub-Judge, Delhi, stood withdrawn.
(15) The counsel for the Corporation strongly submits that the conduct of the petitioner, even thereafter, was not straightforward and the petitioner was hiding material facts from Court. He submits that hearing of the writ petition was started before me on 31-3-1980. As on that date, the petitioner had not moved any application for renewal of the license for the year 1980-81. The hearing was adjourned twice, because the connected writ petition No. 63 of 1980, was found to be relevant by all the parties, for the disposal of the first petition. The respondent's Counsel then submits that the hearing of the petition took place on 16-5-1980. He pointed out that at the time of the hearing it was noticed that the earlier period of the license was already over and no application for renewal for the year 1980-81 was made by the petitioner. The counsel for the petitioner wanted to ascertain from the petitioner whether an application for renewal was made. The hearing was, thereforee, adjourned to 21st May, 1980. As I did not attend the Court on 21st and 22nd May, 1980 the petition was listed before me on 23rd May, 1980. The counsel states, as it later on transpired, the petitioner made an application for the renewal which reached the Corporation 20th May, 1980. The covering letter of the renewal application as well as the cheque for renewal fees showed the date in April. 1980. The counsel states that the petitioner deliberately avoided to come before the court on 23-5-1980 and inform the court as to whether the application for renewal was made earlier to 15-5-1980. He then submits that the petitioner persisted with the conduct of misleading the Court. Petitioner filed and L.P.A. against my order dated 23-5-1980 (dismissing the petition as infructuous). In the said L.P.A. the petitioner produced a copy of the letter of the Corporation rejecting the petitioner's application for renewal. The counsel strongly urges that this new document was introduced in the L.P.A. to mislead the court to believe that an application for renewal was produced in the writ petition. This was done without any application for introducing the new documents. On these facts the counsel for the respondent submits that the petition should be dismissed for suppression of material facts. He relies upon 1917 (1) K. B. 486 and the decision of the Division Bench of this Court dated 30-9-1980 in Civil Writ Petition No 633 of 1980.
(16) The counsel for the petitioner submits that there was no suppression of facts from the Court. He further submits that 1917 (1) K. B. 486 was not applicable as in that case the alleged suppression was the basis of granting an ex parte rule nisi. He submits that in the present case rule nisi was issued after hearing both the parties.
(17) As I read the Kings Bench judgment I do not think that the principle of honest and true disclosure is Limited only to ex parte rule nisi. It is the principle of much wider application. The principle is applicable not only to ex parte orders but even otherwise. Both parties appearing before the Court have an unfailing duty to disclose correct facts on which the decision is sought. Court has no means of ascertaining the facts independently nor is it advisable. In an adversary system both parties get an opportunity to point out the shortcomings in the adversery's case. But, in order to prevent a mischief it becomes necessary to pass ex parte orders in some cases. A party seeking an ex parte order has an implied duty that no prejudicial order is secured against the adverse party by misrepresentation or trick. This is the principle of Uberrima FIDES. Applying this principle the Division Bench of this Court in Civil Writ Petition No. 633 of 1980 in M/s. Nehru Place Hotels Ltd. and Another vs. Mcd and another (2) held that the 'door will be closed to a discretionary remedy' because of misleading statements of material facts.
(18) The interim stay obtained by the petitioner in this case on 14-9-1979 (and which was continued thereafter), was obtained by the petitioner without disclosing the fact that he had already filed a suit. An ex parte injunction was secured by the petitioner from the Trial Court without disclosing the fact that he had filed a writ petition in the High Court for the same relief and had also obtained in interim stay there. The effect of these orders was too series for the Corporation and the citizens in the neighborhood of the factory as they had to live in the conditions of unbearable nuisance for all these months. Months passed after these interim orders were secured. But still the petitioner did not inform this court about the two remedies he was simultaneously pursuing. It is only after the respondent's counsel brought it to the notice of the Court, in March 1980 that this fact became known to the Court, This Court put the petitioner to elect between his remedies and to make a statement in the Court. No such statement is recorded in the Court's order but the subsequent conduct shows that the petitioner elected to prefer the remedy of the writ petition. It was the duty of the petitioner thereafter to withdraw the suit filed by him. He did not do so till the writ petition was finally heard by me. Perhaps his strategy was to enforce the injunction granted by the trial court against the Corporation if he failed in the writ petition. Not withdrawing the suit after he decided to elect the remedy of writ petition was in direct violation of the letter and spirit of the order of Division Bench on 22-11-1979. suppression of facts and the conduct of the petitioner is quite serious.
(19) I am inclined to agree with Mr. Singh, the counsel for the petitioner, that there was no deliberate intention to mislead the Court in regard to the making of the application for the renewal of the license for the year 1980-81. Even then the earlier facts stated by me are too grave to be ignored. In popular terms 'this amounts to taking the court, the Municipal Authorities and the citizens for a ride. The writ petition, thereforee, deserves to be dismissed on the grounds of suppression of material facts.
(20) I have held that in view of the order of this Court on 22-11-1979 the suit filed by the petitioner stood withdrawn in the eye of law. thereforee, on the date of the hearing of the petition, it cannot be said that the writ petition was not maintainable being second original remedy for the identical relief. However, if it is assumed that the suit continued till the date of hearing, the writ petition would not be maintainable and would stand dismissed on this ground. Even otherwise a decision in this writ petition on merits will operate as a rest judicata. in the suit.
(21) The petitioner made an offer through his application after agreeing to all the terms of a license. Corporation accepted the offer by accepting the fee and issuing a license. A legally enforceable contract came into being. Liability to revocation under Section 430(3) is a term of this contract. The petitioner cannot challenge revocation of license in a writ petition.
(22) Assuming that the petitioner factory is able to over come this serious initial hurdles the question is can it succeeds on 'merits. Broadly speaking in both the petitions the grievance is that the petitioner factory is causing nuisance and that it has violated the terms of the original license. Mr. Singh appearing for the factory valiantly tried to meet these objections on merits. But his main stake of the argument was that the requirements of natural justice embodied in Section 430(3) are not followed by the Corporation before terminating the license. He submits that revocation, in this ground, is bad in law. The said subsection of Section 430 reads:
(23)Save as otherwise provided in this Act or any byelaws made there under 'any license or written permission granted under this Act or any bye-law made there under may at any time be suspended or revoked by the Commissioner or by the officer by whom it was granted, if he is satisfied that it has been secured by the grantee through misrepresentation or fraud or if any of its restriction or conditions has been infringed or evaded by 'the grantees, or if the grantee has been convicted for the contravention of any of the provisions of this Act or any bye-law made there under relating to any matter for which the license or permission, has been granted'
(23) Mr. Singh submits that there was no infringement or evasion of the conditions of license by his client, sinc.e the allegations against it is that it has started a new industry of manufacturing steel. His argument is that this new venture is not covered by the. license and the Corporation cannot find fault with the original license, simply because a new venture was started. He then submits that there was no warrant for invoking the provisions of Section 430(3) and the action of revocation was illegal. This argument is based on a clear misconception as to what is meant by an infringement or evasion of a license. The petitioner factory is aware that when a new venture is to be started a fresh license is necessary. That is why it applied for a new industrial license for manufacturing steel ingots to the Industries Ministry. A new municipal license was also obligatory. A license, in all the licensing enactments, is given in relation to a specific article or goods or for a particular trade activity. A license to import or to sell liquor is different from a license to manufacture. There is obvious violation of a selling license if instead of or in addition to selling of liquor, licenses starts manufacturing liquor. All industrial licenses have a space dimension. They can be run in the allocated premises. Factory premises are required to be fully described in the application. A specific trade or industry can be worked in particular type of premises, and a license is given on that undertaking of the license holder. For example, dangerous substances can not be manufactured in each and every factory. There are separate health and hygiene requirements for such factory. The argument of the petitioner is thereforee too innocent to be accepted. There is no doubt that the petitioner factory has infringed and evaded the provisions of the license.
(24) But in reply to the show cause notice the petitioner had taken a different stand. The plea was that manufacture of Cycle free-wheel is done by a melting process which is an integral part of it. In fact, it was asserted that the petitioner factory was carrying on melting operations for 20 years. The process described in the application forms all along, by the petitioner believes this plea. The applications consistently stated that the process involved merely machine operation. The furnace was used merely for 'heating and hardening steel. The petitioners were getting steel sheets or slabs from outside and by a mechanical process of dye-punch the free-wheels were manufactured. But apart from this there is categorical assertion ' by the petitioner in every application for renewal of license that ' there was no melting foundry run by the factory. In face of these admission by the petitioner, the argument that there was no infrigmement. because the process of manufacture of wheels involved melting of steel, has to be rejected.
(25) The Master Plan for Delhi (approved by the Central Government under Section 9(2) of the Delhi Development Act, 1957) has a statutory force, under the plan industries for 'cycle parts and accessories' (including free-wheels) are classified as 'Light Industries'. The Schedule to the Plan at page 79 lays down certain conditions for permitting such industries. They are 'Type of industries listed here and employing not more Ulan 50 workers with power or 100 workers without power, may be allowed. Maximum plot area 2 acres. Minimum plot area 400 sq. yards. The industry should not be of the type that is likely to require rapid expansion of plant in the near future. It should not produce excessive smoke and fume nuisance.' The Plan lays down geographical areas where such 'light industries' can be located. At page 20, Kalkaji, (where the petitioner factory is located) is one of such areas. Only 8 acres are allocated for the industries, which is one of the smallest of the areas meant for industry. This is because the area' is densely populated residential area. 'Black-smithy' and 'Iron Foundaries' are classified among 'Service Industries'. These industries are not permitted in Kalkaji area. The condition for starting the service Industry is : 'In all cases 'the upper limit is industry employing not more than 50 workers with power and 100 workers without power. Maximum plot size 2 acres. Minimum plot area 400 sq. yds.' The Plan also prescribes for what is described as 'Extensive Industry'. 'Steel Re-Rolling Mills' (Small Scale) industry is included in Extensive Industry. Under the Plan this industry can be located in Okhla Industrial Area (South of Small Scale Industries) and not in Kalkaji area. The conditions for permitting an Extensive Industry are : 'Since the prevailing wind direction in the locations listed here is likely to cause nuisance to adjoining residential area, care should be taken to locate only those industries which do not cause nuisance or are not obnoxious to adjoining land use.' 'Blast Furnaces Steel Works' and bicycles (large scale) are classified in the Master Plan as 'heavy and large scale industries'. Page 83 the Plan lays down the following conditions for permitting these industries. They are: 'These should not be allowed to be located in urban Delhi. Some of these industries may be located in the Ring Town and others in the towns of the National Capital Region.'
(26) The general guidelines regarding light industries and extensive industries are laid down by the Plan. They are as follows:
'LIGHT Industries and Service Industries These arc generally small scale, non-nuisance industries that can operate near built-up are as with rigid enforcement of factory regulations. Their location is such that if proper performance standards arc not enforced the dust and smoke emitting from the industries are likely to cause nuisance to the residential areas because of prevailing wind direction..........'
'EXTENSIVE Industries As a matter of general policy large scale and heavy industries should not be encouraged in urban Delhi. All the noxious industries which are now located in the residential areas should be relocated in areas meant for extensive industries.' (pages 19 and 20).
Conversion of a light industry into an extensive large scale industry by the Petitioner and to run it at Kalkaji was contrary to the statutory Master Plan also.
(27) Mr. Singh next submits that proviso (a) to sub-Section 3 requires that a reasonable opportunity should be given to the license-holder before the license is revoked. He submits that the report of the Chief Licensing Inspector/Area Inspector, was not furnished to him. He states that in absence of the report it cannot be said that he was given the reasonable opportunity to meet the case against him. He had cited some decisions in support of this submission. The petitioner's reply to show cause notice is on record. The petitioner has not made any grievance about non-furnishing of the copy of the report nor has he asked for it. The substance of the report was fully reproduced in the show cause notice and the reply shows that the petitioner had fully understood the allegations. Non-furnishing of a Report as ground of natural justice principle has a different application in different circumstances. In disciplinary proceedings against an employee, a quasi judicial proceeding is contemplated. The enquiry report in such cases falls in a different category from the report of the Factory Inspector in the present case. Section 430(3) does not contemplate and elaborate quasi-judicial proceedings unlike the Ccs Conduct and Appeal Rules. The said Section in the Corporation Act does not require that a copy of the Inspector's report should be given to a license holder. The only consideration from the point of view of natural justice is whether the facts disclosed in the show cause notice were sufficient for the license holder to meet the Corporation's case. As stated earlier the petitioner did not find any difficulty in putting forward his defense at the time of show cause notice. The grievance of the petitioner now, is merely an after thought Ramana v. Intl. Airport Authority (3) merely : (1979)IILLJ217SC lays down general principle of natural justice. In that case there was no show cause notice nor any report.
(28) Proviso (b) of sub-section 3 of Section 430 of the Act lays down that an order of revocation 'shall contain a brief statement of reasons'. The petitioner contends that the order is a non-speaking order. It is also submitted that there is a difference between more 'reasons' and 'brief ' statement of the reasons' as required by the said provision. I do not find that the difference in terminology pointed out by the petitioner is of any consequence. 'Reason' means an Explanationn as to why Vac allegations are held to have been proved. This is also connected by the words 'brief statements of the reasons' used in the said proviso. The reasons stated in the impugned order is violation of terms and conditions of the license. In his reply to show cause notice the petitioner had admitted that he was using melting furnace. This was patent violation of the terms of the license. The petitioner got the initial license on his assurance in the application that he was not using melting furnace. He continued to give this assurance year after year till the last renewal of the license. After this admission of the petitioner, no additional statement of reasons was necessary. A brief reason that the terms are violated was sufficient on the facts of the case. The reason was adequate and intelligible. It was not a bear statement of conclusion. Elliett and Others V. London Borough of South Wack (1976) 2 All. Er 781. The decisions on the question of speaking order depend on one more consideration. That consideration is whether the aggrieved person is handicapped by an order to make a representation or appeal to higher authorities or take an action in the Court of Law. That is not a grievance in the present case. The petitioner has filed a civil suit and has also filed a writ petition elaborately and fully challenging the case of the Corporation on merits. There is no violation of proviso (b) or the principle of 'speaking order' in the present case. This discussion also covers-the merits of the Corporation's case in regard to manufacture of steel by use of melting furnace and the petitioner's grievance about it.
(29) The second question on merits is regarding the allegation of nuisance made in the show cause notice. This also is the grave-men of the charge in the independent petition filed by the citizens of the neighborhood. The word 'nuisance' is described in Section 2(33) of the Act. It reads:
'NUISANCE' includes any act, omission, place, animal or thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight, smell, or hearing or disturbance to rest or sleep, or which is or may be dangerous to life or injurious or health or property;'
The definition of nuisance is a very wide definition and an inclusive definition. It includes every activity (an even a place, and animal or thing) which causes injury or danger or offence,. It docs not restrict itself to danger to life or injury to health or property. These are mere aggravated forms of nuisance. A citizen's normal day-to-day life, in a densely populated city of Delhi, is also intended to be protected by this definition. thereforee, even annoyance to sense of sight, smell or hearing or disturbance to rest or sleep are also included in the definition of nuisance.
(30) In the light of this definition, let us examine the factual averments in the petition field by the citizens. It is stated in the petition that initially respondent No. 4 (M/s. Cycle EquipSments) had small industrial unit in the densely populated area G and K blocks, Kalkaji near the Higher Secondary School. However, some time about March/AprH, 1978 the respondent converted the said unit into a steel-casting mill creating a permanent health menace to the health, of the residents all along. The factory is operating round the clock emitting smoke and polluting the residential area and a number of furnaces burning steam, coal day and night were generating tremendous amount of noise. The smoke is so voluminous that it was likely to bread respiratory diseases in the residence particularly children and these were prone to health hazard. The smoke emits carbon monoxide gas, Activity of melting iron scup is carried out by the respondents by use of coal, lime and other Chemicals. The burning of scrap which itself contains large amount of impurities including bitumen produce considerable smoke. The manufacture of steel on such a large scale also produces 'streams of flash lights' and much noise in the night which disturbs peaceful sleep. As supporting evidence, they have annexed photographs (taken during day time and night time) of the factory and its premises. They have annexed copies of several representations made by them to Municipal Corporation and the Director of Industries bringing to the notice grave nuisance caused by smoke, light and noise. They have also produced a letter dated January 5, 1980 by the principlal, Government Boys Higher Secondary School No. 2, Kalkaji, to the Educational Officer, of the Delhi Administration. It is stated in the said letter that the factory discharges smoke and causes heavy air pollution. This was unhygienic and causes health hazard to the students. The Principal has further stated 'as a guardian of the 2000 students it is our sacred duty to watch their health and well-being. After number of complaints were made, the Deputy Health Officer of the Corporation visited the factory. The Deputy Health Officer in his memo dated 26-7-79 stated, 'it has been found at the time of the visit that good deal of smoke was emanating from the factory. On inspection it has been found that scrap iron being melted in an electric furnace which was finally converted into steel slabs on cooling. The said factory was situated in the residential area, and definitely there was smoke nuisance which can be injurious to the health of the local residents. In addition, there was noise collation caused by this factory.'
(31) In rebuttal the petitioner factory has stated that manufacturing of cycle free-wheels was 'a very competitive trade and in order to bring down their cost of manufacture, the respondent company decided to manufacture steel ingots and use the same in the manufacture of free-wheels'. There is a bare denial of the factory causing health hazard or nuisance. It is then stated that the factory is situated in the ear-marked area for setting of industries like the one put up by the respondent. It is then averred 'the Municipal Corporation renewed the license for the past many years after taking into consideration the complaints made by few of the residents but on inspection of sight as soon as the staff of Delhi Municipal Corporation found no nuisance was caused, the license was renewed from year to year'. They have also referred to a report of the Chief Inspector of Boilers and Smoke and Nuisance, Delhi Administration (which is a statutory Authority under the Bombay Nuisance smoke Act as extended to Delhi). It is alleged that the Inspector has reported that the melting was done in furnace run by the electricity and some smoke was given off due to dirts and filth deposited on the iron steel scrap and ores that are melted. The locus standi of the citizens to file the petition is' also challenged in the counter affidavit. However, the counter affidavit has not denied that the photographs or the letter of the Principal of the Government School or the representations made by the citizens or the report of the Deputy Chief Health Officer were either not genuine or were incorrect. There are no mala fides alleged against the Corporation of the citizens filing the petition.
(32) Mr. Singh submits that the Corporation has not laid down any degree or standard of pollution which would constitute a wrongful act. He refers to the Air (Prevention and Control of Pollution) Bill 1980. There is already a law regarding water pollution. The said Bill contemplates Constitution of Central Board for laying down the standards for omission of air pollutions into the atmosphere from industrial plants. He further submits that unless the Corporation lays down such a standard through the bye-laws, the provisions of Section 430 of the Corporation Act cannot be enforced. He relies upon a decision of this Court, in Modi-Industries Agency v. Mcd and others (1976, Municipalities and Corporation Cases) p. 353 (5).
(33) Section 42 of the Act lays down what are described as 'obligatory' functions of the Corporation. The relevant portions read as follows:
'IT shall be incumbent on the Corporation to make adequate provision by any means or measure, which it may lawfully use or take, for each of the following matters, namely (c) the scavenging, removal and disposal of filth, rubbish and other obnoxious or polluted matters; (e) the reclamation of unhealthy localities, the removal of noxious vegetation and generally the abatement of all nuisance; (1) the regulation and abatement of offensive or dangerous trades or practices.'
I have already noted the provisions of Section 416 and 417 in relation to Permission license for trade|industry. Under the said provisions, it is the duty of the Corporation to ensure that an activity is not objectionable by reason of the density of the population in the neighborhood or is not such as would cause nuisance to the inhabitants. Where the Commissioner is of the opinion that a trade or an industry is dangerous to life, health or property or is likely to create a nuisance he is entitled to refuse permission to use any premises for such an activity. These are essentially the executive and administrative functions of the Corporation. These matters are regulated by providing appropriate conditions in the permit or the license. We have noted that the terms of license in the instant case expressly oblige license-holder to comply with these conditions. The powers in Section 416 and 417 as also the power of revocation under section 430(3) are directly conferred on the Municipal Commissioner. The obligatory functions are to be discharged 'by any means or measure which it may lawfully use or take.' The Act nowhere requires that the matters regarding granting or revocation of a license should be regulated only through bye-laws. Modi-indusries is clearly distinguishable. In that case, the petitioner was prosecuted for storing gas cylinders without license. V. D. Misra, J. found that at the relevant time there was no law (DMC Act or Bye-laws) prohibiting storing of gas cylinders without license. It was a prosecution Without authority of law. Admittedly, here, license was validly issued and in fact the petitioner used it for more than 15 years. We are here concerned with 'nuisance' as defined in the Corporation Act and not with pollution in a general sense. The pollution Bill describes 'air pollution' as the presence in the atmosphere of any air pollutent. The 'air pollutant' is defined in Section 2(a) as follows:
'AIR pollutant means any solid, liquid or gaseous substance present in the atmosphere in such concentration as may be or tend to be injurious to human being or other living creatures or plants or property or environment.'
The definition of the 'nuisance' under the Act is much wider than the definition of 'air pollution' under the said Bill. Nuisance is of so many varieties, qualities and degrees that it would be almost impossible to put it in the straight jacket of a general norm. Even in Delhi itself, the standards of nuisance would be different in the thickly populated areas of the walled city as against the separately populated areas of outer Delhi. Where industries are concentrated more stringent standards would be called for. The legislature has thereforee advisedly left it to the decision of the Commissioner to apply the provisions in an appropriate way in appropriate circumstances. The contention of the petitioner factory is thus without any merit.
(34) Coming now to the evidence regarding the alleged nuisance, I am satisfied that the evidence is conclusive to establish that the petitioner factory is creating and causing nuisance. The report of the Chief Factory Inspector, Deputy Chief Health Officer and the Boiler Inspector unanimously speak that large quantities of smoke are omitted by the Factory due to impurities in the scrap and the other material used in the melting process. I do not think that the alleged report of the Boiler Inspector in any way helps the petitioner. Even assuming that the petitioner factory is using only electricity for melting (and not coal or any other material) it cannot be denied and indeed not denied that the Chemicals used for purification of iron ores and scraps and the melting operation carried on such large scale would result into large quantities of smoke. This is also confirmed by one of the photographs produced by the citizens. A large scale industrial operations would naturally mean use of heavy machinery. The running of the machinery and the process of melting the steel slaps would naturally make considerable noise. One of the photographs produced by the citizens throws ample light on the problem of streams of spark light created by the factory operations. The direct experience of nuisance faced by the citizens and the school children is ventilated through their representation on record. I am convinced from this evidence that he petitioner factory is causing 'nuisance' within the meaning of section 2(33) of the Act.
(35) The mandatory duty of the Corporation to stop nuisance and to prevent unhygienic conditions are brought into new focus by the land-work decision of the Supreme Court in Ratlam Municipality v. Bardhi Chand : 1980CriLJ1075 . In that case the residents of Ratlam town moved the Criminal Court under Section 133 Criminal Procedure Code . for an order directing the municipality to remove nuisance due to open drains, pits, public excertion, dirty and filthy water let out in the nallah by an alcohol factory etc. After analysing the provisions of the M.P. Municipality Act, in regard to public nuisance (similar to Section 42 of the present Act) the Supreme Court emphasised that it is the paramount duty of the State and the Municipalities (under Article 47 of the Constitution) to take steps 'for the improvement of public health as amongst its primary duties'. Justice Krishna Iyer speaking for the Court held: 'public nuisance, because of the pollutants being discharged by big factories to the detriment of the poor sections, is a challenge to the social justice component of the rule of law..... industries cannot make profits at the expense of public health'. The learned Judge further observed 'why drive common people lo public interest action Where Directive Principles have found statutory expression in DO' and Don'ts, the Court will not sit idly and allow municipal Government to become a statutory mockery......... The Officers-in-charge and even the elected representatives will have to face the penalty of the law if what the Constitution and follow-up legislation direct them to do are defined or denied wrongfully.' The Supreme Court directed Ratlam Municipal Council to take immediate action to stop the effluents from the alcohol plants flowing into the streets and to take action to stop the pollution. The Court also directed construction of drains and to fill up cesspools and other pits of filth, immediately.
(36) In this view of the matter the impugned order of revocation of license is legal and fully justified. The same is upheld.
(37) Although late, (and after several representations), the Corporation has taken a positive step in discharge of its duties. The petitioner factory claims that they had been carrying on this activity (which is patently illegal) for the last 20 years. It may or may not be true. The Corporation has now woken up. It would not go in a slumber again in regard to other factories where similar grievances are likely to exist.
(38) The Petition No. 1284 of 1979 fails both on preliminary grounds and merits with costs. Petition No. 63 of 1980 filed by the citizens, succeeds. There is no need of giving any separate direction in this petition. So long as the petitioner factory continues the melting process, it is the statutory duty of the Corporation to stop the said activity by all lawful actions including revocation of license or not renewing the license or not issuing a fresh license. M/s. cycle Equipment P. Ltd. shall pay the costs and the counsel fee in writ petition No. 63 of 1980 as the petition was filed by way of a public grievance action. Counsel fee in writ petition No. 63 of 1980 is quantified at Rs. 750.00 .