Bhagwan Dass And Another vs Municipal Corporation Of Delhi
1994 Latest Caselaw 383 Del

ORDER

R. C. Lahoti, J.

1. Sugar cane juice, the cold drink of the common man, the cheapest of all the juices, faces the ire of extinction from availability in Delhi in view of the notice dated 12-4-1994 issued in exercise of power conferred by Section 383 of the Delhi-Municipal Corporation Act, 1957.

2. The petitioners extract juice from the sugar cane and offer it for sale at the premises situated at Vijay Chowk, Krishna Nagar, Delhi. They hold a license issued under Section 421 of the Delhi Municipal Corporation Act, 1957 (hereinafter the Act, for short). They are aggrieved by the prohibition imposed by the public notice dated 12-4-1994 issued by the Commissioner, Municipal Corporation of Delhi which reads as under:

"Whereas the undersigned is satisfied that the area falling within the jurisdiction of Municipal Corporation of Delhi may be threatened by an outbreak of dangerous disease as specified in Section 2(9) of the DMC Act, 1957 (67 of 1993).

Now, therefore, the undersigned, in pursuance of Section 383 of the said Act, hereby prohibits the sale of sugar cane juice in the entire jurisdiction of M.C.D.

Any person contravening this order shall be liable to prosecution under the law.

This order shall remain in force up to 16th September, 1994 with immediate effect.

Sd/-        

SUBASH SHARMA COMMISSIONER

Municipal Corporation of Delhi

No. /dmc/94/1118                                                                Dated 12-4-1994."

3. Though the source of power from which the above said notice has emanated is not mentioned in the notice, it has been common ground at the Bar that the same is referable to Section 383 of the Act. The text of the above said Section along with Section 2(9) of the Act is extracted and reproduced hereunder:

"383 Power to restrict or prohibit sale of food or drink When Delhi or any part thereof is visited or threatened by an outbreak of any dangerous disease the Commissioner may, by public notice, restrict in such manner or prohibit for such period as may be specified in the notice, the sale or preparation of any article of food or drink for human consumption specified in the notice or the sale of any flesh of any description of animal so specified,"

"2(9) DANGEROUS DISEASE means -

(a) cholera, plague, chicken-pox, smallpox, tuberculosis, leprosy, enteric fever, cerebrospinal meningIT is and diphtheria; and

(b) any other epidemic, endemic or infectious disease which the Commissioner may by notice in the Official Gazette, declare to be a dangerous disease for the purpose of this Act."

4. The impugned notice records the satisfaction of the authority of likely threat of an outbreak of dangerous diseases within the meaning of Section 2(9)of the Act having persuaded the authority in imposing the prohibition on the sale of sugar cane juice within the territory of Municipal Corporation of Delhi. According to the petitioner, the restriction or prohibition contemplated by Section 383 of the Act cannot be imposed on mere likelihood of a threat; what is required is the dangerous diseases having already visited Delhi or any part thereof of a threat of an outbreak thereof being imminent. Article 19(!) of the Constitution guarantees right to carry on any trade or business, restriction whereon can be imposed only on availability of one of the contingencies contemplated by clauses (2) to (6) of Article 19. The relevant clause in the ease at hand would be clause (6) which contemplates restriction or prohibition being imposed only in the interest of genera! public, the restriction being reasonable.

5. Challenge having been laid to the constitutional validity of the action taken by it, the respondent M.C.D. has come out with a statement of facts accompanied by a brief narration of antecedent event compelling the respondent to issue the impugned notice. According to the counter affidavit filed by Dr. K. N. Tewari, Deputy Health Officer (PH) of the respondent, the sale of sugar cane juice was banned in 1990 in Shahdara North, South, Civil Lines, Sadar Paharganj, and South Zone of Delhi because of cases of cholera and gastroenterIT is having been noticed. In spite of that the number of reported cases of cholera and gastroenterIT is showed upward trend. The respondent exercised the power conferred by Section 421 of the Act and laid down the following conditions and requirements for sugar cane crushers :

1. The premises shall be structurally sound with puce floor and 3 ft cement skirting of walls.

2. The walls shall be properly plastered and lime washed.

3. The premises shall be adequately lighted and ventilated.

4. The premises openings shall be fly proof and the doors fitted with self closing hinges.

5. The storage of the sugar cane shall be done properly and kept on wooden trestles with minimum height of 9 inch.

6. The sugar cane used shall be properly washed and kept covered by clean cloth to avoid contamination by flies.

7. The premises shall be free from all insect and vermins.

8. A sizeable foot-operated covered receptacle shall be kept for depositing the waste materials.

9. There shall be adequate water supply.

10. Arrangements for a wash basin with soap and clean towel and a nail brush shall be made in the premises for workers to wash their hands.

11. The premises shall not be used for residential purpose.

12. No person suffering from any infectious disease shall be employed in the establishment. All persons working the premises shall be medically examined and immunised against cholera and enteric group of fevers at the time of issue/renewal of license. The certificate of medical fitness and immunisation shall be displayed prominently at the premises along with the license.

13. A high standard of personal hygiene shall be maintained by the workers at all times. They shall wear clean aprons and head gears. No smoking, chewing of betels and use of snuff shall be allowed in the premises.

14. Adequate arrangements shall be provided to ensure proper cleaning of utensils as well as crockery.

15. Failure to comply with any of these instructions may entail legal action against defaulter and will result in cancellation of license."

6. According to the respondent Corporation the above said directions did not bring out the desired result. In the month of May, 1993, the National Institute of Communicable Diseases (NICD) carried out a sample survey. Six samples of sugar cane juice were collected. It was found that each of such samples contained focal coli a highly dangerous bacteria to the tune of more than 180+. All these samples were found to be highly contamainated. This count should have been below zero. The presence of focal coli in the samples indicated the presence of such bacteria as was likely to cause diseases like jaundice, typhoid and cholera. The test report is dated 17-5-1993. On 20-5-1993 NICD wrote to the Commissioner MCD that sugar cane juice of which samples were taken was unfit for human consumption and required urgent attention of the concerned authorities.

7. The impugned notice has been issued in the above said background.

8. While the learned counsel for the petitioner expressing all possible anxiety to the need of protecting the public interest, submitted that in the guise of protecting public interest the authorities cannot arbitrarily impose such restrictions, much less prohibition as are unwarranted, the learned counsel for the responder has with equal force pleaded for the impugned notice being upheld by this Court in as mach as the same was intended to serve the larger public interest and in absence of which prohibition a serious hazard was posed to the public health; this Court must tolerate with patience private interest of an individual trader or even traders being sacrificed for the larger public interest of health and safety. The question posed for decision is whether the impugned notice under the guise of protecting the public interest arbitrarily interferes with the private business and imposes an unreasonable and unnecessary prohibition upon the lawful occupation; in other words whether the total prohibition on sale of sugar cane juice within the territory of Delhi amounts to reasonable restriction on the fundamental right of freedom to trade within the meaning of Article 19(1)(g) and 19(6) of the Constitution.

9. The learned counsel for the petitioner has brought to the notice of the Court two decisions of the Supreme Court. In Chintaman Rao v. State of M.P., . the above said question posed before their Lordships was answered with the taw laid down as under (at p. 119):

"The phrase "reasonable restriction" connotes trial the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interest of the public. The word "reasonable" implies intelligent care and deliberation that is the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Art. 19(1)(g) ami the social control permitted by clause (6) of Article 19, it must be held to be wanting in that quality".

In Narendra Kumar v. Union of India, their Lordship construed 'restrictions' occurring in Article 19(6) as including 'prohibition' and laid down the following test to be applied by the Courts while dealing with a challenge laid to any restriction by a law prohibiting exercise of fundamental rights (at p. 436) :---

"When, the restriction reaches the stage of prohibition, special care has to be taken by the Court to see that the test of reasonableness is satisfied. The greater the restriction, the more the need for strict scrutiny by the Court."

10. Section 383 of the Act speaks of restrictions as well as prohibition. Corporation does have power to regulate and restrict the sale or preparation of any article of food or drink for human consumption depending on the exigencies of situation based on the material available before it enabling formation of the requisite satisfaction. To maintain a balance between the freedom of trade guaranteed as a fundamental right io every citizen and the restriction and prohibition contemplated by Section 383 of the Act, it is necessary that the Corporation must be possessed of relevant material enabling formation of an opinion amounting to satisfaction that an outbreak of any dangerous disease has already taken place or is portending, that is imminently impending. Freedom of trade cannot be brought under the spell of restrictions much less total prohibition without acting with care and circumspection. When it is a case of prohibition, a higher standard of scrutiny has to be subjected than what is required in case of restriction or regulation merely.

11. When a citizen lays challenge to a restriction/prohibition on the exercise of a fundamental right under Article 19(1)(g), the onus of proving its reasonability to the satisfaction of the Court, lies upon the State or the authority concerned. The approach would differ depending on the subject matter of restrict ion or prohibition. How, the onus is to be discharged ? In Municipal Corporation of the city of Ahmedabad v. Jan Mohammed Usmanbhai, their Lordships have so laid down the law (at p. 1210):--

"If the law requires that an act which is inherently dangerous, noxious or injurious to the public interest, health or safety or is likely to prove a nuisance to the community shall be done under a permit or a license of an executive authority, it is not per se unreasonable and no person may claim a license or a permit to do that act as of right."

"Imposition of restriction on the exercise of a fundamental right may be in the form of control or prohibition. But when the exercise of a fundamental right is prohibited, the burden of proving that a total ban on the exercise of the right alone may ensure the maintenance of the interest of general public lies heavily upon the State,"

"The Court must in considering the validity of the impugned law imposing prohibition on the carrying on of a business or a profession attempt an evaluation of its direct and immediate impact upon the fundamental rights of the citizens affected thereby and the larger public interest, sought to be ensured in the light of the object sought to be achieved, the necessity to restrict the citizen's freedom, the inherent pernicious nature of the act prohibited or its capacity or tendency to be harmful to the general public the possibility of achieving the object by imposing a less drastic restraint and in the absence of exceptional situation such as Ihe prevalence of a state of emergency, national or local, or the necessity to maintain necessary supplies or the necessity to stop activities inherently dangerous, the existence of a machinery to satisfy the administrative authority that a case for imposing restriction is made out or a less drastic restriction may ensure the object intended to be achieved."

12. When the Commissioner acts under Section 383 of the Act he must be alive to two legal concepts: firstly, that the sale and preparation of any article of food or drink for human consumption forming subject matter of fundamental right under Article 19(1)(g) of the Constitution is being brought under restriction or prohibition and so it has to withstand the test of Article 19(6); secondly, that a statutory authority governed by a statute has to act within the four corners of law. A power which for its exercise depends on existence of certain pre-requisites cannot be exercised unless the pre-requisites exist.

13. The respondent, in the present case, has failed placing before the Court material for judicial scrutiny enabling a holding that it was sugar cane juice which was the cause of dangerous disease or was posing a threat of occurrence of such dangerous disease. It is not the case of the respondent that sugar cane juice necessarily and in all cases contains focal coli. Had it been so, the extraction of sugar cane juice and its being offered for sale should be prohibited for all times and at all the places because it would then be a liquid inherently unfit for human consumption. But that is not so. The cause of six samples taken by NICD having been found infected by a bacteria is also not disclosed. Presumably, it was because of the manner and the conditions in which the juice was being extracted. If that be so, what needs to be regulated is the manner of extracting the juice and the conditions in which it is extracted and offered for sale, his also not clear how the six samples taken from a particular locality of Delhi, which is spread in an area of about 1000 sq. kilometers and that too in the year 1993 would enable formation of the requisite satisfaction for pronouncing prohibition on extraction and sale of sugar cane juice in the year 1994 in the entire territory of Delhi. The petitioners have pointed out in the rejoinder that all the six samples taken by NICD were limited to six outlets in a small area of G.T. Karnal Road. The intentions of the respondent may be laudable, but the observation cannot be resisted that the respondent has acted in undue haste when care and circumspection was needed. It cannot be lost sight of, as is the common knowledge that sugar cane juice has highly nutritional value and also curative value in treatment of certain diseases like jaundice, heat slroke, urinal diseases, etc. It is within the reach of common man. In remote corners and interior centres situated away from the cities, it is probably the only juice of its type available. A juice otherwise conducive to health cannot be brought under total prohibition merely because it is susceptible to contamination if produced in unhygienic conditions.

14. The respondents have also not placed any material on record enabling formation of an opinion why the several conditions and requirements prescribed for sugar cane crushers (referred to in para 5 hereinabove) did not bring out the desired result. It is not known whether the apprehended outbreak of dangerous disease could not been prevented in spite of the conditions and requirements laid down or whether it was a failure on the part of the respondent Corporation in securing enforcement of the conditions and requirements above said which was the cause.

If is also not known whether it is the sugar cane juice alone which could spread the Apprehended dangerous disease or there are other causes (such as contaminated water, etc.) which could also be a likely source of apprehended outbreak and blame is being laid at the doors of the sugar cane crushers. To be short, the respondents have failed to discharge the onus which lay on them within the meaning of the law laid down in Municipal Corporation of Ahemdabad's case (supra).

15. For the foregoing reasons, the petition is allowed. The impugned notice dated 12-4-1994. Annexure P-1 is quashed. It is made clear that the order would not come in the way of the respondent Corporation carrying out a survey and conducting scientific investigation or research as expeditiously as possible to find out if sugar cane juice extracted and offered for sale in Delhi is infected with focal coli or any other infection or is in any manner unfit for human consumption. The respondent must also, in association with the experts, arrive at a finding whether regulation in the manner of extracting the sugar cane juice and offering it for sale also by setting up conditions as to the place where it can be extracted and offered for sale, can serve the purpose or whether nothing short of prohibition would only do. Not only the respondent would be free to do so, this Court would rather expect them to act and act with expedition, but not without care and caution if only there be a genuine necessity of exercising the power contemplated by Section 383 of the Act.

16. Petition allowed.